This Is Not the Way

washingtonpost.com
This Is Not the Way

Friday, April 1, 2005; Page A26

"We will look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."

THUS DID House Majority Leader Tom Delay (R-Tex.) respond yesterday to the unwillingness of the federal courts to participate in the cynical game Congress played with the last days of Terri Schiavo's life. What exactly he means to do about judges -- who are appointed for life -- was a little vague. His message of intimidation, however, was crystal clear. Asked whether he would consider impeachment proceedings against the robed villains who thwarted his will, he responded, "There's plenty of time to look into that." His remarks cap a remarkable set of attacks on judicial independence by a Congress that has acted in this matter with profound disrespect for the judicial function. Such crude threats of retribution against judges of both parties who were only doing their jobs is, indeed, a mark of an arrogant and out-of-control federal power -- but that power is the legislature, not the judiciary.

For all that conservative partisans rail against "judicial activism," the bill Congress passed asked the courts for exactly that. They sought an intervention from the federal courts based on the thinnest of constitutional reeds to overturn a lengthy and comprehensive state-court adjudication of a sensitive matter traditionally governed by state law. In response, the federal courts -- liberal and conservative judges alike, up and down the federal appellate ladder -- politely and respectfully demonstrated precisely the values of restraint that conservatives purport to admire. Already, some conservatives are suggesting that the Schiavo case shows the need to break the filibuster and confirm President Bush's judges. They delude themselves. For conservatives on the bench were no more itchy than liberals to bend to Congress's will. Having been invited to jump in and find a way to help Congress's favored party prevail, the bench declined with near unanimity. Having been invited to play games like politicians, in other words, America's judges responded like judges.

And for this, the majority leader of the House of Representatives promises that "the men responsible for this [will] answer for their behavior." This country has an independent judiciary precisely to shield judges who make difficult decisions under intense political and time pressure from the bullying of politicians. It is essential that the judges who stood up to Congress now receive ample support -- so that judges will feel secure in emulating them.