Conservative Backlash on Judicial Fight

There is some significant backlash against Senator Bill Frist and the Republicans from their handling of the fight over judicial activism from some unlikely circles.

Former Bush Solicitor General Ted Olsen, writing in the Wall Street Journal, warns congressional Republicans to “Lay Off Our Judiciary.”

We might start by getting a firm grip on the reality that our independent judiciary is the most respected branch of our government, and the envy of the world. Every day, thousands and thousands of judges — jurists whose names we never hear, from our highest court to our most local tribunal — resolve controversies, render justice, and help keep the peace by providing a safe, reliable, efficient and honest dispute resolution process. The pay is modest, the work is frequently quite challenging, and the outcome often controversial. For every winner in these cases, there is a loser. Many disputes are close calls, and the judge’s decision is bound to be unpopular with someone. But in this country we accept the decisions of judges, even when we disagree on the merits, because the process itself is vastly more important than any individual decision. Our courts are essential to an orderly, lawful society. And a robust and productive economy depends upon a consistent, predictable, evenhanded, and respected rule of law. That requires respected judges. Americans understand that no system is perfect and no judge immune from error, but also that our society would crumble if we did not respect the judicial process and the judges who make it work.


No discussion of the judiciary should close without reference to the shambles that the Senate confirmation process has become. It does no good to speculate about how or when the disintegration began, which political interest has been the most culpable, or the point at which the appointment of judges became completely dysfunctional. That sort of debate is both endless and futile. The only hope for an end to the downward spiral is for the combatants to lay down their arms; stop using judicial appointments to excite special-interest constituencies and political fund-raising; move forward with votes on qualified, responsible and respected nominees so that those who have the support of a majority of the Senate can be confirmed, as contemplated by the Constitution; and remove the rancor and gamesmanship from the judicial selection process.

We expect dignity, wisdom, decency, civility, integrity and restraint from our judges. It is time to exercise those same characteristics in our dealings with, and commentary on, those same judges — from their appointment and confirmation, to their decision-making once they take office.

The columnist Charles Krauthammer calls some statements by GOP leaders “Judicial Insanity.”

Provocation is no excuse for derangement. And there has been plenty of provocation: decades of an imperial judiciary unilaterally legislating radical social change on the flimsiest of constitutional pretexts. But while that may explain, it does not justify the flailing, sometimes delirious attacks on the judiciary mounted by House Majority Leader Tom DeLay and others in the wake of the Terri Schiavo case.

DeLay is threatening judges involved in that case with unspecified retribution. He said that Supreme Court Justice Anthony Kennedy should be held “accountable” for using international law in deciding a recent (death penalty) case. He wants congressional hearings to reinterpret the “good behavior” clause of lifetime judicial tenure to make good behavior mean not what it has meant for two centuries — honesty and propriety — but good constitutional behavior. Do we really want Congress deciding that?

Even Senator Frist’s own church is urging him to back off:

Frist Draws Criticism From Some Church Leaders (NYT)

As the Senate battle over judicial confirmations became increasingly entwined with religious themes, officials of several major Protestant denominations on Thursday accused the Senate Republican leader, Bill Frist, of violating the principles of his own Presbyterian church and urged him to drop out of a Sunday telecast that depicts Democrats as “against people of faith.”

Dr. Frist’s participation has rekindled a debate over the role of religion in public life that may be complicating his efforts to overcome the Democrats’ use of the filibuster, a parliamentary tactic used by Congressional minorities, to block President Bush’s judicial nominees. Dr. Frist has threatened to change the Senate rules to eliminate judicial filibusters, and in response Democrats have threatened a virtual shutdown of the Senate. A confrontation had been expected as early as next week, but it now appears that the showdown may be delayed.

Religious groups, including the National Council of Churches and the Religious Action Center of Reform Judaism, plan to conduct a conference call with journalists on Friday to criticize Senator Frist’s participation in the telecast. The program is sponsored by Christian conservative organizations that want to build support for Dr. Frist’s filibuster proposal. Among those scheduled to speak in the conference call is the Rev. Clifton Kirkpatrick, a top official of the Presbyterian Church U.S.A., in which Dr. Frist is an active member. “One of the hallmarks of our denomination is that we are an ecumenical church,” Mr. Kirkpatrick said in an interview on Thursday. He also said, “Elected officials should not be portraying public policies as being for or against people of faith.”


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James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Tom says:

    On Religious Extremism

    However, on religious issues there can be little or no compromise. There is no position on which people are so immovable as their religious beliefs. There is no more powerful ally one can claim in a debate than Jesus Christ, or God, or Allah, or whatever one calls this supreme being. But like any powerful weapon, the use of God’s name on one’s behalf should be used sparingly. The religious factions that are growing throughout our land are not using their religious clout with wisdom. They are trying to force government leaders into following their position 100 percent. If you disagree with these religious groups on a particular moral issue, they complain, they threaten you with a loss of money or votes or both. I’m frankly sick and tired of the political preachers across this country telling me as a citizen that if I want to be a moral person, I must believe in ‘A,’ ‘B,’ ‘C,’ and ‘D.’ Just who do they think they are? And from where do they presume to claim the right to dictate their moral beliefs to me? And I am even more angry as a legislator who must endure the threats of every religious group who thinks it has some God-granted right to control my vote on every roll call in the Senate. I am warning them today: I will fight them every step of the way if they try to dictate their moral convictions to all Americans in the name of ‘conservatism.’
    — Sen. Barry Goldwater (R)

  2. bryan says:

    Religious groups, including the National Council of Churches and the Religious Action Center of Reform Judaism, plan to conduct a conference call with journalists on Friday to criticize Senator Frist’s participation in the telecast.

    So we get upset when social conservatives try to tell legislators what to do, but not when socially liberal religious groups do?

  3. peter says:

    This is the same smelly hubris that ended the democratic majority. I am very pleased to see this on a conservative blog. It is high time for conservatives to stand up for conservatism and not the failed nanny state mentality that breeds this sort of dreck and ruin. Jefferson,Madison et al were very prescient on this matter and the need for freedom of religion as well as freedom from it.

  4. James Joyner says:

    Bryan: I tend not to get upset in either case. Groups have a right to lobby politicians under the 1st Amendment. I get more uncomfortable when politicians are using the pulpit to get their message out.

    Also, to the extent churches (or civic groups) of either stripe gets engaged in politics, they should lose their tax exempt status.