The Republican's attack on the judiciary is very scary. The Republican's basic arguement appears to be "If we can't get our way, we will intimidate the judiciary to rule the way we want them to." Numerous right-wing pundits -- Hannity, Dobson and Limbaugh -- are all stating the judiciary is out of control and should be reined in.
To counter these arguments, I started to reread chapters of The Federalist Papers to see what the founders really intended the judiciary to do. I don't know if this will be the only installment in this series: this reading takes time. But, I hope it will help to clarify some arguments the Democrats can use to counter the assault on our courts.
In #80, Hamilton makes the following arguement regarding the court's job as the ultimate arbiter of the government's power.
What for instance would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? The states, by the plan of the convention are prohibited from doing a variety of things; some of which are incompatible with the interests of the union, and others with the principles os good government...No man of sense will believe that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them...This power must either be a direct negative on the state laws, or an authority in the federal courts, to over-rule such as might be in the manifest contravention of the articles of union.
This argument is right on point with the current situation. There are powers enumerated to the various branches of government which must somehow be enforced. The only way to make sure government stays within its constitutionally defined boundaries is to create an independent constitutional counter-balance to the government. Hence, the need for an independent judiciary.
The judiciary's independence is guaranteed by lifetime appointments and the legislature's inability to cut judges pay (From #79).
Next to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support...a power over a man's subsistence amounts to a power over his will
In other words, the government is not supposed to have any influence over the judiciary. Therefore, talk of "pulling in" the judiciary violates the basic concept of seperation of powers. If you don't like a ruling, maybe you need to look at your logic to see if you were wrong.
There is an argument going around that judges are thwarting the will of the people as expressed by a majority voting for a particular piece of legislation. It is important to point out that a majority can be wrong. A majority of Southerner's supported segregation. Does that make it constitutional? According to Hannity and Rush logic, it doess
I have no idea how to "frame" this issue; that's something I leave to others far more savvy in that area. But, I think the above facts come down conclusively on our side and need to get out the public debate ASAP.