The religious right is flexing its muscles of late, trying for no less than the destruction of the independent judiciary branch of government. The LA Times has obtained an audio tape of a two prominent right-wing religious leaders, James Dobson and Tony Perkins, discussing their plans to get Congressional Republicans to directly interfere in the federal court system. They, and House Speaker Tom DeLay, propose stripping funding from federal courts that make decisions conservatives disagree with.
Conservatives don’t like activist judges. They believe the law is objective and disinterested, not (as leftists would argue) a tool of the powerful to control the less powerful. They like “judicial restrant,” or at least they say they do. They do fall off the judicial restraint wagon now and then, as they did in Bush v. Gore.
It’s worth a look back at Bush v. Gore because today’s power struggle over judges illustrates the same bedrock hypocrisy that was in evidence then. In Deconstructing the Election, Win McCormack showed how the Republicans shredded their own doctrine of objectivity as they clawed to win Florida in 2000.
If the objectivity and disinterestedness of the law…are bedrock conservative doctrine, then James Baker, and his associates and conservative columnist sympathizers like William Safire, once again challenged and compromised that doctrine in the Florida presidential election imbroglio. The idea that law is (on the whole) neutral, objective and disinterested necessarily implies that the judges who interpret it are (on the whole) neutral, objective and disinterested; there is no conceivable syllogism whose conclusion is that our legal system is (more or less) objective and fair that can have as a premise that our judges are not and are not capable of being so. Yet this was the blatant premise of Republican commentary as an assortment of legal cases relating to the election wound their way through the Florida court system. Just as Republican operatives and commentators trashed the integrity of the county canvassing boards simply because they were under Democratic control, they also used the fact of their being Democratic appointees to attempt to discredit–often in advance–the decisions of various Florida judges, from the circuit level up to the state’s Supreme Court. The clear implication was that Democratic judges would necessarily, either reflexively or by calculation, rule in favor of the Democratic candidate. They could not be trusted to be disinterested and objective.
In addition to being a monumental betrayal of the conservative movement’s stated intellectual principles, this line of argument creates another problem for its Republican promoters: It tends to discredit in advance the decisions of Republican as well as Democratic judges. For if Democratic judges cannot be trusted to be evenhanded and judicious, what logic can be called forth to argue that Republican judges can be? They are also human. They are also partisan. They also owe something to the people who selected them. The theory unavoidably predicts that judges appointed by Republicans will rule, in a biased and partisan manner, against Democratic candidates and causes when occasions to do so arise.
It is doubly ironic, therefore–and doubly troublesome, one would think, for the integrity of the conservative cause–that this is exactly what happened when the case called Bush v. Gore reached the highest court in the land.
Just in time for any war crimes trials coming out of the Iraq war.