TCS Daily

Judge Not

By Ryan H. Sager - April 18, 2005 12:00 AM

The American people treat their court system a little bit like an IQ test: When they get the result they want, the verdict is just; when they don't like the outcome, the whole thing is suspect.

Consider what Republicans have been saying about the judiciary recently. Despite the fact that there's a Republican-appointed majority of justices on the Supreme Court, some politicians and polemicists can't seem to get over the idea that a bunch of hoity-toity old men in black robes are conspiring to thwart the will of the people.

"The time will come for the men responsible for this to answer for their behavior," House Majority Leader Tom DeLay said recently, excoriating federal judges for not intervening in the Terri Schiavo case in the way Congress might have liked. Sen. John Cornyn, shortly thereafter, took to the floor of the Senate to wonder if recent courthouse violence might not be linked to the fact that "judges are making political decisions yet are unaccountable to the public."

The stupidest comment of all came at a conference in Washington, D.C., organized by the new Judeo-Christian Council for Constitutional Restoration. There, a lawyer named Edwin Vieira quoted Stalin regarding how to fix the Supreme Court: "No man, no problem," he said, in reference to Justice Kennedy -- a target of particular ire among conservatives for occasionally citing foreign law in his decisions. Of course, Stalin had something a little more direct than impeachment in mind for the men in his way.

Why the anger? Because in a few recent cases, Republicans haven't gotten quite the results they've wanted.

Of course, there was the Terri Schiavo case. Then there was the Supreme Court ruling that minors can't be subjected to the death penalty. Before that, the Supreme Court struck down state anti-sodomy laws. And then, of course, there was the U.S. Court of Appeals for the Ninth Circuit ruling that the Pledge of Allegiance is unconstitutional on account of the phrase "under God."

Now, some of these decisions were bad. Some were stupid. Some were even out-and-out activist -- the Supreme Court's whittling away of the death penalty in recent years has been particularly light on constitutional reasoning and heavy on appeals to European public opinion.

But everyone needs to take a deep breath here and realize that none of this amounts to a crisis. The courts aren't out of control, they're just a little off course. And the answer isn't intimidating judges -- it's simply paying more attention to the judicial philosophy of the people we appoint when we appoint them.

A lot of conservatives already know this. Some are just beating up on judges because there's not much else to complain about right now, what with Republicans holding all the levers of power. What's more, adults like Dick Cheney have made it clear that there's no support within the Bush administration for any attacks on the independence of the judiciary.

But some people are deadly serious about attacking the very concept of an independent judiciary. These people should not be ignored.

Their most popular idea right now is to curb the power of judges by having Congress strip the federal courts -- including the Supreme Court -- of power to review certain laws. The House passed two such bills (one regarding the Pledge and one on gay marriage) in 2004.

Even that limited amount of success is worrying, since this idea could not be any less in keeping with the intent of the founders. The courts are supposed to protect the rights of minorities against the will of the majority. If Congress can override this check on its power by a simple majority vote, then the entire constitutional balance of power is rendered unintelligible.

The anti-independence folks' other idea is to start impeaching judges -- but that's such a political non-starter that's it's not even worth deriding.

So, let's be clear: The idea that there is judicial tyranny in America is ludicrous. Every judge on the federal bench (save recess appointments) has been nominated by an elected president and confirmed by an elected Senate.

If the political branches of government have failed to vet candidates properly, then maybe Republicans need to look more carefully at the confirmation process. Maybe what's needed is a real examination of nominees' judicial philosophies, not just a rubber stamp.

In other words, maybe Congress needs to up its judicial IQ.

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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