Republicans’ Attacks on Probity of Federal Judiciary Are Un-American

By Dennis Herrera
[Originally published in the Los Angeles Daily Journal and San Francisco Daily Journal, November 22, 2004]
FOR THE 48 percent of American voters justifiably concerned about Bush administration claims to an electoral “mandate” as a result of the Nov. 2 election, last week presented still another example of political arrogance, this one far more troubling.

Outgoing Attorney General John Ashcroft, in remarks to a conservative legal organization, condemned the federal judiciary as the prime culprit in what he described as “a profoundly disturbing trend” – namely, having the audacity to question President Bush’s authority on issues that purport to involve national security.

“The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war,” Ashcroft said. “Courts are not equipped to execute the law. They are not accountable to the people.”

Several news reports speculated that Ashcroft’s comments were tacitly directed at U.S. District Judge James Robertson, who earlier this month overruled the administration’s wholesale rejection of Geneva Conventions that have governed international treatment of war prisoners since 1949. The ruling halted an illicit tribunal involving a prisoner said to be a former driver for Osama bin Laden in favor of a military court-martial, which affords fairer treatment to the accused and is permissible under the international treaty.

In doing so, Robertson convincingly asserted a security imperative that directly affects American military personnel, describing the administration’s position as “one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.”

To be sure, a reasonable person may disagree with Robertson. But to suggest, as the chief law enforcement officer of the United States apparently does, that the ruling “put at risk the very security of our nation” is alarmist hyperbole at its most destructive.

It is possible, of course, that Ashcroft’s diatribe against judicial oversight was only narrowly intended. But even so, it is emblematic of a broader, more troubling effort by the Bush administration to demonize the judiciary for fulfilling its role as the guardian of individual liberties. Consider Bush’s State of the Union speech in January, in which he decried “activist judges” who “insist on forcing their arbitrary will upon the people.” In that instance, the offenders weren’t robed obstructionists in the war on terrorism but renegade jurists intent on “redefining marriage by court order, without regard for the will of the people and their elected representatives.”

Elsewhere in recent times, Republican legislators have condemned even the largely conservative U.S. Supreme Court – with seven of its nine justices appointed by Republican presidents – for judicial activism on issues ranging from abortion to affirmative action to antiquated sodomy laws.

On the far right, former Judge Robert Bork has assailed the high court for what he recently called an “almost frenzied hostility to religion,” even going so far as to advocate a constitutional amendment that would allow Congress to override court decisions. If adopted, such an amendment would destroy the principle of judicial review that has stood for two centuries and would subordinate a once-coequal branch of government that was intended to serve as a counterbalance to majoritarian tyranny.

In drafting the Constitution of the United States, our nation’s Founders contemplated unique and limited powers in three coequal branches of government, an ingenious system of checks and balances that charged each with the duty to uphold and sustain the Constitution within its respective sphere. At a time when Republicans enjoy complete control of both the executive and legislative branches of the federal government, it may be that the judiciary is politically useful as the only remaining foil to excite the Republican faithful. But such strident politicization ignores the courts’ well-established constitutional duty in undertaking judicial review. Alexander Hamilton wrote in Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

“If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.” In the Hamiltonian sense, then, Ashcroft was only half-right: Courts are not equipped to execute the law. But courts are absolutely accountable to the intention of the people, by and through their Constitution, in the exercise of judicial review.

As a Democrat, I may not like seeing a Republican president re-elected with 51 percent of the vote claim a “mandate.” But with a Republican-controlled House and Senate on his side, it’s difficult to quarrel with the claim’s legitimacy. That’s politics.

As a lawyer and officer of the court, however, I am far more dismayed by this administration’s repeated attacks on the courts, which undermine the legitimacy of the judiciary as a coequal branch of government. That’s not politics – that’s un-American.

Dennis Herrera is the city attorney of San Francisco.

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