The Judicial Vigilantes

By Confessore, Nicholas | The American Prospect, May 1999 | Go to article overview

The Judicial Vigilantes


Confessore, Nicholas, The American Prospect


It was an altogether scholarly collection of professors, lawyers, policy analysts, journalists, and concerned citizens--among them such prominent conservative legal scholars as Robert Nagel, Steven Calabresi, Christopher Wolfe and Hadley Arkes--that gathered at Washington's Sheraton City Center Hotel last October to discuss the matter of "judicial imperialism." But at the conference dinner, as attendees cracked Clinton jokes over filet mignon and merlot, they were treated to a speech from the singularly unscholarly Tom DeLay--former exterminator, bombastic representative from Texas, and by most accounts the most powerful man in the House.

"The sanctity of the Constitution is under assault from many different directions," began DeLay in halting, twangy stump mode. "The branch of government charged with maintaining the sanctity of the Constitution no longer feels bound by the constraints of that same Constitution. The courts today recognize no limits on their authority. They legislate with reckless abandon. They overturn the will of the people as expressed through their legislative representatives. What we're left with is an imperial judiciary that knows no bounds to its power or its tenure. This is a recipe for tyranny!"

It is instructive that Tom DeLay, one of the few non-lawyers in Congress, would be lecturing this august assemblage--a conference of the American Public Philosophy Insitute (APPI), a group dedicated to, among other pursuits, stamping out judicial imperialism--on a topic they understand far better than he. If Nagel, Arkes, and Calabresi represent the intellectual backbone of the maturing "judicial reform" movement, then Tom DeLay and other prominent conservatives--like former Ronald Reagan acolyte Edwin Meese, the Family Research Council's Gary Bauer, and Republican Senators Phil Gramm and John Ashcroft--represent its public, political face.

Republicans and Democrats, of course, have always fought over the direction of the federal bench, and the specter of "judicial activism" has rallied conservatives for decades. But even at their most rancorous, as during the nomination hearings of Robert Bork and Clarence Thomas, those battles have taken place mostly within the horse-trading confines of the judicial appointments process. No longer. Under the cover of "judicial reform," ultraconservatives are waging an increasingly effective campaign to vilify and discredit "activist" federal judges. Seeking ultimately to radically reshape the federal bench, judicial reformers are abandoning traditional avenues of change and advocating more direct solutions.

"America's founders believed that impeachment could be an effective way to keep the judiciary within its proper bounds," DeLay told the APPI conference in October. "When judges exercise power not delegated to them by the Constitution, I think impeachment is a very proper tool." At this, the audience broke into applause.

COURT UNPACKING

DeLay and his calls for impeachment are only the most visible face of judicial reform. "Since 1995," says Stephan Kline of the Alliance for Justice, "we have seen the greatest assault on judicial independence since the court-packing attempts of the Roosevelt years." Beginning in 1996, Republicans passed a wave of what Kline calls "court-unpacking" bills, many of which stripped federal courts of jurisdiction in certain types of criminal-rights cases. The Prison Litigation Reform Act, for instance, limited the ability of judges to issue injunctions to improve prison conditions under the "cruel and unusual punishment" clause of the Eighth Amendment, while the Illegal Immigration Reform and Immigrant Responsibility Act substantially reduced the courts' ability to review asylum and deportation decisions involving illegal immigrants. Meanwhile, during his presidential campaign, Bob Dole dubbed Clinton appointees the "All-Star Team of Liberal Leniency," and singled out federal judges Harold Baer and Lee Sarokin for attack--Baer for suppressing evidence in a high-profile drug case, and Sarokin for a series of decisions he made as a state judge in New Jersey.

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