Judges and Judiciary
Apr. 12, 2005
Attack On Courts Threatens Crucial Checks And Balances
Forum Column - Erwin Chemerinsky - The conservative attack on the courts is truly frightening and should be denounced by elected officials and academics across the political spectrum.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
Conservatives are attacking the federal judiciary with unprecedented venom.
In late March, after the federal courts refused to order the feeding tube restored to Terri Schiavo, House Majority Leader Tom DeLay, R-Texas, promised reprisals against the federal judges involved. On Monday, April 4, Sen. John Cornyn, R-Texas, gave an astounding speech in which he linked recent violence directed at a federal judge's family in Illinois and in a Georgia courtroom to public frustration over judicial activism.
Cornyn said that frustration with "political decisions" by judges "builds up and up to the point where some people engage in violence." The tragic violence in Chicago and Atlanta were the acts of disturbed individuals; Cornyn glorifies the murders by falsely turning them into political statements.
At the end of the week, a group that calls itself the Judeo-Christian Council for Constitutional Restoration met in Washington, D.C. It included some of the most prominent conservative leaders in the country, such as Vision America's Rick Scarborough, Coral Ridge Ministry's James Kennedy and the Free Congress Foundation's Paul Weyrich. Members of the group said that it will focus on forcing Congress to begin impeachment proceedings against any judge who does not conform with a biblically based interpretation of the Constitution.
The group also seeks to prevent federal court jurisdiction over matters of church and state, marriage and government acknowledgment of a Christian deity. "What it is time to do is impeach justices," Texas Justice Foundation President Allan Parker extolled a crowd of a hundred or so conservative lobbyists, attorneys and activists. "The standard should be any judge who believes in the 'living Constitution' should be impeached."
Last month, Sen. Richard Shelby and Rep. Robert Aderholt, both Republicans from Alabama, introduced a bill titled the Constitution Restoration Act. The bill would preclude any federal court, including the Supreme Court, from hearing cases involving "expressions of religious faith by elected or appointed officials," and it would make the exercise of jurisdiction over such cases an impeachable offense.
Last year, two bills passed the House of Representatives that would have stripped the federal courts, including the Supreme Court, of the authority to hear constitutional challenges to the federal Defense of Marriage Act or to the words "under God" in the Pledge of Allegiance. By this reasoning, Congress could adopt any unconstitutional law and simply immunize it from judicial review by precluding federal court jurisdiction. The enforcement of the Constitution through judicial review that has existed throughout American history would be gone.
The conservative attack on the courts is truly frightening and should be denounced by elected officials and academics across the political spectrum. Let there be no mistake: What these and other Republican leaders are objecting to is an independent judiciary where courts do not follow the commands of Congress or the president. They are seeking through intimidation, threats of impeachment and jurisdiction-stripping to keep the federal courts from enforcing basic constitutional principles, such as a separation of church and state.
It may seem strange that conservative Republicans are choosing this as the time to attack the federal courts. Sixty percent of active federal court of appeals judges, 94 of 162, are Republican appointees. If all of President Bush's pending nominees are confirmed, 85 percent of federal appellate judges will have been chosen by Republican presidents. Seven of the nine Supreme Court justices were picked by Republican presidents, and any vacancies in the next four years will be filled by President Bush. This would seem a time in which conservatives would be extolling the federal judiciary, not bashing it.
What's going on, then? These conservative leaders, in and out of Congress, seem to have a short-term strategic objective and a longer-term political goal. Their immediate objective is to pressure Republicans in the Senate to eliminate the filibuster for judicial nominations. Without the possibility of a filibuster, President Bush could put more individuals from the far right on the Supreme Court and the lower federal judiciary.
In the next few weeks, it is expected that Republicans in the Senate will attempt what has come to be called the "nuclear option" and seek to eliminate the filibuster for judicial nominations. The Senate allows its rules to be changed by a two-thirds vote of the Senate. Since they do not have enough votes to do this, Republicans want to eliminate the filibuster in a different, illegitimate way.
The nuclear option entails a series of procedural moves on the Senate floor culminating in a ruling by the presiding officer - Vice President Dick Cheney - declaring unconstitutional filibusters of judicial nominations.
While Democrats may appeal the presiding officer's ruling to the full Senate, only 51 votes are needed to uphold the ruling. With 55 senators, Republicans believe they may have the numbers to uphold the ruling and prevent further filibusters of any judicial nominations.
Not surprisingly, the conservatives who are bashing the federal courts, such as Cornyn and the Judeo-Christian Council for Constitutional Restoration, are leaders in calling for the Senate to use this option and end the filibuster for judicial nominations. This, of course, would eliminate any check on the ability of the president to fill the federal courts with very conservative judges.
It also would eliminate a practice that has been followed in the Senate since the earliest days of American history. The first filibuster occurred when the Senate was debating where to locate the nation's capitol. The filibuster is a crucial check in a system based on checks and balances. The filibuster also reflects the unique nature of the Senate with each state, regardless of size, having two senators.
Without the filibuster, 51 senators reflecting a relatively small percentage of the country's population can pass anything. In the current Congress, for example, the 45 Democratic senators represent a majority of the population in the country. The filibuster is a way of making sure that the minority's will does not trump the majority's.
Republicans contend that the filibuster for judicial nominations is illegitimate obstructionism. But this ignores that Republicans, too, have used the filibuster for nominations when they were the minority party. In October 1968, Republican Sen. Strom Thurmond led a successful filibuster preventing the confirmation of Abe Fortas as chief justice and Homer Thornberry as associate justice on the grounds that a lame duck president should not fill Supreme Court vacancies.
At the beginning of the Clinton presidency, Republicans successfully filibustered Henry Foster to prevent his serving as surgeon general.
Also to accuse the Democrats of obstructionism over judicial nominations is laughable. The Senate has confirmed more than 230 of President Bush's picks for the federal judiciary and have filibustered only 10. But those blocked have included some of Bush's most conservative nominees, such as William Prior and Janice Rogers Brown. Conservatives want to go further by giving President Bush the unique legacy of 100 percent success in appointing lower court judges and Supreme Court justices.
Conservatives such as DeLay and Cornyn also have a longer-term political objective: with Republicans controlling all three branches of government, they see an unprecedented opportunity to push their religious agenda. They hope to pressure Republican-appointed judges to toe the party line. Through devices such as jurisdiction-stripping, they want to make sure that Congress can adopt laws advancing religion without having to worry about judicial review.
It is crucial that moderates and progressives in both parties rally against this effort by conservative Republicans. Moderate Republicans in the Senate must join with Democrats in rejecting the nuclear option and keeping the filibuster.
Constitutional scholars of every political stripe must explain that it strikes at the very heart of our constitutional government for Congress to enact laws and preclude judicial review of their constitutionality or for members of Congress to threaten impeachment of judges for rulings they dislike. Political leaders across the ideological spectrum must denounce the venomous attack on the federal judiciary that has occurred in the last few weeks.
Sometimes the first assignment in my constitutional class has been for students to read a copy of the Stalin-era Soviet Constitution and the U.S. Constitution. My students are always surprised to see that the Soviet Constitution has a far more elaborate statement of rights than the American Constitution. I also assign a description of life in the Gulags. I ask how it can be that a country with such detailed statements of rights in its constitution could have such horrible abuses.
The answer, of course, is that in the Soviet Union no court had the power to strike down any government action. An independent judiciary is indispensable to protecting our most precious freedoms. The DeLays and Cornyns who attack the federal courts forget that tomorrow, they may be the ones who need the protection of independent federal judges.
Erwin Chemerinsky is Alston & Bird Professor of Law, Duke University School of Law.
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