Battle Of The Branches
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
When I go to sleep at night, after the certiorari brief counting is done and the soothing Clarence Thomas relaxation tape has played itself out, I often dream legal analyst dreams. None of them (so far, anyway) have had to do with Nancy Grace or Mark Geragos, but there are a few recurring reveries that come to me in the dark that I would like to see played out for real.
For example, I'd like to see Michael Jackson take the witness stand in his own defense at his molestation and conspiracy trial. I'd like to see Oklahoma City bombing conspirator Terry Nichols tell us everything he knows about the bomb plot. I'd like to know now whom President Bush is going to nominate as Chief Justice William Rehnquist's replacement. I'd like to know what Scott Peterson is thinking. But more than anything, in my dreams, I want to see the loons in Congress try to push for the "mass impeachment" of federal judges.
If that were to occur – and it's closer to reality than it was last month – I'd have a front-row seat to political Armageddon. I would be able to witness and report upon the ultimate Battle of Branches over the heart and soul of the Constitution; a battle that the dopes on Capitol Hill who are spoiling for a fight surely must lose in the end. Someone ought to page ring announcer Michael Buffer so he can bellow: "Let's get rrreaddddy to rrrummbbbble!" as our television sets show images of the scale of justice being toppled over by an elephant with Tom DeLay's face on it.
Although the ill will between congressional (and White House) conservatives and judges has been growing in recent years thanks to the relatively new (and horribly inaccurate) buzzwords "legal activism," the Terri Schiavo saga has brought the fight to a fever pitch. The politicians who choreographed the extralegal end run around the Constitution on behalf of Schiavo's parents are apparently furious that the courts rose up to block their efforts. Like kids on a playground who try to cheat and then get angry when it doesn't work, some lawmakers now are actually threatening to try to impeach federal judges who did not rule the way they wanted them to.
The whole scenario reminds me of the scene from "the Godfather," where Peter Clemenza, the Don's capo, tells young Michael Corleone there has to be a fight every now and again between the families to get rid of the "bad blood." There is an awful lot of bad blood right now between Congress and the courts (with the great majority of it boiling on the congressional side). Maybe the two branches need a donnybrook to clear the air and settle everyone down a bit. Maybe the bully that is Congress needs a punch in the nose from the supposed weaklings in the other branch, the federal judges, who may not have C-Span and cable television to help spin the faithful but who have constitutional doctrine on their side.
House Majority Leader Tom DeLay is only the most famous recent example of this astonishing lack of respect for judges. Last week, just after Schiavo died, he famously threatened members of the third branch. "We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at the Congress and president when given jurisdiction to hear this case anew," DeLay announced in a written statement. "The time will come for the men responsible for this to answer for their behavior." This Thursday, DeLay told supporters that "our next step, whatever it is, must be more than rhetoric." According to the New York Times, Rep. F. James Sensenbrenner, the powerful Republican chairman of the House Judiciary Committee, already has indicated that the panel "was likely in some way to take up the issue of how the federal judges handled Ms. Schiavo's case."
It would be nice to be able to write off this silliness as just part of the everyday fire and brimstone that often singes the House of Representatives. It would be nice to be able to count on the stabilizing Senate to cool this heat and shed some light on the interaction between the branches. And, indeed, Senate Majority Leader Bill Frist, the Tennessee Republican, has tried on several occasions over the past week or so to defuse the tension between the branches. He called the federal courts that looked at the Schiavo case "fair and independent." His fellow Republican, Oregon Sen. Gordon Smith, said "I'm not for things that go after judges. They're an independent branch of government. We need to respect that." These are good signs. So is the fact that President Bush late Friday echoed support for "independent" judges on his flight back from the late Pope's funeral in Rome.
But there also are many bad signs in the Senate. The Times on Friday quoted Michael Schwartz, chief of staff of Tom Coburn, a Republican senator from Oklahoma, as saying "I am in favor of impeachment." Schwartz also was quoted at a conservative anti-judiciary conference as saying that he hopes the judges who handled the Schiavo case "serve long sentences" and he implied that "mass impeachment" might be in order. These comments came a few days after Texas Republican Sen. John Cornyn seemed to suggest an understanding of why people can get so frustrated with judicial decisions that they engage in violence against judges. This on the heels of the murder of the husband and mother of a federal trial judge in Chicago.
The rational side of my brain suspects that cooler heads ultimately will prevail on Capitol Hill and that even the most partisan opponents of the judiciary will come to realize that there is no upside to trying to alter the balance of power between the branches. Franklin D. Roosevelt was far more popular than is the current president, and the Democratic majorities in the House and Senate were safer in 1937 than the Republican majorities are now, and yet FDR failed miserably when he tried to pack the Supreme Court with favorable justices. There is no reason to think that a mass impeachment proceeding based upon the Schiavo case – and not upon any criminal conduct by judges – would play out any differently nearly 70 years later. Pulling rank over the Constitution is always a bad idea no matter which side is in power.
But the emotional side of my brain – and the side that feeds my journalism jones – hopes that DeLay & Company will step even further over the line. My subconscious mind says: Go ahead, Rep. Sensenbrenner, try to impeach the federal judges who simply followed the law in the Schiavo case (like the Chief Justice of the United States, William Rehnquist, and all those conservative judges on the 11th U.S. Circuit Court of Appeals). Go ahead and then see what the poll numbers show. It would be raucous. It would be fascinating. It would be a great teaching tool about the Constitution and its promise of co-equal branches. It would take our minds off Michael Jackson. And the good guys would win in the end.
For a guy who is increasingly concerned that the independence of the judiciary is being threatened by sinister political forces, and for someone who believes that the law is on the side of the judges and not the politicians, all I can say to rabble-rousers on Capital Hill is: Make my dream come true.