GOP and the Courts

The next night, Pennsylvania's Sen. Rick Santorum was his guest... Santorum said that the federal judge who that day had declined to order Schiavo's feeding tube reinserted must not have understood that "Congress ordered a new trial" in the Schiavo case.

Emotions, of course, were running high after the feeding tube was removed on March 18. But those with millions of listeners who claim their "news" is "the truth" need to be called to account when it isn't.

According to the Florida constitution, which was easy to find on the Web, Florida judges are elected and, I believe, quite accountable. Residents in each county can choose whether to elect their judges initially or to have them appointed by a "merit selection" panel, but in either case a judge must stand for "retention" election every six years to remain in office. Unlike Pennsylvania, where judges face retention elections every 10 years, the six-year term in Florida is more likely to assure that voters remember decisions and rulings they don't like when the judge's name comes on to the ballot.

But mischaracterizing the judicial system -- and bashing judges -- has become a common theme. So while Santorum's declaration about ordering a new trial may have been startling in its hubris, it fits the pattern of congressional efforts to diminish the power of the courts and increase the power of the Legislative Branch. It's called "court-stripping."

One of the most notable examples is the USA PATRIOT Act of 2001, which is up for renewal this year. Passed in the wake of 9-11, it removed such law enforcement efforts against terrorism as detention of suspects, monitoring of private Internet communications and gathering of certain personal records such as library borrowings from judicial review.

The Class Action Fairness Act of 2005, which President Bush signed last month, stripped state courts of their historic right to hear class action suits and moved jurisdiction to federal courts.

Last year, Congress tried but failed to pass the Pledge Protection Act, which would have barred courts from hearing constitutional challenges to the Pledge of Allegiance. For example, it would have barred an appeal of the Pennsylvania law that required school pupils to recite the pledge or their parents would be notified. That law, on appeal, was overturned last summer by the U.S. Third Circuit Court because it violated pupils' constitutional right to free speech.

Such efforts to limit jurisdiction are usually cloaked in the theme of preventing "activist" judges from "legislating from the bench." Were that all it is, I'd understand and probably be supportive.

But then I hear House Majority Leader Tom DeLay, who usually gets his way, say something like this: "One thing that God has brought to us is Terri Schiavo to elevate the visibility of what is going on in America, that Americans would be so barbaric as to pull a feeding tube out of a person that is lucid and starve them to death."

Then, in a speech March 18, he added: "This is exactly the issue that is going on in America, of attacks against the conservative movement, against me and against many others."

Our republican system works because we have three coequal branches of government to serve as a check on one another. Article III of the U.S. Constitution gives "judicial power" to the courts, essentially to protect the constitutional rights of each citizen against the political whims of the moment. A "NATION OF LAWS" needs an independent judiciary to assure that new laws conform with the basic law -- the Constitution -- and are upheld. And, when two parties disagree, the judiciary is there to decide who's right according to law.