The passing of the Torture bill has led to justified expressions of anger, frustration, and bitter sadness here in the frog pond and in the wider Progressive community. I join in those feelings. Much has been said about the bill and I cannot add anything new. I agree that this administration has continuously moved against the constitutional freedoms and liberties that Americans have fought to preserve and expand. We have fought in the streets, on battlefields, and in the courts to grasp the promise of our democracy, a promise that always seems to exceed our grasp. Each stage of the struggle has moved us closer to a more inclusive democracy and a more inclusive America. Until now.
The Torture law is a clear step away from the promise of America. The Patriot Act was also. However, there is another threat to fulfilling the promise of America. It is a more subtle threat, but potentially more dangerous than the previous two. There is an increasingly virulent attack on the Federal Court system by the Right. The Judiciary is under attack.
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The Georgetown University School of Law recently held a conference on
The State of the Judiciary. I listened to the panel on Interbranch Relations, that is the relation between the Judicial, Executive, and Judicial branches of the Federal government.
Newt Gingrich is the opening speaker, and his comments are very disturbing. Although Gingrich was driven out off office in disgrace, he is still a leading conservative thinker with wide appeal on the Right. I urge you to listen to at least the first fifteen minutes of the hour-long discussion. (If you can, hang in there until the end, when Gingrich makes his points clearer.) I did not find a transcript of the discussion; therefore I am relying on my notes. Of course, I may have made mistakes and will quickly post corrections that I become aware of. In the meantime, you can listen for yourself.
The gist of Gingrich’s argument is that the Supreme Court is supreme in interpreting case law, not in interpreting the Constitution. All three branches are co-equal interpreters of the Constitution, he says, in that they all swear to uphold and defend the Constitution. When the Supreme Court or a Federal Court, Gingrich continues, makes a ruling that “arouses the passion of the nation, then the other two branches have the legitimate right to say, does our interpretation of the Constitution agree with your interpretation, because all three branches are technically equal. There is no supremacy.”
Gingrich makes frequent references to “the will of the people”. This popular will is the presented as both clearly knowable and in opposition to “elite classes.” Federal Judges and Supreme Court Justices are clearly members of the elite, as are lawyers in general. Gingrich states “the Court that imposes elite values in variance with the country weakens its own believability and puts itself into position to be repudiated by the Legislative and Executive branches.”
I am always wary of talk about “The Will of the People.” This is the language of demagogues and dictators. Who are The People? I can’t help but think that the American family in XicanoPwr’s diary (9/29/06) isn’t part of Gingrich’s People. Gingrich’s position opens the way for the dictator to override the Judiciary’s independence – a key element in the balance of power of the Federal government. What imposition from the judicial “elites” will arouse the Will of the People next? Who will lead the “People?” And who will stand up to the usurpation of power by a ruthless Executive? If Federal Judge Anna Diggs Taylor has offended “The Will of the People” in her ruling against Bush, does that mean that Bush can simply ignore her ruling in the name of the “Will of the People”?
This is scary to me. The Federal Courts and the Supreme Court may not be our friends right now, but we must defend the institution of the Federal Courts. In Gingrich’s world of the Will of the People, minority rights will be crushed and our liberties abandoned as morally corrupt politicians fan the flames of fear and hate.
Former Senator Warren Rudman summed up the debate by saying,“When the country is in jeopardy, whether in times of a war, or in times of a terrific economic or natural disaster, that is the time for the courts to be more involved, because the greatest danger to liberty comes when there is great fear in the country.”
The Bush administration and the Republican Party are stoking the climate of fear in this country. That is how they have governed the country for six years. The Democratic Party has been cowardly and ineffectual in standing up to the bullying tactics of Rove, Cheney, et al. These are times of great fear. We need the courts more than ever. We need to elect people who will help get Judges, not ideologues on the bench. Gingrich has shown once again why Progressive movements are so often at odds with Populist movements. Please take an hour and listen to this debate. It could be portend of things to come. Let’s hope not, and work for better days ahead.