Tuesday, April 05, 2005

Attacking a Free Judiciary

NYT editorialized he low point in the politicking over Terri Schiavo came last week when the House majority leader, Tom DeLay, threatened the judges who ruled in her case. Saying they had "thumbed their nose at Congress and the president," Mr. DeLay announced that "the time will come for the men responsible for this to answer for their behavior, but not today." Coming so close to the fatal shooting of one judge in his courtroom and the killing of two family members of another, those words were at best an appalling example of irresponsibility in pursuit of political gain. But they were not an angry, off-the-cuff reaction. Mr. DeLay's ominous statements were a calculated part of a growing assault on the judiciary.

What happened to the judge in Atlanta and the other judge's family were bad, but they were totally unrelated to what conservatives have been saying for many years about Activist Judges, and the NYT's attempt to bring those two events into the discussion just indicates how they distort things.

Through public attacks, proposed legislation and even the threat of impeachment, ideologues are trying to bully judges into following their political line. Mr. DeLay and his allies have moved beyond ordinary criticism to undermining the separation of powers, not to mention the rule of law.

Wrong. They are just asking for judges to read the law and do what it says. I did not agree with Public Law 109-3, and some of the judges may well have thought it unconstitutional, but NO court ever declared it unconstitutional (one judge said it was in a concuring opinion but that is not enough). And the presumption is that a law is constitutional until it is declared unconstitutioinal by a controlling appellate court, and if the law is constitutional, it should be followed.

The Schiavo case was the starkest example of their determination to have things their own way, regardless of the constitutional cost. Conservative elected officials and advocates repeatedly attacked the judiciary's right to decide the legal issues. When they were unhappy with the decisions of the Florida state courts, they rushed a bill through Congress that authorized the federal courts to rule on her case, but not on other cases like it. The bill also told the federal courts not to apply the time-honored legal doctrines that might have led them to stay out.

Actually the House wanted it apply to other such cases, but the Senate narrowed the focus of the law. But whether it was broader or narrower, once it was passed by the House and the Senate, and signed by the President it was A LAW, and it should have been followed.

.... Several bills pending in Congress seek to tell the courts how do their jobs.

Good. They need to learn how to do their jobs.

.... The founders established a system of government in which the three branches - legislative, executive and judicial - act as checks and balances for one another.

True. The Legislative branch passes a law (they did), the executive branch signs that law (it did) and enforces the law (it did not, but I am not sure what more it could have done, considering what the judicial branch was doing), and the judicial branch interprets the law (and it just ignored the law)

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