We Who Carry Nightsoil
In 1996, Rep. Tom DeLay, R-TX, more or less declared war on the judiciary. Not without reason: As I recounted in "The Last Upheaval," a series of federal court decisions left a lot of people feeling that democracy was on its way out, to be replaced by a judicial oligarchy. The House of Representatives in 1996-97 passed bills limiting federal court jurisdiction and restricting the ability of lone district judges to enjoin laws passed by referendum. The bills died in the Senate, but DeLay's designs on the courts haven't.
A few years later, in 2001, Justice Ruth Bader Ginsburg, in a speech delivered in Australia, said this of DeLay: "One powerful member of the U.S. Congress, Tom DeLay, has advocated the impeachment of judges who render unpopular decisions that, in his view, do not follow the law. ... Mr. DeLay, who is not a lawyer but, I'm told, an exterminator by profession, placed on his list of judicial pests a district court judge in San Antonio, Texas, who held up certification of the election of two Republican victors in races for county sheriff and county commissioner." I'm sure they were slapping their knees at the Melbourne law school. An exterminator! How droll!
And a few years after that, in 2004, Rep. James Sensenbrenner, R-WI and chairman of the House Judiciary Committee, addressed the American Judicature Society. I can't find a transcript of his remarks, but, going from this lengthy and indignant editorial on the AJS website, he apparently referred repeatedly to the fact that Congress does have some constitutional power over the Supreme Court. The editorial fairly drips with condescension.
And to catch up to the present, we have Congress meeting in emergency session to pass, and the President flying in from Texas to sign, a law designed to save a disabled woman's life. It involved ordering, to use the most direct word, the federal courts to take a new look at the case of Terri Schiavo.
The courts, district, appellate and Supreme, replied, "We'd really rather not be involved."
That's where we are now regarding the courts in this country. The judiciary holding the other two branches of government, the states, and the people when acting by referendum, in open contempt. And the other two branches, states, and many people responding in kind. I've got this web site. The people googling Judge Greer and landing here have the internet. As with CBS News and faked memos, the internet makes it immensely more difficult for institutional power centers to get away with much of anything.
The defenders of CBS sneered, "Amateurs in their pajamas!" And to all who crticize the courts, "Exterminators!" John Derbyshire of National Review likened the elite legal class to the Chinese Mandarins. The rest of us might as well carry nightsoil.
The law doesn't belong to lawyers. Neither does the Constitution: It's a document written in quaint but fairly plain English. A layman can read the words of the First Amendment, "Congress shall make no law ...," and wonder how on earth Congress can in fact make a law like BCRA, aka McCain-Feingold, that restricts freedom of speech -- and have it blessed by the Supreme Court. Or why the Constitution says one thing about congressional representation and the Supreme Court says another. Or how, in a majority opinion, Justice O'Connor, with a straight face, can say that affirmative action is legal today, but it will be illegal in 25 years.
The formation of the House Working Group on Judicial Activism, noted in the post below, was triggered in 2003 by a similar question (as was Vote for Judges): Why does Justice Breyer, in his Knight v. Florida opinion, believe that the Supreme Court of Zimbabwe has anything useful to say about execution delays in the United States?
The working group is yet another burr under the judiciary's saddle. Its formation was greeted with disdain in the press, to the extent it was mentioned at all. The linked op-ed is as ignorant as it is arrogant, as with this line: "Never mind that the Constitution gives the House no direct role in telling federal judges how do their jobs." Article III, Section 2, paragraph 2, Linda.
To date, as I said, the working group hasn't gotten much press. Members have introduced legislation, it gets referred to committee, it dies. It's not a sexy subject, not a lot of people follow the courts. But the internet can link us disparate aficionados in a way that wasn't possible in 1996. We'll have to wait and see if the condescension defense works for the courts one more time.
*****
Steven Taylor has an excerpt from the 11th Circuit's latest denial of a hearing in the Schiavo case that supports my point, although Dr. Taylor cites it approvingly. Other links: Outside the Beltway, Mudville Gazette, Michelle Malkin, Captain's Quarters, La Shawn Barber, Arguing with Signposts. Note to Judge Birch: If you've lost Ace, you're in deep. To quote Steve Martin, I think you know what I'm trying to say.
UPDATE 4/1/05: Dr. Taylor says in the comments that he cited the quote from the 11th Circuit's opinion, but offered no comment on it one way or the other. My mistake.
A few years later, in 2001, Justice Ruth Bader Ginsburg, in a speech delivered in Australia, said this of DeLay: "One powerful member of the U.S. Congress, Tom DeLay, has advocated the impeachment of judges who render unpopular decisions that, in his view, do not follow the law. ... Mr. DeLay, who is not a lawyer but, I'm told, an exterminator by profession, placed on his list of judicial pests a district court judge in San Antonio, Texas, who held up certification of the election of two Republican victors in races for county sheriff and county commissioner." I'm sure they were slapping their knees at the Melbourne law school. An exterminator! How droll!
And a few years after that, in 2004, Rep. James Sensenbrenner, R-WI and chairman of the House Judiciary Committee, addressed the American Judicature Society. I can't find a transcript of his remarks, but, going from this lengthy and indignant editorial on the AJS website, he apparently referred repeatedly to the fact that Congress does have some constitutional power over the Supreme Court. The editorial fairly drips with condescension.
And to catch up to the present, we have Congress meeting in emergency session to pass, and the President flying in from Texas to sign, a law designed to save a disabled woman's life. It involved ordering, to use the most direct word, the federal courts to take a new look at the case of Terri Schiavo.
The courts, district, appellate and Supreme, replied, "We'd really rather not be involved."
That's where we are now regarding the courts in this country. The judiciary holding the other two branches of government, the states, and the people when acting by referendum, in open contempt. And the other two branches, states, and many people responding in kind. I've got this web site. The people googling Judge Greer and landing here have the internet. As with CBS News and faked memos, the internet makes it immensely more difficult for institutional power centers to get away with much of anything.
The defenders of CBS sneered, "Amateurs in their pajamas!" And to all who crticize the courts, "Exterminators!" John Derbyshire of National Review likened the elite legal class to the Chinese Mandarins. The rest of us might as well carry nightsoil.
The law doesn't belong to lawyers. Neither does the Constitution: It's a document written in quaint but fairly plain English. A layman can read the words of the First Amendment, "Congress shall make no law ...," and wonder how on earth Congress can in fact make a law like BCRA, aka McCain-Feingold, that restricts freedom of speech -- and have it blessed by the Supreme Court. Or why the Constitution says one thing about congressional representation and the Supreme Court says another. Or how, in a majority opinion, Justice O'Connor, with a straight face, can say that affirmative action is legal today, but it will be illegal in 25 years.
The formation of the House Working Group on Judicial Activism, noted in the post below, was triggered in 2003 by a similar question (as was Vote for Judges): Why does Justice Breyer, in his Knight v. Florida opinion, believe that the Supreme Court of Zimbabwe has anything useful to say about execution delays in the United States?
The working group is yet another burr under the judiciary's saddle. Its formation was greeted with disdain in the press, to the extent it was mentioned at all. The linked op-ed is as ignorant as it is arrogant, as with this line: "Never mind that the Constitution gives the House no direct role in telling federal judges how do their jobs." Article III, Section 2, paragraph 2, Linda.
To date, as I said, the working group hasn't gotten much press. Members have introduced legislation, it gets referred to committee, it dies. It's not a sexy subject, not a lot of people follow the courts. But the internet can link us disparate aficionados in a way that wasn't possible in 1996. We'll have to wait and see if the condescension defense works for the courts one more time.
Steven Taylor has an excerpt from the 11th Circuit's latest denial of a hearing in the Schiavo case that supports my point
UPDATE 4/1/05: Dr. Taylor says in the comments that he cited the quote from the 11th Circuit's opinion, but offered no comment on it one way or the other. My mistake.
posted by Karl Maher at 2:36 PM
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