May 2005 Church & State | Featured

U.S. Appellate Court Judge Stanley F. Birch Jr. would seem an unlikely target for right-wing wrath.

Never tagged as a liberal, Birch was placed on the 11th Circuit Court of Appeals by President George H.W. Bush in 1990. The Knight-Ridder news service recently called Birch, a former Army lieutenant who served during Vietnam, “one of the most conservative” judges on the federal bench.

Despite these conservative bona fides, Birch is a public enemy to the Religious Right these days because he committed an unpardonable sin: During the legal imbroglio over Terri Schiavo, the Florida woman in a persistent vegetative state whose husband sought to have her feeding tube removed, Birch penned a strongly worded opinion rebuking Congress for intervening in the case.

“He needs to be impeached,” Michael Schwartz, chief of staff for U.S. Sen. Tom Coburn (R-Okla.), told a gathering of Religious Right activists in Washington last month. Birch and U.S. District Judge James Whitmore, who also ruled against Congress’ intervention, should be impeached “forthwith,” Schwartz declared.

“I hope they serve long sentences,” he added.

If supporters of the newly formed Judeo-Christian Council for Constitutional Restoration have their way, Birch and Whitmore will be the first in a long line of federal judges to be kicked off the bench. Group supporters plan to disbar judges all the way to the U.S. Supreme Court, where their chief target is Justice Anthony M. Kennedy.

At first glance, the D.C. gathering, “Confronting the Judicial War on Faith,” pulled together by Religious Right preacher Rick Scarborough of Texas, might seem an easily dismissed lunatic fringe. That would be a mistake. Although attendance for the April 7-8 event was low – only about 200 people showed up – the anti-judge hatefest caught the attention of some powerful people.

House Majority Leader Tom DeLay was scheduled to address the event in person but was called away at the last minute to attend the funeral of Pope John Paul II. Two members of Congress, leaders of national Religious Right groups and Senate staffers attended.

Although he couldn’t be there in person, the embattled DeLay sent a videotaped statement that endorsed the movement fully.

With DeLay’s help, conference organizers have big plans to ditch some powerful judges – starting at the top.

Kennedy, appointed by President Ronald W. Reagan in 1988, is a devout Roman Catholic who has voted to approve various types of taxpayer aid to religious institutions. No matter. He has also voted to support legal abortion, in favor of gay rights and against government-sponsored prayer in schools. These votes have made Kennedy a traitor in the eyes of the Religious Right, and they want his scalp.

Kennedy’s 2003 vote to strike down a Texas law banning homosexual sodomy has especially infuriated the Religious Right. A clearly agitated Schwartz could barely contain himself as he blasted the high court for finding “a right to commit buggery in the Constitution.”

Kennedy, said home-schooling advocate Michael Farris, “should be the poster boy for impeachment.”

What if Congress balks? Farris has an answer in mind for that.

“They ought to be impeached as well,” he said. “We need to hold them to that standard.”

Another speaker, Edwin Vieira, author of a book titled How to Dethrone the Imperial Judiciary, went even further. Asserting that “the fifth fool on the Supreme Court decides the issue and then according to them…everyone else in the world is bound by this decision,” he blasted the Supreme Court for promoting “Marxism-Leninism-Stalinism.”

Vieira approvingly quoted Joseph Stalin, whom he called “the greatest political figure of the 20th century.”

Stalin, Vieira noted, had a solution for dealing with his enemies: “He had a slogan, and it worked very well for him whenever he ran into difficulty. ‘No man, no problem.’… This is not a structural problem we have, this is a problem of personnel. We are in this mess because we have the wrong people as judges, and we have the wrong people as judges because we have the wrong people as legislators. ”

(Vieira left out part of the Stalin quote. As Washington Post reporter Dana Milbank wrote the next day, Stalin said, “Death solves all problems: no man, no problem.” Milbank opined that Kennedy might want to find “a few more bodyguards.”)

During his videotaped remarks, DeLay included a token line calling for a respectful dialogue. But the bulk of his comments just poured gasoline on the fire.

Blasting recent court rulings, DeLay said, “These are not the dictates of a mature society but a judiciary run amok…. The failure is to a great degree Congress’s. The response of the legislative branch has mostly been to complain. There is another way, ladies and gentlemen, and that is to reassert our constitutional authority over the courts.”

Continued DeLay, “I believe the judiciary branch of our government has overstepped its authority on countless occasions, overturning and in some cases just ignoring the legitimate will of the people. Legislatures for too long have in effect washed our hands on controversial issues from abortion to religious expression to racial prejudice, leaving them to judges who we then excoriate for legislating from the bench. This era of constitutional cowardice must end.”

Aside from DeLay, U.S. Reps. Lamar Smith (R-Texas) and Todd Aiken (R-Mo.) addressed the gathering. U.S. Sen. Sam Brownback (R-Kan.) was listed as a speaker; at one point it was announced that he would arrive soon, but he never showed up.

Speakers were drawn from the entire Religious Right spectrum – from the netherworld of far-right extremism to “establishment” social conservative groups in the nation’s capital. The Christian Legal Society, which often poses as a moderate evangelical group, was represented by no less than its executive director, Sam Casey. Even the U.S. Conference of Catholic Bishops sent a “pro-life” activist, Cathleen Cleaver Ruse of the Conference’s Pro-life Secretariat.

At the farthest fringes, the theocratic right had a healthy dose of heavy hitters on hand. Howard Phillips, a former staffer for President Richard Nixon who has run several times for president on the Christian Reconstructionist-oriented U.S. Taxpayers Party (now the Constitution Party) spoke on a panel alongside Herb Titus, former dean of TV preacher Pat Robertson’s Regent Law School. Both men are known for their theocratic leanings.

Other speakers included Tony Perkins, president of the Family Research Council; Jan LaRue of Concerned Women for America; Mark Sutherland of Joyce Meyer Ministries; long-time Religious Right warhorse Phyllis Schlafly of the Eagle Forum; Tom Jipping, a far-right activist who now serves on the staff of U.S. Sen. Orrin Hatch (R-Utah) and Manny Miranda of the Heritage Foundation.

In an attempt at ecumenism, conference organizers even added two right-wing rabbis – Yehuda Levin of Jews for Morality and Aryeh Spero of Caucus for America (who advocated that society return to the sabbath – the Christian one), as well as a Catholic priest, the Rev. Edward Hathaway, and Patrick Reilly of the Cardinal Newman Society.

An overriding theme of hostility – often it felt like outright hatred – toward the federal court system pervaded the event. Speakers put forth a number of solutions, of varying degrees of plausibility, for reining in the “out-of-control” judiciary.

Impeachment of judges was the hands-down favorite approach. Allan Parker, founder of the Texas Justice Foundation, was blunt. “What it is time to do is impeach judges, and I advocate the standard not just to be pro-life or any particular case,” Parker said. “The standard should be any judge who believes in the ‘living Constitution’ should be im­peached. Many of them have written this explicitly. It would be easy to document…. That’s the standard, and it’s time for impeachment.”

Parker made the comments during the second panel of the conference. It was a refrain echoed by speaker after speaker.

Addressing a panel on “Remedies to Judicial Tyranny,” Farris told the crowd, “Impeachment needs to be a serious reality, and I’m going to name some names.”

Farris singled out U.S. District Judge Jack B. Weinstein of New York, who dared to hand down a ruling that displeased the right wing, saying, “That judge needs to be impeached tomorrow, and if these congressmen won’t do it, we need to get a new Congress.”

But Farris made it clear he would not stop there and that he’s quite prepared to use impeachment as a weapon of intimidation. “About 40 of them [federal judges] get impeached, you know, suddenly these guys would be retiring and going into private law practice, which would be, you know, happy days are here again,” Farris told the crowd.

Farris also called for other radical measures. Congress, he said, should be able to overturn any federal court ruling by a two-thirds vote and a vote of two-thirds of the state legislatures. He also proposed denying federal courts the ability to set precedent with their decisions. Under his theory, Congress could pass a law mandating that Supreme Court rulings affect only the parties that bring them.

Schlafly also backed a number of radical proposals. She called for various court-stripping measures that would deny the federal courts the right to hear certain types of cases. (Legal ex- ­perts say the scheme is of dubious constitutionality.) Schlafly, who made her name as an anti-feminist crusader in the 1970s, also backed a constitutional amendment allowing Congress to overturn Supreme Court rulings and term limits for federal judges.

Other speakers floated different proposals. Several claimed that Congress can simply vote to abolish certain federal courts or defund them. The Constitution does not permit Congress to cut off a federal judge’s salary, but speakers advocated defunding judges’ staff, office space or operating budgets or simply dismissing them for failure to maintain “good behavior.”

Schwartz made it sound easy.

“If we had a clear standard, and if it is breached, then the judge’s term has simply come to an end,” Schwartz said. “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.’ That’s the end of it. We don’t need any trials, we don’t need any impeachment,” he said.

Other speakers seemed content to merely spew anti-judge bile without calling for specific remedies. FRC’s Perkins accused federal judges of spawning “chaos” and reminded the crowd, “This is spiritual in nature.”

Wielding a judge’s gavel that he frequently slammed to the speaker’s podium, Perkins denied that the judiciary is an equal branch of government, despite the constitutional separation of powers. The federal courts are so unimportant, he said, that the Supreme Court did not even have its own building until the 1930s.

“They should be meeting in trailers,” Perkins barked.

“The court has become increasingly hostile to Christianity,” Perkins told attendees. “It represents more of a threat to representative government than any other force – more than budget deficits, more than terrorism.”

At the conclusion of the event, conference organizer Scarborough announced that representatives of the various groups that attended had hammered out a “Declaration of Constitutional Restoration.”

The document attacks separation of church and state as “a phrase not found in the Constitution and a concept foreign to establishment clause constitutional jurisprudence prior to 1947.” It goes on to demand court stripping, impeachment of federal judges and calls on Congress to “reduce or eliminate the funding of federal courts, the salaries of judges excepted, that overstep their constitutional authority.”

Scarborough compared his group’s effort to the Constitutional Convention, telling the crowd, “I begin to sense what it must have been like in Philadelphia.” The document, Scarborough said, is “just as revolutionary as the Constitution…. We’re asking you now to start a movement that will not rest until we see this nation restored.”

It remains unclear if Scarborough, who up to now has been a marginal figure among the Religious Right with a following only in Texas, can build a truly national movement around judge bashing, but he seems to be off to a good start. Despite his obscurity, Scar­borough, author of a monograph titled In Defense of Mixing Church and State, has a knack for tapping the well heeled to pay for his projects. In 2002, the Baptist preacher announced that he had received an anonymous $800,000 gift to his fledgling Vision America organization to do grassroots political activism among evangelical churches.

In the mid 1990s, Scarborough briefly succeeded in getting his allies elected to the city council and school board in Pearland, Texas, where he pastored a Baptist church. He announced plans to export his political model to other communities, but the effort fizzled after a scandal erupted, and Pearland voters refused to reelect Scarborough’s candidates. In the fall of 2002, Scarborough resigned his pastorate to devote himself full time to grassroots organizing and moved his operation to Lufkin, Texas.

Scarborough, who is a protégé of the Rev. Jerry Falwell, apparently came up with substantial funding for the anti-judge project. He was not shy in telling conference attendees that registration fees had not covered the cost of the event and acknowledged help in paying for it.

One source might be Michael Valerio, founder of a successful New England pizza chain called Papa Gino’s that he sold in 1992. Valerio has long been active in right-wing causes and is a member of the secretive Council for National Policy, a group of far-right activists who meet regularly to plot strategy.

Valerio serves on the board of Scarborough’s Council and during the event was presented with an award for his service to the cause. Aside from his work with Scarborough, Valerio has been active in USA Next, a right-wing front group that promotes the privatization of Social Security.

Other conference speakers included former Alabama Supreme Court Chief Justice Roy Moore, who treated a luncheon crowd to snippets of his poetry; current Alabama Supreme Court Justice Tom Parker, who introduced Moore; Alveda King, the conservative niece of Martin Luther King Jr.; Michael Peroutka, the 2004 presidential candidate of the Constitution Party and Alan Keyes, a black conservative and perennially unsuccessful candidate for public office.

Americans United Executive Director Barry W. Lynn said the conference should serve as an eye-opening example of how extreme the Religious Right has become and its growing influence in Washington.

“Courts often serve as our last line of defense against dangerous proposals that would squelch our freedoms,” Lynn said. “The Religious Right knows this, and that is why it is determined to assault the federal court system. We must see to it that this mean-spirited tactic does not succeed.”