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Washington-Sooner or later, predicts a Missouri Republican congressman, a president is going to come along and tell the U.S. Supreme Court or federal judges, “You can write as many opinions as you want. We’re going to ignore them.” “If I was president and they decided to redefine marriage, I would tell them I’m going to ignore it,” said Representative Todd Akin. “That is something completely legitimate for the executive to do.” That scenario will occur sooner, he added, if steps are not taken to stop what he calls one of the three greatest threats facing America today-activist judges who legislate from the bench. Akin is dead serious and has backed up his concerns by leading the charge with some other Republican colleagues to eliminate federal court jurisdiction over challenges involving such hot-button issues as gay marriage and the pledge of allegiance. How many members in the House share his view? “You can judge by the votes,” he said: 233-194 to strip jurisdiction over challenges to the federal Defense of Marriage Act, which defines marriage as the union between a man and a woman, and 273-173 to prevent federal judges from ruling on the constitutionality of the pledge of allegiance. Tension among the three branches of government has always existed, but the degree of tension between Congress and the judiciary today hasn’t been experienced for at least half a century, according to political and legal observers. And, they add, that creates a particularly dangerous situation for the judiciary. “When impeachment threats are added to legislative threats, part of the goal is to intimidate so they do not have to pass legislation,” said Bert Brandenburg, executive director of Justice at Stake, a nonpartisan campaign working for reforms to keep politics and special interests out of courts. “It’s striking how radical and personal the attacks are. “This is a pre-emptive war. This is not a war to win back turf, but to prevent courts from ruling before they do lose turf,” he added. Congress has to make a pre-emptive effort, Akin asserted, because its key tool for reining in activist judges is a pre-emptive one: Art. III, Section 2 of the Constitution, which gives Congress authority to make exceptions and regulations to Supreme Court appellate jurisdiction. “This is the way to say we are very upset about these activist kind of rulings,” he explained. “At the same time, this is a respectful and constitutional way to react.” If “under God” in the pledge is unconstitutional, he said, “We have to live with it until a constitutional amendment is passed or the president tells them to stick it in their ear.” What is happening in Congress has not fallen on deaf judicial ears. Chief Justice William H. Rehnquist and the Judicial Conference of the United States have been working to improve relations with the legislative branch. And some House members, led by Representative Adam Schiff, D-Calif., and Judy Biggert, R-Ill., have formed a Caucus on the Judicial Branch to work on that problem and to counter attacks. Although only the so-called Feeney Amendment-passed without any input from the judiciary-has become law, the recent efforts in Congress to strip federal courts of jurisdiction should be taken very seriously, said Charles Tiefer of the University of Baltimore School of Law, a former solicitor and deputy general counsel of the House of Representatives. “Lawyers vastly underestimate the significance of these political mobilization measures,” said Tiefer. “The passage of legislation is the last act of something that is set into motion.” Modern playbook Both Tiefer and Brandenburg believe the closest historical analogy to what is happening now in Congress was the late 1950s, a period when, according to Brandenburg, the “modern playbook” for today’s situation was developed and perfected. At the time, a conservative alliance with a strong Southern base used similar tactics against the judiciary in responding to a similar constituency, said Tiefer, author of the recently published, Veering Right: How the Bush Administration Subverts the Law for Conservative Causes (University of California Press). “They were moving these door-closing sort of proposals,” he recalled. “They were holding hostile hearings about the courts. They were working from their constituencies’ feelings about Brown v. Board of Education, but the vulnerability of the courts that they were exploiting were the unpopular Warren Court decisions recognizing basic civil liberties in the First and Fifth amendments, possessed even by people accused in the McCarthy investigations.” The pressure on the Supreme Court at that time was enormous, according to Tiefer, and so powerful that the Supreme Court switched from earlier holdings that came close to saying that the House Un-American Activities Committee was unconstitutional in how it operated, to later rulings allowing convictions for contempt stemming from the committee’s operation to stand. What’s unique about the current situation, Tiefer said, is that “We have much greater party polarization now; therefore the leadership of one of the political parties-the Republican Party-and the White House are willing to give a great deal of support to the conservatives in Congress. That’s what makes this period special and especially dangerous for the judiciary.” Tonja Jacobi, a professor at Northwestern University School of Law who specializes in the relationship between the judicial and legislative branches, agreed, adding: “I actually think if you look for causes, you’re better off looking at Congress than the courts. The increasing role of partisan division over the more traditional norms of seniority, for example, changes the way Congress approaches the issues. “Courts have always taken a lot of stances that are very controversial,” she added. “But we’re seeing changes in Congress. Party is on the rise again and that has the effect of changing the way members interact with one another. In the Senate, people are much more likely to take a stance against judicial appointments or be willing to filibuster than to reach compromise,” she said. “There is value in the appearance of division as well. Being able to say, ‘Look at what the opposition is doing to stop our nominees’ has value in itself.” Michael Gerhardt, a separation-of-powers scholar at the College of William & Mary Marshall-Wythe School of Law would add to those assessments election-year anxiety over who will make the next appointment to the Supreme Court. Gerhardt testified against court-stripping proposals in several House hearings. He said there was a common theme in all of the hearings-hostility to the federal courts and to the Rehnquist Court. “That’s really important-it’s even Republican justices on the Rehnquist Court,” he emphasized. The court’s ruling striking down anti-sodomy laws is very unpopular among conservative members, he noted, and some still have not forgiven the court’s refusal to overrule Roe v. Wade in 1992. “I think the problem is some people in Congress formulate their attitudes about the courts solely on the outcome of cases,” he added. “But I think there’s another dynamic here that sometimes gets ignored and that is we’re seeing an unusual fracture in the Republican Party’s position on judges. Usually Republicans are pretty united on questions of judicial appointment. But now I think we’re seeing some Republicans disagreeing with others about what constitutes good judicial appointments and even perhaps about the importance of the independency of the federal judiciary.” Mending fences? Chief Judge Deanell Reece Tacha of the 10th U.S. Circuit Court of Appeals, who chairs the Judicial Conference’s Committee on the Judicial Branch, noted there have been many issues recently on Congress’ front burner that have a significant impact on the work of the judiciary. “My view is clearly everybody is playing their appropriate constitutional role, but it would be helpful for all three branches if there were enhanced dialogue and interchange about effects on each branch,” she said. “Even more important than effects for me is public perception about what we do,” she added. “I truly believe the players in each branch understand quite well their roles, but it’s not clear the public has the same understanding. This rule of law depends on public trust. To the extent the rhetoric or reality of this tension has the effect of skewing the public’s understanding of what each of us does in our proper role, that undercuts the very foundation of the rule of law-the public trust.” Tacha said her committee has met with representatives Schiff and Biggert, and she called their caucus “incredibly helpful.” Her committee has also met with the staffs of the majority and minority chairmen of the Senate Judiciary Committee in order to enhance the dialogue. And she said meetings between members of Congress and their district judges also are occurring. A meeting of the branches Judges cannot lobby in the traditional way because of their ethical canons, said Schiff. But, he said, “Every district judge ought to meet with their members a few times a year. I think judges really need to establish relationships with Congress individually and collectively. They all showed the ability to do that during the appointment process. We’re inviting justices to come visit on the Hill.” Schiff said he got involved in the judiciary-Congress problem about a year ago. “It started out at a very poor level to begin with,” he said. “Now we’ve gone from court stripping to circuit splitting,” he said, referring to a House-passed bill to divide the 9th Circuit into three parts. “We’ve gone from bad to worse. Some of the authors of these measures argue Marbury v. Madison was wrongly decided,” Schiff said, referring to the 1803 Supreme Court case that was the first to apply the doctrine of judicial review to a statute passed by Congress. Former Republican Representative Bob Barr of Georgia said the judiciary has a “powerful” voice through its administrative arm, and when the chief justice or another justice on the Supreme Court speaks out on these issues, the nation and Congress will listen. Barr said the court-stripping proposals do not reflect sound public policy, “nor am I convinced they would have the results their proponents contend.” One way to “lower the temperature” would be to eliminate lifetime tenure, said Congress scholar Norman Ornstein of the American Enterprise Institute. “You could stagger terms so no president would be shut out and no president would end up having three or four Supreme Court appointments that shape the judiciary forever.” But there seems to be little interest among some House members in turning down the temperature. Missouri’s Akin said he has been urged to expand his effort beyond the pledge and marriage issues. “The liberals’ position is ‘You’re precipitating a constitutional crisis. This is the Supreme Court and anything it says goes,’ ” he recounted. “ I don’t think we’re always respectful of the Supreme Court. Out of my state came Dred Scott” [in which the Supreme Court ruled that slaves were property protected by the Constitution]. “I believe it’s the job of the legislative branch to speak up and call judges down when they’re wrong. They’re a co-equal branch of government and the weakest of the three.” Coyle’s e-mail address is [email protected].

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