Congressional Retribution

That previous musing, of course, was set off by the current rhetorical attacks on the judiciary (I know, looking for consistency is a sucker’s game). Apparently “activist judges” are now those judges who don’t do something, that something being changing their opinions to reflect the current whims of fundamentalist lawmakers. (The reverse, though, does make some amount of sense--“passivist judges” would be those who sit and wait to be told what their opinions should be and then hand down their rulings accordingly. Somebody should be compiling a glossary of all this.) So is it OK now for judges to legislate from the bench if their rulings reflect right-wing preferences?

The punishment for not bending to the will of the current Congressional leadership appears to be the threat of impeachment (or if Michael Schwartz, Oklahoma Senator Tom Coburn’s chief of staff, is to be believed, impalement). Tom DeLay himself famously threatened retribution, and Reagan Supreme Court appointee Anthony Kennedy has been an early target. But I wonder how far they're prepared to go. All this gnashing of teeth is in the backwash of the Terri Schiavo case. My count could easily be wrong, but it seems to me that of the 22 federal judges involved in the various rulings after Schiavo's feeding tube was removed, only two chose to weigh in in favor of reinstating the tube. Are Congressional leaders willing to go after all 20 of those (including the entire Supreme Court) who, at best, kept their mouths shut, or will they be selective?

To look on the bright side, there is the possibility here of a chance to restore bipartisanship to Congress. One of the judges of the 11th U.S. Circuit Court of Appeals who did not offer a dissenting opinion against the court's decision to deny the appeal of Schiavo’s parents was William Pryor, appointed by President Bush during a Congressional recess because Democrats had threatened to filibuster his nomination. If Republicans are now ready to impeach Pryor for not standing up in the Schiavo case, a good number of Democrats who never wanted to see him on the court in the first place might be willing to join them.