the war on the judiciary…

Posted on Friday 29 September 2006

Attorney General Alberto Gonzales, who is defending President Bush’s anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president’s judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. "The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime," the attorney general told a conference on the judiciary at Georgetown University Law Center.

"Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review," Gonzales said.

And he said the independence of federal judges, who are appointed for life, "has never meant, and should never mean, that judges or their decisions should be immune" from public criticism.

"Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot _ and should not _ be shielded from criticism," Gonzales said. "A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches."

Throughout the Bush Administration’s terms in office, there has been a fairly consistant anti-Judicial thread – "runaway Judges." It’s been a strong "Talking Point" with the Religious Right pundits, using the same term. In both their dealings with the detainees and the N.S.A. Unwarranted Domestic Surveillance, they have assiduously avoided Judicial oversight. Now we’re being given a lecture [above] by puppet-lawyer Alberto Gonzales about what Judges shouldn’t do. Sandra Day O’Conner even wrote an oped in the WSJ against a proposed South Dakota constitutional ammendment to eliminate judicial immunity, and enable a special grand jury to censure judges for their official legal determinations.

Yesterday, the Bush Administration got Congress to throw out the right to appear before a Judge – habeas corpus – the only right listed in the body of the Constitution. Why are they so afraid of the Judiciary? What’s all this about?

Canadian Shadia B. Drury writes:

In the past, traditional conservatives did not care much for democracy. They were elitists who believed that human beings are not all equally fit to govern. Only those with privileged status and educational opportunities were fit for political office. As Edmund Burke maintained, the masses are better off if they are ruled by their superiors. But modern conservatives are wildly enthusiastic about democracy, and this is a phenomenon that requires explanation.

In his book, Slouching Towards Gomorrah: Modern Liberalism and American Decline, Robert H. Bork complains that judges are actively usurping the power of the people. He depicts the United States as a "democratic nation that is helpless before an antidemocratic, indeed, a despotic, judiciary." According to Bork, "the Supreme Court has usurped the power of the people and their elected representatives." He accuses the Court of being a tyrannical elite whose vision is at odds with that of the people and their congressional representatives. Not only has the Court usurped the power of the people, it has subjected the country to a radical liberal agenda, which accounts for the moral and cultural decay of the nation.

Bork is particularly angry about decisions made by the Court when it was headed by Earl Warren, whose liberal interpretations of the law, Bork believes, are at the heart of the moral decay of America. For examples, the decision in Roe v. Wade legalized abortion, the decision in United States v. Virginia made it unconstitutional for a state to sponsor an all-male military college, and the decision in Romer v. Evans made it illegal to discriminate against homosexuals. Bork regards these as examples of promoting moral decay. He is convinced that legalizing abortion will lead to accepting assisted suicide, admitting women to military colleges will destroy the nation’s ability to create "citizen soldiers," and defending the rights of homosexuals will lead to the acceptance of polygamy.

He concludes that the "abuse of judicial power has become intolerable," and he suggests a remedy. He recommends "a constitutional amendment making any federal or state court decision subject to being over-ruled by a majority vote of each house of Congress." This would put an end to the Court’s power—the power of judicial review to strike down laws that the Court deems unconstitutional. (When Bork’s book was published, his suggestion sounded wildly outrageous. But the presidency of George W. Bush has brought Bork’s dream closer to reality. In the Terry Schiavo case of 2005, Congress was urgently convened to vote on a decision of a state court. The case marked a significant departure from America’s political tradition—the departure that Bork recommended in 1996.) In short, Bork recommends undermining the liberal elements of the American system—separation of powers, the rule of law, and the independence of the judiciary.

Bork is not the only neoconservative to champion unbridled democracy. In an essay titled "The New Populism: Not to Worry" (chapter 30 of his book, Neoconservativism: The Autobiography of an Idea), Irving Kristol argued that Americans should embrace populism, or the rule of the majority, despite the reservations of the Founding Fathers. And in his dissenting opinions, Justice Antonin Scalia often points to the disparity between the opinions of his liberal colleagues on the Court and the sentiments of the majority of Americans. He prefers the latter.

Bork is, of course, a failed nominee for the Supreme Court and, like many of the neoconservatives, a fellow at the American Enterprise Institute, and a member of the Federalist Society ["the role of the judicial branch is to say what the law is, not what the law should be."].

This war on the judiciary along with the theory of a unitary executive and the Bush Doctrine [foreign policy] are the intellectual underpinnings of the Bush Administration assault on our Constitution.

Sorry, the comment form is closed at this time.