Cheney Bows to the Imperial Judiciary
Via Drudge, Dick Cheney is now on the record opposing retribution against the judges who made judicial mincemeat of of the compromise bill that should have saved Terri Schiavo:
Cheney was asked about the issue on Friday by the editorial board of the New York Post. He said twice that he had not seen DeLay’s remarks, but the vice president said he would “have problems” with the idea of retribution against the courts. “I don’t think that’s appropriate,” he said. “I may disagree with decisions made by judges in any one particular case. But I don’t think there would be much support for the proposition that because a judge hands down a decision we don’t like, that somehow we ought to go out — there’s a reason why judges get lifetime appointments.”
There is a reason, of course, but it’s not the reason Cheney suggests. Search the Constitution high and low, and you will find nary a suggestion that judges are supposed to get “lifetime appointments.” What you will find instead is that Article III judges serve “during good Behaviour,” which is not the same thing. The only reason that “during good behavior” has never been interpreted to mean “until they stop acting like judges and start acting like unelected legislators by issuing frivolous, unsupportable rulings” is that thus far, Congress has lacked the guts to say so.
UPDATE: Rhetoric like this, echoed here, isn’t exactly helping matters. Contrary to Ann Althouse, criticizing judicial arrogance is not “stirring up hatred,” it’s simply expressing one of the few freedoms the imperial judiciary has thus far allowed its subjects to retain (though it hasn’t helped out much given its response to campaign finance “reform”). Expressing a concern that there may be a connection between bad court rulings and violent acts against judges may be incorrect, or even silly, but it is hardly the same thing as “hinting at violence as a solution,” particularly when the speaker makes it clear that such violence is “certainly without any justification.”
UPDATE: Beldar, and John Hawkins, Jon Henke, James Joyner and Bryon Preston fact-check Althouse and Reynolds’s dowdification of Cornyn.
UPDATE: The Puppyblender redeems himself by calling out ABA President Gray for making the same silly comparison between judicial critics and murderers.
April 5th, 2005 at 12:16 am
As I recall the issue was settled back in the Jefferson Presidency (Justice Samuel Chase). You don’t impeach judges because you disagree with them. For very similar reasons, even though the Supreme Court doesn’t have to be “9″ in number, consitutionally, it is settled that it will be that way.
April 5th, 2005 at 5:23 am
You can’t “settle” political issues, they merely lay dormant until the issue is refought. Congress after all cannot bind subsequent Congresses.
April 5th, 2005 at 6:41 am
I commented on this over at DOUBLE TOOTHPICKS, but I like your reasoning better. Indeed, they are NOT lifetime appointments; thinking it is so takes us one more step down the slippery slope toward judicial tyrrany. If we aren’t near the bottom of that rock-strewn talus already.
April 5th, 2005 at 9:18 am
Well, yes, the issue can be revisited, if you are willing to go through the pain again. Roosevelt’s court-packing attempt couldn’t even get through his own Congress and it will never be tried again. It’s “settled” in the sense that no one will be stupid enough to bring it up again.
Impeaching judges for political reasons has been tried several times since Jeffereson tried to purge the courts. Earl Warren was the most obvious example. Ford’s line about impeachment,etc. It went nowhere because the consensus has been for an “independent judiciary” for 200 years. There have been judges, even recently, that ought to have been impeached for totally wrong decisions (the Prop 209 case,for example, where Judge Thelton Henderson enjoined 209 on the basis that the 14th Amendment required affirmative action). The remedy, then as now, has been in appellate courts, not Congress. Political decisions that have stood for 200 years are reasonably called “settled.”
April 5th, 2005 at 9:46 am
I agree with Kevin. The issue is largely “settled” that the phrase “checks and balances” mean that the imperial judiary gets to “check” Congress and the President, and it also gets to “balance” them.
April 5th, 2005 at 10:09 am
Such pessimism. This imperial judiciary issue, can’t be conceded, for when it is, self-governence is close to lost.
First, while you say Roosevelt lost, it’s important to note that he actually won. Jackson and Lincoln in different contexts both refused to concede the primacy of the judiciary. Ford spoke to a Congress that was overwhelming Liberal, and even more overwhelming Democratic. This issue has been dormant precisely because of the political realities, but now that a liberal judiciary and a conservative majority are facing off, I think it may well rise again.
As the Republican caucus moves more to the right in the house, judges may well be impeached for “bad behavior.” After all Clinton was impeached in 1998, something that had only happened once before. Politics is a volatile world, do not look through the Californian’s lens before declaring that the issue is settled.
That being said, impeachment is probably a non-starter unless there’s a 2/3rds majority in the Senate and 60 votes is easier than 67, so I’d more expect a court-expansion than impeachment, and I guess before the court gets expanded…Stevens decides that…hmm he might as well retire, and possibly Ginsburg as well. Then probably even Kennedy might start to back off from the whole liberty liberty, libertiney. That won’t prove the issue was settled, just that it was politics that ultimately got the job done.
April 5th, 2005 at 11:27 am
I don’t think I’d care to use Jackson’s Cherokee action as a selling point. But anyway…
The real problem, besides not working, with trying to impeach judges is that it will consume your political capital. You might even get one or two before you lose momentum.
FAR better is to fill new appointments with youngsters of your persuasion. And all that really takes right now is a point of order in the Senate and 50 votes.
April 5th, 2005 at 11:34 am
I think judicial term limits would go a lot further than politically motivated impeachments. That said, impeaching a judge or two over a truly unsupportable decision, as opposed to a merely controversial one, would go a long way toward warning the rest of the judges that what we did do to one of them, we can do to the rest.
April 5th, 2005 at 12:00 pm
It has to be not only unsupportable, but wildly unpopular. Which in the Schiavo case it isn’t. A judge who ruled for reinstituting de jure segregation, for example. Or banning the Pledge of Allegiance. Oh, wait….
April 5th, 2005 at 12:06 pm
I agree that the easiest/least resistance course of action is fill new appointments with “youngsters of your persuasion.” But I’m far from convinced that it’s as easy as 50 votes in the Senate. First, those seats on the Supreme Court have to open up, and the balance on the court will probably not shift until it is clear to those on the court that the balance will be shifted for them if they don’t. It’s been what almost 10 years since a Supreme Court resignation? Is this a surprise? No, why give up sitting on the top of the heap.
That’s always been the way it is. If you want politically insulated individuals to act, it has to be made clear to them, that they’re not as politically insulated as they like to think. And my point with Jackson is that in every generation there has been substantial Judicial overreach, and every generation has fought them back. Jackson in the founding era by ignoring Marshall, Lincoln in the Civil War era by fighting a civil war, Roosevelt in the New Deal era by merely threatening to pack, probably the three major eras other than the progressive era…which won through constitutional amendment.
This conservative era is one again where the courts and people are in conflict. Who know’s how long it will take for the issues to resolve, but it can happen if the overreach continues. And if the people have the political will, they will win, they always do.
Another thing about political capital, political capital is an odd asset…the more you hold onto it for something else, the faster it diminishes. But spending that capital, and succeeding often generates more. Impeaching judges, may generate instead of cost political capital. It’s far from certain, but for certain is that unused political capital always rots.
April 5th, 2005 at 2:06 pm
The Founding Fathers did not imagine that America would be ruled by the Nine Nazgul. Like Black Robed Masters, the Nine sit and give judgment on ALL matters that concern them. Their power is immortal and unquestioned, fear being their primary agent of destruction.
Let’s take this analogy a little further. For the power of the Nine to be broken, the source of their power must be destroyed. And what is that source? Lifetime tenure? No. Sorry. The source of their power is the EXCLUSIVE CLAIM to speak on Constitutional matters. It is a claim not advanced by the Constitution itself, nor by any of the Founding Fathers. This claim, which the people accept, means that the Court can declare that anything is a constitutional question subject to their review. They can decide at a whim that something is unconstitutional, merely because no one else questions their claim to exclusivity.
But that is not how the Founders viewed things. The Founders thought that each branch of government could speak to the constitutionality of its own powers. Congress could declare that it thought, for example, that the Alien and Sedition acts did not violate the First Amendment. Now, a modern person might think that the remedy for such a thing would be to run to a Court to get them to declare it unconstitutional. But that is foolish, for why choose the Court? Why not choose the Executive? Why, indeed? The Founders believed that questions of constitutional interpretation were necessarily POLITICAL. Don’t like the Alien and Sedition Acts? The President won’t enforce them. Don’t like the actions of the President? Congress can withhold funding for his agencies, impeach him, or impeach his officers. Don’t like the Courts? The President can refuse to implement their orders, Congress can impeach them, strip them of jurisdiction, and eliminate them and then re-appoint with the President all new judges.
Even Marbury v. Madison, in which the Court asserted the power to declare acts of Congress unconstitutional, was not asserted as an exclusive claim on constitutional interpretation. But the Court has used it to say so every time it declares an Act of Congress unconstitutional (the next instance being Dred Scott). After a while, Congress didn’t care if the laws it passed were unconstitutional or not – they did what they wanted in the expectation at times that Courts would overturn them (as in the Campaign Finance reforms). Congress has already institutionalized the Court’s superiority.
Whether the Power of the Nine will be destroyed is something to be seen. It is not enough that good men hold the Court, because good men are always corrupted by its Power. The Court must be humbled, broken from its ways, and re-made. A Constitutional Amendement with term limits would be appropriate, but more must be done. Impeachments, stripped jurisdiction, and refusal to enforce clearly wrong judgments must happen as well.
I do not endorse violence against the judges, but let’s be clear: there is no respect for the offices of judges anymore, because they are clearly ruling us at their whim and we have no say in it.