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Republicans v. Judiciary, Volume II


Terri Schiavo may finally have fallen off most front pages, but the Republican assault on the judiciary continues apace.

First embattled House Majority Leader Tom DeLay took a page from the John Ashcroft playbook of political rhetoric to ominously warn that “the time will come” for the judges involved in Terri Schiavo’s case “to answer for their behavior.”


Then Senator John Cornyn of Texas, who sits on the Senate Judiciary Committee and is a former judge himself (on the Texas Supreme Court), made an even more explicit connection to violence. After discussing how he was “distressed” to see judges supposedly making “raw political or ideological decisions”—meaning, I suppose, decisions that did not comport with his raw political or ideological concerns—Cornyn essentially said that judges making such decisions invited violence against themselves. As Cornyn put it, “We seem to have run through a spate of courthouse violence recently that's been on the news and I wonder whether there maybe some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in -- engage in violence.”

It’s so gratifying to see a US Senator finally excusing the behavior of people who truly need a defender in the halls of government: white supremacists. For that is who is most likely responsible for the most well-known violent attack against a judge recently. After Judge Joan Lefkow enforced a higher court’s ruling that a white supremacy group had to stop using the name “World Church of the Creator” because another unconnected religious group had trademarked it, threats began appearing against her on numerous hate websites. This was not, of course, the only ruling Judge Lefkow made to draw threats, but it was the source of the most organized and frequent campaign against her. Last month, Judge Lefkow’s husband and elderly mother were both murdered, in her home, while she was at work.

Is that the type of “frustration” Senator Cornyn wishes to acknowledge?

Or perhaps Cornyn was more concerned with the stress levels of men being put on trial for rape. Atlanta Superior Court Judge Rowland Barnes was killed in his courtroom last month by Brian Nichols, (Nichols also killed a court reporter and deputy), as the trial of Nichols for rape, sodomy, possession of a machine gun, possession of a handgun, and possession of a large quantity of marijuana began its fourth day.

This latest chatter about the completely understandable attacks upon evil politically-motivated judges is merely one facet of a wide-reaching Republican attack upon the judiciary. Despite the fact that Republicans control two branches of government entirely, despite the fact that the current United States Supreme Court is one of the most reactionary in the nation’s history, despite the fact that huge swathes of the American federal judiciary are consistently and extremely conservative (Fourth Circuit, anyone?), the idea that somewhere in a government building there might just be a guy in black robes who isn’t salivating at the idea of rubber-stamping a Republican desecration of constitutional rights is driving people like Senator Bill Frist crazy. So crazy, in fact, that Frist floated the idea of changing Senate rules to disallow Democrats from filibustering on any presidential appointments to the judiciary, thus virtually guaranteeing that whoever Bush comes up moves straight onto the bench.

This is becoming one of the top issues of the year because it is widely assumed that Chief Justice William Rehnquist will retire from the Supreme Court sometime this summer, and Justice Sandra Day O’Connor may not be too far behind him. The potential vacancies on the highest court in the land are even more of a draw than the usual White House push for extremist judges of the right-wing persuasion such as Priscilla Owen or Charles Pickering.

I suppose it would be folly to point out that all the Republicans are trying to do by eliminating the filibuster is to ensure that a raw political vote on a judge’s confirmation approves him or her for the bench, rather than the small super-majority that might be required if a substantial minority of the Senate actually feels strongly enough about a candidate’s unsuitability to filibuster. And I suppose it would be pointless to note that when Bush is the one selecting the candidate, it would be impossible for Democrats to somehow push the progressive-politically-motivated chimera that Cornyn spoke of into the bench.

But all the liberal straw horses in the world can’t obscure the real problem Republicans have with the judiciary, and it isn’t even the individual decisions so far. No, their problem is with the very structure of the Constitution. In his diatribe, Senator Cornyn also said that the judiciary should be “an enforcer of political decisions made by elected representatives of the people.” I guess he hasn’t read a rudimentary civics textbook recently. The job of enforcing the nation’s laws would not be the job given to judges—the job of a judge is to interpret the laws, and when necessary, to arbitrate between laws that are in conflict with each other or with the Constitution. Judges are meant to be impartial and completely separated from and unaccountable to the elected representatives of the people. That is why federal judges are appointed to life terms, and thus removed from the political ebb and flow governing the daily life of politicians today.

But that independence, it seems, rubs Senator Cornyn and his Republican compatriots the wrong way—to the point that Cornyn has the temerity to suggest on the floor of the United States Senate that violent attacks upon representatives of the same government he works for are understandable outlets for legitimate frustration. If Cornyn has a problem with such judges, his real issue does not lie with judicial decisions—it lies with the Constitution itself. And if he cannot respect the supreme law that he swore an oath to uphold his first day of work in Washington, perhaps he should join the other nutters posting abusive messages on the internet and leave the work of government to someone who shows the law the respect it deserves.


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