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May 14, 2005

A New Attack on the Rule of Law

Guest: cntodd

The always great Doug Ireland brings us a chilling report on the Christian Right’s agenda to destroy the separation of powers – the creation of an Inspector General for the judiciary.

As Ireland writes, this new crusade, led by Tom DeLay and his zealous allies, aims to bring the judiciary under greater control by Congress.

Ireland points to an article which states:

Although DeLay made the issue a party signature, House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) has quietly been pursuing a court-oversight agenda for years, mostly overlooked except for a few high-profile speeches he has given. Sensenbrenner said in an interview that his efforts would not be punitive and would be aimed at making the judicial branch stronger, not at retribution.

Sensenbrenner, 61, who has a degree from the University of Wisconsin Law School, suggested in a speech at Stanford University this week that Congress should create an inspector general for the courts to field complaints and conduct investigations.
Sensenbrenner also vowed to pursue a longtime Republican effort to split up the U.S. Court of Appeals for the 9th Circuit, which is based in San Francisco and is considered to be one of the most liberal circuits in the country. Conservatives were infuriated when the court ruled in 2002 that the Pledge of Allegiance was unconstitutional because it describes the United States as "one nation under God."

“GOP Seeks More Curbs on Courts” [WaPo, May 12, 2005]

If DeLay and Sensenbrenner succeed in their plans, the Christian Right will be able to wield unprecedented power in their fight to overturn reproductive laws, to socially ghettoize the gay community, and to bleed away the separation of church and state.

Ireland writes that the proposed Inspector General

…will have to render report cards on judicial behavior, with budgetary and disciplinary threats in its arsenal to force judge to toe the Republican line on everything from the right to die with dignity to affirmative action to abortion to gay civil rights. This is tantamount to putting the Christian right in charge of policing our courts.

This news is miserable indeed.

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[X-posted at Freiheit und Wissen]


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One would assume that any legislation establishing such an office would be rather quickly declared unconstitutional. If the Inspector General were part of the legislative branch, then the IG couldn't exercise any authority over the judiciary. And, short of a constitutional amendment, the Congress couldn't modify the judicial branch's structure to put the office there (I don't think). Further, if the IG were part of the judicial branch, the congress couldn't hire or fire him or her, so they couldn't be sure the IG would stay on the wingnut reservation.

It's possible if they try to pull this, there'll be a full-blown constitutional crisis. However, the only way to make it happen would be to eviscerate the constitution.

I have no doubt the more extremist wingnuts would love to do this, but they'd need either a military coup or four or five completely new wingnut Supreme Court justices (none of the current ones are likely to back this kind of usurpation of their power).

"God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such ,misconceptions,it is lethargy, the forerunner of death to the public liberty. ...
And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.
It is its natural manure."
- Thomas Jefferson

Lets hope "eternal vigilance" will replace the need for the "blood of patriouts and tyrants."


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