I’m not going to suggest Justice O’Connor takes her talking points from Masson’s blog, but apparently we see eye-to-eye on a couple of things. Take my April 9, 2005 post entitled “Judicial Tyranny:”
Iâ€™m getting sick of ignorant, arrogant nutjobs, some of whom unfortunately seem to be in national GOP leadership positions, trying to erode the rule of law. In case they havenâ€™t noticed, an independent judiciary and the depth of the common law is the soil in which our Democracy grows. Or maybe thatâ€™s the point, I donâ€™t know. Youâ€™ve got Senator Cornyn (R-Texas) suggesting that maybe that rapist in Atlanta who shot his way out of a court room was doing it because of â€œactivist judgesâ€. Youâ€™ve got Tom DeLay and Rick Santorum lying about the Schiavo law they passed; wrongheaded as it was, it wasnâ€™t as far reaching as they seemed to suggest, and talking about â€œjudicial tyrannyâ€ when the Florida District Court judge followed the law and applied the accepted rules for issuing a preliminary injunction.
That post also had some quotes from a conference entitled “Confronting the Judicial War on Faith” featuring conservative luminary, Phyllis Schlafly and lawyer-author Edwin Viera who attacked Justice Kennedy and recommended his impeachment. Viera went so far as to quote approvingly from Joseph Stalin who said, “no man, no problem,â€ the full quote being “Death solves all problems: no man, no problem.”
A couple of days ago, Justice O’Connor gave a blistering speech at Georgetown University that criticized the actions of DeLay and Cornyn without naming them specifically. The link above is to Raw Story’s transcript of a Nina Totenberg NPR report.
The nationâ€™s founders wrote repeatedly, she said, that without an independent judiciary to protect individual rights from the other branches of government those rights and privileges would amount to nothing. But, said Oâ€™Connor, as the founding fathers knew statutes and constitutions donâ€™t protect judicial independence, people do.
And then she took aim at former House GOP leader Tom DeLay. She didnâ€™t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year when DeLay took out after the courts for rulings on abortions, prayer and the Terri Schiavo case. This, said Oâ€™Connor, was after the federal courts had applied Congressâ€™ onetime only statute about Schiavo as it was written. Not, said Oâ€™Connor, as the congressman might have wished it were written. This response to this flagrant display of judicial restraint, said Oâ€™Connor, her voice dripping with sarcasm, was that the congressman blasted the courts.
It gets worse, she said, noting that death threats against judges are increasing. It doesnâ€™t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didnâ€™t name him, but it was Texas senator John Cornyn who made that statement, after a Georgia judge was murdered in the courtroom and the family of a federal judge in Illinois murdered in the judgeâ€™s home. Oâ€™Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges. Any of these might be debatable, she said, as long as they are not retaliation for decisions that political leaders disagree with.
“I,” said Oâ€™Connor, “am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, Oâ€™Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.”
Obviously we have a recent homegrown version of this kind of hostility to judicial independence. As I mentioned in a February 21, 2006 post, Rep. Sodrel introduced H.R. 4776 toward the end of February which would strip federal courts of jurisdiction to remedy Constitutional violations committed by state governments through government speech. Sodrel’s co-authors on his bill include Indiana Republican Representatives Burton, Buyer, Hostettler, Souder, and Pence (but not, apparently, Rep. Chocola). The bill was introduced in retaliation (called a legislative temper tantrum by the Fort Wayne Journal Gazette) for a federal judge’s decision that state sponsored sectarian Christian prayer violated the First Amendment as it has been interpreted by the United States Supreme Court.
Justice O’Connor is reminding us that our legislators are tampering with the foundations of the Republic when they seek short-term policy gain by undermining the independence of our judiciary.