Althouse and Gandelman Present Cautionary Notes on Anti-Judicial Demagoguery

Once again, Ann Althouse, University of Wisconsin law professor, has words of wisdom on her blog. These words are directed at those politicos and members of the public inclined to string up the numerous federal and state judges whose various rulings allowed the death of Terri Schaivo. I agree with those who have said that what happened in the Schaivo case was legally correct, but morally wrong, and that what we really need is changes in the law.

Says Althouse:

It is really a shame how little people understand of the reasons judges decide cases the way they do. DeLay and Cornyn, like many others, signal to the public to think that the judges are simply out of control and the cases are inexplicable as the serious work of deeply thoughtful persons steeped in the legal tradition. It wouldn't be wise just to assume that judges are unerring oracles of law, but to leap to the opposite conclusion and decide they are frauds is even more foolish. And for a public figure even to hint at violence as a solution is completely unacceptable.

In trolling for votes and financial support, pols have become proficient at selling themselves and their causes of the moment to the public, or at least to their bases of support. The federal judiciary, anyway, insulated from fleeting fads by the constitutional nomination and confirmation process and by lifetime appointments to the bench, has never developed such PR skills. The Founders never could have anticipated how media-saturated our country has become and how susceptible to demagoguery. In many ways, the courts are an easy target for pols on the make; judges can't duke it out on Hardball with demagogic member of Congress.

Congressman Tom Delay's attacks on judges, for one, could not be more inappropriate or inaccurate, especially considering that many of the judges who ruled to allow Terri Schaivo's death were conservative Republicans. These judges made their rulings on sound Constitutional principles like federalism, separation of powers, and strict constructionism as well as on actual statutes and case law.

I agree with President Bush that the laws of our country ought to have a decided preference for life. That's consistent with our traditions and principles, which includes things like allowing people to have "life, liberty, and the pursuit of happiness." At present, our laws on end-of-life issues don't fully embody those principles.

But you can't blame judges for doing the thing that they are sworn to do--upholding the Constitution and the rule of law as they see it--simply because some in the Congress support a different course of action.

Even more outrageous than Delay's salvos at the judiciary have been the words of Senator John Cornyn, who on the Senate floor seemed to suggest that violence perpetrated against judges was somehow explained by what he calls "activist" judges. I seriously doubt that the violence that happened recently in an Atlanta courtroom or the murder of a Chicago judge's husband and mother had anything to do with the respective murderers' opposition to judicial activism. (For a good explanation of this story, go to Joe Gandelman's blog, The Moderate Voice here.) Cornyn's words were a cheap, demagogic shot.

Joe Gandelman is right: Democrats and Republicans alike need to redraw the line on appropriate debate, particularly when it comes to judicial confirmation debate and commenting on the rulings of federal courts. They could all learn a lesson fron Dwight Eisenhower. Ike was hopelessly mired in the nineteenth century when it came to understanding the call for civil rights. But when the Supreme Court and other federal courts rendered their historic rulings on desegregation during his term, he enforced the Constitution and the laws of the land as interpreted by the judiciary. Congress has a similar obligation to abide by the law, to uphold the Constitution, and to support the separation of powers and our system of government.

Demagoguery is deadly to democracy!