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May 8, 2005

Pearland's politico pastor and the judiciary

judicial tyranny.gifFollowing on this post from yesterday on misguided efforts to restrict the independence of judicial branch of government, this Washington Post article profiles Rick Scarborough, the Pearland, Texas Baptist minister turned political operative. Mr. Scarborough is a leader in the movement within the Republican Party to persuade Senate Republicans to change the rules so that Democrats cannot use filibuster to block President Bush's federal judicial nominees. In 2002, Jerry Falwell publicly touted Mr. Scarborough as one of the new leaders of the religious right in America.

Scarborough.jpgMeanwhile, George Washington University Law Professor Orin Kerr over at the Volokh Conspiracy takes a good-natured jab at those such as Mr. Scarborough who disingenuously claim that the fight over the judiciary is based on Constitutional principles and not good ol' fashioned American politics. Professor Kerr observes the following about a prominent Supreme Court Justice:

If you think about it, [this Justice] is directly or indirectly responsible for many of the problems with the modern judiciary. Not only did [this Justice] personally fail to intervene in the Schiavo case, ignoring the will of Congress, but he has repeatedly urged judges to simply ignore Congressional intent. He refuses to cite legislative history, woodenly following the "text" rather than deferring to clear statements of what Congressional leaders intended to do. This kind of judicial hubris is simply unacceptable.

His activist opinions have invented new constitutional rights for marijuana growers, given thousands of convicted criminals a "get out of jail free" card, and tried to limit the President's ability to fight the war on terror. In addition, [this Justice] has relied heavily on foreign legal sources to interpret allegedly ambiguous provisions of the Bill of Rights (see part II.A). Indeed, [this Justice's] contempt for our system of Government is so great that he admits he wants to see the Constitution "dead."

Who is the Justice taking such outrageous positions? That's right, Mr. Scarborough's favorite, Justice Antonin Scalia.

Also, University of Texas Law Professor Brian Leiter points to this statement approved by the deans of the United States' top law schools (including Dean William Powers of the UT Law School and Dean Nancy Rapoport of the University of Houston Law Center), which provides the following common sense advice:

Recent threats of retaliation against federal judges by members of Congress and others harm the rule of law and the important constitutional principle of separation of powers. We strongly oppose these threats of retaliation. Regardless of whether we agree or disagree with their opininons, we express our full support for judges who properly discharge their constitutional responsibilities by deciding the cases before them as they believe the law requires.

We recognize that Americans wil often disagree, as do we, with particular judicial opinions. But the legislative and executive branches have constitutional means available to them to seek to alter the law as declared by the judiciary. An effort to use those means is part of our tradition of separation of powers and is entirely proper. But it is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings. We urge them to stop.

Posted by Tom at May 8, 2005 1:37 PM |

Comments

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But it is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.
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My goodness, surely our legal friends aren't trying to squelch the very political speech that they're devoted to protecting, are they? :) Because in Kev's constitutional world, even prominent members of other branches of government enjoy the right of political speech!

This notion that the judiciary should be free from criticism is peculiar -- and it's even more peculiar that certain legal academics tend to be at the forefront of pushing "political" lawmaking, yet are the first to object when such lawmaking draws political criticism.

Posted by: kevin whited at May 9, 2005 7:40 AM

Kevin, your characterization of the law profs' statement as raising a free speech issue blurs their point.

Perhaps this is a point that is better illuminated by an example. What if a judge publicly called for the impeachment of a legislator because of the legislator's propensity to propose patently unconstitutional legislation?

My sense is that the law profs would have the same criticism of that judge's comments as they have for the recent criticism of the judiciary referred to in their statement.

Posted by: Tom K. at May 9, 2005 8:09 AM

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