So How DO We Take Back the Courts?

I've been pondering that question a lot of late. Actually, I've been pondering it for years; it's only been in the last two weeks that I've begun to formulate some revisions to my former thinking on the matter.

For years - certainly since I neared adulthood and, not coincidentally, broke my political cherry in the watershed election of Ronald Reagan to the presidency in 1980 - the conventional wisdom on the Right has been that in order to drag the Judiciary back within its constitutional fetters, all that was necessary was to elect conservative presidents who would, in turn, appoint constitutionalists to the federal bench. This strategy extended clear back to the Nixon days in reaction to the riotous excesses of the SCOTUS of Earl Warren.

That that Chief Justice was appointed by a Republican president should have been a pre-emptive clue that this strategy wasn't a panacea.

We're up to five GOP Chief Executives since the current era of Republican predominance of the Executive Branch commenced in 1968. But their record of cleaning out the legislative breed of jurist has been spotty at best. For every Rehnquist or Burger or Scalia or Thomas we've gotten a Stevens or Souter or O'Connor or Kennedy. And that's just the high-profile SCOTUS appointments; the ones at the district and appellate levels can't have been much better overall, "judging" by the degree to which the "Olympian" mentality still dominates both the courts and the wider civic and popular culture.

The name "Bork" should be on the debit side of that ledger. That it isn't, and has become a reprehensible verb instead, highlights the additional obstacles that have been thrown in the path of judicial reform by attrition as left-wing power has waned and the Right has supplanted it in the halls of what is hollowly known as "Beltway power."

Judge Robert Bork was denied the SCOTUS seat that eventually went to the aforementioned Justice Kennedy on straight ideological grounds. Justice Thomas, also aforementioned, was almost denied based upon a scurrilous smear. However, these battles took place in a Senate still under Democrat control, and a majority still significantly leavened with responsible Donks not compromised by or sold out to the left kook fringe.

The last four years, that kook fringe has completely taken over the now-minority party and has raised the ante in this brass-knuckled partisan conflict by first shooting down President Bush's nominees in committee, and then bypassing the Amendment process to extra-legally graft a supermajority requirement into Article II, Section II of the Constitution (the REAL "nuclear option). And those are merely appellate choices, thus dramatically broadening the field of a war whose description as such is becoming less and less metaphorical by the day.

So, just to take a moment to summarize, conservative presidents have only been randomly successful in purging judicial imperialism, and the DisLoyal Opposition, increasingly dependent upon the undemocratic courts to continue their domestic rule of the country, are pulling out all the stops, whether within or beyond the law, to eliminate even serendipity as a possibility.

It was into this maelstrom that the Terri Schiavo controversy pinwheeled.

The Schiavo case is one that, were the injustice one of a left-wing bent (in other words, if the Florida state courts had ruled against Michael Schiavo's determination to exterminate his infirm wife), would have been a cause celebre to rival Roe v. Wade. It would doubtless have gone all the way to Olympus itself, where either Justice O'Connor or Justice Kennedy (or perhaps both) would have consulted Tanzanian tribal custom or Belgian snuff magazines or the Little Red Book of Mao to bolster their personal opinion that spousal homicide be given civil rights status as part of the "law of the land."

But Judge George Greer didn't rule against Michael Schiavo's grisly wishes. And when he ordered Terri Schiavo's feeding tube disconnected once and for all, it galvanized both sides of the controversy nationwide.

Congress, in its constitutionally-mandated role to protect "life, liberty, and property" under the Fifth and Fourteenth Amendments, passed emergency legislation mandating federal court de novo review of the facts of the case in order to ensure that Mrs. Schiavo received due process of law. This would also, per SOP in such instances, have restored her nutrition and hydration at least until the review of the facts - ALL of them - was completed.

But federal district court Judge James Whittemore did a very brazen thing that, in retrospect, should not have been a surprise: he disobeyed the law and substituted his own judgment instead. Rather than issue a stay on Mrs. Schiavo's execution to conduct the de novo review as instructed, he blatantly defied the clearly expressed will of the Legislative and Executive Branches and allowed her railroading by the Greer court to stand. What's more, both the Eleventh Circuit and the SCOTUS (represented by Justice Kennedy, naturally) affirmed him.

Naturally, the death cult went berserk - at Congress' intervention. The "arguments" they mustered (which are distilling down into a vicious personal smear campaign against House Majority Leader Tom DeLay) are the usual hysterically silly nonsense and don't merit going into here (especially when I've done so repeatedly over the past fortnight - you may sift through our archives at your leisure).

But in the realm of grown-up debate (i.e. on the center-right), two schools of thought coalesced.

One declared, in essence, "Damn the torpedoes, full speed ahead!"

In theoretical terms, this is a conflict between the separate powers of Florida government, as the judicial and executive branches have different opinions about what the Florida constitution requires. But in practical terms, Terri's life hangs in the balance: If the Florida supreme court prevails, she dies. If Governor Bush prevails, she lives. It is a mistake to believe that the courts have the ultimate say as to what a constitution means. Every governor is bound by oath to uphold and protect his state constitution. In the case of Florida, the constitution Mr. Bush pledged to defend declares that, "All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty..." If the governor believes that he and the Florida legislature possess the constitutional authority and duty to save Terri's life, then he is bound by his oath of office to do so.

The "auxiliary precautions" of Florida government — in this case the Florida supreme court — have failed Terri Schiavo. It is time, therefore, for Governor Bush to execute the law and protect her rights, and, in turn, he should take responsibility for his actions. Using the state police powers, Governor Bush can order the feeding tube reinserted. His defense will be that he and a majority of the Florida legislature believe the Florida Constitution requires nothing less. Some will argue that Governor Bush will be violating the law. We think he will not be violating the law, but if he is judged to have done so, it will be in the tradition of Martin Luther King, Jr., who answered to a higher law than a judge's opinion. In so doing, King showed respect for the man-made law by willingly going to jail (on a Good Friday); Governor Bush may have to face impeachment because of his decision.

In taking these extraordinary steps to save an innocent life, Governor Bush should be judged not by the opinion of the Florida supreme court, a co-equal branch of the Florida government, but by the opinions of his political superiors, the people of Florida. If they disagree with their governor, they are indeed free to act through their elected representatives and impeach him. Or they can vindicate him if they think he is right. But he should not be cowed into inaction — he should not allow an innocent woman to be starved to death — because of an opinion of a court he believes to be wrong and unconstitutional.

Governor Jeb Bush may find it difficult to protect Terri's rights without risking impeachment. But in the great American experiment in republican government, much is demanded of those who are charged with protecting the rights of the people. Governor Bush pledged to uphold the Florida constitution as he understands it, not as it is understood by some Florida judges. He is the rightful representative of the people of Florida and he is the chief executive, in whom the power is vested to execute the law and protect the rights of citizens. He should use that power to protect Terri's natural right to live, and he should do so now.

The above wasn't chanted through a loudspeaker outside Terri Schiavo's hospice, or printed on a flyer distributed by Operation Rescue founder Randall Terry - it was penned by no less than former Education Secretary and Drug Czar William Bennett, along with Claremont Institute president Brian T. Kennedy. Not exactly non-mainstream public/political figures.

Their conclusion is that the courts are wrong, demonstrably so, and Jeb Bush should right that wrong with the powers invested in him as the duly elected governor of Florida. And if there are political consequences to his actions, in the form of an attempt, successful or otherwise, to impeach him, or a collapse in public support for the GOP in Florida, then at least the will of the people would be being expressed, rather than overridden by overreaching judicial despots. And, of course, the same would be true if the people of Florida overwhelmingly backed Governor Bush's actions, which would leave the courts outflanked, de-fanged, and chastened, as they powerfully deserve to be.

The other view on the Right could be coined the "anti-vigilante" stance. Ed Morrissey is in this camp:

[W]e have to draw a line here, and that line is the law.

The governor and the President have done all that they can do within the law. They cannot execute any action not authorized by current law or by action of the legislative branch. Neither can they use the law-enforcement resources at their command to simply overrule a judge's decision. Governor Bush swore an oath to uphold and enforce the law, even those with which he disagrees, and he has done his best to create law to allow him to act in this circumstance. He was not successful.

In our haste to save an innocent life, we cannot demand that our executives turn into dictators for just a few moments. Dictatorships don't work that way, and neither do democracies. Imagine what would happen if Jeb Bush took Reverend Mahoney's advice. Terri's life might be saved - for a week or two. Snatching Terri illegally from the hospice and holding her somewhere in violation of a court order [c]ould result in Bush's impeachment, and likely federal intervention in Florida. The state police probably would refuse the illegal order anyway. If Bush did take Terri, she would be right back to where she was last Friday as soon as the rule of law returned to Florida - which would mean she would once again start the process of dehydration as soon as that happened.

We cannot allow our passions for Terri and the Schindlers to overload our respect for the law which protects us from an overpowerful executive branch. Reverend Mahoney calls for little less than an armed coup d'etat in Florida, one in which Bush would make both the legislature and the judiciary completely irrelevant by the use of force. I cannot imagine a more dangerous and terrible outcome from this tragedy than that, especially since in the end it will have only the effect of momentarily delaying Terri's torturous death.

For my own take, I must admit that I'm torn between the two.

I'm temperamentally inclined toward the Morrissey position. All things being equal, it's never a good idea to go off half-cocked, not look before you leap, or otherwise make monumental decisions based on emotion over reason, in the roiled passions of the moment. Such impetuousness is what gave rise to the "the law of unintended consequences" in the first place. And there is always a bigger picture to consider beyond the immediate circumstances. If it is remotely possible to work "within the system" to effect the reforms that system desperately needs, respect for that system requires that we do so.

However, that stance of prudence and sobriety is belied by a very straightforward question: what if its very premise is no longer valid?

Go back and look at the highlighted portions of both quotes, particularly Morrissey's. Virtually the entirety of his objection to taking down the courts several (dozen) notches is predicated on a completely misdirected fear: that if the Executive Branch in Florida merely reasserted its constitutional authority against a dictatorial Judicial Branch, the Executive would be carrying out "an armed coup d'etat" and making itself into a "dictatorship."

But the core problem is precisely that the Judiciary has already done so. Via what is so antiseptically described as "judicial activism" it has usurped the Legislative power to create new law rather than just interpret law legitimately enacted, and as spectacularly illustrated in the Schiavo tragedy, it has usurped the Executive power by ordering state agencies to not enforce state laws that proscribe the very action Judge Greer has decreed. And it answers any attempt to counter them "within the system" by resorting to its monopoly on defining what the law "really" says, and otherwise simply ignoring it.

And by themselves defying the congressionally mandate of de novo review of the facts of the Schiavo case - in other words, breaking federal law - the federal courts have made themselves a party to the same bloodless gaveled takeover.

Prior to the past two weeks, I subscribed to the conventional wisdom that with control of the elected branches of government, conservatives could rein in the Judiciary via attrition - in other words, work within the system. Now I'm not so sure. Certainly the Democrat filibuster of President Bush's appellate nominees should be broken forthwith, but it's the imperious culture that infuses the Judicial Branch, seemingly at all levels, that needs to be fumigated. And I question whether that's fully possible absent some watershed act of, yes, civil disobedience, to give voice to the public demand that the courts stop their headlong drive toward the status of un-elected oligarchy and relinquish the unconstitutional power they've pilfered from the other two elected branches, and from the people themselves. I don't know any other way for the Legislative and Executive to do so besides direct reassertion, letting the political chips fall where they may.

The next rhetorical question asks itself: Would there ever be a better, more visible opportunity for this high-stakes showdown than the Terri Schiavo case? And if not here and now, when and where?

Besides, it's not as if that very thing wasn't done in the very recent past, and successfully - only in the service of a left-wing cause celebre.

Five years ago the name dominating the airwaves was Elian Gonzales, the tyke who had escaped Castro's Cuban island dungeon with his mother, who didn't survive the raft voyage across the Florida straits. Five years ago the same left vs. right battle royal raged over his disposition - either stay with his expatriate relatives or be shipped back to Cuba at the purported behest of his father (and the real demand of his "other" father, Fidel).

The difference is that five years ago, the Florida courts sided with Elian's extended family instead of Castro and his AmeriLeft sympathizers.

Did the Clinton administration "abide by the law," "respect the system," or refrain from an "armed coup d'tat"? Hell, no; they carried out an armed commando raid, seized the boy, and shipped him back into communist slavery. Castro's secret police couldn't have done it any better.

What I don't recall from any on the left side of that imbroglio is any concern over what that action would, or did, do to the authority of the courts to "safeguard our rights," or the damage it caused to the "separation of powers," to say nothing of "federalism" and "states' rights."

In Terri's case, it's all moot, anyway, as both Bush brothers have already declared themselves to be impotent before the awesome power of Florida's, and our country's, true rulers.

Maybe Captain Ed is right. Maybe it's still possible to drag our Republic back from this accelerating slide into adjudicative serfdom by conventional means. Certainly we shouldn't stop trying those avenues. They may yet succeed.

But after the state-sanctioned torture and murder of Terri Schiavo, I'm now unconvinced that more "unconventional" alternatives might not need to be considered, and perhaps sooner rather than later.

And there lies the gift-wrapped vehicle for that showdown, being allowed to alternately gout blood from every orifice and shrivel, her civil rights and very personhood stripped from her, and all for no better reason than that she is unable to speak for herself.

Terri Schiavo is a symbol, alright - of the state of American domestic self-government.

UPDATE: Captain Ed is righteously indignant at Eleventh Circuit Judge Stanley Birch openly declaring what we already know to be the Judiciary's monarchical attitude toward the people and their elected representatives:

Talk about judicial arrogance! Not only did the Eleventh Circuit openly disregard the law written by Congress, this justice arrogantly tells the other equal branches that the only branch guaranteeing a free people is the one not accountable to the will of the electorate....

Birch's comment demonstrates that this out-of-control judiciary constitutes the main threat to the Founding Fathers' blueprint. They have set themselves up as a star chamber, an unelected group of secular mullahs determining which laws they choose to observe and which they choose to ignore. The arrogance of this written opinion will resonate through all nominations to the federal court over the next several years.

A case of demanding the ends yet denying the means. Appointing "judges [who] will start respecting the power of the people's representatives to write and enact laws, and the duty of the judiciary to follow them" into the insatiable power-lusting maw of the same unreformed, unchastened oligarchy will only produce that many more gavel-pounders who end up "growing" on the bench - assuming Republicans are ever willing to do what it takes to get these nominees up or down Senate votes.

By all means, keep appointing one conservative constitutionalist after another. But the existing Judiciary and its imperious, extraconstitutional culture must be taken on, and taken down, for any kind of comprehensive reform to be meaningfully realized. And that cannot happen as long as the elected branches keep deferring, and knuckling under to, our self-appointed robed overlords with every successive judicial power grab.

This crisis cannot be resolved without a confrontation between the branches. Maybe not sending in the state police for a gun battle outside a Florida hospice, but certainly explicit limitation of appellate jurisdiction, and impeachment of sitting judges and justices as necessary. Only by the victory in that confrontation of the two elected branches can all three once again be "separate but equal."