The National Republican Party: In Contempt of Courts

by Nashua Advocate

If the radical right’s utter contempt for our nation’s courts was anything less than wholly evident prior to tonight, that blinder has been at once and permanently removed. The worst kept secret about the Republican Party in 2005 is that it does not hate the federal government in its entirety: it merely loathes—and seeks desperately to decimate—one co-equal branch of that government, the judicial branch.

— Editorial, The Nashua Advocate, March 23rd, 2005

If ignorance of the structure and operation of our national government were a crime, it would be necessary to indict a sizeable percentage of the ideological conservatives in the United States.

And to try, for high crimes, the vast majority of the Republican leadership in Washington.

Witness the remarks made yesterday by U.S. Representative Tom DeLay (R-TX) following the sixth rejection, by the United States Supreme Court, of appeals from the parents of Terri Schiavo to forcibly reinsert the brain-dead woman’s feeding tube contrary to her constitutional right to refuse medical treatment.

Witness, that is, DeLay’s cowardly and possibly criminal attempt to blame the subsequent death of Terri Schiavo on federal judges: "This loss happened because our legal system did not protect the people who need protection most, and that will change...[t]he time will come for the men responsible for this to answer for their behavior."

[U.S. Senator Ted Kennedy (D-MA) rebutted that "at a time when emotions are running high, Mr. DeLay needs to make clear that he is not advocating violence against anyone (in the judiciary)"].

And witness the statement from possible 2008 Republican presidential candidate and current U.S. Senator from Pennsylvania, Rick Santorum: "The actions on the part of the Florida court and the U.S. Supreme Court [in the Schiavo case] are unconscionable."

Are these men truly this ignorant of basic civics, or are they merely pathetically unequipped for the intellectual debate this country has been conducting, for the past two hundred years, as to the proper operation and functioning of our national government?

Only those of you who support the National Republican Party can possibly know.

Here follows, then, a primer for political idiots, particularly those of the neo-conservative, radical conservative, and X-con stripe, who—along with their run-of-the-mill Republican ilk—routinely misconstrue the role of U.S. state and federal courts, and the justice system in general, in determing the legal, political, moral, and economic course of this country.

A Primer for Those of You Who Failed Civics in High School and Thus Became Republicans; Or, "The Massive Power Wielded By the U.S. Legislative Branch of Government, for Whom Crocodile Tears Over ’the Will of the People Being Abridged’ and ’Runaway Judges’ Ought Never Be Shed"

Congress has the power to pass any law it wants, constitutional or unconstitutional.

If the law is constitutional, only the President (read: the executive branch of government) has the power to curtail or block its passage, assuming the law is not revisited by a future session of Congress.

If the law is unconstitutional, Congress still wields massive power to exert its (now presumptively) anti-American and anti-democratic (read: anti-constitutional) will on the American people.

And the executive branch holds massive responsibility for failing to check the exercise of that will.

Indeed, if the executive branch of the U.S. government (read: the President) fails to block (read: veto) an unconstitutional bill, it is made law.

But even if the President vetoes the bill, Congress has the incredible power to override that veto (with enough votes) and can nevertheless thereby enact its unconstitutional will upon an unsuspecting public.

The next line of defense against an unconstitutional, runaway piece of legislation is, you guessed it, the American people themselves. As the judicial branch of government has no power whatsoever to independently and spontaneously review executive and legislative branch acts, a member of the public must complain about said acts, first.

Assuming a U.S. citizen does complain about the act or bill in question—never a guarantee, suggesting just how broad Congressional power really is—then, and only then, does the judicial branch get a say.

And the "say" they get is uncommonly narrow.

It is not, for instance, "Do we like this bill?" or "Is this bill right for the country?" or "Is this bill morally upright?"

No: the legal questions trial and appellate courts are allowed by the U.S. Constitution to answer are, "Does this bill violate the U.S. Constitution?" and/or "Does this bill contradict prior statutes enacted by state or federal legislative branches?" [Of course, courts make factual findings and evidentiary rulings all the time, but we will allow, for the moment, these rudimentary functions of a typical court to pass uncommented upon, as they are so case-specific as to defy cogent-yet-generalized critique].

So, either a court is looking out for the interests of the legislative branch—by deciding (as they are forced to do) that the more recent and/or more specific of two contradictory statutes must be followed, or that a single legislatively-enacted statute has simply not been followed at all—or else they’re looking out for the American public, to wit, by visiting a claim from an American citizen that the U.S. Constitution, the founding document of our Union, has been violated.

Now, here’s the funny part: short of state and federal Supreme Courts, judges never have the final say on legal issues. Everything they say and do is potentially reviewable by other, more powerful judges.

Moreover, if a state or federal Supreme Court (read: those "other, more powerful judges") does something the legislative branch doesn’t like, guess what: the legislative branch can amend the Constitution to make constitutional whatever bill they passed previously.

Or they can amend the bill itself until it falls under their essentially-unlimited power to pass constitutional legislation.

Or they can attempt to pass the bill at a later time, when the composition of the reviewing court has changed.

And hell, even a, say, state Supreme Court can’t act in an unbounded fashion, as they are compelled by the common law notion of stare decisis to stand on precedent: meaning that, barring extraordinary circumstances—for example, deciding a state rather than federal constitutional issue; or being in a position to review a question never before posed to a U.S. court—they’re charged to rule on any issue which comes before them in a manner consistent with prior Justices of the U.S. Supreme Court and, in some instances, will feel compelled to remain true even to prior Justices of the court on which they sit.

How’s that for unfettered power? No control of when and if an issue even comes to you, and various jurisprudential imperatives (precedent; published opinions; career advancement) which make bringing your personal will to bear on the subject at hand largely impossible, or else merely apocalyptically impractical.

Wait a minute: did we say "career advancement"?

That’s right, here’s another fun fact: jurisprudentially, judges are overwhelmingly conservative.

Why?

Because, in their view, they have to be.

Think about it: Judges are rewarded (read: elevated to higher courts) based upon, more than anything else, never getting overturned by a higher court. And how do you avoid getting overturned?

If you guessed stare decisis, you’re a smart bloke (or lady) and likely a progressive.

If you guessed "by being the biggest flaming liberal in these United States," you’re probably a regular denizen of Michelle Malkin’s website and we hope you will continue reading The Nashua Advocate (this article in particular) in order to get yourself a proper education in the functioning of American government.

One great way to kill your career, if you’re a judge, is to let loose a criminal who later harms an innocent civilian. Likewise, because politicians use the criminal justice system as a political hot potato, you can be sure that any decision you make which "broadens" the rights of accused criminals will bury you professionally, despite the fact that the U.S. Constitution is one of the most bare-bones, fundamentally anti-government documents the world has ever produced—so you might well expect it to protect its citizens, even its accused wrong-doers, exceedingly well from a massive, over-reaching federal government.

Oh, and did we mention most judges are either former prosecutors or wealthy attorneys with political connections? Not exactly a group prone to a) radicalism, or b) progressivism. Think about it: What possible benefit does a judge accrue from pleasing a constituency with no political power (accused criminals) and displeasing either the very populace which elects him or her (in states with that hideously antiquated system) or the very politicians which appoint him or her (in states where nepotism is king)?

And where judges are forced to wrestle with non-criminal issues—say, taxing the internet—how can they be expected to employ the Scalia Doctrine of originalism?

Has anyone who self-identifies as a neo-conservative (say, Bush voters, who voted for a neo-conservative whole-heartedly in 2000 and 2004) actually read the Constitution?

And if so, can you honestly say you can make heads or tails of it?

It’s (relatively speaking) brief.

It’s (outrageously) generalized.

It’s (uncomfortably) non-comprehensive.

Think it says anything at all about taxing the internet? Corporations? Euthanasia? Drugs? Tort reform? Medicare? Medicaid? Affirmative action? Abortion?

Think again.

The reason the U.S. Constitution is so often interpreted through the reduction of its themes into working principles is because, quite frankly, that’s all the goddamned-yet-blessed document allows modern judges to do. And if one considers the U.S. Constitution as the anti-government, privacy rights-oriented document it is, it’s no wonder the Fourth and Fifth and Sixth Amendments are given a wide berth; it’s no wonder judges deduced that the Constitution’s original statement that blacks were less than whole persons was not consistent with the philosophical reasoning of the document; it’s no wonder abortion came to be viewed by the courts as a question of big government gone awry, and no wonder that many progressives continue to view the application of the death penalty as yet another opportunity for a fallible Big Government to decide issues of life and death—which undoubtedly was not the sort of Big Government the Founders envisioned when they made legislative sludge like last week’s Congressional law governing the Terri Schiavo case not just richly, but profoundly unconstitutional.

It is impossible to interpret the Constitution strictly, because 95% of the issues judges are forced to decide on a daily basis were not issues in 1789—indeed, were as much the stuff of magic to our predecessors as Star Trek and Star Wars now seem to us—and the remaining 5% of issues have either long since been wisely re-thought (see: blacks as chattel) and or simply can no longer be seen through the lens of, say, obscure vagrancy statutes derived in Liverpool, England in the mid-1500s (read [please, Mr. Justice Scalia]: colonial views on capital punishment may have been as much informed by the lack of substantial local police forces as by a bloodlust-filled desire to let Big Government play God, by a scarcity of the resources necessary to lock murderers and rapists in a 9-by-9 cage for the rest of their natural lives, rather than a perverse and ill-fated belief in the intractable rectitude of a twelve-citizen jury).

So, if you’re repulsed by the recent murders of judges in Illinois and Georgia; if you’re repulsed by the suspension, two years ago, of two Boston-area conservative radio hosts for encouraging listeners to telephonically harass local judges who made unpopular decisions; if you’re sick and sickened and sick-and-tired of a Republican Party so inept at convincing the country of its own policy positions and so contemptuous of the founding document of this country that it must spill all its pretty hate-filled words (and Nazi analogies) defaming those state and federal judges who know more about the law of this land and the duty of the judicial branch than Ann Coulter (self-proclaimed "constitutional attorney") will ever learn off the back of a McDonald’s Happy Meal, then, good God please, reconsider your position on precisely how dangerous the modern Republican Party is to the continued healthy operation of this nation.

It’s called "checks and balances," Tom DeLay.

And if you don’t like it, then you and the rest of your anti-constitutional, anti-judicial cabal can just get the hell out of U.S. government—and make way for progressives and conservatives alike who have an appropriate and healthy respect, as did our Founders, for the most independent of the three co-equal branches of government.

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