Judiciary becoming Enemy No. 1
According to the editorial, “this new war on the courts is being waged through legislation and political intimidation, fueled by special interest campaigns of rage.”
“Hostile members of Congress increasingly seek to reverse or forestall decisions they don’t like by eliminating jurisdiction over important constitutional cases, shuffling selected lawsuits between state and federal courts, and choking off the discretion of judges to weigh evidence and law.”
Examples of intimidation by political officials include: the recent “haul[ing]” of a federal judge “before a congressional committee to explain comments that weren’t properly supportive of sentencing guidelines,” and the large spike in impeachment threats against state judges.
Article reports that Rep. F. James Sensenbrenner Jr. (R., Wis,), chairman of the House Judiciary Committee, said that the committee “was considering the creation of an ‘office of inspector general for the federal judiciary’ to watch over the courts.” Rep. Sensenbrenner also said that he does “not believe that creating an I.G. for the judiciary will violate the separation-of-powers doctrine” and that while Congress should not “regulate judicial decision-making through such extreme measures as retroactively removing lifetime appointees through impeachment,” “[t]his does not mean that judges should not be punished in some capacity for behavior that does not rise to the level of impeachable conduct.”
Opinion posits that the current threats by some evangelical conservatives to “cut off federal funding for judges and even abolish some lower-level courts that they feel have issued decisions that mandate a secular, anti-Christian state” is a re-enactment of the fight between Republicans and Federalists over the structure of the federal courts that erupted shortly after Thomas Jefferson was elected as president. In 1801, the lame-duck Congress still controlled by Federalists, passed a bill creating 16 circuit court judgeships, a move which the Jeffersonian Republicans blasted as “a last-minute partisan maneuver.”
In 1802, Congress repealed the Judiciary Act of 1801, eliminating the new circuit court judgeships. When the Federalists tried to appeal the constitutionality of this action before the Supreme Court, “the Jeffersonian Congress brazenly cancelled the next two terms of the high court.”
Article reports that “House Republican leader Tom Delay’s (R., Tex.) threat of retaliation -- even impeachment -- against federal judges for failing to do Congress’ bidding in the Terri Schiavo case was just the latest manifestation of hostility from Capitol Hill toward the courts.”
After Schiavo’s death, Rep. Delay said that Congress has to hold “an arrogant and out-of control judiciary” accountable. Rep. Delay’s office also said that he would ask the House Judiciary Committee to review the federal courts’ handling of the case. An editorial criticizes Rep.
Delay’s “judiciary-bashing” and commends the “mixture of Republican and Democratic appointees” on the federal bench “who understood their duty not as pursuing a political outcome but as applying the law to the record and facts before them.”
Commentary argues that “U.S. Courts must decide U.S. cases on the basis of U.S. law and U.S. precedent -- not on the positions of foreign governments and foreign courts.” According to the commentary, in its recent rulings on criminal law and criminal policies, the U.S. Supreme Court has gone so far as to reject its own precedents “in part because foreign governments or courts have expressed disagreement with those precedents.”
The commentary suggests that judges may be citing foreign sources because “that [is] the only way they can justify their rulings.” But, “citing foreign law in order to overrule U.S. policy is especially offensive to our constitutional democracy, because foreign lawmaking is in no way accountable to the American people.”