The GOP and the judiciary.

The Washington Post has an article about the struggles within the Republican Party about the judiciary, including this passage:

DeLay and his allies, however, remain infuriated that the Atlanta-based Court of Appeals for the 11th Circuit refused Congress's orders to take control of Schiavo's case from Florida courts. Judge Stanley F. Birch Jr., who was appointed to the appellate court by President George H.W. Bush, criticized Congress's actions as being "at odds" with the Constitution.

The implication is that the courts didn't take Congress's "orders" because those orders were unconstitutional. I've already written about this a number of times, but the problem wasn't that the law was unconstitutional. Judge Birch's opinion was weak and quite wrong. On the Fedcourts lawprof email list (which I've run for the last ten years), I asked, when the case came out, if any listmembers agreed with Birch's opinion, which I said I thought was clearly wrong. No one did. Someone did challenge me to say why I thought he was wrong, and I wrote:

Birch says a lot of generic boilerplate about how separation of powers is important and the judiciary is independent. This material is belabored and incredibly padded. Then many admittedly prudential doctrines are cited, and the assertion is made that Congress can't eliminate them. But Congress can eliminate prudential doctrines. The assertion is made that the statute dictates the rule of decision, as in Klein, but the statute plainly only tells the courts to apply federal law and doesn't even purport to create the substantive law. And it certainly doesn't try to tell the courts to say that the Constitution means something other than what the courts interpret it to mean. Birch calls the statute unconstitutional. Does anyone on the list think that it is? If so, is it because you think Birch got it right or do you have some other reason?

No one refuted the points I made about Birch's reasoning.

So, I'll say it again: the problem wasn't the unconstitutionality of the statute, but the text of the statute, which I believe was carefully written by drafters who knew where the constitutional pitfalls were. Consequently, they did not produce a text that "ordered" the federal courts to do anywhere near as much as the grandstanders in Congress tried to make us think they did. I'm only writing about this again because the WaPo is perpetuating a misconception.

The rest of the article is quite good, though, so read it. An excerpt:

Rep. Steve King (R-Iowa), a Judiciary Committee member and DeLay ally, said in an interview [about the federal judges in the Schiavo case]: "That kind of judge needs to be worried about what kind of role Congress will play in his future." King said it is not clear what steps his committee might take, but he said most people do not realize the power Congress can exert over courts if it chooses.

"We have the constitutional authority to eliminate any and all inferior courts," he said, referring to district and circuit courts. King said some federal judges refuse to answer questions from Congress unless they are being impeached, so "that may force our hand."

It's true Congress can impeach federal judges and has power over their jurisdiction. The Schiavo case itself shows how foolishly they can use the power they admittedly have. Those who are entrusted with power ought to inspire some confidence that they will be responsible with it. Right now people like King and DeLay are doing the opposite.