It’s rare when I agree so wholeheartedly with anything Chief Justice William Rehnquist has to say, but the ailing jurist was absolutely correct last week in his year-end report about dangerous, ongoing political attacks on the judiciary.
“The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction,” the chief justice, whose future on the court is subject to wide speculation, said in his traditional year-end report on the federal courts.
The public, the press and politicians are certainly free to criticize judges, Rehnquist said, but politicians cross the line when they try to punish or impeach judges for decisions they do not agree with.
Quite right. The political threats against the federal judiciary have been constant in recent years, up to and including over-heated rhetoric about literally impeaching judges who are allegedly “judicial activists.”
“A judge’s judicial acts may not serve as a basis for impeachment. Any other rule would destroy judicial independence,” Rehnquist said. “Instead of trying to apply the law fairly, regardless of public opinion, judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them.”
Right again.
My only complaint with Rehnquist’s observations is his unwillingness to name names. The unusually-noxious threats against the courts have been driven by a single group — right-wing congressional Republicans, with whom Rehnquist generally agrees. By criticizing the attacks without identifying the attackers, Rehnquist missed an opportunity.
After all, Tom DeLay, no less than the House Majority Leader, has talked openly about impeaching judges who issue rulings he doesn’t like.
“Many of these judges begin to grow drunk on their own power. Why shouldn’t the people have a right to impeach these out-of-control judges?” DeLay said in one 1997 statement.
Of course, that was just the tip of the iceberg. The GOP assault on the courts has been ferocious of late.
* In September, Republicans on the House Judiciary Committee voted for a bill that would have eradicated the power of the federal courts, including the Supreme Court, to even consider a case challenging the Pledge of Allegiance. Though the measure never actually got a floor vote, it nevertheless had 225 co-sponsors, including almost every Republican in the chamber. In other words, we’ve reached a point in which virtually the entire GOP House caucus believes it is within their authority to simply reshuffle the separation of powers, take away the federal courts’ ability to hear certain cases, and believes the notions of an “independent judiciary” and a system of “checks and balances” simply don’t mean anything anymore.
* In July, the House actually passed a bill that would have stripped the federal courts of jurisdiction over same-sex marriage cases. More than nine out of every 10 House Republiacns backed the measure.
* In March, one House Republican unveiled the “Congressional Accountability for Judicial Activism Act,” which would empower the House and Senate to overturn court rulings they don’t like, without having to worry about the irritating burdens of amending the Constitution.
* The same month, a different House Republican, Rep. Tom Feeney (R-Fla.), created a congressional resolution that would express the sense of Congress that judicial decisions should never cite foreign laws, even in passing. Feeney felt so strongly about this, he suggested he’d consider impeachment for high court justices who made note of international legal developments in their rulings. His resolution promptly picked up support from 74 conservative lawmakers, though it wasn’t brought to the House floor.
Rehnquist is right; there is a war being launched against the federal judiciary and it’s likely to get worse over the next two years now that the far-right is getting cocky. But the chief justice’s concerns may have had a greater impact if he’d pointed out those who were doing the fighting.