Danger!
nytimes.com
December 4, 2000
IN AMERICA
A Plan to Intimidate Judges
By BOB HERBERT
As the Supreme Court listened to the
arguments presented by lawyers for George
W. Bush and Al Gore, no one seriously
considered the possibility that a ruling one way or
another could result in justices being impeached.
But the impeachment and removal of federal judges
who issue rulings that are objectionable to some conservatives has been very
seriously proposed by Representative Tom DeLay, one of the most powerful
members of Congress, and other right-wing extremists in the Republican Party.
And Robert Bork, whose nomination to the Supreme Court by Ronald Reagan was
blocked, has — even more incredibly — called for a constitutional amendment that
would allow decisions by federal and state judges to be overruled by a simple
majority in each house of Congress.
Most Americans are unaware of these bizarre and dangerous proposals.
Those who cherish the idea of judicial independence can only be chilled by Mr.
DeLay's utter contempt for it. Listen to him, as quoted in The Washington Post in
September 1997: "The judges need to be intimidated. They need to uphold the
Constitution." If they don't behave, he said, "we're going to go after them in a big
way."
For most of us, the remedy for a decision with which we disagree is an appeal, not
the impeachment of the judge we disagree with.
As for Mr. Bork, his remedy is nothing short of right-wing radicalism run wild. The
following is from his book "Slouching Toward Gomorrah," which was published in
1996:
"There appears to be only one means by which the federal courts, including the
Supreme Court, can be brought back to constitutional legitimacy. That would be a
constitutional amendment making any federal or state court decision subject to
being overturned by a majority vote of each House of Congress. The mere
suggestion of such a remedy is certain to bring down cries that this would
endanger our freedoms. To the contrary . . . it is the courts that are not merely
endangering our freedoms but actually depriving us of them, particularly our most
precious freedom, the freedom to govern ourselves democratically unless the
Constitution actually says otherwise."
The attacks by Mr. DeLay and Mr. Bork are part of a relentless conservative
assault on the judiciary that continues today and threatens the bedrock principle
of the separation of powers. Conservatives in Congress have wreaked havoc for
years with President Clinton's attempts to appoint federal judges, blocking some
and imposing unconscionable delays on others because of the fear that some
might behave a bit too independently.
An independent judiciary — that is, judges who are not subject to the
bludgeoning of politicians on the left or the right — is an absolutely crucial check
on what otherwise would be the rampant power of the legislative and executive
branches. An intimidated judge is a worthless judge.
But quivering, intimidated judges are exactly what the extremists have in mind. Mr.
DeLay told the House Judiciary Committee, "America's founders believed that
impeachment would be an effective way of keeping the judiciary within its proper
bounds."
If you want a sense of just how extreme Mr. DeLay and his followers are on this
issue, all you have to do is listen to the most conservative members of the
Supreme Court. Even Antonin Scalia rejected the idea of impeaching judges who
are insufficiently conservative, saying the proposal "shouldn't go anywhere."
And the chief justice, William Rehnquist, has said the idea of an independent
judiciary that strives to do what is right, particularly when the result is not one that
the Congress or the president or "the home crowd" wants, is "one of the crown
jewels of our system of government today."
Justice Ruth Bader Ginsburg addressed the issue of judicial independence in 1998.
"Some members of Congress and of the press speak, write, or act as though they
do not understand how seriously most federal judges — whether appointed by
Kennedy, Johnson, Nixon, Ford, Carter, Reagan, Bush or Clinton — take their
obligation to construe and develop the law reasonably and sensibly, with due
restraint and fidelity to precedent, and to administer justice impartially without
regard to what `the home crowd' wants."
One of the great blessings of the United States is that the courts are there to
uphold and enforce the rights of individuals, even when that is politically
unpopular. Such rights are easily trampled by unchecked government power or the
vagaries of the popular will.
What happens when abuses occur but judges dare not act for fear of political
retribution? I guess that would delight the likes of Tom DeLay and Robert Bork,
but it would be the tragic end of the United States as we've known it. |
