Monday, April 04, 2005

April 1, 2005

Tom DeLay
Mad or Mad as A Hatter?

After Terri Shiavo died Thursday people on both sides of the issue focused on the tragic nature of the entire affair. Not Tom DeLay. For the embattled House Majority Leader Shiavo’s passing was a golden opportunity to drag out his favorite whipping boy, the judiciary.

And oh, was he in rare form on this day:

"The time will come for the men responsible for this to answer for their behavior, but not today. The courts have thumbed their nose at Congress and the president.”

Never mind that that the freedom to “thumb its nose” at the other two branches of government was precisely the job the Founding Fathers had in mind when they established an independent judiciary. Tom DeLay is not interested in checks and balances, just winning. And he does not want lectures from judicial constitutional goody-two-shoes on the matter either.

What we saw yesterday was Tom DeLay who was both at the top and bottom of his game. He had once again skillfully and aggressively leveraged a hot button social issue to attack judges. But this time there was something else going on. Back in his home district a grand jury had already indicted three of DeLay’s campaign henchmen and were hearing evidence that could get DeLay himself indicted for campaign finance fraud. This time DeLay had a very personal reason to set up judges as out of control.

DeLay’s over-the-top attack on judges yesterday sets the stage for his alibi if he is indicted. If indicted DeLay will point to his threat yesterday and pronounce, “See, I told you. These arrogant, out of control judges will do anything to stop anyone who tries to rein them in. By indicting me on these trumped up charges they are sending a message that they are not only above the law, but above the lawmakers as well.”

You wanna bet against that? If so email me your bets. I’ll be happy to take your money.

Judge Dread
Delay's political career began when federal judges banned the pesticide DDT because the stuff was killing off a lot more than just bugs. At the time DeLay ran a small-time extermination company in Sugarland, Texas and DDT was his tool of choice. He was outraged when told he could no longer use the stuff. DeLay decided there and then that someone had to rein in the judiciary and that he was just the guy for the job.

DeLay ran for Congress and, in 1984 won. From that day forward he has fought to undermine the independence of judges. When asked by a reporter why he was so riled up at federal judges DeLay explained, "I woke up one day realizing that the judiciary had turned themselves into a regulatory branch."

His first concerted assault on the courts came when the GOP took control of the House in 1994. DeLay became a fervent supporter of litigation reforms that would ultimately strip shareholders of many of their rights to sue company executives, like Enron's Kenneth Lay. (Later Enron returned the favor by providing the money to jumpstart DeLay’s leadershp PAC.)

But DeLay's big stick approach to bringing the judiciary to heel emerged in 1997. Citing a Supreme Court order forcing the Virginia Military Institute to admit women, DeLay alleged federal judges were exceeding their constitutional authority and it was up to the legislature to rein them in. "We can impeach judges who get drunk," DeLay said at the time, "so why not impeach those who get drunk with power?"

Why not? Well, for starters, the Constitution does not allow the impeachment of judges simply because someone disagrees with their verdicts:

"No serious student of the impeachment provisions can conclude that the Constitution of the United States contemplates impeachment of judges on account of their actual decisions from the bench -- their interpretations or their rulings." (Constitutional scholar Terry Eastland.)

But DeLay rejects the idea that the Constitution limits impeachment of federal judges to just "high crimes and misdemeanors." Instead, DeLay argues, whenever a judge rules in ways that "usurp the powers of Congress," he or she should face impeachment. What DeLay was suggesting was a coup d'etat by members of Legislative Branch against members of the Judicial Branch. It was precisely the kind of politically motivated intimidation of the judiciary that America's Founding Fathers wished to avoid by putting the judiciary safely outside the political arena.

DeLay's position was closer to one put forth three decades earlier when Rep. Gerald Ford was trying to get Supreme Court Justice, William O. Douglas impeached for being too liberal. Back then Ford defended his position this way:

"An impeachable offense is whatever a majority of the House of Representatives considers it to be at any given moment of history."

It took the legal wrangling in Florida during the 2000 Presidential race to reveal that DeLay's outrage over judicial activism was really a fa├žade to mask nothing more than a naked partisan agenda. When the Florida Supreme Court ruled in favor of the Gore campaign for a hand recount of contested ballots, DeLay roared that the court had "squandered and violated the trust of the people of Florida in trying to manipulate the results of a fair election." And he vowed, "This judicial aggression must not stand."

But, when the U.S. Supreme Court overturned the Florida court's ruling, handing the victory to Republican George W. Bush in one of the Court's most controversial rulings in history, DeLay expressed pleasure with the ruling.

Some among the imperial judiciary appear more equal than others, in DeLay's view.

It was a double standard that exposed DeLay's anti-judiciary campaign as little more than a naked attempt to weaken the Constitutional independence of the Judicial Branch and replace it with a cowed judiciary more compliant to the wishes and actions of politically driven legislators.

But yesterday’s outburst may have gone over the line, even for DeLay. Making threats designed to intimate judges with the intent to influence their judgments is a federal felony.. a high crime and misdemeanor that could itself be grounds for impeachment -- his own.

(Relevant Footnote: Today it was reported that nearly a decade after he was appointed to investigate Clinton's Housing Secretary Henry G. Cisneros, independent counsel David M. Barrett spent more than $1.26 million of federal money in the last six months of fiscal 2004, the Government Accountability Office reported yesterday. Since its inception, the Cisneros investigation has cost nearly $21 million, a total rivaling some of the largest independent counsel investigations in history.)

Hello Democrats… anyone in there?

Your Weekend DeLay Reading Assignment
(And yes, there will be a quiz on this)

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