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Just the Beginning

Forcing a rule change on filibusters is only the start of the GOP’s radical judicial agenda

WEB EXCLUSIVE

By Eleanor Clift

Newsweek

Updated: 4:59 p.m. ET May 20, 2005

May 20 - A Jewish friend after making her first trip to Israel said, “This would be a great place if they could figure out how to separate government and religion.” I was reminded of her sentiments this week as the U.S. Senate began debate on two of President Bush’s judicial nominees, Priscilla Owen and Janice Rogers Brown, hostages in the ongoing culture war between born-again religionists and the more-or-less secular society the Founding Fathers envisioned.

When Senate Majority Leader Bill Frist accuses Democrats who oppose Owen and Brown of wanting to “kill, to defeat, to assassinate these nominees,” he transforms political rhetoric into an apocalyptic vision that is better suited to Bible class than the floor of the Senate. What’s behind his passion is naked ambition. He wants to be president and he’s courting the religious right. The scary part is that this over-the-top wooing of God-obsessed Christians is embraced by a growing number of Republican senators, all apparently sincere in their religiosity and some, like Frist, with presidential aspirations.



Stripping Senate Democrats of their right to filibuster judicial nominees is a prelude to a broader assault on the judiciary known as “court stripping.” Alabama Republican Richard Shelby last year introduced The Constitution Restoration Act of 2004 to acknowledge God as the sovereign source of law and threaten judges with impeachment should they uphold separation of church and state. Former Alabama Chief Justice Roy Moore appeared with Shelby at the press conference announcing the legislation. Moore is now touring the country with the granite block depicting the Ten Commandments that he was ordered to remove from the state court house.

Shelby reintroduced the bill in March of this year when the Terri Schiavo case was in the headlines. His press secretary says the two events were unrelated, yet if anything like Shelby imagines comes to pass, it would turn our constitutional democracy into a theocracy. The legislation says no court has jurisdiction to rule on issues surrounding God, the flag, separation of church and state and establishment of religion. The wording is broad enough to remove from civil law all matters of personal status, like whom you can marry and issues related to child custody and child support. “We’re lulled into thinking it’s too ridiculous to pass,” says Judith Lichtman with the National Partnership for Women & Families. “But it’s the genius of the right to make what is really radical accepted in the mainstream.”

My friend who visited Israel got a sense of what it would be like to live in a state where religion rules. In Israel, there is no civil law. The country is a theocracy. If you want to marry, only an Orthodox rabbi can perform the ceremony, not Reform or Conservative, or priests for that matter. In issues of divorce within this religious context, men are strongly favored. In Muslim cultures, the mullahs rule with some allowing the husband to repeat three times, “I divorce thee,” and the bond is broken.

What Shelby and his backers are really after is gay marriage. If the Constitution Restoration Act of 2004 were law, the Massachusetts Supreme Court could not have ruled that two people of the same sex can marry. “They’re doing in a sense what Iraq is trying to do,” says Lichtman, “make religious law supreme and not reviewable by any court, least of all the Supreme Court.” She adds that while Jews have to speak up, along with Muslims and Buddhists, this is a fight within Christianity because it refers to an orthodoxy and a very new and strict construction of the Bible that trumps everything else, including civil law.

The Senate debate over Bush’s judicial nominees follows a series of events that attack and diminish the judiciary as a coequal and independent branch of government. In the Schiavo case, serious issues about the end of life and the role of the state were hijacked by right-wing fundamentalists. The Republican-appointed judge in Florida who refused to open the case to federal intervention needed security because of threats to his life. And after a wave of courthouse violence, Texas Republican John Cornyn said on the Senate floor that he wasn’t sure there was a cause and effect, but he could understand how people get so upset. Republican Rep. John Sensenbrenner, chairman of the House Judiciary Committee, announced he would hold hearings on federal court budgets, suggesting there is more than one way to rein in judges and that is to starve them into submission.

This is dangerous business when an inflamed minority, the religious right, demands the ouster of any judge that doesn’t rule their way. The framers intended the judiciary to serve as a check on power, which is why judges are appointed for life, and once they ascend they’re supposed to be protected from the political process. Republicans say all they want is a simple up-and-down vote, but the Founding Fathers were worried about the abuse of power. Sixty votes forces a consensus. The Electoral College is a brake on popular will. This is a constitutional democracy, not winner takes all. Otherwise, George W. Bush wouldn’t have prevailed in 2000.


© 2005 Newsweek, Inc.



The article can be found at http://www.msnbc.msn.com/id/7924870/site/newsweek/

Some very good points here.