The War On Judges

: Justice Sandra Day O'Connor poses for photographers at the U.S. Supreme Court October 31, 2005 in Washington DC. GETTY IMAGES/Mark Wilson

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


The political bullies who have launched and maintained their despicable attack on the authority and independence of the federal judiciary finally have met their match. She is a gray-haired grandmother who likes to golf, fly fish and write. Not only is she standing up to those who seek to dominate the courts, she is likely to ultimately win the battle of ideas over the role of judges in the age of terror.

I mean, really — in the end, who would you follow? Whose vision of America do you share? The bullies — men like Rep. Tom DeLay and Sen. John Cornyn — both of Texas? Or a small, frail woman by the name of Sandra Day O'Connor, who, it turns out, happens to be a surprisingly brave and remarkably outspoken former United States Supreme Court Justice.

The Lone Star heavyweights are used to picking on feckless Democrats — that's proven to be easy — but they stand no chance against the Reagan-appointee who is a legend, literally, in her own time. And it's not just because of the image they present of two powerful and power-hungry men pushing aside a little old lady. It's because of the untenable arguments they are making. They are ugly arguments, foreign and mean, that rely for their power on base, cynical and false views of how judges judge.

Although their voices are the loudest, and for now the most powerful, Cornyn and DeLay ultimately will lose because they are on the wrong side of both history and the law. They are for fearful and weak judges, extreme legislative and executive power, and the will of the majority over protection for the minority. O'Connor, meanwhile, a former legislator herself, is on the side of the Constitution and the Bill of Rights, checks and balances, and the separation of powers.

It all started almost exactly one year ago, during the Terri Schiavo saga, when Congressional conservatives interjected themselves into a local probate matter by enacting special legislation designed to try to keep Schiavo alive. The patently unconstitutional measure was, quite rightfully, resoundingly rejected by one federal judge after another, including several conservative jurists on and off the United States Supreme Court.

If the Schiavo ruling marked a bitter defeat for DeLay, Cornyn and Co., it also marked a flashpoint over their concerted conservative push to neuter life-tenured judges that has been brewing for years, and the old-school "conservative" force of judicial restraint, which via federal judges has long protected Americans from dangerous political schemes cued up by both the right and the left.

Indeed, the GOP's blunt position in the Schiavo case didn't just fall out of the sky. The current Congressional leadership and the White House had before and have since made it a political policy choice to denigrate judges and thereby attempt to destroy both the stature and authority of the federal judiciary. They have done this by trying to take controversial issues out of range of the courts by seeking to "strip" judges of jurisdiction over, for example, the constitutionality of flag-burning and the Pledge of Allegiance. They have done this with nasty and disrespectful rhetoric.

After Rep. DeLay lost the Schiavo fight, for example, he denounced the "arrogant, out-of-control, unaccountable judiciary" and said that "the time will come for the men responsible for this to answer for their behavior." Sen. Cornyn, meanwhile, seemed to suggest a little later last year that violent attacks on judges, like the murder of the family of a federal trial judge in Chicago, were the logical result of frustration by people angry with so-called "unaccountable" judges.
  • Lloyd Vries

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