Railing against activist judges is nothing new in American politics. The nation's judicial wars erupt infrequently but at times with painful intensity, often brought on by the stress of a particularly divisive case. Indeed, it's not surprising that the current outbreak of judge-bashing is particularly virulent: With long-standing grievances (abortion, school prayer) still simmering, the courts have been busying themselves, as critics see it, with promoting same-sex marriage and censoring the Ten Commandments. Meantime, a showdown over filibusters is looming, and a Supreme Court nomination looks to be in the offing after a lengthy stretch without a resignation. In that context, the dispute over Terri Schiavo was the inevitable tipping point.
But the current uproar is particularly worrisome -- both because of the extreme nature of the restraints being proposed and the degree to which such sentiments are being voiced not by a powerless fringe but by those in positions of authority: It's not just Phyllis Schlafly anymore. Schlafly was, of course, at a conference last week on "Confronting the Judicial War on Faith," but the keynote address was delivered, via videotape, by House Majority Leader Tom DeLay (R-Tex.), who bemoaned "a judiciary run amok" and accused Congress of "constitutional cowardice" for failing to put a stop to it.
Asked yesterday about the idea of removing activist judges, Sen. Rick Santorum (R-Pa.), who ranks third in the Senate GOP hierarchy, moderately demurred from the notion of impeaching Justice Anthony M. Kennedy, the Reagan appointee who is the current target of conservative ire for such offenses as citing international law. But appearing on ABC's "This Week," Santorum sounded anything but hostile to the overall approach: "Should we look at situations where judges have decided to go off on their own tangent and disobey the statutes of the United States of America?" Santorum said. "I think that's a legitimate area for oversight, sure."
What's perhaps most astonishing is that this anger is being directed at a federal judiciary in general, and a Supreme Court in particular, that is far more conservative than the liberal bench that once provoked similar complaints. Consider the distance traveled: What started as "Impeach Earl Warren" -- the archetypal judicial activist -- has now become "Impeach Tony Kennedy" -- the archetypal middle-of-the-Republican-roader.
The proposed "solutions" include not only impeachment but also simply removing judges from office, without having to go through the bother of impeachment proceedings, on the grounds that they have failed to live up to the required standard of "good behavior" in office. In addition to the usual misguided push for Congress to strip the federal courts of power to hear certain types of cases, such as abortion or the Pledge of Allegiance, lawmakers are also threatening to cut courts' budgets if they are displeased with their rulings.
It's doubtful we'll be seeing mass impeachments anytime soon. There are some indications that mainstream conservatives are unnerved by the post-Schiavo judge-bashing: After DeLay and his fellow Texan Sen. John Cornyn crossed the line, they were slapped down by leaders of their own party, including Vice President Cheney and Senate Majority Leader Bill Frist (Tenn.).
In fact, Frist's ability to assemble a majority willing to unleash the "nuclear option" -- a majority it's now far from certain that he possesses -- could be endangered by the radicalism of the Schiavo backlash: The wavering Republican senators who are already wary of upsetting Senate tradition could be even more rattled by the notion of throwing in their lot with the string-'em-up crowd. Lest you dismiss this as wishful thinking, some of the most ardent advocates of going nuclear privately express the same worry.
At the same time, there is reason to fear that something has changed in the national climate when the chief of staff to a U.S. senator -- even if that senator is Tom Coburn of Oklahoma -- tells a public gathering, "I'm in favor of mass impeachment if that's what it takes." An "easier way," the aide, Michael Schwartz, said at last week's conference, would be to oust activist judges for bad behavior. "Then the judge's term has simply come to an end. The president gives them a call and says, 'Clean out your desk, the Capitol Police will be in to help you find your way home.' "
Schwartz went on to provide a helpful, if not exhaustive list, of which judges he had in mind, including the majority of the Supreme Court: "It is tenure for life as long as you behave well . . . as I know that Justice Kennedy and Justice Souter and Justice Breyer and Justice Ginsburg and the rest of that crowd have not done."
Schwartz may be a particularly extreme example, but he's not the only one. "There does seem to be this misunderstanding out there that our system was created with a completely independent judiciary," the spokesman for the House Judiciary Committee chairman, F. James Sensenbrenner (R-Wis.), told the New York Times. Rep. Steve King (R-Iowa) has threatened to cut off court funding. "When their budget starts to dry up, we'll get their attention," he said. "If we're going to preserve our Constitution, we must get them in line."
In his videotaped message, DeLay told the group, "Our next step, whatever it is, must be more than rhetoric." Odds are, this too is rhetoric. But it's an ominously open question whether those odds are quite as good as they used to be.