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April 17, 2005 - I love the smell of theocratic McCarthyism in the morning...

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In the world of law and considering what Tom DeLay said last week about getting even with judges who make the “wrong” decisions – (see last week’s issue here and here) - "The time will come for the men responsible for this to answer for their behavior." – we have more this week.  You do remember more than a week ago Dana Milbank in the Washington Post reported on a conservative conference about out-of-control judges. You remember what those folks said about the current nine on the Supreme Court.


… lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, "upholds Marxist, Leninist, satanic principles drawn from foreign law."

Ominously, Vieira continued by saying his "bottom line" for dealing with the Supreme Court comes from Joseph Stalin. "He had a slogan, and it worked very well for him, whenever he ran into difficulty: 'no man, no problem,' " Vieira said.

The full Stalin quote, for those who don't recognize it, is "Death solves all problems: no man, no problem."


Kill them all?  It’s a thought.  But not on this side of the fence.

This week? From a transcript of an interview between editors and reporters from The Washington Times and House Majority Leader Tom DeLay, Texas Republican, April 13, at his Capitol office -


I blame Congress over the last 50 to 100 years for not standing up and taking its responsibility given to it by the Constitution. The reason the judiciary has been able to impose a separation of church and state that's nowhere in the Constitution is that Congress didn't stop them. The reason we had judicial review is because Congress didn't stop them. The reason we had a right to privacy is because Congress didn't stop them.


Oh my.  The man has a bee in his bonnet.

Some of us are kind of fond of that right to privacy business.  The Griswold ruling against the State of Connecticut made sense to us – that state had no business telling anyone they couldn’t use birth control and what happened in the bedroom really was the state’s concern.  Some of us thought that ruling made sense.  The idea the government shouldn’t sanction a particular religion and deal harshly with any who don’t subscribe to it?  That seems pretty basic – and a fine idea.  Theocracies cause no end of trouble.  The idea that the courts can review laws and say hold on, the constitution says you can’t do that is, some of us believe, how things should work.

Tom DeLay – the Hammer, the Bug-Man – seems to have other ideas. And this is getting hotter.

Mark Kleiman, that Professor of Policy Studies at the School of Public Policy and Social Research at UCLA, being a bit of a wag, quotes, at length, Alexander Hamilton in the Federalist Papers, Number 78 particularly.  Kleiman is here and the link the Hamilton is here.



The complete independence of the courts of justice is peculiarly essential in a limited Constitution. … Without this, all the reservations of particular rights or privileges would amount to nothing.

… There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

… 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.

… where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.

… whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.


Ah, what did Hamilton know?  He wasn’t born here – he was a mixed-race illegitimate child born in Saint Kitts in the Caribbean.  Uppity fellow.  Or so the white Orkin Man from Texas thinks.

Kleiman comments that there was obviously something deficient in the teaching of American history in the public schools Tom DeLay attended.  And he points to another fellow suggesting DeLay has an obvious problem with Marbury v. Madison, “which Defendant DeLay no doubt regards as an exercise in judicial activism.”  You can follow the links for that.

What is all this about?

Andrew Sullivan suggests this regarding this and all the ethical problems DeLay is facing – it’s a personality thing -


I'm not that impressed with the ethical complaints against him. His sleaze doesn't seem to me to be that unusual. Having his wife work for him is almost routine in Congress. The problem with DeLay is that he's a repulsive figure on television and elsewhere. I've never met him and can't believe he's this repellent in person (he wouldn't have done so well in politics if he were). But his religious fanaticism, his seething hatred for his opponents, his natural proclivity for arrogance all reflect a real problem for the GOP. He does indeed represent what the party seems to be becoming. That's why he won't be forced out. And that's why smart Republicans will keep him out of the public eye as much as much as possible. He makes Newt seem likable.


He is what the party is becoming?  Yeah, him and John Bolton.  The party of hyper-aggressive bullies?

Well, DeLay did apologize this week, sort of -


U.S. House Majority Leader Rep. Tom DeLay, R-Texas, has asked for recommendations on legislation regarding judges' decisions in the Teri Schiavo case.

DeLay became involved with the Schiavo case, in which the husband of a brain-damaged woman received a state judge's order to have the woman's feeding tube removed and the federal courts did not intervene. Schiavo died about two weeks later. DeLay then said the judges responsible for such decisions would be held accountable.

On Wednesday, while saying Schiavo's death may have made him "more passionate" than usual, DeLay told a news conference he told the House Judiciary Committee to recommend legislation regarding the courts. He said, "Of course I believe in an independent judiciary," but added it was congressional duty to rein in the courts, The New York Times reported. He did not outline what kind of legislative action he was seeking.


That is, he really is sorry, and he wants legislation to overturn court rulings.  Oh.

Well, what to do about these judges?  Get rid of the filibuster so we can get some men of God on the bench.  That’s Bill Frist’s idea, as reported widely at the end of the week.


As the Senate heads toward a showdown over the rules governing judicial confirmations, Senator Bill Frist, the majority leader, has agreed to join a handful of prominent Christian conservatives in a telecast portraying Democrats as "against people of faith" for blocking President Bush's nominees. Fliers for the telecast, organized by the Family Research Council and scheduled to originate at a Kentucky megachurch the evening of April 24, call the day "Justice Sunday" and depict a young man holding a Bible in one hand and a gavel in the other. The flier does not name participants, but under the heading "the filibuster against people of faith," it reads: "The filibuster was once abused to protect racial bias, and it is now being used against people of faith."


Reactions?  You can find some gathered at the Daily Kos

John Cole:


This is so patently offensive that I don't have adequate words to describe how truly wrong this is: [...]

If you don't share our politics, you hate the baby Jesus.

If you don't share our politics, you hate religious people.

If you don't share our politics, you are evil.

Congrats, Republicans. Our leaders have now taken the traditional rhetorical demonization of our opposition and elevated it to heavenly heights. I assume my friends on the right are going to spend the week-end attacking me for being a 'religious bigot' because I rightly point out the inappropriateness of this behavior.


Joe Gandelman:


Senate Majority Leader Bill Frist has reportedly now not only decided on the "nuclear option" on filibusters but he is apparently ready to help instigate a political BIG BOOM that has the potential of enmeshing the GOP in charges that it's ushering in a new, dangerous area of theocratic McCarthyism.

If he does it, it'll be a watershed moment -- a transformational moment for the GOP...marking the political death of a dominant part of its party. [...]

Isn't this ushering in a new LOW in American political demonization? Isn't this akin to labeling those with whom we disagree Communists or Communist stooges? Isn't this throwing out all pretensions of the kind of intellectual, civilized discourse and debate taught in universities, law schools and practiced daily by Americans on the right and left who sit down for drinks or coffee and agree to differ on issues but maintain respect?


Digby at Hullabaloo:


I cannot stress enough how important I think it is to draw the contrasts between the Democrats and Republicans right now. Their ducky president looks lamer and lamer by the day and both GOP leaders of the congress are overreaching badly with this public soul kissing of the extremist religious right. (Giving them any cover for this wacky morals crusade is just dumb. Don't go there, please.)

All we need to do is say we are defending the constitution. Most people may know nothing about civics in this country anymore, but they know damned well that disemboweling one branch of government is not business as usual.


As Kos humself (Markos Moulitsas Zúniga) says - This is going to get ugly. And surreal. But the American Taliban have Frist in their grip, and won't relinquish until they have their Afghanistan-style theocracy.

From the Anti-Defamation League?


Deeply troubled by reports that Senator Bill Frist will appear in a telecast organized by conservative Christian groups that portrays the filibustering of judicial nominees as "against people of faith," the Anti-Defamation League (ADL) today urged Dr. Frist to reconsider his participation in the telecast, stating that: "Whatever one's views may be on this or any other issue, playing the 'religious' card is as unacceptable as playing the race card."

In a strongly worded letter to the Senate majority leader, Abraham H. Foxman, ADL National director, said he was "deeply troubled" by Dr. Frist's decision to appear in the "Justice Sunday" telecast on April 24. The program's message, "...is deeply flawed and a dangerous affront to fundamental principles of American democracy," Foxman said.

"The heated debate regarding the status of the filibuster in the United States Senate is a quintessentially political contest, not a religious struggle," Foxman said. "Nor should it be portrayed as such. Whatever one's views may be on this or any other issue, playing the 'religious' card is as unacceptable as playing the race card."


The Democratic leadership?  Senate leader Reid:


I am disappointed that in an attempt to hide what the debate is really about, Senator Frist would exploit religion like this. Religion to me is a very personal thing. I have been a religious man all my adult life. My wife and I have lived our lives and raised our children according to the morals and values taught by the faith to which we prescribe. No one has the right to judge mine or anyone else’s personal commitment to faith and religion.

God isn’t partisan.

As His children, he does ask us to do our very best and treat each other with kindness. Republicans have crossed a line today. America is better than this and Republicans need to remember that. This is a democracy, not a theocracy. We are people of faith, and in many ways are doing God’s work. But we represent all Americans, regardless of religion. Our founding fathers had the superior vision to separate Church and State in our democracy. It is a fundamental principle that has allowed our great, diverse nation to grow and flourish peacefully. Blurring the line between Church and State erodes our Constitution, and our democracy. It is a blatant abuse of power. Participating in something designed to incite divisiveness and encourage contention is unacceptable. I would hope that Sen. Frist will rise above something so beyond the pale.


Don’t bet on it.

So this is a heads-up. This fight will be amazing. Oppose the Republicans, understand and respect the constitution, expect judges to rule on the laws passed in regard to the constitution? Do so and you are against God.

So it has come to this.


Copyright © 2003, 2004, 2005, 2006 - Alan M. Pavlik
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