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By Ryan H. Sager - January 12, 2005 12:00 AM

When Chief Justice William Rehnquist swears in President Bush for a second term on Jan. 20, it may well be one of his last acts as a member of the judiciary. After that, it's anyone's guess as to when the 80-year-old jurist, who is suffering from thyroid cancer, will choose to retire.

It's all-but-certain, however, that Rehnquist has delivered his last year-end report on the federal judiciary. His latest report, issued at the beginning of the month, is a worthy parting shot, taking aim at critics of the judiciary in Congress and elsewhere and making it clear just how little some members of today's Republican Party understand about the Constitution.

The Republicans seek to sanitize the nomination and confirmation process, while politicizing the jobs of judges already on the bench. The founders intended quite the opposite.

Rehnquist, as a member of the least-political branch of the federal government, is too polite to name names, but he points readers toward the misdeeds of Congress over the last year -- all of them committed by Republicans.

A fight over the Pledge of Allegiance led to 2004 being a banner year for attempts to intimidate the judiciary, after the United States Court of Appeals for the Ninth Circuit upheld a ruling that schools can't have students recite the loyalty oath in class. While the decision was legally defensible (if a bit extreme), it put many in Congress in high dudgeon.

In September, with an eye to the November elections, the Republicans in the House voted to bar the federal courts -- including the Supreme Court -- from hearing any challenge to the constitutionality of the words "Under God" in the Pledge. The measure passed the House 247-173.

The move was a cheap stunt designed to embarrass Democrats on what post-election we would call a "moral values" issue and wasn't pursued further. But the point was made, Congress' saber had been rattled.

Similarly, in July, the House passed the Marriage Protection Act, banning the federal courts and the Supreme Court from hearing challenges to the federal Defense of Marriage Act.

In the spring, the House passed a resolution criticizing justices of the Supreme Court for citing foreign legal authority in several decisions. One of the resolution's main sponsors, Rep. Tom Feeney of Florida, threatened, upon introducing the law, that judges who based their decisions on foreign precedents risk the "ultimate remedy" of impeachment.

Taken independently, each of these incidents could be seen as typical, Constitution-degrading political shenanigans (like the perennially proposed flag-burning amendment or, say, the McCain-Feingold campaign-finance law). But, taken together, they point to the ascendancy of the idea in the Republican Party that the judiciary is "out of control" and routinely subverts the will of the American people.

It's an idea that Republicans should get over. Granted, the majority of Americans probably don't want to see the Pledge of Allegiance tossed out of public schools, but that's not a particularly good reason to undertake a campaign to remake the checks-and-balances of the federal government. The judicial branch exists primarily to protect the rights of minorities, and if it goes too far sometimes -- this time in defense of atheists -- that's just the price of living in a liberal society.

Outside of the largely symbolic battle over religion in public life (such as public displays of nativity scenes, the Ten Commandments and the like), it's hard to see just where the will of the people is being subverted so terribly. On one of the most substantive church-state matters to come before the court in recent years, whether the government could allow religious schools to participate in school-voucher programs, the Supreme Court gave the green light.

Thus, it seems more than a little unnecessary to start talking about impeaching and removing judges or stripping the federal courts of jurisdiction. Impeaching judges for their decisions from the bench, first of all, as Rehnquist points out, is an idea that the republic rejected nearly 200 years ago. As for jurisdiction stripping, it's not been tried and may well not be constitutional. And even if it were constitutional, it would not be desirable. Republicans may find it all well and good to declare their favored policies above judicial review now that they dominate the federal government, but their views are likely to be quite different the next time they find themselves in the minority.

Quite the same could be said of the current Republican movement to change the Senate rules to prevent filibusters of judicial nominees. In fact, more scrutiny of -- and more partisan fighting over -- judicial nominees could be just what's needed to weed out the wacky circuit-court judges (such as those on the West Coast) that Republicans so detest.

Politics at the confirmation, independence thereafter. The Republicans need to get it straight.

Ryan Sager is a member of the editorial board of The New York Post. He also edits the blog Miscellaneous Objections and can be reached at


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