Charles Krauthammer, who is no shrinking violet, tells it like it is:
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?
You guys have lost Charles Krauthammer. Are you beginning to smell the salts yet, beginning to come to your senses? I doubt it. Hammer then lists a series of offense he perceives the Courts have committed, and closes with this:
The prestige the courts inherited from Brown fueled their arrogant appropriation of legislative power in areas radically different and suffering no disenfranchisement — abortion, gay rights, religion in the public square. For decades they have been creating law, citing emanations from penumbras of the Constitution visible only to their holinesses.
This is all true and deeply depressing. But the answer is not to assault the separation of powers. Certainly not to empower Congress to regulate judicial decision-making by retroactively removing lifetime appointees. The non-deranged way to correct the problem is to appoint a new generation of judges committed to judicial modesty.
Yet the recent eruptions of DeLay, Cornyn and some of their fellows may, like FDR’s court-packing overreaching in 1937, have a salutary effect after all — scaring the bejesus out of judges, maybe even shocking them into a little bit of humility, something that does not seem to come to them naturally.
You guys have lost Charles Krauthammer.
tom scott
Sounds to me that Krauthammer is more in disagreement with tactics than he is with the overall appraisal of the activist judiciary.
While he disagrees with the tactics he does see some positive effects of those disagreeable tactics.
Nope, I think Krauthammer is still with us. He is urging confirmation of a new generation of judges.
Randolph Fritz
The extremists think they don’t need even the most radical of the moderates any more. I hope they’re wrong.
Let me point out here that the main complaints against the “imperial judiciary” are that it outlawed segregation, required that, as much as possible, one man be counted as having one vote, and decided that people had a right to control of their own bodies. It is difficult to see alternatives to those decisions that would not have been oppressive.
Kimmitt
scaring the bejesus out of judges, maybe even shocking them into a little bit of humility, something that does not seem to come to them naturally.
…
You guys have lost Charles Krauthammer.
Not sure I agree.
JPS
John Cole: “You guys have lost Charles Krauthammer.”
If by “you guys” you mean those of us who disagreed with you on the Schiavo case, then I guess (with many caveats) that includes me.
And I would say “we” never had Charles Krauthammer. His original column on the case was as un-dogmatic a middle ground as I’ve read. He saw this all along as a terribly hard case, and seemed to acknowledge her parents’ and brother’s position as legitimate and understandable, even if he ultimately didn’t come down on their side.
To you, John, there never was another side–not one worth taking seriously anyway. The only legitimate position, legally and morally, was Michael Schiavo’s, and the rest of us are pretty much jerks.
Steve Malynn
Randolph:
Crock. You posit the typical “all things bad are conservative” line: “Let me point out here that the main complaints against the “imperial judiciary” are that it outlawed segregation, required that, as much as possible, one man be counted as having one vote, and decided that people had a right to control of their own bodies. It is difficult to see alternatives to those decisions that would not have been oppressive.”
First: Eisenhower appointed Warren for the specific purpose of the opinion produced in Brown v. Board of Education – Warren was a R who as Cal. Governor was endorsed by both parties. By the way, Brown v. Board is criticized from the right only as to the reasoning behind the remedy (forced integration sold as a social good though questionable junk sociology), not the constitutional conclusion that segregation by race was inherently unequal and violative of “substantive due process” under the 14th Amendment. That said, the constitutional decision was grounded on words actually in the constitution.
Second: Segregation was outlawed by the Civil Rights Act of 1964, legislation, not the myth of Judicial heroism. The Heros were those who voted for the act – passed because the Republicans supported Johnson’s act, when his party would not.
Third: One man one vote was ensured by the Voting Rights act, not the myth of Judicial heroism. The Heros were those who voted for the act – passed because the Republicans supported Johnson’s act, when his party would not.
Fourth: Conservatives, as in those “social conservatives” not libertarians or extreme federalists, oppose abortion not because they want to control womanly bodies, but because of the belief that a baby, born or not, is a human being that deserves at least enough protection as to be allowed to breath and not dismembered in utero. There is a competition of interests: a live baby v. her mother. The society is faced with a choice: the finality of death v. the inconvenience/danger of 9 months of gestation and then giving birth.
The choice should have been made law only by the society acting through its elected officials, not through unaccountable judges. As in, Roe was decided without reference to actual words actually in the Constitution.
John Cole
To you, John, there never was another side–not one worth taking seriously anyway. The only legitimate position, legally and morally, was Michael Schiavo’s, and the rest of us are pretty much jerks.
No, JPS. I recognized all along there were people on a different side of the issue than I was. Like, for example, her family.
What I found appalling were the liars and hucksters, the people who demonized Michael Schiavo, the people who cntinue toclaim abuse and neglect, the idiot at Codeblueblog or whatever it is that claimed her CAT scan showed abuse and that the experimental platinum stints placed in her brain might be signs of foul play.
I also had a serious problem with the way our elected officials acted. So did Krauthammer.
John Cole
In other words, JPS- I don;t think people who wanted Terri Schiavo to stay alive were jerks because they disagreed with me and wanted to keep her alive. Even that doesn;t really sum it up, because it seems as if I wanted her dead, which I did not.
What made me think people were jerks was the way they acted.
JPS
Fair enough, John, and please excuse me for distorting your position.
On the people who’ve demagogued and distorted the case, and on the elected officials who muttered darkly about getting back at the judiciary, I agree with you.
All I meant is that Krauthammer never was one of them–and neither are a lot of us who’ve disagreed with you on Terri Schiavo, and hoped without malice that her family would prevail.
John Cole
All I meant is that Krauthammer never was one of them–and neither are a lot of us who’ve disagreed with you on Terri Schiavo, and hoped without malice that her family would prevail.
And that was what makes the politicization of this so evil- this was a family matter that should have been left to the family, and instead was inflated into a vicious debate pitting people against people, all so some people could curry favor with a few on the extreme political fringe.
Randolph Fritz
“Eisenhower appointed Warren for the specific purpose of [Brown]”. Far as I know, Warren was appointed because he was thought to be a reliable conservative.
The Civil and the Voting Rights Act would probably not have survived a “states rights” challenge in a conservative Court.
“One man, one vote” was something you don’t seem to be aware of; several apportionment decisions: Baker v. Carr, Wesberry v. Sanders, Reynolds v. Sims, and Reynolds v. Sims (Alabama), and Lucas v. Colorado General Assembly. These gave rural and urban voters equal representation in state legislatures and were bitterly opposed by several rural states.
I do wish that conservatives would stop arguing that people have only limited rights of control over their own body because these are not spelled out in the Constitution. Shall we therefore conclude that the various US governments have the right to force or forbid medical procedures? This goes far wider than abortion, into such practices as implanting surveillance devices, already common practice with pets, and the implanation of contraceptives and devices to dispense psychiatric medication. That is a Pandora’s box, and it is best to leave it shut; if conservatives ever truly won that argument they would regret it terribly.
In Roe v Wade, you will find that the Court considered various arguments over the beginning of life, and found that “begins at conception” was only one of many conflicting opinions on the humanity of the fetus. It is difficult indeed to prove anything in this area of research. If it could be shown that a fetus was indeed a person, then I think the pro-life movement would gain wide support; it would have mine, at least. But there is no such evidence (no, I don’t count pictures of fetuses) and, absent that, the view that a fetus is fully, rather than potentially, human is not a firm basis for law.
Compuglobalhypermeganet
You guys have lost Charles Krauthammer. Are you beginning to smell the salts yet, beginning to come to your senses?…You guys have lost Charles Krauthammer.
See, this is the kind of baseless, tut-tutting conclusion that leaves you open to descriptions like “hysterical” and “over-dramatic” with regard to the Schiavo case.
Would you care to ask Mr. Krauthammer if “you guys” (whoever you mean) have “lost” (whatever that means) him? What are the odds that he’ll fail to support fully the SAME candidate in 2008 as the anti-Michael-Schiavo side supports, based on his rather mild rebuke of the Schiavo opposition? So what’s been “lost,” again?
Not everyone is looking to punish or “scare straight” the religious right for their individual consciences or their concern over a judiciary run amok — least of all Krauthammer, I’m guessing.
John Cole
It is not baseless- I read the piece. Hopefully you did too.
And I didn’t mean Charles Krauthammer has left the GOP or has thrown out all his beliefs, I meant that you have lost him on this issue. Attacking the judiciary and villifying judges is a non-starter for the vast majority of the population, and fortunately, the GOP.
Steve Malynn
Randolph, Google is your friend; California History is mine: “During his fourteen years as district attorney, Warren developed a reputation as a crime fighter. As a prosecutor Warren was sometimes accused of high-handedness in his methods, but in thirteen years and in thousands of cases ranging from murder to window-breaking, he never had a conviction reversed by a higher court. Warren was a member of the Board of Regents of the University of California. Although a Republican, Warren had broad bipartisan support because of his centrist to liberal views. He is the only person to have been elected to the governorship of California for three successive terms (in 1942, 1946, and 1950). In 1946 he was the only governor in our history to win an election unopposed, when he won both the Democratic and the Republican primaries.” Yep, that well known conservative sought universal healthcare half a century before Hillary, and he created a welfare state in Calfornia, before the feds “perfected” it. http://warren.ucsd.edu/earl.html
Regarding “states’ rights” constitutional challenges, name a conservative jurist who would have opposed those acts. Goldwater opposed them on federalist grounds, and even his party thought it was nuts.
You are correct, the Warren Court ruled unconstitutional bi-cameral legislatures based on the federal model at the state level, using the federal guarantee of voting rights existing in the constitution (republican form of government). An act I think was possibly an error, but grounded on text.
For the rest of your screed – straw man meets ignorance sums it up.
Compuglobalhypermeganet
I meant that you have lost him on this issue.
So by “You guys have lost Charles Krauthammer. Are you beginning to smell the salts yet, beginning to come to your senses?…You guys have lost Charles Krauthammer,” you mean that he disagrees with some of the religious right on one issue? Awww, I guess that ruins the GOP’s perfect record of 100% solidarity with every conservative on every issue in the universe.
Besides, as someone pointed out before, he was never “theirs” to lose. Maybe your proclamation was a bit dramatic, and the need for smelling salts somewhat overblown.
Juliette
As someone else mentioned, Charles was never dogmatic on this issue one way or the other. Likely, most people who read his columns were eager to hear his opinion on the Schiavo case because of a) his own physical handicap and, b) his general brilliance. He submitted his very even-handed opinion in the midst of the case (March 23).
So, no “smelling salts” need be passed to most of those who were paying attention.
And as someone else said, CK agrees that the SCOTUS is a problem; he just doesn’t agree with the likes of Tom DeLay on how to solve that problem.
Analogize it to a pestilent house; your strategy is to kill the bugs. Two tactics are before you; you can either fumigate it or burn it down. Either solution will get you dead bugs, but one *tactic* makes infinitely more sense than the other. You still want to live in the house.
So, John, technically you are right that those of the DeLay mindset have lost CK on tactics. Tactics, however, often aren’t all that important as long as the goal is achieved.
Dave Ruddell
Warren won BOTH the Republican and Democratic primaries?! Could you imagine that happening today, at any level of governemnt? Thanks for the interesting factoid, Steve.
chloeindia
Mr. Malynn –
Before you become too smug about the “Democrats” who wouldn’ support President Johnson on civil rights, please remember that these very people are now the center of the southern branch of the GOP. Their party affliation is irrelevant. As a moderate Republican, it was the intrusion of the bigotry and narrow mindedness of this group that signaled to me the GOP was losing its way. These guys represent the worst of both parties – they are married to the pork barrel spending of the old Democratic party and they support the “Christian” rule of the present radical right. These are not people true conservatives have much in common with.
W.B. Reeves
Chloeindia,
Spot on. As a deepsouth red stater I find your analysis faultless. What we are witnessing are the strange fruits of the cynical “southern strategy”. Great for partisan electioneering, lousy for the civic nation.
Birkel
The “southern strategy” is a strawman argument. I’ve beaten back every challenger to the throne.
Visit my blog and launch the first strike.
http://randombirkel.blogspot.com/
I await your incompetence.
Neo
Please keep this post in mind next time you hear or see ..
Bush was Selected not Elected
Randolph Fritz
Steve, Earl Warren also wrote the order which interned the California Japanese-Americans.
I cannot stress enough the foolishness of relying on Google on a controversial subject without looking closely at the sources.
Historically, there were challenges to both the Voting and Civil Rights Acts, which continue to this day; one thing the bigots hope for in this conflict is a judiciary that will side with them.
Birkel, shouting loudest is not how you win a debate.
–and I’m outta this one–here’s to the grown-up Republicans, may their voices be heard!–
JG
‘You guys have lost Charles Krauthammer.’
‘Those guys’ will never be able to follow what you mean by that.
Andrew J. Lazarus
JFTR, one man one vote is as legacy of a SCOTUS decision (Baker v. Carr), not the later 1965 Voting Rights Act. Other SCOTUS decisions extented OMOV to state legislatures.
Noel
I’m for an independent Judiciary.
But not one that is independent of the Constitution, untethered to its meanings, unaccountable to anyone or anybody, able to wander the four corners of of the legal universe, doing “good”.
And that is what we have today.
Steve Malynn
What laws did the SCOTUS cite in Baker v. Carr? 14th and 15th Amendments – legislation. You might note that One Man One Vote is not even mentioned in the opinion, because it is a basic assumption. One man one vote is integral to the US system, but the South subverted OMOV, post-Reconstruction, because the current political machines wanted (1) to stay in power and (2) to stay in power – redistricting to allow for a census-based black majority or significant minority per actual district would have interfered. But after the correct Judicial decisions, black voters were still denied power through various means between poll tests/taxes to outright violence. It took the Voting Rights Act of 1965, and federal enforcement to change the South.
I will correct myself: by the time of the Warren Court, the Guarantee Clause of the Constitution had already been neutered by Judicial decisions – the political question doctrine essentially required that any case voting based on that clause was “non-justiciable” – the Warren Court’s voting case decisions found that the Equal Protection clause of the 14th Amendment required that a state not dilute the equal worth of each voter’s ballot – essentially creating the precident based on the language of the 14th Amendment that should have been found in the Guarantee Clause. (As noted in the Baker v. Carr opinion, the Guarantee clause now means only that the federal executive may intervene when a state government is in danger of being overthrown by violence).
Steve Malynn
Randolph, you keep on changing the subject, the Nisei (sp) are not the issue in this string – you also keep repeating myths that have acquired talking point status:
Identify a challenge to the ’64 act or the VRA of ’65 that you claim the “conservatives” are mounting. Moreover, identify a current “bigot” hoping to overturn those acts through packing the Courts (and argument by name calling is silly).
Prove the “southern strategy” exists.
JG
‘I cannot stress enough the foolishness of relying on Google on a controversial subject ‘
Tell that to the guy who wrote the Ann Coulter puff piece in Time.