Jewish World Review June 6, 2005/ 28 Iyar,
Warring against federal judges
But until now, as conservative commentator Charles Krauthammer
points out, this condition for lifetime tenure has meant "honesty
and propriety." But what DeLay and his allies apparently had in mind
by "good behavior" is whether judges' constitutional opinions match
their own. Under that standard, definitions of judges' "good
behavior" could change depending on which political party dominates
the Judiciary Committee and Congress.
Former Solicitor General Theodore Olson, whom no one would accuse of
being a left-wing radical, wrote in the April 21 Wall Street
Journal: "if a judge's decisions are corrupt or tainted, there are
lawful resources (prosecution or impeachment); but congressional
interrogations of life-tenured judges, presumably under oath, as to
why a particular decision was rendered, would constitute
interference with and intimidation of the judicial process.
And there is no logical stopping point once this power is
DeLay's fury at certain federal judges is apparently boundless. In
an April 14 interview with editors and reporters at The Washington
Times, the House majority leader, a commander in this campaign,
blamed Congress for not fulfilling its constitutional responsibility
to exercise oversight of the courts. He charged:
"The reason the judiciary has been able to impose a separation of
church and state that's nowhere in the Constitution is that Congress
didn't stop them. The reason we had judicial review is because
Congress didn't stop them. The reason we had a right to privacy is
because Congress didn't stop them (from finding such a right)."
Would the majority leader consider it constitutional for the
principal of a public school to mandate official prayer in classes?
If so, prayers of which religion, and whose G-d? And would
nonbelieving students be allowed to sit, as pariahs, in silence or
be placed in temporary exile in the principal's office?
As for judicial review, does DeLay believe that Chief Justice John
Marshall was guilty of "bad behavior" in his 1803 ruling (Marbury v.
Madison) that the judicial power of the United States has the
authority to strike down Congressional laws repugnant to the
Without judicial reviews, would official segregation in the public
schools of certain states have remained lawful, and constitutional,
until Congress changed its mind?
With regard to the right to privacy, I thought that the Fourth
Amendment to the Constitution not some vaporous "penumbra" of the
Constitution provided Americans with safeguards to preserve that
fundamental right. As a schoolboy, I was much taken with what
William Pitt said of the right to privacy so long ago in the British
House of Commons:
"The poorest man may, in his cottage, bid defiance to all the forces
of the crown. It may be frail; its roof may shake; the wind may blow
through; the storm may enter; but the King of England may not enter;
all his force dares not cross the threshold of the ruined tenement."
In this country, the FBI may not enter our tenements, ruined or
otherwise, unless its agents adhere to the requirements of the
Fourth Amendment. Or that's what the Constitution says, but parts of
the Patriot Act increasingly diminish this vital privacy amendment.
Maybe the House majority leader could ask the courts to address that
escalating violation of the Constitution by this government?
U.S. Rep. James Sensenbrenner (R-Wis.), chairman of the House
Judiciary Committee, however, reminded DeLay and his fellow
anti-courts warriors in an interview in The Washington Post (May 12)
that "In the early days of the Republic, the precedent was set that
judges are not impeached for unpopular opinions."
Sensenbrenner intends to uphold that precedent, but he also has in
mind the establishment of an inspector general for the federal
judiciary, just as other agencies of the executive branch, like the
Justice Department, have. The inspector general could be empowered
to deal with complaints against judges, because, says Sensenbrenner,
no branch of the government "should be given a blank check without
oversight on their operations."
But will judges' actual opinions in cases be entirely excluded from
that official oversight of "complaints"? If not, the separation of
powers will be undermined, and the Constitution will be overruled.
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