Tom DeLay's Heresy
By Horace Cooper
April 26, 2005

Among the many unfair charges against Majority Leader Tom DeLay in recent days is the claim that he would upset the delicate balance between the legislature and the judiciary. In the wake of Terri Schiavo's death (after federal and state judges failed to intervene to make sure that all of her rights had been protected) Tom DeLay said "The time will come for the men responsible for this to answer for their behavior." Sounding ominous only to liberal activist judges and their "amen choir" in the media and academia, the Republican Leader's remarks don't upset the balance. Quite the opposite, they represent an effort to restore balance. And restoration is desperately needed.

Although the Terri Schiavo case is only a recent example, the record is replete with examples of liberal judges who act as if they have a God-ordained right to prevent the American public from exercising self-government. Thankfully, leaders like Tom DeLay are recognizing that being handed a black robe and a gavel is not the jurisprudential equivalent of the long ago discredited Sacrosanta Regum Majesta; these lifetime tenured jurists are not our divinely appointed rulers. And unlike too many leaders in the past whose knees quaked at the sign of any criticism, Mr. DeLay remembers that the Constitution gives him and the rest of Congress checks and balances to keep the Court in line and his comments signal that he's willing to do just that.

Critics say that this threatens the idea of an independent judiciary. Actually it threatens renegade activists who cannot abide the "narrow-minded" ignorance of the American public. Our framers never would have guessed that the judiciary would ever pre-dominate over the democratic branches. And no one would have predicted that in doing so it would choose an extremist and alien counter-culture philosophy as its modus operandi. And yet both are happening simultaneously.

Just this month a federal appeals court overturned a 10-year-old San Jose murder conviction under a novel theory that the defendant did not receive a fair trial. According to the majority on the panel, the state should have to retry a killer all over again more than a decade later because the victim's family should not have been allowed to come to the courtroom each day during the trial wearing buttons bearing photographs of the victim.

And then there's death row inmate Michael Ross' case in Connecticut last month. Even though Michael Ross admitted to murdering eight women in Connecticut and New York and was tried and found guilty, the federal judge overseeing the case has acted with Carolingian-like determination to prevent this killer's execution from ever being carried out. After being overruled three times by the Circuit Court and even the Supreme Court, the judge still managed to get the execution delayed indefinitely. How? By threatening to have Michael Ross' attorney suspended if he didn't file yet another dilatory appeal. Only because this threat was caught on tape has this matter come to light and now top Republican leaders in the state Assembly and Senate of Connecticut have formally asked for a Congressional investigation.

And let's not forget the recent decisions banning the death penalty for juvenile killers which openly cited a convention of the United Nations or rulings striking down the "pledge of allegiance" because the pledge includes a reference to God.

In ruling after ruling many of these activists seem to be playing the legal version of "Quien es mas macho?" as they pursue ever more extremist policy prescriptions that would never pass in an open democratic public process. But must we sit back and accept this state of affairs?

No we shouldn't. Failing to bring errant judges to heel threatens self government itself, the very premise of our system of government. Just as the Enlightenment presaged the end of "Divine Right" monarchy, our republican form of government guarantees that the day to day decisions about our society and our lives will be subject to self-government not rule by an unelected judicial clerisy. Just because activist judges threaten self-government, it does not mean all is lost. As Ronald Reagan's Attorney General Ed Meese, once said: "The American people will never be able to regain democratic self-government--and thus shape public policy--until we curb activist judges. And curb the judges we must.

Although many of those who happen to prefer judicial dominance and its policy prescriptions to self-government argue to the contrary, Congress has many arrows in its quiver: Besides impeachment, it has broad investigative authority, through its power over the purse it sets salaries and budgets of the federal courts and has significant discretion over the jurisdiction and authority over all of the lower federal courts. In fact, it was using this latter authority last year that the House of Representatives passed two bills to limit federal court jurisdiction -- one to restrict hearing challenges to the Pledge of Allegiance, and another to restrict challenges to the Defense of Marriage Act.

Just as the founders intended, these measures were legitimate examples of the checks and balances necessary to preserve liberty that are inherent in our form of government. Rather than acting as if Mr. DeLay's comments threatened our republic, critics would well serve the public and the notion of self-government if they admitted that his comments are exactly what the framers of the Constitution would have expected.

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Horace Cooper, is a senior fellow with the Centre for New Black Leadership

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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.