Guest Post by Morbo
When I was a kid, one of my favorite books was a Scholastic title called The Marble Monster. It was a collection of folk tales from feudal Japan about the deliberations of a revered judge, Ooka the Wise, who could resolve any thorny problem brought before him.
The man who compiled the stories, I.G. Edmonds, claimed that Judge Ooka was a real historical figure. That may be so, but the stories told about him are probably legends. Recently I found a copy of the book (now retitled Ooka the Wise: Tales of Old Japan) in my local library and re-read the stories; many are clearly archetypal. Still, it was good to revisit them after so many years and share them with my own children.
Assuming that Judge Ooka really lived, my guess is that he pursued law as a profession for a couple of reasons: to see justice carried out, to assist people in need of the wisdom of the courts or maybe just because he enjoyed the challenge of applying the law and resolving disputes.
I’m not a lawyer, and I don’t know the mind of those who aspire to a legal life. But my guess is that most people who pursue a career in the law must believe it would be an interesting, challenging profession. Sure, some become lawyers for the money, but I doubt that’s the case with those who aspire to be judges. After all, judges are civil servants and often make less than many of the lawyers who appear before them. The attraction to the bench must be more than merely pecuniary.
All of this is a long-winded way of asking: Where on Earth are Tom DeLay, Bill Frist and the rest of the GOP’s anti-judge fanatics going to find men and women who believe a federal judge’s top duty is to merely rubber stamp actions of Congress?
The current attack on the judiciary is led by what I call the kook right. It is important to differentiate between principled conservatives and the kook right. I might disagree with the former’s perspective, but in general principled conservatives are not loons who seek the destruction of our republican form of government. Unfortunately, these people long ago lost control of the Republican Party, which is now firmly in the grip of the kook right.
The kook right is an amalgamation of fundamentalist flat earthers, paranoid anti-UN nutcases, “I-have-a-constitutional-right-to-own-a-bazooka” gun absolutists, Ann Coulter-style neo-Fascists, homophobes, immigrant bashers and so on.
The kook right is angry because judges are handing down decisions they do not like. I see their options as limited: They can alter the Constitution in some fundamental way that would abolish the separation of powers and make the judiciary subservient to Congress, find some way to penalize judges for certain rulings, engage in court stripping or find judges more to their liking.
Rewriting the Constitution is a non-starter. Such a profound alteration of our governing system is so radical as to be unthinkable. It would be like abolishing the Senate. While many in the kook right eagerly back this fundamental restructuring (because, for all of their claimed patriotism, they do not support the American style of government), they simply don’t have the votes or the support of the American people to pull it off.
Punishment — and by that term the kook right means impeachment — is also a loser option. Judges can be removed for crimes and malfeasance, but handing down rulings that the speaker of the House or Senate majority leader do not like is neither. A judge dismissed in this way could appeal, leaving his fate in the hands of other judges who would be understandably reluctant to give Congress this power.
The kook right loves to talk about court stripping, but it is also highly dubious. Many constitutional scholars say it violates the fundamental separation of powers. In any case, court stripping has a built-in flaw: The same judges Congress wants to neuter would decide the constitutionality of court stripping. The scheme hinges on courts voluntarily ruling that they must surrender their power. Sorry, ain’t gonna happen.
That leaves the kook right with the last option — appointing more conservative judges who will hand down rulings that please the right.
The problem is, to do this the kook right needs judges who are not conservative, but insane — and those are in short supply. Much of what the kook right wants is so far-reaching and extreme that even conservative jurists can’t swallow it.
During the Terri Schiavo controversy, one federal judge vented his anger at Congress for interfering. Stanley F. Birch Jr. of the 11th Circuit Court of Appeals wrote:
“When the fervor of political passions moves the executive and legislative branches to act in a way inimical to basic constitutional principles, it is the duty of the judiciary to intervene.” …
“In resolving the Schiavo controversy, it is my judgment that, despite sincere and altruistic motivation, the legislative and executive branches of our government have acted in a manner demonstrably at odds with our Founding Fathers’ blueprint for the governance of a free people — our Constitution.”
So who put this Trotskyite on the federal bench? A guy named George H.W. Bush, father of the current U.S. president. Furthermore, Knight-Ridder called Birch “one of the most conservative” judges on the federal bench. Yep, this Republican-appointed judge could not stomach what Congress was doing. He obviously doesn’t believe he has to take direction from DeLay.
Consider the highest court in our land. Republican presidents have appointed seven of the nine justices on the Supreme Court — yet that court keeps infuriating the right. The fact is, the kook right will never be happy with anything less than a federal judiciary that defers to Republicans in Congress at all times — a wholly unrealistic scenario. After all, Presidents Ronald W. Reagan and the first George Bush named several conservative justices to the Supreme Court, yet the right still can’t get what it wants.
Antonin Scalia is my personal nightmare. Most of his rulings come straight out of the Middle Ages. He keeps roaming the country talking to far-right groups, bragging about he’s a “fool for Christ” (he’s at least half right there) and saying the Constitution was set in cement more than 200 years ago and isn’t going to change, not no how, not no way. He scares me.
So Scalia was a big hit for the right wing, right? Sure, but even Scalia would never embrace the view that he is bound to approve anything Congress does. It’s true that Scalia might be more likely to defer to a conservative Congress, but anyone who thinks he’s willing to act as a rubber stamp for lawmakers has obviously never read his opinions.
I disagree with just about everything Scalia has ever written, but I can assure you of this: Scalia isn’t about to uphold a law simply because Congress passed it. If Scalia thinks the law is unconstitutional, it’s going down. (One of the few times I agreed with Scalia was when he wrote that a Congress-passed flag-burning statute was unconstitutional. You think Scalia cared that a majority in Congress passed it, and that polls showed most Americans backing it? He at least has the sense to realize that those things are irrelevant to judging.)
Scalia is the most conservative justice on the court — and even he doesn’t buy the kook right’s argument that federal judges must bow to the whims of an imperial Congress.
I’m familiar in passing with the writings of some of the prominent conservatives on the federal appeals courts — Diarmuid F. O’Scannlain and John T. Noonan on the 9th Circuit, Michael W. McConnell on the 10th and William Pryor (at least for now) on the 11th. I can’t see any of these guys agreeing that the concept of judicial review is bunk.
Let’s assume, for the sake of argument, that there are such people in the world — lawyers and lower court judges who agree that their job is merely to rubber stamp everything Congress and state legislatures pass. Let’s assume there are enough of them to elevate to the upper reaches of the federal courts. Their job there would be exactly what? Sounds exciting, doesn’t it?
“How was work today, honey?”
“Great! I upheld four acts of Congress and seven state laws and never even had to open my copy of the Constitution! Just like yesterday and last week and the week before that and the month before that and the year before that! I love my job!”
Finally, there’s this: Federal judges serve for life. Pretend a legion of rubber-stamp judges is appointed, and 15 years from now the political winds shift. Congress falls under the control of Democrats who begin passing liberal social and economic policies. Let’s say they legalize gay marriage in all 50 states; liberalize abortion laws across the nation, nullifying state-based anti-choice provisions and overrule 95 percent of all local obscenity laws.
The job of the judiciary is to bow to the will of Congress, right? Conservatives would support a line of compliant federal judges merely yawning while they upheld all of those initiatives, right?
Puleeze. They would scream their heads off and demand that the judges act.
Principled conservatives know that the GOP attack on the judiciary is grotesque pandering of the worst sort. Principled conservatives know that this overture is in fact an attack on the separation of powers – one of the very foundations of our democratic form of government. Principled conservatives must be embarrassed by the kook right’s antics.
Principled conservatives know this, but I don’t hear them speaking out. Could there really be so few of them left?