July 23, 2004
GOP vs. the courts

I don't often comment on national news, mostly because there are so many other fine outlets for such things, but I have a few words to say about the attempt by the Republicans in Congress to force DOMA-related lawsuits out of the federal courts. I just can't decide if I find this sort of behavior outrageous or pitiable. I mean, for crying out loud, we've just had the 9/11 Commission's report which baldly stated that "we are not safe", we've got the Army dragging 67-year-olds back into service because they don't have any better non-draft options for manpower in Iraq (one wonders when someone will consider doing something about this), we've still got a crappy economy and huge structural budget deficits, and this is what the GOP leadership thinks is important? How unserious can you get?

Even putting the issue of priorities aside, one must also wonder how a group that claims to be "conservative" can have such utter contempt for history and precedent. The Washington Post has it right - "this is as wrong as wrong can be."

I'm fairly sure that the (relative) grownups in the Senate will give this the attention it deserves, but still. There's just no excuse for this kind of bull. Thankfully, there is a remedy, both for the general issue and for the leadership issue.

UPDATE: Josh Chafetz says "Put simply, Congress can't do that." This bill wasn't just a bad idea, it was an unconstitutional bad idea. Way to go, GOP! Via Grammar Police.

Posted by Charles Kuffner on July 23, 2004 to Legal matters | TrackBack

You go, Kuff! Tell us how you really feel!


Posted by: charles on July 23, 2004 4:19 PM

Give me a break. Many many liberals prefer to "amend" the constitution by judicial fiat? At least conservatives are employing methods spelled out explicitly in the Constitution. The only question in my mind is why Congress has not asserted this power some time ago, given the creeping judicial overreach of at least the last fifty years. The best answer is that generally, a Dem-controlled Congress over most of that time period has not seen the need to pull back an activist judiciary with which it largely agreed.

You may not agree with GOP policy preferences, but don't get on a high horse about constitutonal principles. Amendment and jurisdiction are expressly spelled out in the very text of the Constitution -- unlike the basis for MANY latter-20th-century Supreme Court decisions (fiat). If you're horrified by their actions, you're really expressing horror at a constitutional delegation of power to Congress. You need to take that up with the Founders, not Republicans!

Posted by: kevin whited on July 23, 2004 5:23 PM

Bullshit. We prefer the courts to enforce the Constitution, precisely from this kind of legislative overreach. And don't give me that "activist judiciary" crap unless you're prepared to defend Bush v. Gore and everything else the Supremes have done lately. As far as I can tell, an "activist judge" is one that renders a decision that someone dislikes. It's nothing but meaningless invective.

I note, by the way, that you offer no defense of those GOP policy preferences. Somehow, given what I know of your own policy preferences, this doesn't surprise me. So why aren't you upset about it?

Posted by: Charles Kuffner on July 23, 2004 5:30 PM

Thomas Frank had an editorial in the NYTimes recently titled "Failure Is Not an Option, It's Mandatory" that explains the strategy pretty well (unfortunately it's been archived already). For the Republicans the culture war is not about actually changing anything. It's about raising the issue in a way that guarantees it will be defeated and then telling the faithful that they should be angry that the country is controlled by a "liberal elite". This keeps the cultural conservatives angry and the fiscal conservatives from worrying that any of the wingnut social agenda would actually be enacted.

Posted by: mark on July 23, 2004 6:47 PM

Kuff, speaking as one conservative who knows more than a little about the scope of federal court jurisdiction, I agree entirely that it's a terrible idea — as a matter of general principle, without regard to the specific issue — for Congress to attempt to deprive the federal courts of subject-matter jurisdiction to consider particular types of questions. To do so would fundamentally alter the long-time system of checks and balances, which I judge a far greater risk than can be justified for any particular social or political issue. I agree with you that it's fortunate that the Senate is extremely unlikely to go along with this particular election-year shennanigan in the House (where such legislation has frequently been proposed, and even passed, before, uniformly to come to nothing in the end). We can perhaps join in a bipartisan consensus in admiring the wisdom of the Framers in setting up the Senate as the saucer to cool the populist heat of the House coffeecup yet again.

While on that topic, I'm also against, on similar grounds, proposals to change the size of the Supreme Court to pack it with members of either a conservative or liberal ideology. (FDR was the last President to seriously propose that particular corruption.) And I think that Sen. Schumer et al.'s unprincipled and outrageous committee blockade of President Bush's legitimate judicial nominees is every bit as much an assault on the historical system of checks and balances as any proposal to alter the federal courts' subject-matter jurisdiction on specific issues, and unlike those proposals, a non-theoretical assault that ought to be (but alas, probably won't be) a major campaign issue this fall.

I also agree with you that structural budget deficits are dangerous, and with your implied criticism that the drunken sailor spending patterns of the current Congress and Administration are worrisome; and I agree that Congress and the Executive both have miles yet to go to improve our national security.

Where, of course, I absolutely and positively — albeit respectfully and warmly — disagree with you, my friend, is about the "remedies" you propose. I can see no reason to believe that a Democratic victory for the executive branch, or worse, in either or both houses of the legislative branch, would improve the situation on the specific problems you reference. And indeed, if one engages in the reasonably logical presumption that a President Kerry might act in conformity with his track record as a Senator, or that a Democratic Congress might act as Democratic Congresses have in the past, one must be concerned that your proposed remedies would make things considerably worse.

In particular, to suggest that a President Kerry would make our military stronger than would a two-term Dubya — just based on their respective records — is laugh-out-loud funny; if you wish to differ with me on this point, start by pointing to Senator Kerry's vote in support of funding any of the key weapons systems our military forces are currently using to fight a global war against terrorists. I'm terribly amused by Candidate Kerry's attempts to outflank Dubya to the right on military sizing issues, but despite my amusement can see some good coming of that. But almost uniformly, on virtually every other issue on which I can imagine a Kerry Administration, or a Democratic Congress, actually being effective in working its will — absolutely including fiscal/taxation/spending issues, but more importantly including both near- and long-term domestic security issues — I'm simply terrified. To put it in a short phrase, that prospect promises, at best, a return to Jimmy Carterism — not even to Bubbaism. The Republic would probably survive, but things would be very, very ugly, just as they were then.

In short, your pointing out that there are problems unsolved by the current Executive and Congress, or that some subset of the proposals being made within the current Congress' majority party are silly, completely begs the question of whether switching to the opposition party would make these and other things better or worse.

But as always, I admire your wordplay, I rejoice to find that there are some things on which we do indeed agree, and I respect and value your rights to thoughtfully disagree on the other issues. I simply prefer that from 2005-2009, you and your Party remain in the loyal opposition.

Posted by: Beldar on July 24, 2004 9:39 AM


You're begging the question by assuming topical jurisdictional-stripping is constitutional. And even if it is constitutional, the fact that Dems are idiots too and have done "bad things," through the courts or otherwise, doesn't make such action a good idea. As Beldar notes, it's a terrible, terrible idea.

Posted by: TP on July 26, 2004 9:56 AM

Not so simple

When I first heard about HR 3313, I thought - that's ridiculous - it's obviously unconsitutional, as well as a bad idea.

Turns out that it's not so ridiculous. Because of a bizarre 1860's Supreme Court decision (explicity cited in HR 3313), Congress can currently declare a law beyond judicial review.

The Reconstruction-era Court's ruling, however, might not withstand modern scrutiny, and has not been revisited by any modern Supreme Court.

For much commentary, read:

Ex Parte McCardle (1868)

A Critical Guide to Ex Parte McCardle

Commentary by Jon Roland

House Rpt.108-614

Posted by: Matt on July 26, 2004 4:24 PM

Sen. Schumer et al.'s unprincipled and outrageous committee blockade of President Bush's legitimate judicial nominees is every bit as much an assault on the historical system of checks and balances as any proposal to alter the federal courts' subject-matter jurisdiction....

Beldar sounds like a thoughtful, traditional conservative. So we are entitled to assume that he was at least 10 times as outraged at the GOP's blocking of over 60 of President Clinton's judicial nominees as he is about the Democrats' blocking of a mere six of Shrub's; or their changing of Senate rules during the short-lived 50/50 Congress of 2000 so Shrub's nominees would have an easier time, etc.

I would, however, like to remind Beldar that "Bubba" (as he calls Clinton) did manage to balance the Federal budget for several consecutive years, and did so with tax rates far below those that held sway in the Carter administration.

"Bubba" also had far fewer lapses in the fight against terrorism: four over an eight-year span, as opposed to six over an eight-month span for Shrub, according to the 9/11 Commission. (For more about Clinton's anti-terror activities, see Juan Cole's blog.)

Why that prospect leaves Beldar "terrified" is beyond me, unless...you don't suppose he actually believes the load of manure Shrub is shoveling in his campaign commercials, do you?

Posted by: Mathwiz on July 26, 2004 4:38 PM

Kuff, in my original comment, I deliberately avoided the question of whether this would or would not be constitutional, but worked on the assumption that it would be. The issue is a whole lot more complicated — even just from the bare language of the Constitution — than Josh Chafetz makes it out to be. Constitutional law professor Eugene Volokh notes that "[l]egal scholars have spent decades and volumes discussing the question of when Congress may strip federal courts of jurisdiction over certain matters," and includes a summary of some of the pro and con arguments and their possible consequences, along with links to legal source materials.

Mathwiz — I'm indeed a traditional conservative, and try to be thoughtful, but I'm going to resist the temptation to argue here with the rest of your comment, with this exception:

It's not Schumer et al.'s opposition to Dubya's judicial nominees that I believe is unprincipled. It's their manipulation of Senate rules to deny them the up-or-down vote on the Senate floor that the Constitution intended. There's no direct precedent for doing this to any other President's nominees to the district or circuit courts. But it's exactly the same manipulation of the rules that Senate Democrats used to great effect for decades to prevent a Senate vote on a variety of civil rights laws that otherwise would have passed, and it's being used in just as venal a manner.

Posted by: Beldar on July 27, 2004 11:35 PM

More legal links and discussion of Chafetz' argument can be found here.

Posted by: Beldar on July 28, 2004 6:44 PM