National Review, May 23, 2005, with Ramesh Ponnuru.
University of Chicago law professor Cass Sunstein thinks that we are entering a new and “worrisome” phase in the political struggles over the courts: The Right is mounting “a large-scale challenge to judicial independence.” The editors of the Washington Post think that “the past few weeks have seen an aggressiveness in conservative attacks on the judiciary that cumulatively takes one’s breath away” and warn that some Republicans are crossing “red lines beyond which legislators cannot go without threatening judicial independence.” Al Gore says, “Through their words and threats, [some] Republicans are creating an atmosphere in which judges might well hesitate to exercise their independence for fear of congressional retribution, or worse.”
Concern about threats to judicial independence is not limited to liberal academics, journalists, and ex-politicians. Ted Olson, President Bush’s first solicitor general, wrote an op-ed for the Wall Street Journal titled “Lay Off Our Judges.” Reminding us that our “independent judiciary is the most respected branch of our government, and the envy of our world,” he asserted that it would be wrong for Congress to impeach judges or remove jurisdiction from federal courts. Chief Justice William Rehnquist’s annual report on the federal judiciary also cautioned against any attempt to check the courts other than “the gradual process of changing the federal Judiciary through the appointment process.” He concluded the relevant section of the report thus: “Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world.”
Sunstein is right about one thing: The politics of the judiciary is indeed entering a new phase. For years, conservative critics of judicial usurpation have attempted to combat abuses by trying both to get better judges appointed and to amend the Constitution to undo particularly objectionable decisions. Republicans continue to pursue both strategies. They are trying to abolish the filibuster of judicial nominees in order to get better judges on the bench, and some want a Federal Marriage Amendment to prevent usurping judges from redefining our most important social institution….