Here’s a profound paradox: Republican candidates for president are competing for conservative votes by advancing increasingly radical proposals for eviscerating the federal judiciary.
Texas Gov. Rick Perry favors a constitutional amendment giving Congress veto power over Supreme Court decisions and would end lifetime tenure for federal judges. Rep. Michele Bachmann says Congress should bar the courts from considering controversial issues such as same-sex marriage. Rep. Ron Paul would give voters the right to oust federal judges they don’t like. Former House Speaker Newt Gingrich rejects the basic concept of judicial supremacy that was established in 1803 by the case of Marbury v. Madison.
None of these proposals is the least bit conservative. They pay no attention to established precedent or procedure. Instead, they seek a revolutionary change in the core foundations of the legal system that has served this country well for more than 200 years. To his credit, Mitt Romney has not joined in the court-bashing. But the other candidates are taking dead aim at a document they profess to revere. In effect, they’re running on a platform that says, “We have to destroy the Constitution in order to save it.”
“These threats go far beyond normal campaign-season posturing,” says Bert Brandenburg, executive director of the Justice at Stake Campaign, a nonpartisan think tank advocating judicial independence. “They directly attack our system of checks and balances, as handed down by our nation’s Founders. Each of the proposals would make courts accountable to politicians, not the Constitution, even when fundamental rights are in danger.”
There’s nothing new about politicians from both parties using the federal courts as a punching bag. Remember the “Impeach Earl Warren” signs that sprouted up after the Supreme Court (under Chief Justice Warren) outlawed school segregation in 1954? Court decisions banning state-sponsored school prayer in the 1960s and legalizing abortion in the 1970s accelerated conservative anger against the federal judiciary.
In 1987, Democrats accused Judge Robert Bork, President Reagan’s choice for the Supreme Court, of favoring a return to segregation. His defeat fueled a guerrilla war over judicial nominations that continues to this day. Democrats filibustered several choices of Bush the Younger; Republican leaders in the Senate made blocking President Obama’s selections a major priority and they’ve succeeded.
Last August, the Constitution Accountability Center counted 88 vacant federal judgeships. At the same point in their first terms, George W. Bush had 52 vacancies and Bill Clinton 63. The Alliance for Justice, a left-leaning advocacy group, says Obama “badly trails his two predecessors” when it comes to the pace of judicial confirmations.
But the current level of rhetoric on the campaign trail takes this long-running battle to a new level of hostility, and distorts political language beyond recognition. The GOP candidates rail against “activist” judges, when the most glaring example of judicial activism in recent years was the Supreme Court decision in Bush v. Gore that gave the 2000 election to the Republicans.
Right now, conservative legal strategists are pursuing a plethora of court challenges to President Obama’s health-care bill. Fair enough, that’s their right. But aren’t they asking judges to take an “activist” approach by overturning an act of Congress? And utilizing “judicial supremacy” to justify their decisions?
Of course they are. But the GOP candidates seem oblivious to their own hypocrisy. Brandenburg is absolutely right when he says: “Imagine if a Democratic Congress had passed a bill saying courts could not hear legal challenges to health-care legislation, or shut down courts that ruled it unconstitutional. Many conservatives would feel their rights had been stolen. And they’d be right.”
That’s the most important point here. The courts were designed to protect everyone’s rights: liberal and conservative, popular and unpopular. The essence of democracy is not majority rule. That’s the easy part. The hard part is protecting minority rights. People who could never win an election, or pass a bill in Congress, can appeal to the courts, make their case, and count on a fair hearing.
What we need now is consistency and honesty. Conservatives want liberals to accept court rulings that favor gun owners, or police officers, or Republican presidential candidates, and they should. But then conservatives should not undermine the decisions that favor same-sex couples, or atheists, or criminals.
The principle of judicial independence protects us all. Especially at a time when the other two branches of government are so polarized and poisonous, we need to defend that principle more than ever. Trashing the courts for political gain is cynical and dangerous. And deeply un-American.
Steve and Cokie’s new book, “Our Haggadah,” was published last spring by HarperCollins. Steve and Cokie Roberts can be contacted by email at firstname.lastname@example.org.