Judgment Day

What must underlie petitioners’ entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.

From Justice John Paul Stevens’ dissent in Bush v Gore

That paragraph was often cited in the wake of Bush v Gore as criticism of the Supreme Court for ruling as it did. It was, but if you read it carefully you see that he was also saying that the petitioners were perpetuating the belief that the Florida state judges could not be impartial. (This despite the fact that the Florida courts had ruled in favor of Bush in the procedings a number of times.) This bothered Stevens because it undermined the nation’s faith in the justice system everywhere, particularly the belief that judges would uphold the rule of law as impartially as possible.

Here’s William Schneider on CNN:

PHILLIPS: All right. Bill, you’ve come out, you’ve told me, look, this is all political. Everything that we’re observing here is political. You brought up a very interesting point, and that is the continuation of these grievances against judges. How does that play into this?

SCHNEIDER: Well, we saw signs last night in Florida among the people who were supporting the congressional action. They said stop renegade judges. They said starve the judicial system. This case, which was a case of a state court ordering that the federal — the feeding tube be removed, this is the latest in a long series of grievances that go back more than 30 years, to the Roe v. Wade decision in 1973 allowing abortion rights, giving them constitutional protection.

Religious conservatives and other conservatives have protested judicial activism for all these decades on what issues? Abortion, school prayer, sex education, pornography, same-sex marriage, the mandated teaching of evolution, and now, of course, the issue of end of life decisions and assisted suicide. Again and again and again, they see the judiciary as power-grabbing activists, and most importantly, violating their own personal religious liberties. And this is the latest in that — in those grievances that have been brewing for decades.

Nice frame old Bill gives the Republicans there.

Clearly, this entire line of argument is just trash. There could have been no more of an “activist” judicial act than the Supreme Court intervening in a presidential election. There can be nothing more activist than members of congress violating the separation of powers as they did this past week-end. Courts are called activist when they hand down decisions that the wingnuts don’t like. States rights are a principle that the wingnuts hold dear when they don’t hold federal power. Now they are holding midnight sessions of congress to overturn 19 state judges and interfere in people’s most personal decisions. Please.

Sam Rosenfeld explains:

…the liberal critique of how Republicans have handled this issue has less to do with “federalism” than it does with the separation of powers and the rule of law. The sustained ideological assault against an independent judiciary — components of which include this weekend’s shenanigans and the current congressional majority’s zealous efforts to strip the courts of jurisdiction over any number of partisan agenda items — is itself only one facet of a pervasive tendency of modern Republicans to disregard wholesale the integrity of codified processes and the autonomy of institutions, to change the rules and to politicize all conflict in the service of totally unprincipled and narrow political objectives.

[…]

As far as I can tell, conservative advocates in this fight haven’t even bothered to engage these kinds of questions — they just don’t care. An individual woman in Florida must be “saved” by any means necessary and that’s all there is to say about the matter. Thus legislation is passed that doesn’t even bother to offer a forward-looking rule change in the process by which these kinds of decisions can be adjudicated in the future. (Instead, the action should be considered non-binding and narrowly targeted at the specific case in question — sound familiar?)

We’re a law-based society. Rules matter. Precedents matter. Separation of powers and institutional autonomy matter. To the Republicans in power and the conservative intelligentsia lending legitimacy to their governance, apparently, such things don’t matter at all. Congressional Republicans capped a week during which they definitively demonstrated that small-government fiscal conservatism as a guiding legislative principle is completely dead by whipping up this grotesque circus of ill-informed hysteria and rampant trampling of rules and procedural limits. There’s nothing “hypocritical” in pointing out the apparently direct relationship between the ideological bankruptcy of Republican governance and their inability to recognize any limits on their actions.

I wonder if judges throughout the country realize that they must now be whores for the right wing or they will be slandered for being unpardonably biased any time they rule against the interests of radical Republicans? Do they know that any judgment that differs from Randall Terry’s or Tom DeLay’s is no longer attributable to a difference in legal opinion but is instead considered a reflection of their dishonesty and corruption? Perhaps many of them don’t mind being a rubber stamp for Grover Norquist and Jerry Falwell. It certainly makes the job easier.

I would imagine that some judges, however, might just think that they represent one of the branches of government and have a duty to uphold the rule of law even when Steve Forbes doesn’t like the result. (It isn’t just the religious freaks who want their way with this.) You would certainly think that conservatives would think it’s a good idea for the nation to have some faith in the judicial system and not assume that every judge who rules in ways that certain people don’t agree with is a hack for a political agenda. Sometime soon Republican legal scholors and judges may come to rue the day they let a radical vocal minority have this kind of power over their party. They gave away their own in the process.

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