Judicial Politics

Professor Madison theorizes that the peculiar Republican politics that vilify the federal judiciary are actually a ploy to convince Americans that only ultraconservative judicial nominees are fit to restore the judiciary's integrity.

That could very well be the case. But it's not the possibility that I find the most troubling. No, not at all. I fear that the attack on the judiciary is more fundamental.

First, a disclaimer. I don't think all Republicans are crazy, immoral, or corrupt. I don't think all Democrats are upright bastions of moral correctness, either. Politicians are people who invariably make their living telling people what they think those people want to hear; the really great ones try to actually do good things at the same time, while others use it as an opportunity for self-enrichment.

That said, I think that there are those in the Republican leadership who are perpetuating a much more dangerous idea about the role of the judiciary. The thrust of DeLay's comments, after all, was that the judiciary was "arrogant, unaccountable, [and] out-of-control." Cornyn's much ballyhooed remarks expressed his anger over judges that are "unaccountable to the public." And we keep hearing more and more about stripping jurisdiction from lower courts and making increased use of impeachment.

These may just be ploys to help the Republicans pass ultraconservative nominees. But the more troubling possibility is that the rhetoric is serious; what if these politicians really envision a judiciary dramatically stripped of power and made to answer to Congress? They are, after all, upset about cases like Roe, Lawrence, and Roper. In each of those cases, certain actions of the political branches were held unconstitutional. One strategy might be to find judges who will say that the constitution allows those actions, but as Professor Madison points out, Republican appointees already run 11 of 13 federal appeals courts and have a 5-4 edge on the U.S. Supreme Court. It hasn't worked thus far. A second option is to try to work Americans into a rabid froth about judicial activism, and then use that anger as cover to drastically reduce the scope of federal court jurisdiction to review Congressional action, and to threaten to use impeachment to make judges politically accountable.

After all, Cornyn "said that the Supreme Court should be 'an enforcer of the political decisions made by elected representatives of the people.'" in his floor speech.

To me, that's much more scary than a Court packed with Borks and Thomases (as scary as such a Court would be).