Here come the Scalias

The religious right may have lost its battle over Terri Schiavo, but its war against "liberal judges" has just begun.

Published April 11, 2005 11:15PM (EDT)

The day after Terri Schiavo died, Gallup pollsters began calling Americans to ask them how various national figures had acquitted themselves in the operatic debate over whether to remove the terminally ill woman's feeding tube. The results seem to provide a simple outline of American opinion on the matter. In short, Americans think the Schiavo case was none of their business. The poll, like all other polls on the case, shows that Americans, by an overwhelming majority, don't think it was the president's or Congress' business, either. Asked what issues matter to them, Americans said pretty much the same thing they've been saying for months -- terrorism, healthcare costs, gas prices and the state of the economy. "Changes to how the federal courts handle moral issues" is an issue deemed "extremely important" by only 20 percent of the nation.

Here's the troubling thing: That 20 percent is running the country, and they're now pressing for such changes in the way the courts decide cases. While most Americans are apparently indifferent to the long-term implications of the Schiavo case, many religious conservatives see it as having lasting political utility. Its most important outcome, they say, is in highlighting an unsettling flaw in American governance. They call this flaw "judicial tyranny," though most of the rest of us know it by a friendlier name, "checks and balances."

For the politicians representing this minority -- which is to say, leaders in the House and Senate, if not the president himself -- the Schiavo case presents an opportunity to stem what conservatives frequently call an "out-of-control" judiciary. By "out of control," they mean out of their control; in the Schiavo case, after all, we saw two branches of the federal government succumb to the will of this savvy minority, while a third branch remained determinedly out of reach. Now that third branch is under attack. It is far from clear that the judiciary will survive unscathed.

Conservative legal scholars concede that the Schiavo case does not rank as history's most egregious instances of "judicial activism." Supreme Court decisions on church-state divisions, the death penalty, gay rights and, of course, abortion are still more deeply hated. But the case, with its emotional appeal and saturation media coverage, has clearly juiced the troops at an opportune moment -- just in time for an expected Supreme Court vacancy and for a Senate debate over a Republican plan (aka the "nuclear option") to prevent Democrats from filibustering judicial nominations.

Confronting "judicial tyranny" is now "the great battle of our time," Gary Bauer, the former presidential candidate, wrote in his daily e-mail newsletter a few days after Schiavo died. James Dobson, the influential evangelical leader and founder of the ministry group Focus on the Family, unleashed a 5,000-word attack on the judiciary in the April issue of his Action Newsletter. Dobson writes that "although many fine men and women serve on the bench," their decisions on moral issues illustrate "the heady abuse of power that is all too common among independent fiefdoms known as judges. They rule like royal monarchs. And sitting on the top of the pyramid is the U.S. Supreme Court, which threatens the liberty that was purchased with the blood of countless men and women who died to secure it."

These attacks are tame in comparison to the pugilism of Texas politicians. House Majority Leader Tom DeLay reacted to Schiavo's death by declaring that "the time will come for the men responsible for this to answer for their behavior"; he made it clear that the responsible men he was talking about were judges. Meanwhile, Republican John Cornyn of Texas, in a speech on the Senate floor last week, suggested that outrage over so-called judicial activism might lead "to the point where some people engage in violence" against judges. (He later backpedaled.)

As Slate columnist Dahlia Lithwick pointed out, this new conservative line against the judiciary is broader than previous right-wing attacks on judges. Conservatives are now criticizing all federal judges, not just "liberal" judges. More precisely, many are upset with the very idea that judges act as a check on the other branches of government. The Supreme Court may be stacked with Republican nominees, and it may have handed the presidency to a Republican candidate who lost the popular vote, but that doesn't matter to Dobson. He still believes that Justice Anthony Kennedy is "the most dangerous man in America," and that stopping judicial tyranny is urgent.

Kennedy was nominated to the court by Ronald Reagan. Other than in a few big cases involving gay rights, abortion and, most recently, the death penalty, Kennedy has mostly sided with conservatives on the court. For the religious right, though, "mostly" is not good enough. Religious conservatives want judges that never waver, which is why groups like Dobson's support efforts that would both radicalize the courts as well as reduce their authority.

It isn't clear how far these efforts will go. Passage of the nuclear option -- which would leave Senate Democrats with virtually no say on who gets on the courts -- looks possible, but not guaranteed. Various other Republican efforts to strip judges of their authority in specific kinds of cases look rather unlikely to pass, as do plans to impose term limits or other curbs on judges' tenure. What matters, though, is that in the wake of Schiavo, the right is fully committed to its battle on the federal judiciary.

Cass Sunstein, a constitutional law professor at the University of Chicago Law School, stresses that Republicans have already succeeded in their efforts to remake the judiciary. In the past 30 years under Republican presidents, the federal courts have become strikingly more conservative. No current Supreme Court justices are as liberal as some we've had in the past -- as Earl Warren, or Thurgood Marshall, or William Brennan. Yet at the same time we have more extremely conservative judges -- like Antonin Scalia, or Clarence Thomas -- than we've ever had. These judges, who favor an interpretation of the Constitution that allows no room for changing times, envision a judiciary that is less interventionist than the kind of third branch that liberals would demand.

"The real danger is not Tom DeLay talking recklessly," Sunstein says. The Schiavo case presages something scarier -- the continuing "massive transformation of the federal judiciary."

To many observers, it isn't immediately clear how the state and federal court rulings in the Schiavo case might be construed as "judicial activism." Over the years, court decisions that have most rankled the right are those in which -- to quote various conservatives, including George W. Bush -- judges "legislate from the bench," finding new rights (such as a right to privacy, or a right to gay marriage) in old texts. The Schiavo case involved no apparent legislating from the bench. As Vikram Amar, a constitutional law professor at the University of California Hastings College of Law, notes, "The term 'activist' ceases to have any coherent meaning if it's applied to judges who stay out of things. Maybe you can call it a slothful judiciary, but not activist."

Schiavo's case would never have made it to the federal courts had it not been for Congress and the White House, which, under heavy pressure from religious conservatives, intervened during the weekend after Schiavo's feeding tube was removed on March 18. Republicans in the Senate and the House -- with little opposition from Democrats -- rammed through a strange law that applied only to Schiavo's parents. The bill, referred to by many as "Terri's Law II" (the first "Terri's Law" was enacted in Florida in 2003), directed the federal courts to hear Schiavo's parents' plea to reinsert the feeding tube.

Conservative legal scholars admit that it's difficult to label the courts' decision to stay out of the case as an instance of judicial activism. But they still insist that the courts acted unfairly in the Schiavo case. They say that the courts should have examined the fundamental issues of fact in the Schiavo affair, such as whether she was indeed in a persistent vegetative state, or whether she'd ever told her husband that she wouldn't want to be kept alive on a feeding tube. Federal judges didn't think so and instead focused their review on matters of law, such as whether Schiavo's constitutional rights to due process and religious freedom had been violated by the Florida courts. They also debated whether Terri's Law II was constitutional in the first place. Ultimately, they decided that if the Schiavo case went to trial, the court was unlikely to find that her rights and freedoms had been violated. So they rejected Terri Schiavo's parents' request to restore her feeding tube.

To conservatives, this is where the judges failed the nation. Their decision, says Jordan Lorence, senior counsel at the Alliance Defense Fund," a group that fights cases of church-state separation across the nation, was based on personal biases rather than the law. "The federal courts blew off Congress. They said, 'We're only going to give superficial, perfunctory review,'" Lorence says. "The judges inserted their personal opinion in the case when they said, 'We think this legislation is improper and unnecessary so we're going to drag our feet on it."

By refusing to review the facts in the case, the courts were "thumbing their nose" at Congress, in DeLay's colorful phrasing. When Congress told federal judges to jump off a cliff to save Terri Schiavo, DeLay and company believe, the judges should have jumped.

When Dobson looks at the federal judiciary, he sees a system that is "far too powerful and is totally out of control." In his newsletter, he implores readers: "Please tell me you understand the danger of this outrageous situation. To put ultimate power in the hands of those who promise to make up their rules as they go along -- or to base them on treaties that were never ratified by Congress -- is a recipe for disaster. Democracy itself hangs in the balance."

Every time the courts subvert the will of Congress and the White House, Dobson considers the judges to have acted in an unprincipled way. It is a mistake to think that Dobson and his cohorts simply want a more conservative federal judiciary. What they actually want is a federal judiciary that, in addition to being conservative, is tremendously more deferential to Congress and the White House, two institutions in which Dobson feels more at home. In Dobson's perfect world, Congress and the president could single-handedly have saved Terri Schiavo; to the extent that the courts played a role, it would have been as a rubber stamp.

It is worth noting that not all conservatives share the idea that the judges in the Schiavo case acted in an unfair manner. Bill Frist, for instance, told reporters last week that he thinks the courts did a good job, even though he disagreed with their decision not to order the reinsertion of her feeding tube. Sean Rushton, executive director of the Committee for Justice, one of the conservative groups taking the lead in pushing for the elimination of the filibuster to block judicial nominees, says that "when we talk about the judiciary going forward, I don't think we're going to cite the Schiavo case as an example of unprincipled judging." Even many religious conservatives -- including Lorence of the ADF -- say that there's only a little bit of judicial activism in this case.

But even if conservative groups are slightly split on the question of whether the decisions in the Schiavo case were technically "legislating from the bench," they mostly share the broader idea that the judiciary represents a grave threat to their governing philosophy, and they recognize the political prize that is the Schiavo case.

The polls may show that most of the country hated what Congress and the White House did in the Schiavo case. But the religious right doesn't believe the polls. Many conservatives told me that they think that if the public were to truly look at the facts in Schiavo's case -- at Schiavo's health, which they say was better than the media portrayed it, and her husband, who they say was worse than the media portrayed him -- Americans would side with religious conservatives.

"You wouldn't believe how many phone calls we received from our supporters," says Michele Combs, a spokeswoman for the Christian Coalition of America. "They were asking us, 'Why didn't they give her a fair trial?' A lot of people are really against judges imposing their own personal opinion on a case, and many people were saying that maybe Judge Greer" -- the Florida circuit judge at the center of this case -- "legislated from the bench because he didn't hear all sides." The case, Combs said, was certain to "energize our base on judicial nominations," a base that, now more than ever, wants to "make certain that judges uphold the law."

To people skeptical of the Republicans' efforts in this case, the Schiavo case looks like a triumph for checks and balances. In several legal reviews of the case over the past half-dozen years, the courts remained true to bedrock principles of law and refused to intervene, even under tremendous political pressure. The system worked. Religious conservatives, though, see it in a different light. To them, the system failed; democracy -- the will of elected lawmakers -- was subverted by unelected judges. As DeLay said in a speech to a conservative conference in Washington last week, the judiciary has "run amok."

Such political attacks on the judiciary are nothing new. "The judiciary has been politicized from the outset," Amar says. The disappointments have spanned the political spectrum. A conservative court frustrated FDR's early New Deal programs, earning the antipathy of Democrats (and prompting his efforts to pack the courts). The court under Chief Justice Earl Warren -- which gave us the Brown vs. Board of Education decision in 1954 and a host of criminal-justice decisions fair to defendants, including Miranda -- riled conservatives. Bowers vs. Hardwick, the 1986 opinion upholding state sodomy laws, upset liberals. Lawrence vs. Texas, the 2003 case that overturned Bowers, upset conservatives. The anger that Democrats felt over Bush vs. Gore might only be eclipsed by the anger Republicans felt over Roe vs. Wade.

What's different about the current period, Amar says, is that the politicians criticizing the court "seem to be more reckless. The House and increasingly the Senate don't just vent and say stuff-- they also go through the motions and try to pass legislation."

Last year the House passed the Marriage Protection Act, which barred federal courts from hearing any claims concerning the constitutionality of the Defense of Marriage Act, the 1996 law that allows states to decline to recognize same-sex marriages granted in other states. In September, the House passed another bill stripping federal courts of their right to hear cases involving the constitutionality of the phrase "under God" in the pledge of allegiance.

In neither case did the Senate follow suit. Because the Constitution is generally thought to give federal courts the power to review all questions arising under federal law, many observers say such laws would have been deemed unconstitutional by the Supreme Court. But just because these proposals may have been unconstitutional doesn't mean they weren't breathtaking in their reach; they indicate Republicans' deep contempt toward the federal courts, as well as what Amar calls "the absolute lack of sophistication in the way the House of Representatives seems to discuss the courts."

While the House may pass reckless legislation that goes nowhere, the Senate is on a course to institute a radical rule change that would permanently alter the makeup of the federal courts. The Senate, which must confirm every nominee to the federal bench, is currently composed of 55 Republicans and 44 Democrats (there is one independent, Vermont Sen. Jim Jeffords). Therefore, on the basis of simple majority vote, Democrats can keep a nominee off the federal bench only by persuading some Republicans to go their way.

During Bush's first term, though, Democrats began filibustering judicial nominees, a virtually unprecedented tactic that required each nominee to win 60, rather than 51, Senate votes in order to make it to the court. Democrats used the filibuster to block 10 of Bush's 52 nominees to federal appeals courts; these 10 nominees were opposed largely on ideological grounds, principally because Democrats contended they were too conservative.

Republicans claim that the Democrats' actions were unfair and unconstitutional. Bush routinely says that his judicial nominees deserve an "up or down" vote. In February, he renominated seven of the 10 filibustered judges in order to press the matter. The strategy was designed to prompt an epic showdown in the Senate, a showdown that may come in the next few weeks.

This is how things will go down: If Democrats again attempt to filibuster one of these previously blocked judges -- the first nominee would likely be either Priscilla Owen, who sits on the Texas Supreme Court, or Janice Rogers Brown, of the California Supreme Court -- Republicans are expected to trigger a complex parliamentary maneuver in which they'd vote on permanently eliminating the use of the filibuster for all judicial nominees, including those to the Supreme Court.

When Mississippi Sen. Trent Lott was majority leader, he began calling this proposal the "nuclear option"; wary of the bad message this sends (Republicans don't want to be thought of as the party that annihilated the Senate), they have now begun calling it the "constitutional option." But even by that label it is seen as no less radical a move. If the gambit passes, Republicans will have virtually unchecked power to hand out lifetime appointments to conservative federal judges, completely remaking the third branch of government.

It isn't quite clear just yet if Republicans will launch this effort. In recent days, stung perhaps by criticism over Republicans' actions in the Schiavo case, Senate Majority Leader Bill Frist has appeared to waver on the issue. Religious conservatives, though, are pressing hard for him to attempt to eliminate the filibuster, and the ones I spoke to were confident that he will indeed go nuclear.

Groups on both sides of this debate are spending millions to win. Liberal organizations say they're putting down at least $5 million to defeat the nuclear option. Their slogan is "Because America Works Best When No One Party Has Absolute Power." They have already begun advertising on television in 18 states (The ads show shots of Jimmy Stewart filibustering in "Mr. Smith Goes to Washington.") "We've opened up our 2,500-square-foot war room, and we're doing a massive grassroots effort; we've got 75,000 signatures right now," says Ralph Neas, president of the People for the American Way Foundation, one of the leading progressive groups opposed to the Republicans' effort.

A recent Wall Street Journal opinion poll asked respondents whether they thought the Democrats' proper role in Congress should be to "work in a bipartisan way to pass Bush's legislative priorities" or, instead, to "provide a balance so Bush and Republicans don't go too far." By a 2-1 margin, respondents wanted Democrats to make sure that Bush doesn't go too far. As for the filibuster, 50 percent want to keep it, while 40 percent want to see it defeated.

If the Democrats' message is that the filibuster is necessary to check Republican excesses, conservatives say the filibuster must be eliminated in order to check Democratic abuse. More plainly, they say the filibuster on judicial nominees is simply unconstitutional and that it leads to less-than-great judges on the bench. The Constitution doesn't give the Senate the right to defeat a nominee just because it doesn't like the nominee's ideology, conservatives say.

"It really hasn't ever been the case that presidents have to consider a possible filibuster" in picking their nominees, says Rushton of the Committee for Justice. If that were true, some of today's Supreme Court Justices -- for instance, Clarence Thomas -- wouldn't have made it to the court.

If you're a liberal, you may think this is a good thing. But if Clarence Thomas doesn't get on the court, neither does a liberal justice like Brennan. If you require a supermajority for all Supreme Court nominations, you're inevitably relegating yourself to more moderate federal judges -- judges that are neither predictably liberal nor conservative. Did the founding fathers envision that? Do liberals want that? The difference between a filibuster and no filibuster is the difference between a court full of judges with arch views -- whether liberal or conservative -- and a court with nine Anthony Kennedys, one that doesn't toe an especially firm ideological line.

But balance is apparently the last thing that conservatives want. To hear conservatives talk about Kennedy, you'd think there was a special circle of hell reserved for him. Kennedy, who has sided with the liberals in landmark cases involving gay rights, abortion and the death penalty, is an apostate; not only that, his jurisprudence, like Sandra Day O'Connor's, is seen as ad hoc, ever shifting with the times, unmoored by tradition or law. Kennedy is fond of citing the opinions of foreign courts, as well as more mystical concepts of personhood.

In Planned Parenthood vs. Casey, the 1992 decision that upheld abortion rights, Kennedy declared, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Kennedy's warm and fuzzy approach to the law prompts endless derision from conservatives. And when Republicans get rid of the filibuster, says Rushton, "You will not see Anthony Kennedy-style Zen Buddhism from the bench."

On the other hand, what's wrong with Anthony Kennedy-style Zen Buddhism? Supreme Court justices are enormously powerful, and you get only a few chances, every now and then, to select a new one. These people are going to serve on the court for decades. Wouldn't it be more prudent, says Amar, to choose someone who's neither too far gone on either the left or the right? "If Bush gets three picks he'll lock into place a conservative court for the next 40 years," Amar says. "If the country isn't conservative for all those years" -- if the country, as it is bound to do, shifts in its mores -- "you wouldn't want those conservative judges there." Keeping the filibuster, Amar says, ensures a more moderate court, and there's nothing wrong with moderation for 40 years.

Republicans, who currently enjoy enormous power in two branches of the federal government, believe they can leverage that power into the third branch, while at the same time holding on to the Congress and the White House. None of us knows if this is true. But at least for now, if Republicans overcome the filibuster, they'll enjoy a year or more in which they can pack the courts with conservative judges. Under Bush, in the absence of a filibuster, and spurred by a powerful interest group, they are likely to give us many more judges in precisely that mold.

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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