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Tom DeLay, the former House majority leader, retired from Congress last month, but the war on judges that the Texas Republican helped spark has survived his departure. Just days later, his Republican allies on the House Judiciary Committee once again took up a bill to strip the federal courts’ jurisdiction over the Pledge of Allegiance. That’s when Indiana Republican Rep. John Hostettler, a mechanical engineer with no legal training, reiterated his belief that the Supreme Court got it all wrong 203 years ago in Marbury v. Madison, the decision establishing judicial review. In his informative if not riveting new book, When Courts & Congress Collide: The Struggle for Control of America’s Judicial System, Indiana University law professor Charles Geyh shows that congressional animus toward judges predates DeLay, Hostettler�and even Marbury v. Madison. This is not a book for casual readers seeking a breezy narrative on the latest skirmishes between Congress and the courts, such as Congress’ last-minute intervention in the Terri Schiavo case last year. But anyone who thinks such tensions are a new phenomenon will learn plenty from Geyh’s book. In great detail he goes through what he identifies as each of the five previous historic phases of ill will toward the courts, involving presidents from Thomas Jefferson to Franklin Delano Roosevelt. The good news, says Geyh, is that each successive wave proved less damaging than the previous one. But he warns that the current period could prove particularly harmful as both parties undermine support for an independent judiciary by attacking those whom they consider “activist judges.” At the heart of the conflict between the courts and Congress is the tension between giving the courts sufficient independence and still holding them accountable. The Constitution and the Founding Fathers provided little guidance on how to strike that balance. The Constitution ensured lifetime tenure and a protection for judges’ salaries, but left it to Congress to balance independence and accountability. The political branches responded by largely favoring independence over accountability, starting with the Judiciary Act of 1789. The creation of U.S. courts of appeals came later, in 1891, and in the 20th century, Congress added judicial bureaucracies, such as the Administrative Office of the Courts in 1939. Congress and presidents also gradually abandoned most of their tools for reining in judges, such as adding or subtracting federal judges, removing the courts’ ability to hear particular kinds of cases, or impeaching judges they didn’t like. The result, says Geyh, is a strong “norm of judicial independence.” But Congress is left with only the nominations process as a check on judges before they reach the bench. Today, Geyh argues, all sides in the judicial wars seem intent on convincing the American public that judges are nothing more than politicians in robes who let their political ideologies guide their decisions. “The implications for judicial independence are clear and potentially dire,” Geyh writes. “Insofar as judges abuse their independence by implementing their political or class agendas instead of adhering to the law, it would seem that the time has come to rethink, in a fundamental way, the need for their judicial independence.” The result, he warns, may be a public that sees little need for an independent judiciary. Unfortunately, such forward-looking concerns are largely crowded out by encyclopedic entries on what seems like every last impeachment attempt and failed judicial nomination. Geyh has produced a valuable history of court-Congress tensions but leaves little room for exploring how the current tension has affected the judiciary and its implications for the future. Many questions go unanswered: Do we really want the nominations process to be one of the only external checks on the courts? Are the increasing length and bitterness of the nominations process and stagnant wages changing the composition of the federal bench? Do federal judges on the bench today put current tensions in historical context, or do they feel uniquely bullied? The book almost cries out for the insights of current or recently retired senators and judges. There are signs that the current phase of hostility might have peaked. Intervention in the Schiavo case, for instance, proved wildly unpopular with the public. House Republican bluster aside, the Senate has proved unwilling to adopt any bills to strip the federal courts of jurisdiction over controversial social issues such as references to God in the Pledge of Allegiance. And it will be interesting to see whether Republicans continue to rage against the courts as President George W. Bush’s nominees fill up a majority of every level of the federal judiciary. No matter how long this phase lasts, Geyh has nonetheless offered a valuable account of how we got here.
Seth Stern is a legal affairs reporter for Congressional Quarterly .

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