March 2, 2005

Here Come Da Judges

What’s the definition of an “activist judge?” Depends on which side of the decision you're on. Any judge that rules against a key conservative agenda item, like displaying the Ten Commandments in public buildings, is an activist judge to conservatives. Conversely, any judge that rules against a woman’s right to chose is an activist judge to liberals.

The judicial branch of government was established to protect us from extremists on any side. And, throughout our history, partisans on all sides have damned judges when they lost and praised their wisdom when they won.

And that’s just the way the Founders intended it. On occasion though both sides have tried to stack the courts in their favor. Franklin Roosevelt tried it and Republicans threw a fit and he was forced to back down.

Now George W. Bush is trying it.

Both Roosevelt and Bush had their own reasons for trying to protect pet programs from being killed by judges. Roosevelt was pushing a domestic agenda Republicans considered nothing short of Bolshevism and he knew that even after winning bitter fights in Congress, a bevy of Republican judges were just itching to rule them unconstitutional.

However well meaning Roosevelt’s aggressive social programs were he had no right trying to short circuit our constitutional check and balances. But Bush’s reasons for wanting to stack the federal bench with ultra-conservatives are even less admirable. At least Roosevelt was trying to lift the nation out of depression and grinding poverty. Bush just wants to make sure judges don’t get in the way of his Putin-like domestic agenda.

Do you think that’s a bit too strong? I mean, “Putin-like,” is that’s just cheap shot? Well, maybe a tiny bit too much, but not all that much too much.

I will admit that there are differences in how both men are getting their changes through. The Bush folks at least understand the basic rules of public relations. But the Russians have always been ham-handed and obvious when they try to pull a fast one and still are. So there is a difference. I give the Bush folks points for having the Bart Simpson, “Hey it was already broke when I got here,” routine down pat. Putin, on the other hand, just wreaks guilt.

Other than that the two men are peas in a pod; in the way they bristle beneath the glare of free media, how they view their nation’s judicial systems as tools, even weapons, and how they both believe their respective legislative bodies should be subservient to the executive branch.

Both Putin and Bush view constitutional checks and balances intrusions into their ruling prerogative. And, if both had their druthers, their respective legislatures would become largely ceremonial bodies whose main job would be to stand and clap wildly whenever the President enters the room.

September 11 was a gift of fate to both Putin and Bush. Ever since 9/11 both have tossed the cloak of "national security" over behavior and programs that would have been impossible before. Both men have used terrorism as a blunt object to beat Lady Liberty senseless.


For example, if I had told you in 1999 that within the next two years Congress would pass a law allowing the FBI to force your bespectacled librarian to tell them what books you read, you would have told me I was crazy. Today it's the law of the land.

For Putin 9/11 became a green light to recreate a KGB-style police state. Almost immediately the media, political opponents and businessmen who did not support Putin felt the cold, heavy hand of old-style Soviet repression tighten around them. Putin pushed it all through, just as Bush pushed the Patriot Act, as necessary for national security. There are terrorists out there, you know! Be good or the boogeyman will get you.

The only trouble is both Americans and Russians now we have two boogeymen to worry about; terrorists and their own governments.

Oh but look. Now I've stryed. I began this column talking about Bush stacking the courts with like minded judges. But then again, maybe not. It’s one of the ingredients in the same enchilada. No, that’s wrong. It’s more than just one of the ingredients. It’s THE most important ingredient. Because the courts are the last place ordinary Americans still have a chance of “beating City Hall.” It’s the final gauntlet a law or government action must run before being set in stone forever. “Fix” the courts and the administration will have nothing but open field from snap to touchdown.

Do I again exaggerate? Consider this. Last month the Bush folks moved one step closer to just that vision. The Republican-controlled Congress changed the nation’s class action laws consumers have used effectively to fight corporate abuses. The new law now requires that large class action cases be heard, not in state courts, but federal court. Large corporations had pushed hard for the change because they were losing too many shareholder fraud and product liability cases in state courts. Now companies hope such threats to their bottom line will have to pass muster before Bush-appointed federal judges.

Conservatives were disappointed yesterday when the US Supreme Court ruled it was cruel and unusual punishment to execute juveniles. While the civilized world appaulled the decision, for conservatives it was just one more reminder what an important opportunity Bush will soon have to fix that little problem too. (Judge Scalia, who many feel may be appointed Chief Justice, issued an angry rebuttal to the 5-4 majority opinion. Scalia believes it is wrong to kill a fertilized egg, but perfectly okay to kill a full term teenager.)

So the next time you hear the Bush folks whining about how Senate Dems are bottling up Bush’s federal court appointees, you might better understand why they are being so shrill over a handful of rightwing judges. These are, after all, lifetime appointments.

If Bush is successful in stacking the federal bench, from district courts to the Supreme Court, it’s game over. You lose.