April 19, 2005
Private: Professor Erwin Chemerinsky: Attack on Courts Threatens Crucial Checks and Balances
Erwin Chemerinsky, ACS member and Professor of Law at Duke University School of Law, comments for How Appealing on the motivation for recent assaults on the judiciary:
[C]onservative leaders, in and out of Congress, seem to have a short-term strategic objective and a longer-term political goal. Their immediate objective is to pressure Republicans in the Senate to eliminate the filibuster for judicial nominations. Without the possibility of a filibuster, President Bush could put more individuals from the far right on the Supreme Court and the lower federal judiciary....
Conservatives such as DeLay and Cornyn also have a longer-term political objective: with Republicans controlling all three branches of government, they see an unprecedented opportunity to push their religious agenda. They hope to pressure Republican-appointed judges to toe the party line. Through devices such as jurisdiction-stripping, they want to make sure that Congress can adopt laws advancing religion without having to worry about judicial review.
Chemerinsky also explains why it is critical to reign in extremism:
It is crucial that moderates and progressives in both parties rally against this effort by conservative Republicans. Moderate Republicans in the Senate must join with Democrats in rejecting the nuclear option and keeping the filibuster.
Constitutional scholars of every political stripe must explain that it strikes at the very heart of our constitutional government for Congress to enact laws and preclude judicial review of their constitutionality or for members of Congress to threaten impeachment of judges for rulings they dislike. Political leaders across the ideological spectrum must denounce the venomous attack on the federal judiciary that has occurred in the last few weeks.
Sometimes the first assignment in my constitutional class has been for students to read a copy of the Stalin-era Soviet Constitution and the U.S. Constitution. My students are always surprised to see that the Soviet Constitution has a far more elaborate statement of rights than the American Constitution. I also assign a description of life in the Gulags. I ask how it can be that a country with such detailed statements of rights in its constitution could have such horrible abuses.
The answer, of course, is that in the Soviet Union no court had the power to strike down any government action. An independent judiciary is indispensable to protecting our most precious freedoms. The DeLays and Cornyns who attack the federal courts forget that tomorrow, they may be the ones who need the protection of independent federal judges.
More of Chemerinsky's thoughts on intimidation of the judiciary are captured in this earlier post.