Byline: Nat Hentoff, THE WASHINGTON TIMES
House Majority Leader Tom DeLay is part of an angry chorus of Republican critics campaigning against the federal judiciary. These judges, says Mr. DeLay, serve as long as they maintain "good behavior," but "we want to define what good behavior means." He would like the House Judiciary Committee to investigate how well certain judges are behaving.
Until now, as conservative commentator Charles Krauthammer points out, this condition for lifetime tenure has meant "honesty and propriety." But what Mr. DeLay and his allies apparently had in mind by "good behavior" is whether judges' constitutional opinions match their own. Under that standard, definitions of judges' "good behavior" could change depending on which political party dominates the judiciary committee and Congress.
Former Solicitor General Theodore Olson, whom no one would accuse of being a left-wing radical, wrote in the April 21 Wall Street Journal: "If a judge's decisions are corrupt or tainted, there are lawful resources (prosecution or impeachment); but congressional interrogations of life-tenured judges, presumably under oath, as to why a particular decision was rendered, would constitute interference with and intimidation of the judicial process. And there is no logical stopping point once this power is exercised."
Mr. DeLay's fury at certain federal judges is apparently boundless. In an April 14 interview with editors and reporters at The Washington Times, the House majority leader, a commander in this campaign, blamed Congress for not fulfilling its constitutional responsibility to exercise oversight of the courts. He charged: "The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them (from finding such a right)."
Would the majority leader consider it constitutional for the principal of a public school to mandate official prayer in classes? If so, prayers of which religion, and whose God? And would nonbelieving students be allowed to sit, as pariahs, in silence or be placed in temporary exile in the principal's office? As for judicial review, does DeLay believe that Chief Justice John Marshall was guilty of "bad behavior" in his 1803 ruling in Marbury v. Madison that the judicial power of the United States has the authority to strike down congressional laws repugnant to the Constitution? …