The Columnist Manifesto

Court bashing or court packing?

The Republicans are trying to get a two-fer out of the Schiavo's family tragedy, playing it to lay the groundwork for their assault on the federal courts. Tom Delay, of course, has made outrageous comments to the effect that the judges in the Schiavo case "thumbed their nose at Congress and the president" for which they will be "held to answer for their behavior." The right wing punditocracy has been railing against the "judicial activism" of the judges who decided the case against Terri Schiavo's parents.

Tuesday's NY Times editorial rightly condemns these political opportunists for their vitriolic attacks and veiled threats toward federal judges, particularly so soon after "the fatal shooting of one judge in his courtroom and the killing of two family members of another."

But the Times editorial seems naive when it implies that these attacks are designed to drum up support for pending bills "to tell courts how to do their jobs" – e.g., to bar judicial reliance on international law principles when deciding constitutional cases (as was done to strike down the juvenile death penalty). Such bills are almost always just for show -- they are often proposed, virtually never pass, and are likely to be struck down by courts as unconstitutional if they did pass.

The real game is judicial appointments. I think the GOP wants to lock down the Christian right for the 2006 and 2008 elections by giving them some horrible, high profile judicial appointments. Republicans still fume over the rejection of Robert Bork's nomination to the Supreme Court by the Democratic-controlled Senate in 1986. Other than Clarence Thomas (whose race neutralized objections to his extreme conservatism in the confirmation debates), Bork was the last strong conservative ideologue to be nominated to the Court. I think GOP strategists believe that Bork was rejected because public opinion viewed the Supreme Court as closely ideologically balanced, and feared a Justice Bork would push the federal judiciary hard to the right. Republicans are seeking to preempt another Bork debacle by convincing the public that the federal judiciary is "activist" and "out of control" and desparately needs an ultraconservative hand to guide it back to the center.

Anyone who has the least inkling about these matters knows that that's an absurd, Orwellian portrait of the federal courts. The federal judiciary has been conservative, and increasingly so, since the end of Ronald Reagan's first term in 1984, and the Supreme Court has had a conservative majority going back even before that. Although Clinton appointments balanced out the lower courts between Republican and Democratic appointees, the pendulum quickly swung back to the right, with Republican-appointed judges making a majority in 11 of the 13 federal appeals courts well before the end of "w" Bush's first term.

And by the way, the characterization of the judges in the Schiavo case as "activist" is just plain sick. All the judges did in that case was to apply the laws enacted by the Florida legislature, which required them to engage in factfinding as to what Terri's wishes were about prolonging her life in a vegetative state.

Judicial activism is more of a slogan than an idea, but if it means anything, it means judges striking down acts of the legislative or executive branches of government based on freewheeling interpretations of the law. Conservative judges, by the way, are every bit as disposed to such "activism" as liberal ones.

Ironically, it was Terri Schiavo's parents, the Schindlers, who went into federal court under the "Schiavo bill" with farfetched arguments that their constitutional rights had been violated. Basically, they argued that the Florida state court decisions were so unfair as to deprive them of their day in court in the Florida court system (and thereby violate their right to due process of law). The Schindlers litigated the case through three trips up to the Florida Supreme Court and three to the US Supreme court, and filed three successive federal suits; as many as a dozen different judges heard aspects of the case. (See the timeline here.) They repeatedly (successfully) petitioned to have new evidence considered. For the federal court in the most recent case to decide that the Schindler's never got their day in court would be not only absurd -- it would have required extreme judicial activism to grant the Schindler's position.

The GOP's shrill attacks on the courts count on the public not being able to understand this stuff. And the public has gotten precious little help from MSM talking heads.

Still, perhaps the Republicans are overplaying their hand. Like their "Likud Politics" on the right-to-die-issue, which has a chance of alienating crucial middle-of-the-road voters, they may find themselves facing a backlash over the judiciary, as Franklin Roosevelt did with his plan to pack the Supreme Court.

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UPDATE: For a view that the present court-bashing is different from and worse than court-packing, see Matthew White's post here (and my response in the comments).

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