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Beyond the Pale

Sunday, April 17, 2005; Page B06

SENATE MAJORITY Leader Bill Frist (R-Tenn.) plans to participate next weekend in a telecast sponsored by a conservative interest group that seeks to end the use of filibusters for judicial nominations. The Family Research Council bills what it terms "Justice Sunday" as "a live simulcast to engage values voters in the all-important issue of reining in our out-of-control courts." The group claims that President Bush's judicial nominees "are being blocked because they are people of faith and moral conviction" and says, "We must stop this unprecedented filibuster of people of faith."

Mr. Frist is not responsible for the rhetoric of others. But it will be a distressing new low in the debased debate over judges if the Senate leader appears at an event predicated on slander, unless he makes clear that he does not condone such slander. Whatever one says about the aggressive Democratic use of the filibuster -- which we do not support -- it simply is not motivated by anti-religious sentiment. There are people of faith and goodwill on both sides of the issue. If he attends, Mr. Frist should make clear that he knows as much.

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Clarity from the majority leader is particularly important now, because the past few weeks have seen an aggressiveness in conservative attacks on the judiciary that cumulatively takes one's breath away. First it was House Majority Leader Tom DeLay (R-Tex.) swearing revenge on the judges responsible for the Terri Schiavo case. Mr. DeLay apologized last week for saying "something in an inartful way." But the problem with Mr. DeLay's remarks was not the manner of his speech but its substance. In ostensibly apologizing, he did not back off his insistence that Congress should restrain the courts, perhaps by restricting their jurisdiction, and he did not forswear impeachment as a remedy for judicial decisions with which he disagrees.

Then there's Sen. John Cornyn (R-Tex.), who posited "some connection" between recent violence against judges and "the perception in some quarters" that "judges are making political decisions." Mr. Cornyn later insisted that he was not condoning violence against the judiciary and conceded that he knew of no "evidence whatsoever linking recent acts of courthouse violence to the various controversial rulings."

One GOP representative even inserted his disagreement with federal court decisions into the appropriations process. In subcommittee hearings on the budget for the courts last week, Rep. Todd Tiahrt (R-Kan.) lectured a judge and two Supreme Court justices on his disagreement with recent court decisions -- implying some link to the budgetary matters under discussion. "You know, we don't ask much from the courts. We just pay the bills," he told Julia Smith Gibbons, a federal appeals court judge. "The one time that we did ask something from the courts, a simple judicial review of the facts of a case, we were ignored. . . ."

Criticism of court decisions is a welcome, indeed essential, part of American legal culture. But there exist red lines beyond which legislators cannot go without threatening judicial independence. One of those, traditionally, was the norm of treating judicial nominees with respect and not extorting ideological concessions from them; both parties and their affiliated interest groups have participated eagerly in tearing down this protection. Some Republicans are beginning to gnaw at other key pillars on which an independent judiciary stands, such as the ability of judges to render difficult decisions without facing personal retribution, budgetary retaliation or diminution of the jurisdiction of the courts to hear important questions. Responsible politicians should stand against this trend.

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