"Let us have a bit of sanity here."

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Even conservative columnist Charles Krauthammer, a long-time critic of "judicial activists," has concluded that Republicans have become judicially deranged "in the wake of the Terri Schiavo case."

House Majority Leader Tom DeLay has been "threatening judges involved in that case with unspecified retribution," notes Krauthammer. "But at least DeLay was coherent. Sen. John Cornyn (R-Tex.) wandered somewhere off the Pacific Coast Highway when, on the Senate floor, he suggested a connection between 'some recent episodes of courthouse violence' and judicial activism—as if courtroom gunmen are disappointed scholars who kill in the name of Borkian originalism. Even worse was a Washington meeting of over-the-top activists led by Phyllis Schlafly that issued a manifesto for the restoration of God to our constitutional system."

Krauthammer rightly sees the GOP leadership's desire to "empower Congress to regulate judicial decision-making by retroactively removing lifetime appointees" as an assault on the separation of powers.

"Let us have a bit of sanity here," he suggests.

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  1. Is it possible that the wingnuts really are in charge? I have been assuming that the GOP was just pandering to them all this time, but if they have actual power it would be pretty scary.

  2. A decent article, but self-contradictory. Krauthammer advises, correctly, that the judiciary is the only effective bulwark against the tyranny of the majority, but then goes on to suggest that sweeping change is only possible through the will of that same majority. While his is right that social change arranged by top-down fiat is usually ineffective, this is hardly an endorsement of his primary argument. The will of the majority, after all, is frequently expressed as the howling of the mob. It is precisely the role of the courts to tell the mob that there are certain things they cannot do.
    Krauthammer sees this, I think, but backs away from his own argument. After all, he may want to impose his own mob’s will someday.

  3. This isn’t too surprising, actually. If you can stomach reading Krauthammer regularly, you’ll find that he implicitly subscribes to a “religion is the opiate of the masses” point of view. For him the Religious Right are useful idiots on election day to make sure the “correct” candidates get elected and then they can go back in their cages. For example, he absolutely savaged “The Passion of the Christ”, suggesting that it was going to unleash a tidal wave of anti-Semitism. This is, of course, consistent with traditional neoconservatism. As Irving Kristol (self-described father of neoconservatism) wrote in Commentary about 50 years ago:

    “If God does not exist, and if religion is an illusion that the majority of men cannot live without…let men believe in the lies of religion since they cannot do without them, and let then a handful of sages, who know the truth and can live with it, keep it among themselves. Men are then divided into the wise and the foolish, the philosophers and the common men, and atheism becomes a guarded, esoteric doctrine–for if the illusions of religion were to be discredited, there is no telling with what madness men would be seized, with what uncontrollable anguish.”

    Ron Bailey wrote about this several years ago: https://reason.com/9707/fe.bailey.shtml

  4. Number 6,

    But what happens when “the mob” retains its majority for so long that it gains control of the courts? Long after the mob has dispersed, its remnants will survive and continue to wield essentially unchecked the power of the judiciary.

    I think that’s what Krauthammer has a problem with. Right now we have a sizeable portion of the judiciary that is still implementing the will of the progressive/New Deal coalition that has long since shrunken to a political minority.

  5. I feel proper respect must be paid to the hilarious idea of “killing in the name of Borkian originalism”

  6. crimethink,

    I wonder where you get your figures. Is there a census of New Deal judges? How many are left exactly? How many conservative judges are there? Where can I can get ahold of this census?

    Also, it seems to me that the politicians howling about activist judges, are only howling when the judges’ interpretation of the law differs from the politicians.

    I am sick of politicians passing un-constitutional laws, and activist judges striking these laws down. I would like to see some sort of personal responsibilty for politicians who propose, or vote for a law that is unconstitutional.

    yours,
    Nicanor

  7. Crimethink-I’m fairly sure that that’s exactly what Krauthammer is getting at-he wants his mob in charge of the courts. Hence the contradiction of his earlier statement that the courts must be the last line of defense against mob tyranny. When I wrote that first post, I still had not had my morning coffee, so apologies if it was unclear.

    For many cons and libs, majority tyranny means that the wrong mob is in charge.

  8. I am sick of politicians passing un-constitutional laws, and activist judges striking these laws down.

    If a law is passed that is clearly unconstitutional, how is a judge who strikes that law down “activist”. Maybe I’m just misreading that.

  9. Even when I agree with Dr. Krauthammer, I think it’s really sleazy for an accredited psychologist to use a popular media publication to diagnose mental illness in his political opponents (as he repeatedly did with Al Gore, Bill Clinton, John Kerry and Howard Dean, when each of them was the leading Democrat in the country). While he tones it down a bit when he turns his fire on his fellow Republicans, he still uses too much of the language of “sanity” and “hysteria” for my taste.

  10. JimmyPete:
    Judicial Activism means upholding the Constitution, at least to religious right types. Didn’t you get the memo?

  11. I see 3 major sins committed by the federal judiciary today.

    1) The worst is their acquiescence to so many unconstitutional acts by the executive and legislative branches. That’s certainly not forgivable, but neither is it the sign of an overly aggressive branch of government determined to flout the other 2 branches.

    2) The next worst sin is the discovery of positive rights that are not clearly protected in the Constitution. But at least some of those instances are arguably cases where the judiciary is trying to clean up a mess caused by acquiescence: Since they won’t overturn an unconstitutional program, they at least insist that the program be administered in a “fair” manner. This may have the effect of “discovering” positive rights, but it’s really a symptom of allowing an unconstitutional program to exist.

    I’m not saying that all judicially discovered positive rights are the result of acquiescence, but some of them certainly are. Overall, a rather mixed signal as to whether this is the hallmark of an activist judiciary, since this problem would be less frequent if they simply stood up to Congress more often.

    3) The discovery of negative rights with no clear basis in the Constitution. This one is by far the lowest priority for me. Usually I oppose it more as a matter of principle (better not to let any branch of government get too creative) than because I oppose the effects. When I oppose it because of results its usually because I think that the courts do more harm than good by wading into contentious social issues where the Constitution is at the very least vague and perhaps totally silent.

    Those are my priorities. I note that judicial activism falls low on my list of priorities because it seems that the most frequent problem is judicial passivity. Hardly the priorities of most of the judiciary’s right wing critics.

    Now, the basic problem is that any significant reform of the judiciary will have to come from the joint efforts of the President and Congress (at least the Senate, and in some cases the House). Whether that means better appointees in the future, or some of the truly drastic measures being discussed by conservatives, it will have to come from the other 2 branches. Yet the biggest problem is that the judiciary is reluctant to challenge the other 2 branches. I don’t hold high hopes for the other 2 branches to make the judiciary more aggressive in its duty to oppose unconstitutional acts.

    Finally, I note that there are many countries in this world where people live under tyranny. I am not aware of any in which the judicial branch is independent and powerful. In most (all?) unfree countries the judiciary is a puppet. A strong and independent judiciary is certainly not perfect, but I much prefer it to all of the alternatives.

  12. Very telling indeed that he’s only calling for “a bit of sanity.”

    Implicitly, this phrasing suggests that he recognizes the generalized absence of sanity that makes up the political positions of the far-right; so he’s not asking them to change their entire approach, but to temper it, just a wee bit, in this one instance. He might have just as well said: “let us take a break for a moment from our reflexive, spin-doctored advocacy, and actually look at something honestly instead of racing blindly forward to maul the nearest perceived political foe.”

    Acknowledging the general lack of something is implicit in the asking-for of just a bit of it.

  13. thoreau,

    You’re the man. I pretty much agree with your assessment. #1 is the real killer. And most judges who see #1 as a big problem are not the type that presidents and Congresses of either party are going to give power to. Looks like an intractable problem.

    Maybe this is only my perception, but there also seems to be a greater politicization of the appointed judiciary. Instead of falling into the old legal categories of how one might interpret law, judges are increasingly falling in line with prevailing Democratic or Republican opinions on all of their decisions. And the public seems to be clamoring for more of that. The politicians too — both sides complain about “radical” judges.

  14. Yes, lets have a bit of sanity.

    “The ultimate solution to the problem of unbridled judicial activism at the federal level is clear: Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no constitutional amendments are required.”

    http://www.house.gov/paul/tst/tst2004/tst100404.htm

  15. curious –

    How did Dr. Paul vote on the legislation allowing for removal of class-action suits to federal courts?

    I’m curious because those of the rabid right don’t seem to fear federal jurisdiction so much as they want their own brand of activist judges in charge – hence the class action legislation, and the Schiavo legislation. If Dr. Paul’s reccomendation is followed, I’m not so sure that the rabid right would be happy…

  16. quasibill

    Ron Paul already pissed off the NRA by opposing the “Protection of Lawful Commerce in Arms Act” on the grounds that it was unconstitutional.

    It was slightly ironic to see the NRA attack the man who is possibly the most pro-amndt2 member of congress.

  17. While Congress was wrong to intervene in the Schiavo case, your view that their desire to remove judges is “unconstitutional” doesn’t pass muster either.

    The House of Representatives already has the constitutional power to impeach federal judges, including Supreme Court Justices, for cause, and if the Senate convicts them they are out.

    Someday, I hope, we will elect a sane Congress, and when we do, they will need to use this power to remove all the judges who have violated their oaths of office by giving free passes to cops engaged in the War on Drugs.

    Then let the Nuremberg Trials begin. Here’s proof that the WoD was nothing but a racial and cultural holocaust in the first place: http://blogs.salon.com/0002762/stories/2003/12/22/whyIsMarijuanaIllegal.html

  18. Maybe this is only my perception, but there also seems to be a greater politicization of the appointed judiciary. Instead of falling into the old legal categories of how one might interpret law, judges are increasingly falling in line with prevailing Democratic or Republican opinions on all of their decisions.

    Phocion-

    The problem may be getting worse at the moment, but it’s nothing new. Before leaving office Adams stacked the judiciary with Federalists via his “midnight appointments”. The partisanship of the judiciary may be worse now than at some point in the past, but it’s no worse than at other points in the past. It’s the sort of thing that just waxes and wanes.

    “The ultimate solution to the problem of unbridled judicial activism at the federal level is clear: Congress must reassert its constitutional authority to define and restrict the jurisdiction of federal courts. This power is plainly granted in Article III, and no constitutional amendments are required.”

    I have mixed feelings on this. Obviously Article III grants power to limit jurisdiction, but can Congress take those limits so far as to completely eliminate the possibility of judicial review of an unconstitutional law? To make this concrete, suppose that Congress wrote the following law:

    “Sec. 1: The right to keep and bear arms is hereby infringed.

    Sec. 2: The judiciary shall have no power to hear any case challenging the constitutionality of this law.”

    Or this law:

    “Sec. 1: No person shall be allowed to run for Senator, Representative, or President if the incumbent holder of that office is seeking re-election.

    Sec. 2: The judiciary shall have no authority to hear any case challenging this law.”

    Now, you’re probably thinking to yourselves “Whoah, those laws are blatantly unconstitutional!” And you’re right. But if the Congress denied the courts the power to overturn these laws, and if the President signed these laws, what would that matter? Granted, these examples are deliberately extreme, but does Article III really mean that the Congress can do any shenanigan whatsoever as long as it denies the federal courts the right to do anything about it?

    An independent judiciary isn’t always pretty, and it certainly isn’t perfect, but it’s necessary that we have a third powerful branch of government that can resist the other 2. I wish there was a better way to do things (I’m hardly a fan of our legal system), but until a better one comes along we’ll have to rely on the judges to form the third check and balance.

  19. If you can stomach reading Krauthammer regularly, you’ll find that he implicitly subscribes to a “religion is the opiate of the masses” point of view.

    Well hell, that actually makes me want to read Krauthammer. Sounds like my kind of Republican.

  20. Judges are supposed to be filling the role of a compiler if you want to get geeky.

    Hand out errors whenever anyone hands them some bad legal code, and prevent error filled code from running.

    If there was only a formalised legal syntax that everyone agreed to. Then you could start forcing some hard errors down the throats of lawmakers.

  21. Krauthammer has it exactly wrong. Impeachment is precisely the right remedy for judicial usurpation. See Others Rob You With A Fountain Pen

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