Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktMaybe someone linked to this over the weekend, but the NY Times had an interesting article on the newest target of the Right. Tired of attacking Obama, it looks like the Republical Presidential field has move to attacking the judiciary. The criticisms seem pretty standard, with the courts, the 9th Circuit (think California) in particular, being called activist, elite, rogue and radical. What seems to be different are the “solutions” being offered up by the candidates.
Perry has suggested term limits and allowing Congress to overrule the SCOTUS with a 2/3 majority. Gingrich recently told voters that judicial supremecy is “an affront to the American system of self-government.” Bachman said she will fight back against the courts and Santorum has said he would sign a bill to eliminate the 9th Circuit. Gingrich seems to want to be slightly more subtle in dealing with the 9th Circuit by eliminating their clerks and having them meet in the dark. The idea of limiting the types of cases they can hear has also been floated out there with same sex marriage sure to end up on the excluded list. According to the article, the suggestions of term limits and reforming the 9th Circuit have been floated around in the past, but this all seems new to me.
The article does lay out the Constitutional provisions which give Congress some say over the courts and I don’t have enough time right now to get into that, but suffice to say Congress does have some tools they can use to…errr..send messages to the courts. One thing they can’t do is cut judges’ salaries which is why you end up with Gingrich’s suggestions which pretty clearly undermines the intent behind prohibiting Congress from cutting the salary of judges.
Briefly, my thought is that I hate this and it’s extremely short sighted. I’ll be back later, but I have a box of documents to sort through. Boooo.
Filed under: Supreme Court, Tea Party |
All Things in Moderation 
Part of the checks and balances in our governmental system is that the players will be at odds with each other. As much as we sometimes pretend really really reeeeelly hard that political ideology can be separated from the judiciary, it usually can't. For me, then, the issue becomes one of how to respond to it.My first thought is that whatever 'rules' are handed down by Congress on the judiciary, they should be applied across all judicial circuits. So if the electricity is shut off in one circuit (hah, the irony), it should be shut off on all circuits. Applying different standards to to different circuits wouldn't be something I'd favor. (As a side note, I'm fascinated that the 'smaller government' candidates are so enthusiastic about imposing their legislative will on the judiciary.)Second, I cringe a bit at the idea of SCOTUS decisions being overrideable by Congress. For one thing, many decisions are rather narrow. For another, a 2/3 majority in both chambers is pretty tough to get and I'd hate for Congress to spend time trying to muster the votes when it could be doing something more productive. But my biggest cringe is thinking about whether future landmark decisions, a la Brown v. Board of Education, would be reversed by lobbyists pressuring our elected representatives to preserve the status quo.
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Ashot, I agree and would add:The general tenor of these criticisms are neither new nor a particularly serious threat to the judiciary, in my view. When I was a freshman at Rice Houston was awash with billboards that said "DON'T GIVE AWAY YOUR USA – THIS IS A REPUBLIC, NOT A DEMOCRACY. IMPEACH EARL WARREN." If anything passes out of the Senate Judiciary committee, I reserve the right to then take this seriously. Frankly, most judges I know, regardless of political persuasion, try to do the best they can within the framework of existing law. In my field I recall the late 90s, when Clinton had appointed many new federal judges and a D NLRB as well. There is a history of NLRB appointments being very partisan – pro or anti union – shifting with each presidency. Clinton established a low in quality of NLRB appointments, however; hacks instead of leading labor lawyers. As a result, Clinton judicial appointments were, by '98, overturning the NLRB on a regular basis, and writing opinions that called into question the honor of NLRB adjudicators. It struck me that highly qualified democratic judges were still what they were – good lawyers.
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Oh, and I made a suggestion for the gift to mama as a comment in the Monday night post.
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One of the criticisms of the current judiciary, at least the portion of the judiciary conservatives are angry with, is that they have exceeded their role as envisioned by the Founding Fathers or some similar logic. Even accepting that to be true, it seems clear that the original intention was to prevent Congress from punishing the judiciary or a particular judge or Cicuit, yet that is what is being proposed by several candidates. Which leads to the question, if the Constitution is being violated, can you violate it to bring the violator back in line with the Constitution?
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It's necessary to be clear about which measures "violate" the Constitution as well, though. Restricting appellate jurisdiction, for example, is not.I frequently harp on the Casey v. Planned Parenthood opinion as the height of judicial imperialism and ultra vires action. The plurality there essentially said, it is more important not to admit a terrible Constitutional error we made than to correct it. They might as well have said, our error takes precedence over the Constitution itself.
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