Judicial Constraint: The Far Right Pushes For Rubber-Stamp Courts

A lesson in basic civics for the right wing.

It is my sad duty today to give yet another basic civics lesson to the far right.

Here it goes: There are three branches of government. They are co-equal. Each performs a check on the other. Each balances out the other.

Congress can pass a law. The president can sign it or veto it. If the president vetoes it, Congress can override that veto with a two-thirds vote. A court can strike the law down, if it is unconstitutional. If a court does that, Congress can go back to the drawing board and craft a new law that conforms to constitutional measure. Or they can try to pass a constitutional amendment to send to the states. (Remember this from seventh grade?)

Newt Gingrich is having a bit of trouble with this concept lately. He argues that judges who dare do things like uphold the separation of church and state or issue “radical” rulings should be apprehended by U.S. marshals, hauled before Congress, denied staff and support and driven from office.

On more than one occasion, Gingrich has singled out for attack U.S. District Judge Fred Biery, who in May handed down a preliminary ruling in a Texas school prayer case sponsored by Americans United. Biery’s decision displeased Gingrich, and he has called for the judge’s removal from office.

Over the years, I’ve heard many Religious Right figures make similar arguments. Upset over court rulings that uphold the separation of church and state, these people have sought some way to neuter the legal branch of government. They would essentially turn our courts into a rubber-stamp body for Congress.

It’s discouraging to see anyone so blithely disregard an independent judiciary, one of the cornerstones of American government. And I should point out that plenty of constitutional and legal scholars from all spots on the political spectrum have explained the folly of such rhetoric.

Michael Mukasey, former attorney general under President George W. Bush, told the Fox News Channel that such proposals are “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle.” (Seriously, Mr. Mukasey, tell us what you really think.)

Michael McConnell, a former federal appeals court judge and noted conservative legal scholar, pointed out an obvious flaw in Gingrich’s theory: It would allow a liberal Democratic president to ignore conservative court rulings.

“You can’t have it both ways,” McConnell told The Washington Post. “It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of courts, they don’t. And the Constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.”

In October, I sat in a crowded hotel ballroom in Washington listening to Gingrich tell attendees of the Values Voter Summit all about his plan to intimidate judges. The crowd cheered. I wondered how many of them would have cheered if President Barack Obama had announced that he would ignore any court rulings striking down health-care reform and would fire the judges who issued them.

The fact is, courts must sometimes make unpopular rulings. Time usually vindicates them. Southern racists went ballistic when the Supreme Court ordered an end to segregated public education. The John Birch Society and other groups called for impeaching Chief Justice Earl Warren. Similar cries were heard when the high court struck down school-sponsored prayer in 1962 and 1963.

Yet our country is a better place today because the Warren court handed down these rulings. Only an independent judiciary could have made them.

Americans United litigates in the courts. We’re not pleased with every ruling we get, yet we always remember the ground rules. If we lose at the first level, we can always appeal to a higher court. If no more appeals are possible, we must accept that and look for other ways to achieve our goals.

The Constitution contains no provision that allows a president to fire judges or subject them to congressional grilling because of their decisions. Such stunts have more in common with banana republics presided over by tinhorn dictators than the United States.

The fact that these arguments are made by people smugly claiming to be “constitutionalists” who revere our founding document is infuriating. If they truly respected the Constitution, they wouldn’t float schemes that would trash its basic values.