E-Mail This Article to a Friend Justice under fire (continued)
	Related links Family Research Council This religious-right organization was the lead sponsor of Justice Sunday, and its president, Tony Perkins, served as the emcee. You can even order a DVD. Focus on the Family James Dobson’s group was also heavily involved in Justice Sunday. Bonus: the Web site is more overtly strange than that of the Family Research Council. MoveOn PAC The liberal organization’s political-action committee has made saving the judicial filibuster one of its principal causes. Offers practical advice on what you can do to help. People for the American Way Like the MoveOn PAC, People for the American Way has been fighting hard to retain the judicial filibuster. Slate reviews Men in Black The online magazine’s legal analyst, Dahlia Lithwick, turns in a withering review of radio-talk-show host Mark Levin’s right-wing screed against the federal judiciary.

THE CAMPAIGN to do away with the judicial filibuster takes place against a backdrop of rising contempt for, and even hatred of, federal judges. Much of this sentiment came to a head over the matter of Terri Schiavo, the severely brain-injured woman who died recently after she had spent more than a decade in what doctors described as a "persistent vegetative state." Leading Republicans — including Bill Frist, Tom DeLay, and President Bush and his brother Jeb, the governor of Florida — attempted to intervene on behalf of Schiavo’s parents, who had wanted her to remain on life support. But after Congress passed, and the president signed, a bill essentially ordering the federal courts to review Schiavo’s case, not a single judge would touch it, ruling that the legislative and executive branches had overstepped their authority.

Leading Republicans made some ugly and potentially dangerous remarks. Tom DeLay — under fire for his numerous ethical shortcomings — diverted attention from his own problems by saying after Schiavo’s death that "the time will come for the men responsible for this to answer for their behavior," and that he wants to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president." Democratic senator Frank Lautenberg went so far as to warn that DeLay may have violated a law against threatening federal judges — likely an overreaction on Lautenberg’s part, but not by much. (DeLay apologized, but continues to push for some sort of congressional review of the judiciary.) Later, Republican senator John Cornyn took his fellow Texan DeLay’s comments quite a bit further, saying, "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. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that’s been on the news. 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."

So exercised is the right over the judiciary that it even has a best-selling book — radio talk-show host Mark Levin’s Men in Black: How the Supreme Court Is Destroying America, published by Regnery, the same folks who brought you Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry. Levin’s screed has dropped to 21st on the New York Times bestseller list, but it had been in the top 10 for weeks. With an introduction by Rush Limbaugh, an afterword by Edwin Meese, and the enthusiastic endorsement of Sean Hannity, Men in Black is meant more to be waved around while shouting than it is actually to be read. In her withering review for Slate, legal analyst Dahlia Lithwick wrote, "The reason it may take you only slightly longer to read Men in Black than it took Levin to write it is that you’ll experience an overwhelming urge to shower between chapters."

I actually agree with Levin about the unconstitutionality of the McCain-Feingold campaign-finance-reform law. But as an example of how extreme most of Levin’s views are, he goes so far as to question the notion that the Supreme Court has the right to overturn laws on constitutional grounds, as was done for the first time in 1803 by Chief Justice James Marshall, in Marbury v. Madison. Levin calls the Marbury decision "nothing short of a counter-revolution" and a prime cause of "the judiciary’s tyranny." Elsewhere he writes, "From same-sex marriage, illegal immigration, and economic socialism to partial-birth abortion, political speech, and terrorists’ ‘rights,’ judges have abused their constitutional mandate by imposing their personal prejudices and beliefs on the rest of society."

From Men in Black to Justice Sunday, from the unctuous pieties of Bill Frist to the veiled threats of Tom DeLay and John Cornyn, we may be seeing one of those periodic outbursts of political hubris. Not to push the analogies too far, but there are a couple of obvious precedents for this. In the 1930s, President Franklin Roosevelt, frustrated with the Supreme Court for overturning much of the New Deal, came out with a plan to add new justices to the court who would presumably be more supportive. His critics denounced the plan as "court packing," and Roosevelt suffered the most serious political defeat of his presidency.

Then, 10 years ago, Timothy McVeigh, a right-wing domestic terrorist, blew up a federal office building in Oklahoma City. Suddenly, the nod-nod-wink-wink relationship that Newt Gingrich’s ascendant Republicans had with guys who spoke conspiratorially about black helicopters and who trained with militias on weekends became a distinct political disadvantage.

If today’s Republican Party succeeds in imposing a theocratic judiciary upon a 50-50 nation, or if the hatred that the party and its allies have whipped up results in violence against judges, then the Republicans will have guaranteed their own demise. This is, after all, a republic, not a democracy. The most important constitutional principle — one that was utterly absent during the Justice Sunday festivities — is that the will of the majority cannot be allowed to trample the rights of the minority. The Republicans are not entitled to everything just because they won a close election last November. It is a lesson they are about to learn.

Dan Kennedy can be reached at dkennedy[a]phx.com. Read his Media Log at BostonPhoenix.com.