"Judicial activism" is in the eye of the beholder. Threatening judges is not. That explains why even Michael Mukasey and Alberto Gonzales, former Bush Attorneys General and ardent defenders of detainee torture and illicit domestic surveillance, denounced Newt Gingrich's assault on the federal bench as "dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall and would reduce the entire judicial system to a spectacle." Sadly, Gingrich has plenty of company among conservatives threatening judges. As the dangerous rhetoric of John Cornyn, Tom Delay and a host of other Republican officeholders and propagandists shows, judicial intimidation is now standard fare for many of the leading lights of the GOP.
On Face the Nation Sunday, Gingrich the fading frontrunner told CBS News host Bob Schieffer he wouldn't hesitate to send the Capitol police or U.S. marshals to round up judges with whom he disagreed and force them to respond to subpoenas. As McClatchy reported Saturday:
In order to restore balance between Congress, the White House, and the courts, Gingrich recommended ignoring rulings, impeaching judges, subpoenaing justices to have them explain their rulings and, as a last resort, abolishing the courts altogether...
"I was frankly just fed up with elitist judges imposing secularism on the country and fundamentally changing the American Constitution," Gingrich told reporters, adding that "it was clear to me that you have a judicial psychology run amok, and there has to be some method of bringing balance back to the three branches."
During the height of the Terri Schiavo controversy in 2005, some Republican leaders darkly suggested what one of those methods might be.
Senator John Cornyn (R-TX), himself a former Texas Supreme Court Justice, has been at the forefront of GOP advocacy of violence towards members of the bench whose rulings part ways with conservative orthodoxy. Back in 2005, Cornyn was one of the GOP standard bearers in the conservative fight against so-called "judicial activism" in the wake of the Republicans' disastrous intervention in the Terri Schiavo affair. On April 4th, Cornyn took to the Senate floor to issue a not-too-thinly veiled threat to judges opposing his reactionary agenda. Just days after the murders of judge in Atlanta and another's family members in Chicago, Cornyn offered his endorsement of judicial intimidation:
"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country...And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence."
Facing criticism for his remarks seemingly endorsing right-wing retribution against judges, Cornyn held his ground. "I didn't make the link," he said on Fox News Sunday, adding with a note of sarcasm:
"It was taken out of context. I regret it was taken out of context and misinterpreted."
As it turns out, Cornyn was merely echoing the words of the soon-to-be indicted House Majority Leader Tom Delay. On March 31st, Delay issued a statement regarding the consistent rulings in favor of Michael Schiavo by all federal and state court judges involved:
"The time will come for the men responsible for this to answer for their behavior, but not today."
The impact of tacit conservative endorsement of violence against judges cannot be dismissed. After all, it extends to members of the Supreme Court of the United States. In March 2006, Justice Ruth Bader Ginsburg revealed that she and Justice Sandra Day O'Connor were the targets of death threats. On February 28th, 2005, the marshal of the Court informed O'Connor and Ginsburg of an Internet posting citing their references to international law in Court decisions (a frequent whipping boy of the right) as requiring their assassination:
"This is a huge threat to our Republic and Constitutional freedom...If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week."
Neither O'Connor nor Ginsburg are shy about making the connection between Republican rhetoric of judicial intimidation and the upswing in threats and actual violence against judges. Ginsburg noted that they "fuel the irrational fringe" O'Connor blamed Cornyn and his fellow travelers for "creating a culture" in which violence towards judges is merely another political tactic:
"It gets worse. It doesn't help when a high-profile senator suggests a 'cause-and-effect connection' [between controversial rulings and subsequent acts of violence.]"
When anthrax spores were mailed to the Supreme Court in 2001, Americans could be forgiven for speculating on the ideological persuasion of the culprit. Aided by best-selling conservative author and media personality Ann Coulter, who joked in January 2006, "We need somebody to put rat poisoning in Justice Stevens' creme brulee," the right-wing endorsement of retribution against judges increasingly permeates the culture.
Just ask Judge Reggie Walton. A federal judge on the United States District Court for the District of Columbia, Walton was picked by Supreme Court Chief Justice John Roberts to serve on the FISA court which must approve government requests for domestic electronic surveillance. But when Dick Cheney's chief-of-staff Scooter Libby was convicted in his court in 2007, Judge Walton received death threats:
"I received a number of angry, harassing mean-spirited phone calls and letters. Some of those were wishing bad things on me and my family."
One of those seemingly wishing bad things on judges is Montana Republican Congressman Denny Rehberg. Just weeks after the Tucson slaughter that claimed the life of circuit judge John Roll, Rehberg responded to a recent ruling by declaring he wanted to "put some of these judicial activists on the Endangered Species list":
"Environmental obstructionists found a federal judge in Missoula that was willing to ignore the scientific evidence as well as the expert opinions of on-the-ground wildlife managers here in Montana. And he ruled last August that the grey wolf had to remain on the Endangered Species List.!
When I first heard his decision, like many of you I wanted to take action immediately. I asked: how can we put some of these judicial activists on the Endangered Species List? I am still working on that!"
As are, in myriad other ways, many of his GOP allies. By proposing to abolish the Ninth Circuit Court of Appeals, Newt Gingrich was hardly the first Republican to call for simply ending jurisdiction for the federal courts across a broad swath of issues. Even after the calamitous intervention in the Schiavo imbroglio, conservative stalwarts continued to turn to "court-stripping" as a favorite tactic. As the Eagle Forum's Phyllis Schlafly put it in 2006, "The American people are waiting for this year's Congress to pass legislation defining the jurisdiction of the federal courts so that supremacist judges will not be able to ban the Pledge of Allegiance, the Ten Commandments, the Boy Scouts, or the traditional definition of marriage as the union of a man and a woman." On terror detainees, the EPA's regulation of greenhouse gases and so much more, Republicans want eliminate the prospect of future rulings with which they might disagree.
In 2008, former Supreme Court Justice and Reagan appointee Sandra Day O'Connor wrote, "What worries me is the manner in which politically motivated interest groups are attempting to interfere with justice." As O'Connor explained the next year to Jon Stewart of The Daily Show, that threat prompted her to launch a new online civics education project:
"Well, what I became aware of increasingly in those last years was all the criticism of judges across America. We heard a lot in Congress and in state legislature. We heard a lot about "activist judges," didn't we? "Secular, godless humanists trying to tell us all what to do." I mean, that was what we were hearing. And I just didn't see it that way, and I thought perhaps a lot of Americans had stopped understanding about the three branches of government."
Americans, that is, like Newt Gingrich and many of his friends in the Republican Party.
(This piece also appears at Perrspectives.)