Ron Chernow: Why the Attempt by Some Republicans to Eviscerate the Courts Is Unwise
Ron Chernow, in the NYT (5-6-05)
[Ron Chernow is the author, most recently, of "Alexander Hamilton."]
LEADING evangelical conservatives are taking on the federal judiciary, which they see as hostile to religion, and they have much more in mind than simply putting an end to Senate filibusters against judicial nominees. Some have now proposed that Congress cut off federal financing for judges and even abolish some lower-level courts that they feel have issued decisions that mandate a secular, anti-Christian state. "We set up the courts," said the House majority leader, Tom DeLay, a key ally of the evangelicals. "We can unset the courts. We have the power of the purse."
Some religious political leaders are fond of invoking the nation's founders as kindred spirits. But those founders - a notably fiery, opinionated bunch - seldom spoke with one voice on any issue, especially when it came to the federal judiciary. How Thomas Jefferson or Alexander Hamilton would have felt about Senate filibusters against judicial nominees we can only speculate, as the filibuster wasn't introduced until 1825.
But as for denying money to or dismantling courts, historians can speak with far greater authority. This is because we are witnessing a re-enactment of a historic drama that unfolded two centuries ago, shortly after Thomas Jefferson's election as president.
First some background. At the time of the Constitutional Convention, it was widely assumed that the judiciary would be the feeblest branch of government. The very order of the Constitution's articles - with the legislature covered in Article 1, the executive in Article 2, and the judiciary in Article 3 - tacitly underscored the presumed order of importance.
This didn't please everyone, especially New York's legal wunderkind and the impresario of The Federalist Papers, Alexander Hamilton. In Federalist No. 78, he fretted that the judiciary "has no influence over either the sword or the purse ... and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." In No. 79, he brooded about abuses that might arise from legislative tampering with judges' salaries. "In the general course of human nature," he wrote, "a power over a man's subsistence amounts to a power over his will."
To offset these handicaps, Hamilton endorsed the constitutional provision that federal judges should serve for life, subject to impeachment only for official misconduct, not for unpopular decisions: "The complete independence of the courts of justice is peculiarly essential in a limited constitution."
In the early years of the new government, many of Hamilton's forebodings about judicial weakness were realized. The Constitution had specifically called for a Supreme Court, but had left the formation of the lower courts to Congressional discretion. Congress dithered, and the Supreme Court justices had to endure the hardship of riding the circuit in the hinterlands for weeks or months each year, often spending more time on horseback than on the bench. This situation also placed them in the potentially awkward situation of having to listen to appeals of decisions by circuit courts on which they themselves had sat.
This disgraceful state was remedied at a most inauspicious moment: the interval between Thomas Jefferson's election as president and his taking office. The lame-duck Congress, still controlled by Hamilton's Federalist Party, passed the Judiciary Act of 1801, which created 16 circuit court judgeships. Jefferson's Republican Party blasted this as a last-minute, partisan maneuver, and with some justification: President John Adams, in his waning days in power, named a phalanx of Federalist judges to the posts. Adams had also appointed John Marshall, a distant relative and confirmed enemy of Jefferson's, as chief justice.
George Washington and Adams had been at least nominal Federalists, so President Jefferson and the new Republican-dominated Congress faced a judiciary under unanimous Federalist control. "The Federalists have retired into the judiciary as a stronghold," wrote an indignant Jefferson, "and from that battery all the works of republicanism are to be beaten down and erased."