OPINION & EDITORIAL
Lawlessness reigns in halls of Congress
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Also by Rob Deters:
- SUVs and Earth Day do not mix (April 24, 2003)
- Lawlessness reigns in halls of Congress (April 6, 2005)
Related Stories:
- Terrorism tests America (September 12, 2001)
- Musical chairs (September 16, 2004)
- Lessons gathered while in Madison (May 5, 2005)
- Despite hazards, America must administer justice (September 20, 2001)
- LGBT community takes step forward (November 8, 2007)
by Rob Deters
Wednesday, April 6, 2005
It used to be that we had no law. Going back to not too long ago (about 120 years ago), America (geographically) was a mostly lawless country. We dealt out justice as we saw fit, either through posse, ad hoc trials or frontier justice (you shot the man that done you wrong). In case you can’t tell, I’ve been watching a lot of “Deadwood” recently.
That era sure makes for some great television. But I would not want to live there.
Many conservatives in this country appear to want to return us to that era. The recent Terri Schiavo debacle and the upcoming debate on the continuance of the filibuster in Congress (debatable because Democrats want to keep it so they can oppose Bush’s judicial nominees) are just two examples of how the rule of law and role of judges are under attack.
Do conservatives really want to eliminate the judiciary? Probably not, but their most vocal advocates create that impression.
As my last column showed, Rep. Tom DeLay of Texas came out hard for the Schiavo family. When, after she died, he declared that “The time will come for the men responsible for this to answer for their behavior, but not today,” I could nearly hear the spurs jangle as he mounted up his Regulators for some frontier justice.
In fact, that comment was so inflammatory, Sen. Frank Lautenberg of New Jersey felt it opportune to note that DeLay may have violated federal law, specifically 18 U.S.C. Sec. 115 (a)(1)(B) which bans threatening a federal judge for what they have done while carrying out their duties.
But, nothing will happen to DeLay officially since the Congressional Ethics Committee won’t convene, namely because of Democrats upset at how lenient it has treated Tom DeLay before.
It goes beyond DeLay, however. No matter how out of touch with most American’s sensibilities he is (and increasingly his own constituency, who, recently polled, showed more of them would elect anybody but DeLay in a hypothetical showdown), DeLay is part of an increasingly loud chorus to dismantle one of the three branches of government.
Whether it’s the recently proposed bill to make all federal judges declare that all law derives from God (sponsored by four Republicans), or the actually passed bill that requires every federal judge who ever reduces a sentence to send their name in to Congress, or the recent comments by Sen. John Cornyn of Texas (a former Texas Supreme Court judge himself) who nearly excused the recent attacks on judges as actions they brought on themselves.
Since I personally know a direct family member of federal Judge Lefkow (whose husband and mother were recently slain by a mentally disturbed litigant) I was particularly frightened and disgusted by his behavior.
Riding this trend is one of the best selling books in America, “Men in Black: How the Supreme Court is Destroying America,” by Mark R. Levin.
It is pitched to an audience unfamiliar with the courts (or legal proceedings) — I was able to read it in an afternoon. Also, it is written by someone completely unfamiliar with the courts, legal theory, judicial processes or thought processes in general.
I looked into why it’s so popular. This book is flogged constantly by Rush, Hannity and their ilk, featured on their websites and in their book clubs. Why? Because it panders, pontificates and obfuscates to the point at which if I did not know anything about the judiciary, I would want them gone after reading Levin’s trifle as well.
The book lacks intellectual rigor, thoughtful analysis or an iota of reason.
If that’s why it’s so popular on the right, then we’re heading back to the Old West with quickness.
Rob Deters (rvdeters@wisc.edu) is a third-year law student.
Anonymous (April 6, 2005 @ 3:52am):
Rob,
This article is a little less than expected from you. Forget the Old West for a moment and let's deal with Michael Jackson. Suppose that US law is governed by the bible. What would this mean for MJ? Well the case is yet to be decided, but pedophilia is not explicitly prohibited by the bible. According to the bible, Michael Jackson's only crime would be that he is not married to any of the children, since there is no age limit or a limit to the number of spouses in the bible. These limits have come about through the progress of society thanks in part, to the US Constitution and clear thinkers who can separate church and state.
To take a broader view on the problem, we can examine the work of the Pope, some have been upset over his dealing with the child abuse scandals in the church. The reason the Pope did not was because the bible is rather weak in this area as noted above, but the law sure wasn't. My point is that society as a whole decides the laws (under a democracy) and the bible surely permits and encourages this, when it tells us to follow the laws of men (and women too, thanks to the law). There are several instances in the bible where it commands a separation of church and state.
The real danger of the current neo-conservative movement is that it is perverting the bible for its own agenda goals by assuming the laws of men (and women) should only fit the bible, however in order to do so, they have to make the bible fit society. As noted previously, the bible is quite clear that it is separate from society.
I fully expect some to be upset by this post, but this is another example of the dangers of the current neo-con movement, because so few are willing to think about what this post is actually saying. I clearly do not think pedophilia is moral, I only assert that the morality behind the law is a democratic one, not a biblical one.
Anonymous (April 6, 2005 @ 5:22am):
Rob probably thinks pedophilia is just fine and perfectly natural. Look at some of his other opinions, they are just as crazy.
Anonymous (April 6, 2005 @ 5:56am):
I disagree.
His points are usually very good and I agree with them often. He is right about the US returning to the lawlessness of the Old West if current lawmakers have their way. I just think fear mongering and focusing on this point is the wrong route, because it is like attempting to fight poison with poison.
I wish his article would have focused more on the vigilante group in AZ that is patrolling the border. Groups like this only pull us towards civil war. Look how divided our country is. Without law and faith in the judiciary, religious civil war (which is what the neo-cons want) is nearer than we think. What is preventing the turmoil that occurs in other nations, here? Checks and balances is a big part. The judiciary plays a big role in this. Slanderous posts like the 2nd here only demonstrate the rights' biblical perversion, they have been taught well to twist any disagreement into threats and intimidation, and leaves a poison in the hearts and minds of men and women, alike.
Number 2 poster, chase your witches elsewhere.
Anonymous (April 6, 2005 @ 7:18am):
The book will also be the bestseller list with an asterisk (or "dagger"). Why? Because someone like Scaife (the Right's much older version of George Soros) buys a kabillion copies in bulk. These can be given away or sold for a song, while the rest of the public thinks..."well, if it's a bestseller, it must be worth reading."
As to the second poster...it's always hard to tell if such comments are the result of "humor" or simply a really nasty personality. In either case, calling someone a pedophile in a public forum under an anonymous guise is the worst of sort of cowardly bullshit.
Anonymous (April 6, 2005 @ 8:08am):
Everyone (especially conservatives) needs to read this before it slides behind the pay wall at the NYT.
No one can question Danforth's credentials as a Rebuplican or a Christian and his warnings should be heeded. He would have made a fine president.
***
Op-Ed Contributor: In the Name of Politics
By JOHN C. DANFORTH
The Republicans' current fixation on a religious agenda has turned us in the wrong direction.
***
But in recent times, we Republicans have allowed this shared agenda to become secondary to the agenda of Christian conservatives. As a senator, I worried every day about the size of the federal deficit. I did not spend a single minute worrying about the effect of gays on the institution of marriage. Today it seems to be the other way around.
The historic principles of the Republican Party offer America its best hope for a prosperous and secure future. Our current fixation on a religious agenda has turned us in the wrong direction. It is time for Republicans to rediscover our roots.
John C. Danforth, a former United States senator from Missouri, resigned in January as United States ambassador to the United Nations. He is an Episcopal minister.
Anonymous (April 6, 2005 @ 8:30am):
I think we should have a vigorous debate about the role of the judiciary in creating policy. The founding fathers spent many hours debating this very point. Do we really want unelected folks with lifetime appointments deciding the critical issues of the day?
I argue that I'd rather have folks subject to elections making such policy. Some argue that nothing ever gets done that way. Great! That's exactly the point of a system of checks and balances. What checks are there on the judiciary?
I don't buy the argument that these are smart folks, and that we should just trust them to tell us what the law should be. The American political tradition is never to trust those in authority just because they happen to be in authority. Why should we toss that tradition when it comes to the judiciary?
Anonymous (April 6, 2005 @ 8:43am):
We don't...and judges don't make policy, they refine what it is the elected officials have done. They cannot create new laws, or create new policy. Some of the more controversial decisions they have ever made were founded on the principles that they were there all along, not created out of whole cloth....
Anonymous (April 6, 2005 @ 8:45am):
In case you folks aren't worried about the wingnuts who want to remove the judiciary...here's a post from Free Republic regarding the latest of the DeLay scandals which hit the presses this morning (two different ones posted by the NYTimes and the WaPo). This post was in defense of DeLay....
To: RWR8189
This is a total smear by the Demorats. Tom Delay is a good man. There is nothing illegal about paying your wife and daughter $50,000/year out of your campaign funds. I'm sure the more that the Democraps try to flog this dead horse, the more obvious it will be that those two loving women are providing valuable assistance and strong support to this brave man who does not EVER flinch from God's work in wiping liberal activist scum from our nation's judicial benches. Remember he was one of Terri's strongest supporters. AND DON'T FORGET THAT.
Anonymous (April 6, 2005 @ 9:03am):
I think that the reason that federal judges are appointed rather than elected is to avoid a judiciary that goes whichever way the political wind happens to be blowing that day. Because they are not subject to the whims of the electorate they can take unpopular but correct positions on important issues. Imagine if the judiciary were just another elected body, they would have likely followed the weasels to feed on Schavio's body. Instead we got a decision, unpopular with some, but based in law and precedent.
As to checks on the judiciary, I think the legislature provides that service. Numerous decisions close with an invitation to the legislature to change the law or make it more clear if they disagree with the decision. This may not ensure the "popular" outcome, but it does insure the (usually) correct outcome based on the law as it exists when the decision is reached.
Anonymous (April 6, 2005 @ 9:13am):
Imagine where the race issue would be now if the Judiciary had not desegregated schools and other public and private institutions. If you believe that, without the Judiciary, the south would still not be segregated today, you're smoking something.
There are several cases where the Judiciary defining the law has led to much better circumstances than were there before. One that comes to mind is the assignment of public defenders to defendants who cannot afford their own attorney. Prior to the decision of the courts not all that long ago, those who could not afford an attorney were SOL.
Anonymous (April 6, 2005 @ 9:16am):
"In either case, calling someone a pedophile in a public forum under an anonymous guise is the worst of sort of cowardly bullshit."
Nobody called anybody a pedophile. He just said deters probably thinks this behavior is just fine. Learn how to read before you start calling people names.
Anonymous (April 6, 2005 @ 9:18am):
Rob Deters here -
Damn, a discussion I actually want to participate in (as opposed to whether or not I am a pedophile).
Yes, judges in their decisions quite frequently do not "change" the law, in fact, are quite conscious of how unable to do so they are. They do indeed invite the legislature to change things, and frequently make decisions they do not want to make because their hands are bound by the legislature.
What I always want to hear from anyone concerned about "activist" judges, is actual examples of it. When, where, and how, was the judge activist? Point out to me and we'll have a debate, but without examples, all I ever hear are talking points, or opinions, but not what I like to truck in, which are facts.
Something I'd like to clear up here. A lot of the posters in these comment boards go off on "neo-cons" as if that sums up the broad spectrum of conservative thinkers, or leaders in this country. That term need not be thrown around so hastily.
First of all, there are very few neo-cons. Neo-cons are former liberals (in some cases, extremely liberal folks) who have turned their back on liberalism to embrace an internationalist, interventionist world view, generally in favor of transformative use of American power on the rest of the world. If you've spent your whole life a conservative, you're not a neo-con. If you're blatantly Christian, you're not necessarily a neo-con (most of the leading neo-con thinkers are Jewish).
So, I want to be clear here, because the Republican party cannot be summed up as "the neo-cons." In fact, some liberals would find much more common ground with neo-cons than they would with say, hardcore Christian conservatives (although, again, too many liberals I find completely shut their mind out to what they have in common with conservatives, as opposed to how they hate them, but of course, the it goes both ways).
It frustrates me to see my fellow liberals get so smear happy, when in reality, the pinpoint attack is far more effective. Trent Lott, not a neo-con. Paul Wolfowitz? Neo-con. Dr. Bill Frist? Not a neo-con. Donald Rumsfeld? Semi-neo-con.
President Bush? Not a neo-con, except when their policies carry the day in his cabinet. Dick Cheney? Semi-neo-con.
Tom DeLay? Not a neo-con. Condi Rice? Neo-con (but almost too young to count, many neo-cons are older).
There will be a new term for security minded conservatives who cross internationalist foreign policy with domestic Christian values...I suggest Crusaders.
Back to the judge issue...judges are generally not activist, and the point of my article was that the Republicans are getting louder and louder that when judges do something you don't like, you should rise up against them.
That sounds like vigilantism (which is what Bush recently called the Minutemen) and that scares holy hell out of me.
Anonymous (April 6, 2005 @ 9:31am):
What's funny if you read this article, is that Frist is essentially tossing DeLay to the dogs, while actually completely reversing himself from a few weeks ago.
Frist Says Courts in Schiavo Case Acted Fairly
Tue Apr 5, 4:51 PM ET
By Thomas Ferraro
WASHINGTON (Reuters) - U.S. Senate Republican leader Bill Frist said on Tuesday that courts had acted fairly in the Terri Schiavo "right-to-die" case, differing sharply from a vow of retribution by his House of Representatives counterpart, Tom DeLay.
"I believe we have a fair and independent judiciary today," said Frist, now trying to resolve a battle with Democrats over judicial nominations that threatens to tie his chamber into knots. "I respect that."
Frist and DeLay, as the Senate and House majority leaders, had led a charge for emergency legislation calling on the federal courts to review the Schiavo case.
President Bush flew back from a Texas vacation to sign the bill into law.
But federal courts refused to intervene and let stand a Florida state court order to remove a feeding tube from the brain-damaged woman. Schiavo's husband had said she would not have wanted to live in her condition, but her parents fought against the tube's removal.
Schiavo died last week after spending 15 years in what courts had ruled was a persistent vegetative state.
DeLay, a Texas Republican, said afterward: "We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at the Congress and president when given jurisdiction to hear this case anew."
In a written statement, DeLay said: "The time will come for the men responsible for this to answer for their behavior."
'FAIR AND INDEPENDENT'
Frist, asked about the furor over the case, told reporters, "I will let members (of Congress) ... speak for themselves."
But the Tennessee Republican said he believed the courts "acted in a fair and independent way."
The Schiavo case was unique, Frist said. "Our bill said, 'let's let the courts take another look,"' he said.
Polls showed most Americans opposed congressional intervention, and a federal appeals court judge criticized Congress and Bush for acting "at odds" with the Constitution.
The Schiavo case has further stirred passions that have built in a more than 4-year-old battle over Bush's judicial nominees, about 200 of whom have been confirmed by the Senate.
Christian conservatives say the case underscores the need to put more conservatives on the bench. But others from across the political spectrum say the case shows an independent judiciary is needed as a check on legislative excess.
Frist said he is still trying to reach a compromise with Democrats over their use of a procedural hurdle known as a filibuster that has been used to block 10 of Bush's most controversial judicial nominees.
Frist has threatened to change Senate rules to ban filibusters if no compromise is found. Democrats have vowed to retaliate by slowing down the work of the Senate with other procedural hurdles on matters that they consider nonessential.
Republicans control the Senate, holding 55 of 100 seats. Sixty votes are needed to end a filibuster while 51 would be needed to change the rules to ban them.
It is unclear if Frist could muster 51 votes since a number of Republicans have voiced concerns such a rule change could hurt them in a future Democratic-led Senate.
Senate Minority Leader Harry Reid, a Nevada Democrat, told reporters he was pleased about Frist's comments that they were trying to find common ground.
"We have a ways to go ... but at least we're talking," said Reid, who has argued that the filibuster must be preserved as a needed tool of the chamber's minority. "I don't intend to do anything that will hurt this institution."
On March 17th (less three weeks ago) here's Frist in front of the Family Research COuncil (as conservative a groups as it gets)
"One of the first tasks we will have is this whole confirmation of judges. This is at the top of the challenges that we must overcome in this Congress. We all know that activist judges in the past have recently cited international law written by U.N. bureaucrats. They directly undermine marriage being between a man and a woman. They struck down our partial-birth abortion bans. And these activist judges are not interpreting the Constitution. They're rewriting it, and that's wrong. And it's something that I know you're committed to, and I'm committed to...We know we're right and we want to win. We want to protect marriage from activist judges once and for all and we will do it."
Lying hypocritical bastard!
Anonymous (April 6, 2005 @ 11:48am):
You shouldn't post entire articles without the permission of the author. Some activist judge might decided that it's not fair use and nail the Herald with a copyright infringement judgment.
Anonymous (April 6, 2005 @ 11:56am):
if you actually read the context of the articles of which you have posted, you would have seen that Frist thinks there are activist judges out there, but he is not going to go out of his way to punish them based on their judicial decisions, like Delay. As a conservative, i think Delay is a terrible leader and needs to be replaced, but Frist is not a "lying hypocritical bastard." He might not like the decisions, but he isnt going to punish judges or seek retribution. And if you would keep reading, Frist and Reid (D-NV) are trying to seek a common ground on the Filibuster issue, in a bipartisan route. So before you chastize Frist, read the damn articles first.
Anonymous (April 6, 2005 @ 1:36pm):
My name is Daniel P. Field and I have been licensed to practice law in the State of Illinois since 1974. I concentrate my practice in the area of federal civil rights litigation and employment discrimination. Your assessment of Men in Black and its author evidence a gross lack of understanding of constitutional jurisprudence. While one may not agree with Mr. Levin's conclusions his reasoning is sound from his perspective. He is contributing to a debate among constitutional scholars over whether the constitution simply provides a framework for analysis of a case or a suggestion for the outcome. You, obviously favor the latter approach while many constitutional scholars favor the former. Non lawyers do not understand that the constitution is a "charter of negative liberties." It was never intended by the Framers to grant rights to the populace but rather was intended to prevent the government from encroaching the liberty of the individual. The only right vested in the populace by the constitution is the right to be left alone. On the issue of the filibuster I direct your attention to 28 Harvard Journal of Law & Public Policy 205 for a detailed history of the filibuster and its complete lack of constitutional foundation. Lest you jump to the wrong conclusion, I too oppose amending the Senate rules for the limited purpose of confirm 10 nominees to the federal bench. But I am also weary of the specious arguments in its support set forth in the Democratic Party talking points which seem appear to simultaneously in the New York Times (to which I subscribe)and the Badger Herald.
Anonymous (April 6, 2005 @ 2:49pm):
Take the above comments with a grain of salt. The man went to the University of Illinois for both undergrad and law school. So, you know what that means.
Anonymous (April 6, 2005 @ 3:00pm):
The right to privacy is a judicially-created right. I dare you to find the word "privacy" in the Constitution. You'd be surprised how many key judicial rulings are based on this 'right'.
Anonymous (April 6, 2005 @ 4:41pm):
"The right to privacy is a judicially-created right. I dare you to find the word "privacy" in the Constitution. You'd be surprised how many key judicial rulings are based on this 'right'."
Is it the Fifth Amendment that protects a person against unreasonable search and seizure, not to mention self-incrimination? Isn't that what the federal judiciary has based the "right to privacy" on?
Anonymous (April 6, 2005 @ 7:03pm):
^the court might have mentioned these things in its opinion, but tehn went all out and invented a broad overreaching right that has nothing to do with searches or self incrimination. It was "emanating from the framework" or something like that.
Anonymous (April 6, 2005 @ 7:43pm):
The Constitution is a living document people. It doesn't matter what a bunch of guys "intended" 250 yrs a go. We can neve rknow anyway...I suppose that since slavery isn't outlawed we should have that too. Murder? I don't see murder prevented anywhere in the constitution therfore making murder illegal is also unconstitutional.
Give me a fucking break.
Anonymous (April 6, 2005 @ 8:47pm):
With every article, Rob continues to prove that he has shit for brains.
Anonymous (April 7, 2005 @ 7:31am):
Rob's kinda hot. rarrr
Anonymous (April 8, 2005 @ 3:05pm):
third poster up-
murder is not in the constitution, it was made against the law by the legislature.
"Right to Privacy" was judicially fabricated.
Slavery actually is unconstitutional, look at the thirteenth amendment.
outlawed does not mean the same thing as constitutional or unconstitutional.
The point is that it was a couple judges who fabricated the "right to privacy" from the constitution. That, you cannot deny. Your slavery and murder comparisons have nothing to do with judicial fabrication and are completely off base.
