Nothing that the right wing talking heads say surprises me any more, or at least it shouldn't. Yet, while I'm no longer surprised by their tactics or their hypocrisy, I am awed by their complete disdain for all of the accomplishments over the past 200 plus years that brought our country to where it is today. Things I took for granted as a child just assuming they would always be part of what made this country great.
I made the unfortunate mistake today of listening to Glenn Beck. While I can't tolerate Rush, every now and then I can listen to Beck long enough to pick up the right wing talking points without feeling the desire to rip my ears off of my head.
Today's talking point was...drum roll please...activist judges and particularly how they are self-appointed Gods who can just overrule any old thing that Congress or the White House does. That's right ladies and gentlemen, the Republicans are arguing against Marbury v. Madison, a case decided back in 1803 and in which the U.S. Supreme Court "created" the power of judicial review--the final check on abusive actions by the two elected branches of government.
This would be a bad enough argument if it weren't for the fact that its completely inapplicable to the Schiavo case, as I will attempt to illustrate, and the fact that it was CONGRESS which attempted to take away the valid function of the judiciary, not the other way around.
Congress handed the federal courts the case because they didn't like the state court decision, essentially. The Supreme Court already had denied cert on more than one occassion, but Congress decided to pass a law sending the case to the Federal Courts. And so the federal judges came in and decided that none of Ms. Schiavo's Constitutional rights were violated by the decision to remove the feeding tube (a decision of Michael Schiavo as her proxy pursuant to VALID STATE LAW).
So, what the courts did was in fact the exact opposite of judicial activism. They held that Ms. Schiavo's rights had not been violated by the decision of the trial judge which was made in accordance with valid state law. And since that was all that Congress had provided for in their emergency measure allegedly to save Ms. Schiavo. The judges in this case didn't disregard the law passed by Congress, they followed it to the letter. In fact, the courts ignored the very real possibility that the law passed by Congress was unconstitutional as federal courts have done from time to time since Marbury v. Madison.
Instead of passing a broad law to help all of those individuals in a permanent vegetative state, Congress passed a law to subvert the decision of state judges by pushing the case into federal court. You know, the sort of forum-shopping that tort reform is supposed to cure. And, why? My hunch is political posturing for the upcoming debate over judicial nominees and the nuclear option.
And to get an even better picture of just how hard those on the right are working to undermine the judiciary, look at the claims made by the attorney for the Schindler's in there complaint. Count I alleged that Ms. Schiavo's Fourteenth Amendment right to due process (i.e. impartial trial) was violated...because the judge made a judgement!! That's right, Judge Greer's crime is that under Florida law he was required to make a decision as to Ms. Schiavo's wish where there are two competing parties (Michael Schiavo and the Schindlers) who disagree over the proper decision regarding her care. In other words, his job was to make a JUDGEment in the case! And their constitutional claim was that Ms. Schiavo didn't get an impartial judge because the judge made a JUDGEment!
The Republicans are attempting a misdirection play by pretending to need to nominate judges to get rid of activist judges. But the real hope is to get conservative activist judges who will eliminate rights that so-called activist judges defended against constitutional infrigement by the two political branches of our government. First up is the right to reproductive choice and the right to privacy in one's bedroom. Where it goes from there is anyone's guess.
The Federal courts are not perfect. They upheld the Jim Crow laws and held down the labor movement for decades. But they do act as another obstacle to an overbearing executive and/or legislative branch. Without Marbury v. Madision, would there have been a Brown v. Board of Education? Without "activist judges" willing to reverse precedent, would we have minimum wage and child labor laws? While the judicial branch isn't perfect, it is a check on the legislature and we should think long and hard before dismantling that check.