Monday, March 28, 2005

All Hail the Judges !

The Terri Schiavo business seems to be winding to its awful, inevitable conclusion. Last rites have been administered. Although Ms. Schiavo was not allowed regular nourishment, she was evidently able to take Holy Communion.

I am not altogether certain what I make of this whole business. No matter how non compos mentis or otherwise out of it I might be, I certainly would not want my family to starve me to death. Then again, I do not think that the horror of Ms. Schiavo’s situation, and the fact the State of Florida seems to have a bad law for dealing with persons who do not have Directives to Physicians or Living Wills in place– justifies Federal intervention.

But this post isn’t really about Ms. Schiavo. An attorney named Andrew Cohen, who is some sort of legal analyst for CBS News, published an interesting little editorial called “The Courts Push Back” last Thursday. Mr. Cohen, and I agree on the impropriety of Federal legislation in the case of Ms. Schiavo, but that’s about all we agree on. Mr. Cohen’s little piece neatly illustrates most of my discomfort with the legal profession and the courts in our constitutional system, as it has evolved. In particular I am talking about the Federal judiciary, although the State courts are developing many of the same issues.

Mr. Cohen is upset because, he says, Congress and the White House, in approaching the Schiavo matter “…illegitimately pushed the judiciary far beyond the point of reason and the judges rightly and justly pushed back. From Pinellas County, Florida, to Tampa to Atlanta to Washington, good for all of them.”

To Mr. Cohen, the courts, and by extension the bar, are a clerisy to which we are all obliged to bow and give utter and unquestioning reverence and obedience. Mr. Cohen seems to think that the political branches, by attempting to pass legislation to circumvent the Courts and save Ms. Schiavo – are scurvy rebels, to be put down at all costs:

Another aspect of this case that was different, and disturbing, was the lack of public rhetoric about the true and noble nature of the courts and the place of judges as final arbiters of our disputes, large and small. . . I kept waiting for federal and state leaders to say the sorts of things that we typically hear from government officials during and after controversial cases – that everyone must respect the courts…

That sends a terrible message to young and old alike…of disrespect towards judges and the rule of law…
Hail Caesar ! Or, in this case, Cicero. Again according to Mr. Cohen, “Congress passes laws that judges interpret. And if those interpretations are not to Congress’ liking, the lawmakers sometimes can change them again.” (emphasis supplied).

If this attitude of exaggerated deference to unelected lawyers in robes as the be-all and end-all “final arbiters” doesn’t disturb you, it should. Of course they’re not the final arbiters. However much the lawyers dislike it, people through their elected officials are sovereign, and if the elected officials don’t like the interpretations of the law, they can change them again, one way or another – and that’s not sometimes.

Constitutionally, we have gotten to the point where the tail is wagging the dog. Respect for the law and the courts is necessary, but it should not be slavish obedience. If the Constitution was about anything, it was about preventing the authorities from exercising unaccountable power over American citizens. What’s more unaccountable than a Federal Judge ? Appointed for life, virtually impossible to remove. Nothing quite so much like God on Earth as a Federal judge.

This didn’t used to matter so much. When the Constitution was written, there were few matters that could actually cause one to be haled into Federal Court. But since the 1920’s and 30’s, by way of a series of Supreme Court decisions that have greatly expanded the reach of the Courts, this is no longer true, and it is unbalancing the entire system.

I suppose my real beef here is how, in general, the constitutional system, since at least the 1930’s, and at an accelerating pace since the 1960’s, has tended to move power away from the legislative branch (Congress), and towards the judiciary. As a firm believer in legislative superiority (probably my British ancestry acting up again)– this worries me. I think that our system of government would really benefit from having both the bar and the courts taken down a notch. Perhaps more detail on this another time.

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