Theodore Olson, who was the solicitor general in the Bush administration for over three years, can hardly be described as a liberal lawyer. It was Olson who represented Bush in the infamous Bush v. Gore case at the Supreme Court; it was Olson who wrote anonymous articles for the American Spectator as part of the Arkansas Project, suggesting that he Clintons were guilty of various felonies; and it was Olson who secretly coached Paula Jones’ lawyers before their own appearance at the Supreme Court.
So, when Ted Olson writes an op-ed for the Wall Street Journal denouncing Tom DeLay’s ideas on undermining the federal judiciary, you know it’s not part of some liberal smear-job.
Calls to investigate judges who have made unpopular decisions are particularly misguided, and if actually pursued, would undermine the independence that is vital to the integrity of judicial systems. If a judge’s decisions are corrupt or tainted, there are lawful recourses (prosecution or impeachment); but congressional interrogations of life-tenured judges, presumably under oath, as to why a particular decision was rendered, would constitute interference with — and intimidation of — the judicial process. And there is no logical stopping point once this power is exercised.
Which member of Congress, each with his or her own constituency, would ask what questions of which judges about what decisions? Imagine the kinds of questions asked routinely in confirmation or oversight hearings. How can those questions be answered about a pending or decided case? And what if a judge refused to testify and defend his reasoning about a particular decision? Would an impeachment or prosecution for contempt of Congress follow? Either would be unthinkable. Federal judges are highly unlikely to submit to such a demeaning process and, if push came to shove, the public would undoubtedly support the judges.
Though he cautiously avoids using DeLay’s name, Olson specifically denounced a “prominent member of the leadership of the House of Representatives” who has “characterized another justice’s approach to adjudication as ‘incredibly outrageous.'” Any thoughts on to whom he might be referring?
[A]bsent lawlessness or corruption in the judiciary, which is astonishingly rare in this country, impeaching judges who render decisions we do not like is not the answer. Nor is the wholesale removal of jurisdiction from federal courts over such matters as prayer, abortion, or flag-burning. While Congress certainly has the constitutional power, indeed responsibility, to restrict the jurisdiction of the federal courts to ensure that judges decide only matters that are properly within their constitutional role and expertise, restricting the jurisdiction of courts in response to unpopular decisions is an overreaction that ill-serves the long-term interests of the nation. As much as we deplore incidents of bad judging, we are not necessarily better off with — and may dislike even more — adjudications made by presidents or this year’s majority in Congress.
I never thought I’d agree so strongly with Ted Olson’s thoughts on anything.