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After Threatening Judges, GOP Accuses Obama of Judicial Intimidation

April 4, 2012

On Monday, President Obama unsurprisingly expressed confidence that the Supreme Court would uphold the 2010 Affordable Care Act. Even less remarkable, Obama rightly reminded Americans that "conservative commentators" have for year said "the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law." Nevertheless, Republicans quickly accused the President of "unprecedented" effort to "intimidate the Supreme Court."
Of course, this is a case of the pot calling the kettle black (to put it mildly). After all, denouncing "judicial activism" has been a GOP talking point for years. Not content to rest there, the party's members of Congress and presidential candidates have pushed to limit the federal judiciary's jurisdiction on a range of issues, abortion not least among them. And as their incendiary rhetoric during the Terri Schiavo saga and other episodes reveals, Republican leaders didn't hesitate to issue none-too-thinly veiled threats of violence against the nation's judges.
Following the President's statement, Senate Minority Leader Mitch McConnell led the GOP charge:

"This president's attempt to intimidate the Supreme Court falls well beyond distasteful politics. It demonstrates a fundamental lack of respect for our system of checks and balances."

Of course, back in 2005, McConnell played a pivotal role in the GOP effort to disregard the 19 rulings by Florida and federal courts, including the Supreme Court, in the case of Terri Schiavo. As he explained to an incredulous Brit Hume of Fox News:

What we simply did was grant to the courts an opportunity to review the case, something they do in habeas corpus petitions in death penalty cases all the time. It's not unusual for a death decision. And in effect, that's what's happening here.
A decision to let Ms. Schiavo die would be reviewed in the courts. That's all Congress did. The courts took a look at it, decided not to review it. And this tragic matter obviously is soon going to come to an end.

Not if Texas Senator John Cornyn had his way. Cornyn, himself a former chief judge of the Texas Supreme Court and author in 2010 of an attack on Obama nominee Elena Kagan titled, "I Sense a Judicial Activist," took the Republican assault on the judiciary to a new and frightening level. Cornyn was one of the GOP standard bearers in the conservative fight against so-called "judicial activism" in the wake of the Republicans' disastrous intervention in the Terri Schiavo affair. On April 4th, Cornyn took to the Senate floor to issue a dark warning to judges opposing his reactionary agenda. Just days after the murders of judge in Atlanta and another's family members in Chicago, Cornyn offered his endorsement of judicial intimidation:

"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country...And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence."

Facing criticism for his remarks seemingly endorsing right-wing retribution against judges, Cornyn held his ground. "I didn't make the link," he said on Fox News Sunday, adding with a note of sarcasm:

"It was taken out of context. I regret it was taken out of context and misinterpreted."

As it turns out, Cornyn was merely echoing the words of the soon-to-be indicted House Majority Leader Tom Delay. On March 31st, Delay issued a statement regarding the consistent rulings in favor of Michael Schiavo by all federal and state court judges involved:

"The time will come for the men responsible for this to answer for their behavior, but not today."

(Both the Delay and Cornyn remarks are contained in the Daily Show video, starting around the 1:00 mark.))
As the New York Times reported:

Saying that the courts ''thumbed their nose at Congress and the president,'' Mr. DeLay, of Texas, suggested Congress was exploring responses and declined to rule out the possibility of Congressional impeachment of the judges involved.

The impact of tacit conservative endorsement of violence against judges cannot be dismissed. After all, it extends to members of the Supreme Court of the United States. In March 2006, Justice Ruth Bader Ginsburg revealed that she and Justice Sandra Day O'Connor were the targets of death threats. On February 28th, 2005, the marshal of the Court informed O'Connor and Ginsburg of an Internet posting citing their references to international law in Court decisions (a frequent whipping boy of the right) as requiring their assassination:

"This is a huge threat to our Republic and Constitutional freedom...If you are what you say you are, and NOT armchair patriots, then those two justices will not live another week."

Neither O'Connor nor Ginsburg were shy about making the connection between Republican rhetoric of judicial intimidation and the upswing in threats and actual violence against judges. While Ginsburg noted that they "fuel the irrational fringe," O'Connor blamed Cornyn and his fellow travelers for "creating a culture" in which violence towards judges is merely another political tactic:

"It gets worse. It doesn't help when a high-profile senator suggests a 'cause-and-effect connection' [between controversial rulings and subsequent acts of violence]."

Of course, O'Connor and Ginsburg weren't the only targets of right-wing retribution, serious or otherwise. After sentencing Scooter Libby to 30 months in prison in 2007, Judge Reggie Walton reported receiving death threats. That episode followed a January 2006 joke by best-selling conservative author and media personality Ann Coulter, who mused in January 2006, "We need somebody to put rat poisoning in Justice Stevens' creme brulee." (When Justice David Souter announced his resignation from the Court in 2009, Red State editor and CNN regular Erick Erickson responded by tweeting, "The nation loses the only goat f**king child molester to ever serve on the Supreme Court in David Souter's retirement.")

Apparently, Coulter's judicial rat poison would have been just fine with Montana Republican Congressman Denny Rehberg. Just weeks after the Tucson slaughter that claimed the life of circuit judge John Roll, Rehberg responded to a recent ruling by declaring he wanted to "put some of these judicial activists on the Endangered Species list":

"Environmental obstructionists found a federal judge in Missoula that was willing to ignore the scientific evidence as well as the expert opinions of on-the-ground wildlife managers here in Montana. And he ruled last August that the grey wolf had to remain on the Endangered Species List.
When I first heard his decision, like many of you I wanted to take action immediately. I asked: how can we put some of these judicial activists on the Endangered Species List? I am still working on that!"

And so it goes.
Of course, the Republican criticism of President Obama's own critique of judicial activism started long before this week's comical accusation (shockingly echoed by a GOP appointee on the Fifth Circuit Court of Appeals) that Obama doesn't believe in the concept of judicial review. This week, Senator McConnell resurrected the GOP's bogus charge that Obama "browbeat the Court during the State of the Union."
As you'll recall, Republican leaders feigned outrage over President Obama's criticism of the Court's Citizens United decision during his 2010 State of the Union. Utah Senator Orrin Hatch called it "rude," adding "It's one thing to say that he differed with the court but another thing to demagogue the issue while the court is sitting there out of respect for his position." As usual, Texan John Cornyn took it a step further, calling Obama's strong disagreement with the Court "hysterical" and insisting:

"I don't think the president should have done what he did in trying to call out the Supreme Court for doing its job. They are the final word on the meaning of the United States Constitution, even when we don't like the outcome."

Unless, that is, a Republican is in the White House.
After all, George W. Bush's Supreme politicking during his State of the Union speeches was a regular fixture of his presidency. For three straight years (2004, 2005 and 2006), President Bush denounced "activist judges" and insisted "for the good of families, children and society, I support a constitutional amendment to protect the institution of marriage." On the very day Samuel Alito joined the Roberts Court, Bush used his 2006 SOTU for a victory lap:

"The Supreme Court now has two superb new members -- new members on its bench: Chief Justice John Roberts and Justice Sam Alito. I thank the Senate for confirming both of them. I will continue to nominate men and women who understand that judges must be servants of the law and not legislate from the bench."

Of course, Bush had his own unique view of the constitutional separation of powers. As he put it in 2000:

"The legislature's job is to write law. It's the executive branch's job to interpret law."

So much for the nine robed people who sit in the Supreme Court. Which is just fine with the GOP, just as long as one of their own is seated in the Oval Office.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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