April 2, 2005

THE D*** "X" MARKS THE D*** SPOT, D*** IT.

The Limbaugh Code: The New York Times best seller no one is talking about (Dahlia Lithwick, Slate, 4/1/05)

Enough already. The book is silly. But the maddening question here is why Levin, Limbaugh, and—as of yesterday, Tom DeLay—have stopped threatening just "liberal activist" judges and have started threatening the judiciary as a whole. Levin, recall, is excoriating a court composed of seven Republican appointees. He's trashing the body that's done more to restore the primacy of states' rights, re-inject religion into public life, and limit the rights of criminal defendants than any court in decades. He seems not to have noticed that the Rehnquist court is a pretty reliably conservative entity. Reading his hysterical attacks on Justices O'Connor and Kennedy, you'd forget they are largely on his side and substantially different creatures from the court's true liberals. But Levin seems as incapable of distinguishing between jurists as he is incapable of differentiating between cases or doctrine. He's happy to decimate the court as a whole.

Consider Tom DeLay's similarly broad comments from yesterday, following the death of Terri Schiavo: "This loss happened because our legal system did not protect the people who need protection most, and that will change," DeLay warned. "The time will come for the men responsible for this to answer for their behavior," he said. In addition to sharing Levin's unfortunate tendency to label all federal judges as "men," DeLay is now attacking all the judges involved in Schiavo—Republicans, devout Christians, and strict constructionists among them—for failing to interpret the law to suit him. This is not just an attack on some renegade liberal jurists. Levin, Limbaugh, and DeLay have subtly shifted their attack to encompass the entire judiciary.

Perhaps my colleague Dan Gross is right and the wing-nuts are simply starved for new subjects. But maybe the far-right really thinks that attacking the independence of the judiciary as a whole is a smart move. Levin pays some lip service to the idea that the federal bench needs to be stacked with right-wing ideologues in his penultimate chapter. But he betrays early on his fear that even the staunchest conservative jurist is all-too-often "seduced by the liberal establishment once they move inside the Beltway." Thus, his real fixes for the problem of judicial overreaching go further than manipulating the appointments process. He wants to cut all judges off at the knees: He'd like to give force to the impeachment rules, put legislative limits on the kinds of constitutional questions courts may review, and institute judicial term limits. He'd also amend the Constitution to give congress a veto over the court's decisions. Each of which imperils the notion of an independent judiciary and of three separate, co-equal branches of government. But the Levins of the world are not interested in a co-equal judiciary. They seem to want to see it burn.

The Left talks only to itself, and that's a pity. Conservatives have been saying, for 40 or 50 years now, that the current judicial supremacy, in which the political branches and settled social arrangements supported by a majority of the citizenry are ignored or set aside by the judiciary, was insupportable, unsustainable and would have to change. "Hey," says Dahlia Lithwick, "they might mean this."

Judicial supremacy is an American innovation that has now been around long enough for conservatives to treat it as a customary piety. But it has only one notable achievement to its name: the beginning of the end of seperate but equal treatment of the races, probably about a decade earlier than it would otherwise have ended. It was announced in Marbury in order to avoid a parochial political showdown between the judiciary and President Jefferson that the judiciary would have lost. It was not used again until Dred Scott, in which it either postponed the Civil War, preserved the Union or unworked a political solution that would have kept slavery in place pending a peaceful but long-delayed resolution. It was used in the late 18th and early 20th centuries to protect a liberal (read, libertarianish) economic policy from Progressivism and then was quiescent until the 1950s. At that time, it did, as noted above, achieve Brown v. Board of Education, a singular achievement, but it also started the trend of the left using the courts to achieve those ends (e.g., driving religion out of public life, establishing abortion, emphasizing the civil rights of criminals) that it could not achieve politically. Ironically, this helped usher in the era of right political dominance, increasing in turn the left's need to resort to the courts, and established our current political dynamic.

Posted by David Cohen at April 2, 2005 3:40 PM
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