May 6, 2005

Wisely pondering the delicate balance.

I didn't get much out of this NYT op-ed called "Chopping Off the Weakest Branch." The author, Ron Chernow, who wrote a biography of Alexander Hamilton, offers up some historical material from around the time of Marbury v. Madison. Yes, there was a big political struggle about the role of the judiciary back then. But so what?
[B]efore they starve the lower courts of funds, Republicans in Congress and the conservative evangelicals who support them would be wise to ponder these events of the early 1800's. For all the talk today of tyrannical judges, the judiciary still relies on Congress for its financing and on the executive branch to enforce its decisions. It could easily, once again, end up at the mercy of the other two branches, upsetting the delicate balance the framers intended.
That's how the piece ends. So it would be "wise to ponder"? Okay, ponder on! But that's the end of the essay. Chernow only frets that Congress might "upset[] the delicate balance the framers intended." So it's the framers' intent we're following? Since the role of the judiciary -- and the role of the federal government -- has already evolved far away from anything they specifically intended, what can this mean other than please don't upset the "delicate balance" we happen to have currently? And why isn't part of the framers' vision the power the Constitution gives Congress to push back against the judiciary? Congress was given a set of checks, and Marbury says nothing against Congress exercising those checks. Indeed, the statute found unconstitutional in Marbury had the defect of giving the Supreme Court too much jurisdiction.

Of course, cutting off funding for the judicial branch is a foolish way to push back against the judicial power, and I tend to doubt such a foolish plan will gain much footing. The most significant check is appointing new federal judges as vacancies occur. This process of continually replacing judges is not disturbingly chaotic like cutting off funding. It's entirely orderly and necessary.

The real dispute now is how to carry out that process, which must, under the Constitution, take place, in part, in the Senate. Does Chernow's historical account tell us anything about how political that should or shouldn't be? Chernow takes the side of President Adams and the Federalists against Thomas Jefferson. But it was Adams who tried to preserve his party's power by stocking the judiciary with Federalists. So if the Adams side of the dispute was correct, what is the lesson to "wisely ponder" about what Bush and the Senate Republicans can do with appointments?


Patrick said...

Bravo, Ann, for pointing out that the framers intended for the other two branches of government to have some power to check the judiciary. Of course, the use of that power, like everything elected officials do, is subject to the disapprobation of the People on election day, and I think you're right that just now it would be politically foolish for the President to start refusing to obey Supreme Court orders, or for Congress to start impeaching judges or curtailing funds or jurisdiction for the federal courts.

The founders expected the Judiciary to be the weakest of the three branches because the other branches, being popularly elected, were expected to be held in higher esteem by the People, and thus could be expected to exercise their checks against the judiciary with political impunity. That is why the framers thought the Judges needed the extra security of lifetime appointment. As it has turned out (in my opinion), the Supreme Court has emerged as the most powerful branch of government because, as an institution, it has done a better job of maintaining public esteem than the elected branches. Thus, it would always be politically dicey for an elected official to defy the courts. I think that's something the framers didn't foresee, and that if they had foreseen it, they might have arranged the appointment process and the lifetime tenure guarantee differently.

Another point that I think is often overlooked is that when the framers gave "advise and consent" power to the Senate, the Senate was not a popularly elected body. I wonder whether the framers intentionally kept the House out of the process out of concern that judicial selection would become too politicized were directly elected representatives to have the advise and consent power.

Sloanasaurus said...

I am glad you wrote about this because when I read the column, I was taken with how much the first paragraph said about what has been going on in the political arena as of late:

Chernow writes:

LEADING evangelical conservatives are taking on the federal judiciary, which they see as hostile to religion, and they have much more in mind than simply putting an end to Senate filibusters against judicial nominees. Some have now proposed that Congress cut off federal financing for judges and even abolish some lower-level courts that they feel have issued decisions that mandate a secular, anti-Christian state. "We set up the courts," said the House majority leader, Tom DeLay, a key ally of the evangelicals. "We can unset the courts. We have the power of the purse......."

There is a movement going on amongst the chattering class to speak about some sort of Christian conspiracy acting to take over the government. We have read about it in many other places..the so- called "Christian Theocracy." The whole "theocracy" argument, however, is a nasty strawman being used by the liberals in an attempt to peel away "less religious" conservatives (i.e. Barry Goldwater) from the Republican coalition.

The truth is.... that there is no Christian Conspiracy and no movement for theocracy. It is all fake and made-up sentiment to spread fear. The argument over the courts is about power, not religion. The left has used the Courts very successfully to win POLITICAL victories and to institute policy in the last 30 years. Conservatives in this country want to reverse that trend and are attempting to use their majority power to do so.

The left sees this so they attempt to argue that the religious theocrats are trying to sabotage our democracy (such as ending the filibuster) so they can institute a "religious theocracy." It is total bull that no one but Osama Bin Ladin agrees with (which is why ripping down this strawman is so easy...)

Will the strawman work? Perhaps it will. With enough demonization of Christianity, liberals may succeed in whittling away at the Republican coalition. We shall see.

JK said...

"The left sees this so they attempt to argue that the religious theocrats are trying to sabotage our democracy (such as ending the filibuster) so they can institute a religious theocracy."

This mindset of consipiracy theories is not (and has not been) dominated soley by the left. In fact, I believe it was the hard-right evangelical Christian community who argued the filibuster was the work of Democrats likened to "Godless communists." Evoking the fear of yet an older conspiracy theory. So let's be honest, both sides use fear and conspiracy to garner support for their cause. It's the name of the game.

Sloanasaurus said...

My point about the conspiracy theory is not that the media actually believes its a conspiracy; they just argue that it is so they can "knock-it-down" like a classic straw-man.

An additional problem with your argument is that I do not recall these so called Christian groups saying what you just said.

Instead you provide another strawman attributing a ficticious qoute "Democrats being Godless Communists" to the "hard right evangelical Christian Community." In fact, you are participating in this media hoax to portray these groups as fanatical by making up fake quates and implying general untruths.

Instead I beleive that these Christian groups argued that the Senate democrats were "against faith" because some Democrats (Charles Schumer in particular) worried outloud that Charles Pickering's faith may get in the way of his judicial decision making. I have yet to hear a reasonable defense regarding Schumer's comment.

A better response by the media would be to criticise these groups by saying that only Schumer made these statements and that the statements should not be attributable to Democrats in general.

JK said...

Maybe it is the media talking up these theories to knock them down. Maybe it’s not. That wasn’t the main point to my post.

My point was that this idea of "a Godless left" is also a conspiracy used by the right as a means of garnering support for their cause -- in this instance the elimination of the filibuster. Evangelical conservatives recently held a telecast, which Senator Bill Frist was a part of, to promote this agenda. The NYT reports on the telecast here, with some very conspiracy-esque quotes from the organizer of the telecast. Just as the left may be over-reacting with their ideas of a theocratic conspiracy, so to does the right with their notion of a Godless left out to secularize the United States and “demonize Christianity.”

Regarding Schumer’s comments: I feel he can question the impartiality of any judge under nomination for whatever reason. That’s the point of the confirmation hearings. Maybe he shouldn’t have questioned outloud. And maybe the media should’ve reported on it in a different way. But these are non-issues with regard to my original point. Both the left and the right have historically used conspiracy theories to push their agendas. To make it sound like Republicans (including the evangelical Christians) are innocent victims is misleading.

Bruce Hayden said...

I still find it troubling that Pickering's major sin is that he is a devout Roman Catholic. I also find it interesting that this is by the party that elected the first (and only, so far) Roman Catholic president.

Politically, of course, this is liable to be counterproductive for his party, as the Catholic vote is slipping away from them, election by election. There was a time when you could almost predict Democratic party membership from someone being Catholic. Not any more.

Politics aside, I do think that this smaks of a religous test, and all that that signifies. The worthy Senator seems to be saying that it is ok for a judge to be Catholic, as long as he doesn't accept the teachings of his faith. Ditto probably for Protestants.

Why doesn't he come out and be honest - he opposes this nominee because of his presumed stand on abortion. Period. In other words, he is applying the same sort of litmus test that he attacks the Republicans for.

But it is dishonest to assert that these nominees are out of the mainstream. Maybe the mainstream of Manhatten, San Francisco, etc. But clearly not nationally, esp. in view of this fall's election.

TopCat said...

I agree with the last commentor - the problem with these nominees is that they are outside the mainstream of the law school faculty lounge, witch would be hard to distinguish from a Howard Dean rally.
I think the historical analogy to the Federalist midnight judges is apt: the party of the elites wants to maintain one last lever of power to reign in the great unwashed yaboos that don't see things their way. That's why they have turned to the most pernicious barnicles of our political system (the filibuster, intimidating signature gatherers at recall and referendum sign-ups, judge shopping to strike down citizen initiatives, etc.) to enforce their views.