April 13, 2005,
Those conservatives who wish to bring judicial power down to its proper constitutional size which is to say, almost all of them can only be dismayed by recent comments from Republican politicians who seek to lead that effort. After federal judges refused to order Terri Schiavo’s feeding tube reinserted, House Republican leader Tom DeLay said, “The time will come for the men responsible for this to answer for their behavior.” Asked whether the judges should be impeached, he said, “There’s plenty of time to look into that.” Then John Cornyn speculated on the Senate floor that recent violence against judges may have been a reaction, though certainly an unjustified one, to judicial activism.
President Bush and Vice President Cheney have felt it necessary to distance themselves from DeLay’s remarks, and Cornyn has issued clarifications and apologies. But the damage to the cause of constitutionalism, as conservatives understand it, had already been done. It is now that much easier for liberals to dismiss any attempt to assert a role for the political branches in restraining judicial excess even the Republican demand that Bush’s judicial nominees receive an up-or-down vote as a threat to “judicial independence.” And since many liberals have so grandiose a view of the judicial role that even strong criticism of judicial decisions counts as such a threat, they were already so inclined.
So it is time to assert some distinctions. Senator Cornyn’s speculation strikes us, first, as simply untrue: We do not believe that the assorted maniacs and criminals who have assaulted judges (and their families) are motivated in any part by a concern that judges have claimed powers that properly belong to legislatures. If it were true, it would be irrelevant to the questions of what powers judges should exercise and what other governmental actors should do when they exceed those powers: The resolution of these questions should not be swayed by violent intimidation. We’re sure Senator Cornyn sincerely regrets his passing remark.
Congressman DeLay’s view that impeaching activist judges is desirable, on the other hand, is longstanding. An interesting academic debate could be had about whether there are circumstances in which a judge could rightly be impeached for making lawless rulings. But impeachment makes no sense as a remedy for the defects of the modern judiciary. If we had only a few bad apples in a generally sound judiciary and a legal culture that regarded them as such then it would perhaps be possible and salutary to impeach the miscreants. Instead we have a legal culture that celebrates freewheeling judicial activism. Either DeLay can try impeaching five or six members of the Supreme Court, or he can go after a few judges who have made decisions that particularly offend him. The first course would be mad. The second would change the character of the conservative campaign against judicial overreach from an attempt to rebalance the structure of American government to a vindictive crusade against specific people. Alas, the tenor of his remarks suggests that he does not appreciate the difference.
for the republic to have a judiciary
that effectively defines the limits
of its own power.”
Politicians of both parties regularly demonstrate that folly, error, and overreach are endemic to their trade. But judges are prone to the same failings. In recent decades, their power has increased and their exercise of that increased power has become routine. Some of their decisions have been right, and others have not. We think, for example, that the Supreme Court’s restrictions on state governments’ ability to set their own policies on euthanasia restrictions that formed a backdrop to the Schiavo case were not grounded in the Constitution. There can, however, be legitimate differences of opinion over precisely which judicial decisions should be regarded as “activist.”
But the existence of these disagreements does not alter our conclusion that it is profoundly unhealthy for the republic to have a judiciary that effectively defines the limits of its own power and a political class that regards the rule of judges as the rule of law. On that underlying contention, Congressman DeLay and Senator Cornyn are correct. And we are for all intelligent, deliberate, and constitutional exertions to rectify the situation. Political leaders cannot subscribe to a definition of judicial “independence” that allows for no meaningful political checks on judicial power. The result of that view is, almost as a matter of necessity, judicial independence from the Constitution.