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Jewish World Review June 6, 2005/ 28 Iyar, 5765

Nat Hentoff

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Warring against federal judges | Embattled House Majority Leader Tom DeLay and his allies have been mounting a blistering offensive against federal judges. He has called for House Judiciary Committee hearings on the Constitution's requirement, he notes, "that judges can serve as long as they serve with good behavior. We want to define what good behavior means. That's where you have to start."

But until now, as conservative commentator Charles Krauthammer points out, this condition for lifetime tenure has meant "honesty and propriety." But what DeLay and his allies apparently had in mind by "good behavior" is whether judges' constitutional opinions match their own. Under that standard, definitions of judges' "good behavior" could change depending on which political party dominates the Judiciary Committee and Congress.

Former Solicitor General Theodore Olson, whom no one would accuse of being a left-wing radical, wrote in the April 21 Wall Street Journal: "if a judge's decisions are corrupt or tainted, there are lawful resources (prosecution or impeachment); but congressional interrogations of life-tenured judges, presumably under oath, as to why a particular decision was rendered, would constitute interference with — and intimidation of — the judicial process. And there is no logical stopping point once this power is exercised."

DeLay's fury at certain federal judges is apparently boundless. In an April 14 interview with editors and reporters at The Washington Times, the House majority leader, a commander in this campaign, blamed Congress for not fulfilling its constitutional responsibility to exercise oversight of the courts. He charged: "The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them (from finding such a right)."

Would the majority leader consider it constitutional for the principal of a public school to mandate official prayer in classes?

If so, prayers of which religion, and whose G-d? And would nonbelieving students be allowed to sit, as pariahs, in silence or be placed in temporary exile in the principal's office?

As for judicial review, does DeLay believe that Chief Justice John Marshall was guilty of "bad behavior" in his 1803 ruling (Marbury v. Madison) that the judicial power of the United States has the authority to strike down Congressional laws repugnant to the Constitution?

Without judicial reviews, would official segregation in the public schools of certain states have remained lawful, and constitutional, until Congress changed its mind?

With regard to the right to privacy, I thought that the Fourth Amendment to the Constitution — not some vaporous "penumbra" of the Constitution — provided Americans with safeguards to preserve that fundamental right. As a schoolboy, I was much taken with what William Pitt said of the right to privacy so long ago in the British House of Commons: "The poorest man may, in his cottage, bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through; the storm may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement."

In this country, the FBI may not enter our tenements, ruined or otherwise, unless its agents adhere to the requirements of the Fourth Amendment. Or that's what the Constitution says, but parts of the Patriot Act increasingly diminish this vital privacy amendment. Maybe the House majority leader could ask the courts to address that escalating violation of the Constitution by this government?

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Joining those attacking the federal judiciary, Congressman Steve King (R-Iowa) says: "We have the constitutional authority to eliminate any and all inferior courts." DeLay emphatically agrees: "We (the Congress) set up the courts, (Article I, Section 8, of the Constitution). We can unseat the courts."

U.S. Rep. James Sensenbrenner (R-Wis.), chairman of the House Judiciary Committee, however, reminded DeLay and his fellow anti-courts warriors in an interview in The Washington Post (May 12) that "In the early days of the Republic, the precedent was set that judges are not impeached for unpopular opinions."

Sensenbrenner intends to uphold that precedent, but he also has in mind the establishment of an inspector general for the federal judiciary, just as other agencies of the executive branch, like the Justice Department, have. The inspector general could be empowered to deal with complaints against judges, because, says Sensenbrenner, no branch of the government "should be given a blank check without oversight on their operations."

But will judges' actual opinions in cases be entirely excluded from that official oversight of "complaints"? If not, the separation of powers will be undermined, and the Constitution will be overruled.

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Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights and author of several books, including his current work, "The War on the Bill of Rights and the Gathering Resistance". Comment by clicking here.

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