The Judicial System
"From the standpoint of the judiciary, there are two sides to the shield of the doctrine of separation of powers. It is essentially the province of judges to know what the law is, but judges should not undertake nonjudicial jobs." Thomas Reed Powell, Vagaries and Varieties in Constitutional Interpretation 25 (1956).
Although members of what is now a predominately radically right-wing Republican party have criticized the politicization of our federal judiciary, I believe the party itself has politicized the judiciary and continues to do so in what I can only call a cheap attempt to gain votes in elections by pandering to prejudice and fear. One of the saddest examples of this "playing to the crowd" is the recent attempt by the House of Representatives, with my opponent's support, to remove the jurisdiction of the federal courts to pass on the constitutional validity of the so-called Defense of Marriage Act. The bill is not "conservative" because to be conservative is above all to support the wonderful constitutional framework, including the separation of powers of the three branches of government, that has served us so well for more than 200 years. Even former U. S. Rep. Bob Barr, the Republican who led the effort to impeach President Clinton, called the bill "dangerous." As the Seattle Post-Intelligencer pointed out in an editorial on 07.26, "Barr, a prominent gun-control opponent, surely recognizes that if Congress starts limiting court jurisdiction, it will soon be doing so whenever it is politically convenient, such as on Second Amendment issues."
The following relevant opinion piece from Justice at Stake is worth reprinting here in its entirety:
Congress periodically engages in such “court-stripping,” often to punish the courts for particular rulings on hot-button social issues:
• After the Supreme Court’s 1954 Brown v. Board of Education decision that school segregation violated the Constitution, furious lawmakers sought to exempt federal courts from ruling on public education laws.
• During the 1960s and 1970s, issues like the draft, Miranda warnings, busing, school prayer and abortion sparked efforts to cut the courts’ power to hold laws up to the standards of our Constitution.
• In the 1990s, Congress passed legislation curbing judicial review in cases involving the death penalty, asylum, deportation, and prison conditions.
• The 2001 Patriot Act reduced judicial discretion to review law enforcement efforts to detain suspects, monitor private Internet communications, obtain certain personal records and share wiretaps with intelligence agencies.
• Last year’s “Feeney Amendment” sharply limited the ability of federal judges to issue sentences below federal guidelines in many criminal cases.
There’s no shortage of new proposals. When an appeals court barred children from reciting the Pledge of Allegiance in school, the House Majority Leader promised to strip federal court jurisdiction to rule on the Pledge if the Supreme Court didn’t reverse the decision. The “Constitution Restoration Act” would deny federal courts the power to hear any suit involving a governmental official’s “acknowledgment of God as the sovereign source of law, liberty, or government.” (For good measure, any judge caught exceeding his or her jurisdiction could be impeached.) Another measure would allow Congress to reverse any Supreme Court decision that struck down a law on constitutional grounds—lowering the curtain on two centuries of judicial review.
Of course, judges are useful election-year targets: they have to make unpopular decisions and they don’t fight back on cable talk shows. Indeed, some lawmakers have begun to talk more openly of impeaching judges they don’t like.
Courts shouldn’t be immune from criticism and controversy. But our founders gave judges a special job—to protect the Constitution, and decide cases based on the facts and the law, not pressure and politics. Tearing down the courts that protect our rights can only weaken the American judicial system that Chief Justice William Rehnquist calls the “crown jewel” of our democracy.
The most absurd recent effort along this line is that of a Florida Republican representative to persuade the House to pass a resolution expressing the opinion of the House that the Supreme Court, which is dominated by Republican appointees, not cite any decisions of foreign jurisdictions, even for illustrative purposes, something the Court rarely has done but, as an independent branch of government, ought to be free to do.
Interestingly, one of my opponent's former supporters, an Eden Prairie resident, wrote a letter to him about this vote that was published with the sender's permission in "Letters to Leaders" in the Republican newspaper, the Washington Times. The letter, dated 07.24, stated in part: "I have voted for you because of your moderate stances since you began running for U.S. Representative. However, I will never vote for you again. This overtly political pandering to bigotry is so vile that I have lost all respect for you and your Minnesota collegues who voted with you (including the Democrat)...."
Those who believe strongly, as I do, in keeping our federal courts free of these kinds of attempts to interfere with their independence might be interested in reading a review by Yitzchok A. Breitowitz, assistant professor of law at the University of Maryland and Rabbi of the Woodside Synagogue in Silver Spring, of Hitler's Justice: The Courts of the Third Reich, by Ingo Muller (Harvard Press 1991). His review states in part:
...Muller paints a terrifying portrait of a judicial and administrative system where legal niceties are at least occasionally observed but where decency and justice have ceased to exist -- a nightmarish caricature of law without moral value. Legalization of euthanasia and sterilization, the creation of concentration camps, the ruthless crushing of political opposition, the cancerous growth of racist and anti-semitic laws labelling Jews as civilly-dead are introduced in rapid succession with nary a word of protest from the lawyers and judges who then proceed to apply the laws as routinely as one would apply some technical provision of the Internal Revenue Code. The death penalty was meted out for even trivial offenses if the State (read: judge, read: the Nazi party) regarded the offense as "undermining the security of the state" or the purity of the Aryan race. Thus, Leo Katzenberger was executed for merely maintaining a friendship with a German female tenant...
Where the Nazi regime could not obtain its desired results through the official judicial system, it simply created special courts not subject even on paper to the minimal constraints of due process. The most infamous of these was the People's Court specializing in expeditious justice against those who questioned the wisdom of the Fuehrer (even if the "attack" was nothing more than a casual comment made over the dinner table). When all else failed -- and for some reason an accused was acquitted, the doctrine of preventive detention allowed for his immediate rearrest by the Gestapo on no legal grounds at all. We read in astonishment that the Gestapo would often arrest a person in the very courtroom in which he had just been acquitted.
Copyright (c) 2004 by Burton Randall Hanson. Prepared & published by candidate on his own behalf and at his own expense. Candidate may be reached by e-mail at firstname.lastname@example.org. Candidate does not solicit or accept contributions or endorsements.