Thursday, April 14, 2005


A stealth attack on the courts, with an allusion to Schiavo

As it happened, Edward Lazarus, a columnist for Findlaw, was using the Schiavo case yesterday as a stepping stone to level his own criticisms at the federal courts just as I was writing about Schiavo and the Republican effort to end the filibuster rule. Lazarus is a former federal prosecutor, a clerk under Supreme Court Justice Harry Blackmun and author of two books, one detailing the inner workings of the Supreme Court. I know nothing of his politics other than what I can glean from his article, which is plenty.

Lazarus seems to take as a given the interpretation I placed on the Republicans' agenda in the Schiavo case. He writes,

.... GOP conservatives set up federal judges to take the political heat for Schiavo's death. Then they turned, spitefully, on the very judges to whom they had passed their political football.

To add insult to injury, DeLay and others are now using the occasion of the Schiavo case to advance a broader and more troubling agenda.

They have attacked, in particular, recent Supreme Court decisions declaring the juvenile death penalty unconstitutional and granting constitutional protection to homosexuals in expressing their sexual preferences. In response to these decisions (neither of which were surprising as a legal matter), the right-wing has started talking darkly of mass impeachments, of cutting the judiciary's budget, and of stripping federal courts of their jurisdiction over certain kinds of cases.

He also reaches my conclusion as to the Republicans' chances in the aftermath of the Schiavo case—

These are empty threats. Several key Republican congressional leaders, leery of being cast as extremists, have already distanced themselves from much of the anti-judge vitriol. According to recent polls, a majority of Americans disdains Congress's intervention into the Schiavo matter and will not support a blatant assault on the judiciary.

But his purpose is quite different from my purpose in yesterday's post. As a former Supreme Court insider, he wants to make the point that there is plenty to criticize in the federal judiciary whether you're a liberal or conservative, and his points are worth discussing.

But before getting to them, I think it's important to consider this statement—

... [L]iberals are making a serious mistake to the extent that they choose to score short-term political points against the conservatives by jumping on every criticism of the judiciary. Not every suggestion for judicial reform is an assault on judicial independence.

Although he says it in service of a mistaken agenda, DeLay is right when he says that "judicial independence does not equal judicial supremacy."

Let me be upfront about my point of view here: The most important activity in which Delay is engaged is his agenda—not his rationality nor lack thereof with regard to the court system. The very essence of the political struggle is about defeating that agenda. However much we might like to discuss the ideal judicial system, that discussion will likely have to wait until such time as it may be held among parties who genuinely and in good faith wish to improve the courts rather than destroy them.

I do not mean, of course, that if Tom Delay were unwittingly to propose a positively spiffy idea, liberals should reject it. But I do mean that any idea he proposes should be weighed first in light of his agenda in order to assure that the idea is "Tom-Delay-agenda-neutral."

The agenda of the judiciary is purportedly to serve justice and uphold the Constitution. No one has ever accused Tom Delay of such a nefarious undertaking.

I should also note that Lazarus' adoption of what he terms "Delay-isms" in his criticism of the courts makes me very uncomfortable—and perhaps even suspicious.

So with those caveats in place, here are some of Lazarus' points—

We are in the process of surrendering many of the more important questions facing this nation to the most imperial judiciary1 in American history - and not one that consistently exercises its unprecedented authority either wisely or well.

Not so long ago (five years is no eternity, except perhaps in politics), Democrats and progressives were assailing a judiciary "run amok" (to borrow a DeLay-ism) as the Supreme Court handed the presidency to George Bush in Bush v. Gore.

But is there really any debate as to whether courts may decide elections? The debate is whether they may decide elections before the votes are counted, or indeed stop the vote-counting. It seems to me that a little legislation might remedy that problem. Have you heard of any?

This was not a mistake. Rather, it was a recognition that the federal judiciary, and the Supreme Court in particular, too often decide the momentous legal and moral issues of our time based on little principle and lots of self-aggrandizement.

Unlike our elected politicians.

Congress and the Executive branch have every right and reason to question this muscular exercise of unreviewable governmental power, and to criticize instances of judicial overreaching. Indeed, not to question or criticize would be to abdicate (as these branches already too often do) their own role in thinking about the meaning of the Constitution and its bearing on proposed federal action. The judiciary is not the only constitutional interpreter in our system; many others also take an oath to support the Constitution, and if their own actions violate it, they betray that oath.

See my comment above about legislation governing federal elections, or the lack thereof. The Congress has an inherent ability to change any decision not based on Constitutional principle simply by changing the law. And if they don't like the Constitutional principle as asserted by the courts, they can change that too, but of course that's very hard to do without a truly national consensus.

If the point is to uphold the Constitution, rather than to reach a result, the argument is more easily made that the Supreme Court has too frequently abdicated its authority in the face of Legislative and Executive power. To what else may we ascribe our undeclared wars and the erosion of our rights guaranteed by the Bill of Rights?

Nor should the judicial branch be immune from suggested reform.

It isn't, but be careful of who's making the suggestions.

The Senate and the Presidency have both been reshaped through constitutional revision. As I and others have argued, the time has come to think about limiting the constitutional promise of lifetime judicial tenure to a long, but limited fixed term of years.

The truth is that most Supreme Court justices are of an age that they already have a limited term of years. Though not fixed, the Congress may shorten the term; they only need to select older judges. Why do I have the feeling that any Supreme Court nominees that Bush may propose will be young and healthy?

But much more importantly, it is now the members of Congress who are enjoying lifetime terms! This was never contemplated by the Founding Fathers, who apparently did not foresee the gerrymander. Tom Delay has exacerbated this distortion of Constitutional democracy by arranging for the redistricting of the State of Texas and using illegal funds to pay for it. The Supreme Court said it was okay by them.

Congress should also consider additional measures to open courts to public scrutiny. Presidential papers are routinely made available to scholars, and such access is seen as indispensable to evaluating presidential performance. Why are justices given the unfettered right to preclude access to their papers and, thereby, constrict evaluation of judicial performance in perpetuity?

Congress sets its own rules regarding the availability of its papers. As for Presidential papers ... please!2 Lazarus seems to be engaging in a little partisan disinformation here.

In the end, the idea that judges should be above public scrutiny and criticism is profoundly anti-democratic and wrongheaded. On this point, liberals and conservatives really ought to agree. To oppose Tom DeLay is not to oppose judicial reform; too many liberals confuse the two stances.

Nice try, Mr. Lazarus, but I'm not buying your wares today. No liberal that I know of has asserted that justices are above public scrutiny. But the need for curing the ills of a profoundly anti-democratic institution must begin elsewhere—with the institution that under the Constitution was intended to be profoundly democratic but in fact is not—the Congress of the United States.

Related post
Phil E. Buster recuperates after Terri Schiavo's death (4/13/05)


1 First, note that "imperial judiciary" is also a winger term.

Adoption of terminology easily leads the public to assume the truth of the underlying agenda. The saying among linguists that "the map is not the territory" is true enough, but if you don't know the territory, all you know is the map. And that just won't do. This is just another way of speaking of "framing," a topic that has gotten so much attention of late. [back]

2 Back in 2001, according to George Lardner, Jr. in the Washington Post,

The Bush White House has drafted an executive order that would usher in a new era of secrecy for presidential records and allow an incumbent president to withhold a former president's papers even if the former president wanted to make them public.

The five-page draft would also require members of the public seeking particular documents to show "at least a 'demonstrated, specific need'" for them before they would be considered for release.

Historians and others who have seen the proposed order called it unprecedented and said it would turn the 1978 Presidential Records Act on its head by allowing such materials to be kept secret "in perpetuity."


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