When House Majority Leader Tom DeLay growled at the federal judiciary last week, he was reacting in anger to the death of Terri Schiavo.
DeLay's threat to make judges "answer for their behavior" came shortly after the 41-year-old, brain-damaged woman succumbed. DeLay was furious first with Florida judges who allowed her feeding tube to be removed. But he seemed equally steamed at federal judges who would not review the case after DeLay pushed through a legislation allowing them to do so.
DeLay's outburst must be seen as part of a larger struggle, a decades-long campaign by social conservatives to reverse a liberal trend in court decisions on issues of morality. The end-of-life questions raised by the Schiavo case are just part of an agenda that also includes abortion, school prayer, religious uses of public property and adult content in the media.
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This movement targets first the "activist judges" at the trial level, but dissatisfaction with the Supreme Court also runs high on the right. A fresh critique of the high court from the conservative Regnery Publishing (Men in Black: How the Supreme Court Is Destroying America) is a current bestseller.
Beyond its roots in this critique of the court, DeLay's assault also fits in an even larger historical context. When the Texas Republican vented his frustration with "an arrogant and out-of-control judiciary that thumbs its nose at Congress and the president," he was joining a host of other powerful figures in both parties who have felt the same.
Outrage at the courts and a corresponding urge to control them have been recurring themes for most of our national history. Getting a handle on the power of the Supreme Court — either to curtail it or wield it for one's own purposes — has been an obsession for several of our strongest and most controversial presidents.
The biggest setbacks Franklin D. Roosevelt had to endure in domestic policy were dealt him by the Supreme Court of the mid-1930s, which struck down key elements of his New Deal as unconstitutional. In 1937, Roosevelt tried to pack the court by enlarging it. Congress flatly refused, even though Roosevelt's Democrats had their largest majorities ever. In the next midterm, Roosevelt tried to purge some of those who had resisted, and that backfired too.
Three decades later, in 1968, Lyndon B. Johnson found that in the final year of his presidency he could not get his big Democratic majority in the Senate to accept his choice for chief justice.
Johnson's choice, Abe Fortas, was already on the court. But the thought of him elevated to chief justice provoked several Southern Democrats to rebel (including Robert C. Byrd of West Virginia), along with most of the minority Republicans (especially Strom Thurmond of South Carolina). An attempt to cut off debate fell far shy of the two-thirds needed at that time, and Fortas asked that his nomination be withdrawn. Neither he nor LBJ could have imagined then that there would not be another Democratic nominee for the Supreme Court for 25 years.
When Johnson's successor, Richard M. Nixon, took office, he was as interested in the direction of the courts as DeLay is today. In Nixon's acceptance speech at the Republican convention in Miami Beach in the summer of 1968, no line got a bigger response than his promise to bring the federal judiciary under control.
As Nixon took office, Earl Warren was still the chief justice. Over a period of 15 years, the Warren Court had established a record of remarkable judicial activism: integrating schools, establishing one-person-one-vote representation in state legislatures, recognizing the rights of the accused and enunciating a clear separation of church and state. Nixon said the judges had gone too far and become unelected legislators making decisions the people did not support.
But Nixon, like his forceful predecessors, found the court a difficult horse to ride. Two of his nominees, G. Harrold Carswell and Clement Haynesworth, were denied confirmation by the Senate. And when Nixon appealed to the Supreme Court to save him in the Watergate scandal, the court said no — unanimously.
Even Ronald Reagan, who elevated one Nixon appointee on the court to chief justice (William Rehnquist) and appointed three other justices still serving (Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy), experienced keen frustration in the process. His most controversial selection, Robert Bork, was defeated first in committee and then on the Senate floor (an episode that still fuels hot resentment on the right).
All this history now hovers over the Washington of George W. Bush's second term. A vacancy on the Supreme Court is expected this summer, and there could be more than one. As a prelude to the coming confirmation fight, the Senate is already engaged in a standoff over the approval of 10 Bush nominees to the federal appeals courts — all of whom Democrats say they will filibuster.
Senate Majority Leader Bill Frist has threatened to use a procedural ruling by the Senate's presiding officer to bar the use of filibusters on judgeship confirmations. Frist calls this "the constitutional option." Democrats call it "the nuclear option" and say its use will bring the chamber to a standstill. If successful, this rule change could have historic implications for the future of the court, and for the future of the Senate itself.
Given this highly charged moment on Capitol Hill, it is not clear what weapons DeLay imagines himself using in a separate campaign against the federal bench. It is the Senate that can impeach federal judges, try them and remove them from office. When asked last week about the impeachment option, DeLay said: "There's plenty of time to look into that."
Plenty of time, yes, but probably no inclination in the Senate. Among those distancing themselves from DeLay's remarks immediately were Sen. John McCain and Vice President Dick Cheney, who serves as president of the Senate. Both would prefer that the reaction to the Schiavo episode be channeled into confirmation of the 10 Bush appellate nominees already in the Senate pipeline.
With that goal in mind, the last thing the White House or the Senate leadership need is a distracting discussion of impeachment for judges who have angered DeLay.
The lesson from previous conflicts over the courts is clear: Those who force a confrontation are usually unhappy with the results. Those who pick their spots and settle for incremental change in their favor are more likely to get most of what they want.
That's the way the three branches were designed to interact. They have to tolerate and wait on each other. None can dictate. And if the judicial branch often seems, in DeLay's phrase, "out of control," it is because for better or worse the framers wanted it that way.