Tuesday, March 08, 2005

It's Time To Act Like We Give a Damn

In a very brief post in my own blog the other day, I wrote:
The wankers at Powerline, addressing the Supreme Court's Roper v Simmons decision, write, their words dripping with angst, "Maybe the offending Justices don't really care about whether the Court is perceived as legitimate."

Like that's a new problem.

In the comments to that post, Karl Maher wrote,
“ I agree. Us wankers should stop complaining and impeach Justice Kennedy.
Mr. Maher links to other blogs and websites that agree with him.

While I am happy with the outcome of the Roper decision, a narrowing of the circumstances under which the death penalty can be imposed, I agree that it’s kind of sloppy. I don’t think that even in conjunction with other decisions it would merit impeachment of Justice Kennedy, but I can understand that people might view that as an appropriate response. It's an overreaction on their part, but not hysterically so. It’s an acceptable, though extreme, view to take in various debates, including the role of Supreme Court Justices in our government, lifetime tenure of Federal Judges, and the role of the court in our society.

I bring this up here at all only because in my original post I linked to the court’s Bush v Gore decision, a decision with far more profound consequences than Roper and far less legitimate legal underpinnings. Though defended by some Republican partisans, it was widely, and rightfully so, decried as the worst piece of partisan hackery to ever spew forth from the court’s chambers. Vincent Bugliosi, as well as others, went so far as to call it a treasonous coup. And yet, unless I missed it, there was no widespread cry to impeach Scalia, Rehnquist, et al. Why do you suppose that is?

Is it because we didn’t think the gravity of the miscarriage of justice great enough to justify impeachment? I don’t think that’s it; few of the Court’s decisions have had or could have a more profound result. Did those of us who disagreed with it believe it was a bad decision, but not a deliberately bad one? Oh my gosh, no. It was pretty clear that even the majority knew how bad the decision was, going so far as to attempt to keep it from being cited as a precedent.

Is it because we knew that an impeachment attempt would fail? Probably that had something to do with it, and such an attempt most certainly would have failed, but so what? Pursuing an impeachment attempt would have allowed us a chance to air our grievances.

It’s seems to me that the main reason there wasn’t a greater, more prolonged outcry against the decision was because the Democrats didn’t want to be viewed as whiners, at least not more than we already were being viewed as such. The Republicans and conservative pundits shook their head and clucked their tongues and told us to get over it and we went home and kicked the dog and pretended to get over it, letting the Republicans steal the White House. This works against us almost every time. The Republicans have all the power now and still cry about being an oppressed minority, with no ill effect on them in the public’s perception and no worry that it will, but the Democrats, who really are in the minority and out of power constantly fret about this. We worry about being too strident or too plaintive, always trying to achieve just the right balance between dignity and indignation in our tone. Whenever we hear that a Dean, or a Pelosi, or a Boxer is being too strident, the rest of our party “leaders” run for cover, out of fear that the whole party will be seen as extreme, leaving the individuals who spoke out exposed. We can’t do that anymore. When someone like Boxer speaks out against nominations like Rice and Gonzales the rest of the party and the pundits need to provide her with cover. When we get mad, we need to respond like we’re mad. When we get kicked to the curb, we need to come up swinging.

There’s been a lot of soul searching since the election about what the Democrats want to be seen as standing for. Deciding whatever that is (and it would be nice if we resolve this some time soon) will only be half the battle. We also have to show that we actually care about, that we are passionate about those things we stand for. We don’t have to be Zell-Miller-bat-shit-crazy passionate, but we need to abandon the desire to be seen as moderate and even-tempered. That just isn’t getting us anywhere.


Anonymous Anonymous said...

A correction first: It's "we wankers," not "us wankers." My bad.

Regarding Bush v. Gore, if you read the first post at Vote for Judges, that's one of the cases I use as an example. I've tried to keep Vote for Judges as non-partisan as possible -- after all, Kennedy was appointed by Reagan.

I don't have a problem at all with eliminating the death penalty. It's how we go about it. Kennedy's opinion in Roper wasn't just sloppy, it was an "intellectual train wreck," as George Will put it. So was Bush v. Gore: not because of the result, but because the Constitution has in place a procedure for resolving contested elections. Both the Florida Supreme Court the Bush court ignored those procedures. And if you don't think conservatives criticized the opinion, you didn't look very hard.

Here's my point: Conservatives and liberals both should be concerned that judges are legislating (and in Roper, ratifying treaties the Congress has rejected) from the bench. Liberals are upset when the Court strikes down the Violence Against Women Act. For conservatives, it's decisions like Casey. My call to impeach Kennedy is half tongue-in-cheek. Obviously, it's not going to happen. But it's the only check on judicial power the Constitution gives us.

That's why we need an alternative: retention elections every 10 years or so. You'd have to be a really, really bad judge to lose a retention election, in which you run unopposed. But when you have that really, really bad judge, you need a way to get him (or her) off the bench.

4:15 PM  
Anonymous Anonymous said...

By the way, I also link to blogs that disagree with me.

4:17 PM  
Blogger mrgumby2u said...

I'm glad my restraint won out and I left it to you to correct "us wankers."

4:41 PM  
Blogger Drew said...

I just signed onto this blog 2 days ago, and I've already been called a wanker. That must be a new record. I haven't even posted anything yet!

Oh well, I always suspected...

5:19 PM  

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