Needles and Threats

More tough talk about pulverizing the judiciary.

Yesterday, U.S. Sen. John Cornyn took the floor and announced that judges who make politically based decisions may inadvertently bring violence upon themselves. While pounding away at the Supreme Court’s recent decision in Roper v. Simmons, he took the time to issue—amid the qualifiers and caveats of Senate-speak—the following threat:

I don’t know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. … And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence.

He added that “No one, including those judges, including the judges on the U.S. Supreme Court, should be surprised if one of us stands up and objects.” Ladies and gentlemen, presenting the new defense against charges of violence against judges: “Your Honor. My client suffered a loss of control due to uncontrollable ideological differences.”

Oh well, then, case dismissed.

Here is the full text of Cornyn’s remarks (with thanks to Howard Bashman of How Appealing). You’ll want to scroll through all four pages to get the whole context. The question is whether these comments, along with oblique threats offered last Thursday by House Majority * Leader Tom DeLay really constitute a call to action—no different than the lunatic calls to kill abortion doctors once posted on the Nuremburg Files Web site. Senate Democrats including Frank Lautenberg and Ted Kennedy claim that DeLay actually broke a law against threatening specific federal judges. That’s probably an overstatement. But DeLay’s and Cornyn’s simple-minded justifications for retribution against judges—be they legislative or personal—are still beyond grotesque.

DeLay’s words sound a lot like threats; threats that each of the judges who reviewed the Terri Schiavo case—including elected and appointed judges, state and federal judges, Republicans and Democrats—represents an “arrogant, out of control, unaccountable judiciary that have thumbed their nose at the Congress and the president.” Add to that his promise that “the time will come for the men responsible for this to answer for their behavior,” and it sounds like he is calling for mob rule. Cornyn’s claims initially look no different than the same connections drawn by Sens. Lautenberg and Kennedy or by journalists like myself only last week. But there’s a difference: The rest of us drew the connection to suggest that this conservative obsession with demonizing the entire judiciary may lead to lethal blowback. DeLay and Cornyn, on the other hand, are warning judges to watch their backs.

Yale Law School professor Jack Balkin writes on his blog, Balkinization, that “it’s difficult to see why Cornyn would make so asinine a comment if he had not intended to send the message that federal judges should watch what they do from now on.” And Josh Marshall reminds his readers that the “statement is ridiculous on its face since violence against judges in this country is almost exclusively the work of disgruntled defendants or homicidal maniacs who manage to wrestle a gun away from a bailiff, what Cornyn is trying to suggest here seems genuinely outrageous.”

With respect to both Balkin and Josh Marshall, I must disagree on one point: Cornyn’s analogy between disgruntled defendants and angry conservatives is perfectly apt. In both cases, angry citizens refuse to accept the fact that sometimes one loses in court and childishly react by taking the law into their own hands. Whether an unhinged individual pulls out a gun or an unhinged senator rationalizes such vigilantism is merely a question of degree, not kind. In both cases, the suggestion is that the rule of law means nothing if you don’t get the outcome you desired.

So, again, the question I raised last Friday: How do Republicans possibly benefit politically from these broadsides against the judiciary as a whole? The narrowly targeted attacks on “liberal activist judges” were playing well all year; polls showed that the public really bought the idea. The suggestion that judges appointed by Democrats were all unprincipled laid the perfect groundwork for unleashing the “nuclear option” in the Senate. So, what possible purpose is there to these 11th-hour attacks on the entire bench? Why would anyone support doing away with the filibuster if all judges—and not just the liberal ones—are inherently corrupt and evil?

A few speculative possibilities: Perhaps, now that they control Congress and the presidency, the only target left to the right-wingers really is the judiciary. They feed on outrage, after all, and that was running somewhat dry. Or perhaps they truly feel that they can’t control the judicial branch—since even staunchly Republican judges got it “wrong” in both the Schiavo cases and in Roper. In other words, it’s no longer enough to pack the courts with Republican appointees; they are already packed that way. This latter fact sets up the argument that only the most extreme right-wing ideologues can ever be confirmed in the future; since even moderate Republicans are all eventually corrupted on the bench.

Or maybe the plan all along was to simply subordinate the judicial branch to the popular will; using a cocktail of court-stripping legislation, impeachment threats, and term limits to ensure that the co-equal independent judiciary is only co-equal and independent when it comes to reviewing a handful of disputes over federal fishing law. If that really is the long game, it’s awfully shortsighted. Crippling the whole judiciary will, in the long run, create a lot more problems than it resolves.

Correction, April 6, 2005: This article originally and incorrectly referred to Rep. Tom DeLay as the House Minority Leader. He is the House Majority Leader. (Return to the corrected sentence.)