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Protecting an Independent Judiciary

or: “Mommy, why is that man throwing rocks at the blind lady?”

A picture named justice.gifThere have been some recent veiled (and not-so-veiled) attacks on the judiciary by powerful elected officials.
While these have not specifically been about drug policy, there are potential long-term ramifications that require me to speak.
Generally, I find the political litmus tests over the selection of federal judges distasteful, regardless of the party, and often wish that the two sides could get together and really find some top notch judges without them having an agenda either way.
However, I must admit that I’d probably have my own litmus test of a sort: a commitment to judicial independence and protecting the separation of powers, plus protection of individual rights from government overreach. This is not a test you see applied often in confirmation hearings, but if you’re lucky, well-qualified judges will rule properly in these areas naturally (often despite the wishes of their sponsors).
Regardless of my distaste for the partisan bickering over judges, I accept it somehow as part of political reality (and hope that each side is prevented from getting all their wishes by the other side).
What really scares me recently is the threats by some to curb the power of the judiciary itself — an attempt to make it subserviant to the legislature.
Now the drug war is one of the prime arenas in which government steps all over the rights of individuals. There are plenty of decisions by judges that I’ve found horrible, yet I hold hope that the judiciary will, at times, step up and balance the power, recognizing our rights in the constitution. (I don’t know how Raich will turn out, for example, but I have hope.)
Without an independent judiciary that’s willing to step in when the legislative or executive branches overreach, there’s too much potential for corruption and abuse of power. For example, Ernest Istook had no qualms about drafting a blatantly unconstitutional provision requiring metro systems to deny advertising that called for a change in marijuana laws. Because of political realities (and the fact that it was tacked on to a larger appropriations bill), it was passed by Congress and signed by the President. Fortunately, the courts were there to stomp on it (and even the Justice Department was too embarrassed by it to appeal to the Supreme Court).
As it is, too much has happened to centralize power in the United States’ legislative and executive branches. In 1919, it was assumed that the federal government had no power to outlaw alcohol sales without a constitutional amendment. (At that time, the judiciary regularly placed the tenth amendment in the path of congressional regulation of “local” affairs, and direct regulation of medical practice was considered beyond congressional power under the commerce clause.) No such perceived limitation has arisen in later years when it comes to outlawing marijuana.
The government has actively tried to silence one of our legitimate forms of checks and balances — jury nullification, and prosecutors have been given way too much power, particularly in the area of sentencing. Government agencies have become adept at providing multiple layers of approval processes in their systems to delay and prevent judicial involvement (particularly in Controlled Substances Act issues).
We need to protect the notion of independent, counter-balancing branches of government. When it comes to the drug war, reformers must be able to attempt redress through all avenues (and we are).
Now we come to the troubling part. Take a look at some recent statements:
Representative Tom Delay:

Mrs. Schiavo’s death is a moral poverty and a legal tragedy. This loss happened because our legal system did not protect the people who need protection most, and that will change. The time will come for the men responsible for this to answer for their behavior, but not today.

And then more Tom DeLay:

“We have unaccountable, out of control judiciary. We are after them,” DeLay said.

“The Constitution gives us (Congress) the responsibility to create courts. If we can create them, we can uncreate them,” he said.

Uncreate them?
DeLay was the keynote speaker (cached page) at a recent conference that shouted:

THIS WILL BE AN ACTION-ORIENTED CONFERENCE SEEKING SOLUTIONS,
AS WELL AS THE BEGINNING OF A BROAD-BASED EFFORT TO
SAVE AMERICA FROM THE JUDGES

And, also from Texas, there’s Senator John Cornyn (more of the text available at the link):

And finally, I — I don’t know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that’s been on the news. And I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in — engage in violence

I guess he thought if he expressed it as speculation, he could safely threaten judges with violence.
Some of these statements could be chalked up to misinterpretation or irresponsible emotionalism if they were spoken by an average person (or a blogger), but these are public statements by members of the United States Congress (and in Cornyn’s case, delivered on the Senate floor).
Then you have Senate bill S-520, sponsored by Senator Trent Lott and others, which is aimed at actually preventing the federal courts from being able to rule on certain types of issues, or using certain criteria in their decisions (note that the bill claims to promote federalism, but all it promotes is giving more power to the legislature).
Remember, these are not attempts to merely select judges of a particular type (although that’s part of it). This is an attack on the independence of the judiciary itself. Cornyn even said that the Supreme Court should merely be “an enforcer of political decisions made by elected representatives.”
It’s important to understand that, while most of those involved in this coup d’etat (and yes, to an extent, that’s what it is) are Republicans, they do not represent the large numbers of conservatives who believe in limited government, states’ rights, individual responsibility and morality (and a number of prominent writers on the right have started to express their dismay).
But they are also not fringe players. DeLay is the majority leader and has built an extraordinarily strong power base that will not brook dissent.
It’s going to take all of us on the right, left, middle, libertarian, etc. to keep these few from giving themselves more power at our expense. If they succeed, we will have less ability, as individuals, to correct governmental abuse — particularly in areas like the drug war.

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