| June 17, 2005 Judicial Independence by Kevin Morford, insurgent49 Intoxicated with their control of the Legislative and Administrative branches of the federal government, right wing reactionaries have recently been picking fights with the Judiciary, in an effort to make the courts support their political agenda. Naturally, the Bush administration has been appointing as many new reactionary judges as it can. But waiting for old judges to die or retire is so limiting. Besides, the reactionaries might be out of power in an election or two, and they would like to lock in a reactionary Judiciary now to limit the ability of the remaining judges to block reactionary initiatives. Their first step, of course, was the threat to use the “nuclear option,” to prevent the Democrats from filibustering even a small handful of the Bush appointees to the federal bench. That threat has at least temporarily been taken off of the table because a coalition of moderate Democrats and Republicans, in opposition to the leaders in their parties, made a compromise deal to avoid the destruction of the judicial filibuster. We can expect that issue to come up again the next time there is a vacancy on the U.S. Supreme Court but, for now, the judicial filibuster remains a possibility. At the same time, Tom Delay and other reactionary leaders have been cranking up their propaganda machine against so called “activist judges.” A bill re-introduced in the U.S. Senate by Republican Senator Richard Shelby of Alabama (S-520) would remove from the jurisdiction of the federal courts all legal challenges to actions by local, state or federal governments concerning “acknowledgment of God as the sovereign source of law, liberty, or government.” It would also deprive them of jurisdiction over challenges to prayer in public schools, and other government affirmations of religious faith. A leading coalition in this effort, which represents about 40 different fundamentalist organizations, is the Judeo-Christian Council for Constitutional Restoration, which has received support from Tom Delay and others in the House and Senate. Dr. James Dobson of the fundamentalist organization Focus on the Family has recently said regarding the Supreme Court, “They are un-elected and unaccountable, and arrogant, and imperious, and determined to re-design the culture...according to their own biases and values and they're out of control.” These are dangerous assaults on the independence of the Judicial branch of government. It is vitally important that we clearly understand what these people mean when they complain about “activist judges,” and what the consequences will be for our country if they succeed with their agenda. The framers of the U.S. Constitution deliberately built in checks and balances to prevent any one person or institution from acquiring too much power. The courts are limited in many ways. They have no army. They do not have control over the size of their own budget. They cannot decide a case unless someone brings the case to them for a decision. The only time that they can overrule an action by the Legislative or Administrative branch of the federal government, or an action by a State government, is if they determine that the action violates the Constitution or laws of the United States. The main source of their power against the other branches of government is logic and the strength of the reasoning in their decisions. When Tom Delay and other reactionaries complain about “activist judges” what they mean is that the courts are preventing a federal or state branch of government from carrying out some activity which the courts have determined is either unconstitutional or illegal under existing law. In other words, the reactionaries believe that their interpretation of the constitution or law is correct and should be implemented, and that the court’s interpretation is wrong and should be ignored. They believe, and are proposing, that the courts should be deprived of jurisdiction, so that the Executive and Legislative branches of the government can work their will unrestrained by an independent Judiciary’s interpretation of the Constitution and laws of the United States. An independent and respected Judiciary is an important check on the abuse of power by powerful ideologues of all stripes. The constitution becomes a meaningless piece of paper unless it can be given meaning and effect by judges who are able to say “no” to those who would exceed constitutional limits. Time after time in the United States, the courts have been instrumental in preventing elected officials from abusing the rights of the people. Freedom of speech, freedom of religion, legislative reapportionment, voting rights and Jim Crow laws are just a few of the many areas in which the courts have stepped in and ordered our elected officials to respect our rights. The reactionary right, of course, opposed all of these reforms in their time. The current attacks on the federal Judiciary are just another part of their efforts to return to the bad old days when a small clique of white men could impose their will on everyone else. When the reactionaries like Tom Delay complain about “activist judges” what they are complaining about is the existence of effective constitutional restraints on their own power. We should all be grateful that those restraints exist, and work hard to ensure that they are not eliminated by the likes of Tom Delay and Richard Shelby. Kevin Morford is a political activist and an attorney in private practice in the Anchorage area. He can be reached at kmorford@insurgent49.com. |
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2005
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Reserved. in-sur-gent (in sur'jent), n. 1. a member of a group which revolts against the policies of its leadership. |
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