Attacking a Free JudiciaryEDITORIAL, New York Times -- April 5, 2005
The low point in the politicking over Terri Schiavo came last week when the House majority leader, Tom DeLay, threatened the judges who ruled in her case. Saying they had "thumbed their nose at Congress and the president," Mr. DeLay announced that "the time will come for the men responsible for this to answer for their behavior, but not today." Coming so close to the fatal shooting of one judge in his courtroom and the killing of two family members of another, those words were at best an appalling example of irresponsibility in pursuit of political gain. But they were not an angry, off-the-cuff reaction. Mr. DeLay's ominous statements were a calculated part of a growing assault on the judiciary.
Through public attacks, proposed legislation and even the threat of impeachment, ideologues are trying to bully judges into following their political line. Mr. DeLay and his allies have moved beyond ordinary criticism to undermining the separation of powers, not to mention the rule of law. The Schiavo case was the starkest example of their determination to have things their own way, regardless of the constitutional cost. Conservative elected officials and advocates repeatedly attacked the judiciary's right to decide the legal issues. When they were unhappy with the decisions of the Florida state courts, they rushed a bill through Congress that authorized the federal courts to rule on her case, but not on other cases like it. The bill also told the federal courts not to apply the time-honored legal doctrines that might have led them to stay out.
When the federal courts took the case but ended up agreeing with Florida's courts, federal judges became the next target. Mr. DeLay issued a veiled threat, saying: "Congress for many years has shirked its responsibility to hold the judiciary accountable. No longer." Asked whether the House would consider impeachment charges against the judges involved, he responded, "There's plenty of time to look into that."
Several bills pending in Congress seek to tell the courts how do their jobs. House Republicans have introduced a resolution declaring that international law should not be taken into account in interpreting the Constitution, something the Supreme Court did just last month in striking down the death penalty for offenders younger than 18. Last year, during a controversy over the "Ten Commandments judge" in Alabama, Senator Richard Shelby, an Alabama Republican, introduced a bill to bar the federal courts from applying the First Amendment when officials cross the boundaries between church and state.
Last week, Judge Stanley Birch Jr., a conservative member of the United States Court of Appeals for the 11th Circuit, based in Atlanta, declared that in the Schiavo case, "the legislative and executive branches of our government have acted in a manner demonstrably at odds with our founding fathers' blueprint for the governance of a free people - our Constitution."
Judge Birch is right, but he should not be such a lonely voice. The founders established a system of government in which the three branches - legislative, executive and judicial - act as checks and balances for one another. Republicans in Congress and the Bush administration, unhappy with some rulings of the judiciary, are trying to write it out of its constitutional role. The courts will not always be popular; they will not even always be right. But if Congress succeeds in curtailing the judiciary's ability to act as a check on the other two branches, the nation will be far less free.