War on the Judiciary, Take 2

The right's war on the courts continues to heat up. In addition to the various court-stripping bills in front of Congress and Sen. Cornyn warning them about serial rapists killing them for failing to do what Congress wants, we now have this threat from Rep. Steve King of Iowa on NPR last week:

Rep. KING: Congress created all of the courts; all the federal courts, Congress grants them jurisdiction. So whatever Congress gives, they can take away. If we wanted to abolish the 9th Circuit, for example, we could do that. Now I'm not going to say I think that's the prudent thing to do. We could also cut the budget. We could prohibit the Justice Department from enforcing the orders of the court.

ELLIOTT: Cut the budgets for the court?

Rep. KING: We can do that. If they're not going to listen to us any other way-if we pass a law, a specific law, and they reject that law, then the authority that they will begin to understand is when their budget starts to dry up, we'll get their attention. That's not my preferred method. My preferred method is to have them respect the Constitution and the law. But they are counterproductive to this country and if we're going to preserve our Constitution, we must get them in line.

This is rapidly turning into something out a mafia movie, isn't it? You can almost picture them speaking in a Brooklyn accent: I'm not sayin' this is gonna happen or nuttin'. I'm just sayin'...dat's a nice lookin' judge you got there. It'd be a shame if he was to fall on a knife 11 or 12 times. Capiche? The context of these comments, of course, is the claim that the Federal courts ignored the "clear intent" of Congress that they issue an immediate stay before hearing the case. But this claim is false for several reasons.

First, the law they passed doesn't actually say that. The original version contained explicit language that would have required the court to issue a stay pending a de novo review, but that language was taken out. Second, those who consider themselves textualists or originalists are generally opposed to looking at the "legislative intent" of a law. Justice Scalia, for instance, has written widely against this notion, saying, "It is the law that governs, not the intent of the lawgiver." Third, even if one does agree that one should look at the legislative intent, it was certainly not clear in this case. Look at this passage from the transcript of debate on the bill in the Senate:

Mr. LEVIN. Section 5 of the original version of the Martinez bill conferred jurisdiction on a Federal court to hear a case like this, and then stated that the Federal court "shall" issue a stay of State court proceedings pending determination of the federal case. I was opposed to that provision because I believe Congress should not mandate that a Federal judge issue a stay. Under longstanding law and practice, the decision to issue a stay is a matter of discretion for the Federal judge based on the facts of the case. The majority leader and the other bill sponsors accepted my suggestion that the word "shall" in section 5 be changed to "may." The version of the bill we are now considering strikes section 5 altogether. Although nothing in the text of the new bill mandates a stay, the omission of this section, which in the earlier Senate-passed bill made a stay permissive, might be read to mean that Congress intends to mandate a stay. I believe that reading is incorrect. The absence of any state provision in the new bill simply means that Congress relies on current law. Under current law, a judge may decide whether or not a stay is appropriate. Does the majority leader share my understanding of the bill?

Mr. FRIST. I share the understanding of the Senator from Michigan, as does the junior Senator from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislative history mandates a stay. I would assume, however, the Federal court would grant a stay based on the facts of this case because Mrs. Schiavo would need to be alive in order for the court to make its
determination. Nevertheless, this bill does not change current law under which a stay is discretionary.

So even if one were to look at the legislative intent in this case, you have the Senate leader and the chief sponsor of the bill saying that while Congress assumed the courts would issue a stay, there is nothing in the bill requiring it and it did not change the existing discretionary standard by which it is determined whether to issue one. So here we have Congressional social conservatives, the same people who scream about activist judges, complaining that judges in this case weren't activist enough because they actually looked at the text of the bill and applied existing precedent consistently. And for that horrible crime of not being as hypocritical as Congress is, let's threaten their funding. The whole thing is quite irrational, and is precisely why the founding fathers mandated an independent federal judiciary with lifetime tenure, to insulate them from such irrational political judgements. Hamilton wrote in Federalist 78:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing...

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

And yet we have the most prominent member of the Republican leadership saying that judges "need to be intimidated" and threatening retaliation upon them. We have another Congressman threatening not only to cut their funding but to have the executive branch refuse to enforce lawful judicial orders. Do these demagogues really have any idea what kind of constitutional crisis they are flirting with? Do they even care?