Faith, Beer, and Other Things That Interest Geoff

So it is time to assert some distinctions. Senator Cornyn’s speculation strikes us, first, as simply untrue: We do not believe that the assorted maniacs and criminals who have assaulted judges (and their families) are motivated in any part by a concern that judges have claimed powers that properly belong to legislatures. If it were true, it would be irrelevant to the questions of what powers judges should exercise and what other governmental actors should do when they exceed those powers: The resolution of these questions should not be swayed by violent intimidation. We’re sure Senator Cornyn sincerely regrets his passing remark.

Congressman DeLay’s view that impeaching activist judges is desirable, on the other hand, is longstanding. An interesting academic debate could be had about whether there are circumstances in which a judge could rightly be impeached for making lawless rulings. But impeachment makes no sense as a remedy for the defects of the modern judiciary. If we had only a few bad apples in a generally sound judiciary — and a legal culture that regarded them as such — then it would perhaps be possible and salutary to impeach the miscreants. Instead we have a legal culture that celebrates freewheeling judicial activism. Either DeLay can try impeaching five or six members of the Supreme Court, or he can go after a few judges who have made decisions that particularly offend him. The first course would be mad. The second would change the character of the conservative campaign against judicial overreach from an attempt to rebalance the structure of American government to a vindictive crusade against specific people. Alas, the tenor of his remarks suggests that he does not appreciate the difference.
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But the existence of these disagreements does not alter our conclusion that it is profoundly unhealthy for the republic to have a judiciary that effectively defines the limits of its own power and a political class that regards the rule of judges as the rule of law. On that underlying contention, Congressman DeLay and Senator Cornyn are correct. And we are for all intelligent, deliberate, and constitutional exertions to rectify the situation. Political leaders cannot subscribe to a definition of judicial “independence” that allows for no meaningful political checks on judicial power. The result of that view is, almost as a matter of necessity, judicial independence from the Constitution.