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What We Could Lose If The Republicans Win

Posted by: Linda Carbonell on October 23, 2011.

John Jay, First Chief Justice of the United States Supreme Court (portrait by Gilbert Stuart)

When our country was being created, the men who did so understood that to balance the power of the executive and legislative branches wasn’t enough. We needed an independent judiciary. So, to remove the judiciary from the influences of politics, they created an appointed judiciary, counting on their belief that power would go back and forth between the political parties so that, over time, the judiciary would also be balanced.

Everyone understands that a Democratic president will appoint a Democrat to the Supreme Court and will rely on recommendations from Democrats for nominees to the bench in lower courts. A Republican president will do the same. All we can do, as citizens, is hope that most people will have a visceral reaction when they put on the robe. They will put the Constitution above their personal political views. The fact that any given civil suit or criminal case will probably go through one judge (with or without jury), then three judges and possibly a final nine judges increases the possibility that at some level, with that many people involved, some of them will have experienced that transformation power of the robe.

Back in the 1990′s, certain Republicans started what Hillary Rodham Clinton called “the great right wing conspiracy.” We all thought it was funny. It wasn’t. In the end, through all its myriad connections and spiderweb of organizations, it was defined by something Karl Rove said, that the goal of the Party was the establishment of a permanent majority. He meant a majority of both houses of Congress, residency in the White House and a majority in the Supreme Court. He was talking about one-party rule.

It is one-party rule that separates socialists from communists and liberals from fascists. One-party rule assures a de facto dictatorship, even if the person of the dictator changes over time. One-party rule can easily turn into dynastic rule, as it has in Syria and North Korea and almost did in Libya and Egypt. Someone once figured out that once George W. Bush left office in 2009, with his brother Jeb to succeed him, Jeb’s son George Prescott would be able to succeed Jeb in 2016, turning 35 in 2011. That is how this group of neo-cons were thinking in 2000 – a Bush dynasty.

Six of the eight contenders for the Republican presidential nomination have come on board for all or some of a series of radical changes to our laws and Constitution that would destroy the independence of our judiciary. Among the ideas being floated are term limits for Federal judges, budget cuts for courts and allowing Congress veto power over the Supreme Court on constitutional issues. Yeah, you read that right. We have the Supreme Court to decide if what the Congress does is within the letter and spirit of the Constitution, and these guys want to reverse it, making the Congress the final arbiter of constitutionality.

Only Mitt Romney and Jon Huntsman have not attacked the courts in their campaigns. Newt Gingrich would give Congress the power to summon judges to explain their ruling and impeach them if Congress doesn’t like the way they rule. Rick Perry has called for an end to life tenure for Federal judges and has referred to the Supreme Court as “nine oligarchs in robes.” Michele Bachmann calls the judiciary “black-robed masters” and said Congress should prevent the courts being involved in social issues like same-sex marriage and abortion. Ron Paul wants to restrict the Federal courts’ jurisdiction and impeach any judge that agrees to hear a case that exceeds what Paul says they should hear. Paul also agreed to term limits and the ability of the public to remove Federal judges by vote.

Herman Cain wants Congress to have the ability to override Supreme Court rulings, particular Roe v. Wade. Rick Santorum is a bit more focused. He considers the San Francisco 9^th U. S. Circuit Court of Appeals to be “…rogue. It’s a pox on the Western part of our country.” He has pledged that he will sign a law abolishing the appeals courts. Newt Gingrich also hate the 9^th Circuit. He’s the one who came up with the idea of choking courts to death by cutting off their funding.

Bert Brandenburg, executive director of the Justice at Stake Campaign said that such proposals would make judges “accountable to politicians, not the Constitution. Debates like these could threaten to lead to a new cycle of attempts to politicize the courts.”

The right wing’s favorite description of courts they don’t like is “activist judges.” When the Supreme Court’s five conservative justices voted to allow undeclared donations to special campaign funds, the right wing applauded the transformation of corporations into people with the same legal rights as people. They have spent twenty years convincing their base that the courts are bad, evil, corrupt sinkholes of liberalism instead of defenders of our rights and the Constitution they are built upon.

Since 1960, we have had a Republican President for 28 years, compared to 23 for Democrats. Those extra five years are reflected in the judicial appointments, 437 Republican appointees to 352 Democratic ones. Even that 85-judge majority on the bench doesn’t please them.

The Republicans in general and the Tea Party in particular have identified themselves as the party of the Constitution. They keep insisting that we must return to Constitutional principles, to the vision of our founding father (when they aren’t insisting that the Constitution is Bible-based.) But this is the party that would see an end to one of the ideas our founding fathers believed essential to our liberty – an independent judiciary.