Taking Down the Courts

by C. Clark Kissinger

"The courts are totally out of control! The courts are not responsible to anyone! Activist judges have taken the law into their own hands! The courts are deciding against the will of the people! The courts have ordered a judicial murder!" This was the message of Rev. James Dobson of Focus on the Family to Rush Limbaugh's syndicated radio broadcasts, a message repeated over and over again. It was, in fact, a central theme of the whole Terri Schiavo saga--the campaign of the religious right to subjugate the court system and then reverse decisions like Roe v Wade that legalized abortion.

Speaking in coded language, President Bush said, "I urge all those who honor Terri Schiavo to continue to work to build a culture of life, where all Americans are welcomed and protected, especially those who live at the mercy of others." While Bush continued this facade of moderation, his constituents knew exactly what he was giving license to. The rabid dogs like Randall Terry of the anti-abortion group Operation Rescue are only too willing to spell it out for their Christian-fascist shock troops. In a public letter to the Florida legislature, Terry wrote:

"[D]oes a decree by the Supreme Court of Florida, the court of Judge Greer, or any court in the world for that matter, by definition represent 'the rule of law'? The answer must be 'no': a judicial decree does not equal 'the rule of law.' .The 'rule of law' has historically meant that 'The Law' rules. The Law is fixed from above by heaven itself."

The air is thick with an atmosphere of theocracy and calls to smash the independence of the courts in the name of God.

Bum Rushing the Court System

While the attempt by Congress to "bum rush" the courts with "Terri's Law" was rejected by the court system, nevertheless, the highly orchestrated campaign to subjugate the judiciary has ominously gained. All this has been designed to set the stage for the next round of confirmation hearings on Bush's reactionary appointments to the federal bench (with the likelihood of two to four Supreme Court seats coming vacant in the next couple years).

Here the interests of the traditional reactionaries and the Christian right have come together. Both demand a new, purged judiciary. Both hunger for a staunchly conservative Supreme Court made of nine Scalias and Thomas's. Both want the independence of the judiciary broken. The only obstacle still standing in their way is the threat of some Democratic senators to filibuster the confirmation of a few of the most extreme nominees.

To hear the Republicans tell it, you would think the Democrats were blocking all of Bush's nominations to the federal bench. Nothing could be further from the truth. As a matter of fact, the Democrats have cooperated in confirming 204 of Bush's judicial appointments, 34 of them for judges to the critically important appeal courts just below the Supreme Court. Only ten of Bush's nominations were blocked by threat of a filibuster. This is in contrast to how the Republicans refused to let dozens of Clinton's nominations even get out of committee.

The Senate has traditionally exercised, with great moderation, its constitutional right to refuse to confirm the appointment of outrageously bad judges. But in these new times, the executive branch is refusing to take "no" for an answer on any of its appointments.

The Dark Ages on the Federal Bench

Many of those rejected are sitting on the bench anyhow, given temporary appointments when Congress was not in session. Just about all of those rejected by the last Congress have now been renominated by Bush to the federal bench. Let's take a look at some of these people that Bush has tried to put in charge of the courts:

Charles Pickering , nominated by Bush to the U.S. Court of Appeals : An unreconstructed white supremacist from Mississippi. As a district court judge, Pickering went to bat for defendants charged with burning a cross on the lawn of an interracial couple. Going all the way back to law school, he campaigned for criminal penalties against interracial marriage. As a Mississippi state senator he fought for redistricting plans that would reduce Black representation in the legislature. Thoroughly exposed, Pickering has now resigned from the bench and asked not to be renominated.

William Pryor , nominated by Bush to the U.S. Court of Appeals : As Alabama Attorney- General, Pryor did his best to obstruct legal protections against discrimination. Pryor filed an amicus brief with the Supreme Court, urging that a Texas same-sex sodomy law be upheld. In another case, Pryor defended Alabama's practice of handcuffing prison inmates to outdoor hitching posts without access to water if they refused to work on chain gangs. He also urged Congress to repeal Section 5 of the Voting Rights Act, which protects the right of racial minorities to vote.

Brett Kavanaugh , nominated by Bush to the U.S. Court of Appeals : Kavanaugh worked in the White House Office of Counsel to the President. Here he sought to expand presidential secrecy and promote the powers of the "imperial presidency." Earlier, Kavanaugh worked for special prosecutor Kenneth Starr and drafted the articles of impeachment against President Clinton. In other cases Kavanaugh urged the Supreme Court to limit the attorney-client privilege and uphold government sponsored prayers in public schools.

Janice Rogers Brown , nominated by Bush to the U.S. Court of Appeals : Although a member of the California Supreme Court, Brown was nominated for the appeals court of the District of Columbia, a traditional stepping stone to the Supreme Court. Brown, an African-American, is a virtual Clarence Thomas clone, and is noted for her sarcastic lone dissents to progressive decisions by the California court. Unlike Thomas, her nomination is opposed by every African-American organization that has taken a position on her nomination, including the NAACP, the National Bar Association, and the Congressional Black Caucus.

The list goes on and on.

Going Nuclear

A coalition of Christian fascists and more traditional reactionaries is now threatening to exercise what Senator Trent Lott has dubbed "the nuclear option." The proposal is to force through a change in the rules of the Senate to outlaw filibusters by the minority for the first time in U.S. history. Make no mistake about it. This is a very serious matter that could pose the potential for a constitutional crisis.

Not only does this "nuclear option" attempt to pack the judiciary, it also attempts to break the traditional restraining power of a minority of the Senate as well. This would effectively end the much vaunted system of checks and balances, and transfer effective power to the presidency.

Throughout its history, the Senate has allowed a single senator to block legislation by simply taking the floor and talking nonstop. It is a scene immortalized in the movie "Mr. Smith Goes to Washington." Debate can only be cut off by a vote of 60% of the Senate. But since the Republicans currently have only 55%, they can't force an end to a filibuster. What GOP Senate leader Bill Frist is now proposing to do is bring Vice President Cheney in to preside over the Senate, then have one of the Republican senators raise a point of order that further debate is out of order. Cheney would rule that it is, and the ruling of the chair would then be upheld by a simple majority vote, ending the fillibuster.

The whole plan smacks of a coup --the sobriquet "nuclear option" referring to the utter annihilation of opposition. Senator Harry Byrd of West Virginia trenchantly observed, "It starts with shutting off debate on judges, but it won't end there."

But why are these steps being taken, since federal judges are already overwhelmingly conservative? Here the important point to understand is that in the eyes of the Christian fascists, to be conservative and to uphold "traditional values" is not enough --the concept of "the rule of law" itself must be replaced by "the rule of god." That's what Randall Terry is talking about in the quotation above.

We've Seen This Movie Before

On January 30, 1933 Hitler was appointed Chancellor (prime minister) of Germany. On March 24, the Reichstag (with Communist deputies barred from attending) voted to give all power to Hitler. And on April 7, Hitler enacted a law that abolished the principle that judges could not be dismissed or demoted for political reasons, effectively ending the independence of the judiciary.

Yet Germany's judges at that point were overwhelmingly political reactionaries who flocked in droves to voluntarily join the Nazi Party. Again what is important to understand is that fascism demands the subordination of all institutions to a single will. For our homegrown Christian fascists this means being reactionary and being Christian are not enough. All power has to be subordinated to "god's will," exercised through his appointed chief executive.

Where all this is leading has not been lost on the federal courts. In slapping down the final appeal by Terri Schiavo's parents, Judge Stanley F. Birch of the Court of Appeals for the 11th Circuit published a concurring opinion stating clearly that the "Terri Schiavo law" passed by Congress was manifestly unconstitutional. He then went on to conclude:

".when the fervor of political passions moves the Executive and the Legislative branches to act in ways inimical to the basic constitutional principles, it is the duty of the judiciary to intervene. If sacrifices to the independence of the judiciary are permitted today, precedent is established for the constitutional transgression of tomorrow." [Emphasis in the original]

At a Houston press conference, House Majority Leader Tom DeLay attacked "an arrogant, out of control, unaccountable judiciary that thumbed their nose at the Congress and the President" by refusing to order Schiavo's feeding tube reinserted. DeLay went on to add, "The time will come for the men responsible for this to answer for their behavior, but not today."

The stage is being set for those who would like to grab all-out power and replace a secular government with a theocracy.

Revolutionary Worker #1274, April 10, 2005, posted at rwor.org