Supreme Court Justice Anthony M. Kennedy is a fairly accomplished jurist, but he might want to get himself a good lawyer -- and perhaps a few more bodyguards.
Conservative leaders meeting in Washington yesterday for a discussion of "Remedies to Judicial Tyranny" decided that Kennedy, a Ronald Reagan appointee, should be impeached, or worse.
Phyllis Schlafly, doyenne of American conservatism, said Kennedy's opinion forbidding capital punishment for juveniles "is a good ground of impeachment." To cheers and applause from those gathered at a downtown Marriott for a conference on "Confronting the Judicial War on Faith," Schlafly said that Kennedy had not met the "good behavior" requirement for office and that "Congress ought to talk about impeachment."
Next, Michael P. Farris, chairman of the Home School Legal Defense Association, said Kennedy "should be the poster boy for impeachment" for citing international norms in his opinions. "If our congressmen and senators do not have the courage to impeach and remove from office Justice Kennedy, they ought to be impeached as well."
Not to be outdone, 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." Presumably, Vieira had in mind something less extreme than Stalin did and was not actually advocating violence. But then, these are scary times for the judiciary. An anti-judge furor may help confirm President Bush's judicial nominees, but it also has the potential to turn ugly.
A judge in Atlanta and the husband and mother of a judge in Chicago were murdered in recent weeks. After federal courts spurned a request from Congress to revisit the Terri Schiavo case, House Majority Leader Tom DeLay (R-Tex.) said that "the time will come for the men responsible for this to answer for their behavior." Sen. John Cornyn (R-Tex.) mused about how a perception that judges are making political decisions could lead people to "engage in violence."
"The people who have been speaking out on this, like Tom DeLay and Senator Cornyn, need to be backed up," Schlafly said to applause yesterday. One worker at the event wore a sticker declaring "Hooray for DeLay."
The conference was organized during the height of the Schiavo controversy by a new group, the Judeo-Christian Council for Constitutional Restoration. This was no collection of fringe characters. The two-day program listed two House members; aides to two senators; representatives from the Family Research Council and Concerned Women for America; conservative activists Alan Keyes and Morton C. Blackwell; the lawyer for Terri Schiavo's parents; Alabama's "Ten Commandments" judge, Roy Moore; and DeLay, who canceled to attend the pope's funeral.
The Schlafly session's moderator, Richard Lessner of the American Conservative Union, opened the discussion by decrying a "radical secularist relativist judiciary." It turned more harsh from there.
Schlafly called for passage of a quartet of bills in Congress that would remove courts' power to review religious displays, the Pledge of Allegiance, same-sex marriage and the Boy Scouts. Her speech brought a subtle change in the argument against the courts from emphasizing "activist" judges -- it was, after all, inaction by federal judges that doomed Schiavo -- to "supremacist" judges. "The Constitution is not what the Supreme Court says it is," Schlafly asserted.
Former representative William Dannemeyer (R-Calif.) followed Schlafly, saying the country's "principal problem" is not Iraq or the federal budget but whether "we as a people acknowledge that God exists."
Farris then told the crowd he is "sick and tired of having to lobby people I helped get elected." A better-educated citizenry, he said, would know that "Medicare is a bad idea" and that "Social Security is a horrible idea when run by the government." Farris said he would block judicial power by abolishing the concept of binding judicial precedents, by allowing Congress to vacate court decisions, and by impeaching judges such as Kennedy, who seems to have replaced Justice David H. Souter as the target of conservative ire. "If about 40 of them get impeached, suddenly a lot of these guys would be retiring," he said.
Vieira, a constitutional lawyer who wrote "How to Dethrone the Imperial Judiciary," escalated the charges, saying a Politburo of "five people on the Supreme Court" has a "revolutionary agenda" rooted in foreign law and situational ethics. Vieira, his eyeglasses strapped to his head with black elastic, decried the "primordial illogic" of the courts.
Invoking Stalin, Vieira delivered the "no man, no problem" line twice for emphasis. "This is not a structural problem we have; this is a problem of personnel," he said. "We are in this mess because we have the wrong people as judges."
The religious right worked itself into a righteous fury at "Justice Sunday," using the stalemate over judges to tar Democrats as enemies of God.
By Michelle Goldberg
April 25, 2005 / One of the most telling moments of Sunday night's Justice Sunday rally and telecast came right after Bill Donohue, president of the Catholic League for Religious and Civil Rights, bellowed, "We will be disobedient altar boys! We won't be told to shut up and give it over to the secular left! Who are they to say that I don't have a right to freedom of speech?"
At the rally, held at Highview Baptist Church in Louisville, Ky., the crowd jumped to its feet, whistling and clapping. In the small Long Island, N.Y., Christian youth center where I watched Justice Sunday with a dozen or so believers, people murmured their assent, as if Donohue had bravely spoken truth to power. Apparently, many ordinary Christians believe that some nefarious "they" is saying that believers don't have a right to freedom of speech.
Almost everything uttered at the rally stoked this deeply held feeling of persecution, giving a righteous cast to some of the speakers' vows of vengeance. "Those people on the secular left, they say, 'We think you're a threat,'" said Donohue. "You know what? They're right." This brought laughter, and more cheers.
The message of Justice Sunday was that the Senate's filibuster of some of Bush's judicial nominees constitutes discrimination against "people of faith." Senate Majority Leader Bill Frist, who delivered a speech by video, tried to distance himself from this inflammatory assertion, but his participation spoke much louder than the wan caveats offered in his remarks. He lent his authority and credibility to the parade of right-wing celebrities who are using the parliamentary stalemate over judges as an excuse to tar Democrats as, essentially, enemies of God.
Thousands crowded the megachurch in Louisville, while others watched via satellite in hundreds of churches nationwide. Still more tuned in online and through Christian TV and radio. They heard from Focus on the Family's James Dobson, the Family Research Council's Tony Perkins, Watergate felon turned evangelist Chuck Colson and a handful of others.
For an hour and a half, these right-wing eminences spun a political line that was blithely untethered from reality. Priscilla Owen, for example, one of Bush's blocked judges, was held out by Frist as a jurist admired across the partisan spectrum. No mention, of course, was made of the words of one of her colleagues on the Texas Supreme Court, who accused her of an "unconscionable act of judicial activism" in a case dealing with a minor seeking an abortion. The godless leftist who hurled this charge was none other than Alberto Gonzales, now the attorney general.
In one case in which Owen dissented from the majority of the court in an abortion case, her colleagues, Republicans all, wrote that opposition to abortion "does not excuse judges who impose their own personal convictions into what must be a strictly legal enquiry."
What's fascinating, then, is that Owen, a judge known to put her politics before the law, is being held up as the cure for a supposedly ideological judiciary. For the orators at Justice Sunday, judicial activism in defense of biblical literalism is no vice.
Al Mohler, president of the Southern Baptist Theological Seminary, angrily recalled something that Judge Charles Pickering, one of the appellate court nominees that Democrats blocked, was asked during his hearings. "He was asked about something he said as president of the Mississippi Baptist Convention. He said, of all things, that Christians ought to base their decision making on the Bible ... that is normative Christianity! There's what it means to be a believer in the Lord Jesus Christ and to be a Christian incorporated into the body of Christ!"
Of course, the concern about Pickering's comment at the hearings had to do with the implication that when the law contradicts his reading of the Bible, he sets the law aside. In the rhetoric surrounding Justice Sunday, though, expecting judges to put the law before their personal theology constitutes discrimination that threatens all Christians. "If it's Judge Pickering now, it can be you tomorrow," Mohler warned.
The language on Sunday was consistently apocalyptic. Dobson, the avuncular culture warrior, declared, "I think this is one of the most significant issues we've ever faced as a nation, because the future of democracy and ordered liberty actually depends on the outcome of this struggle." After all, the Supreme Court is responsible for "the biggest holocaust in world history" -- the legalization of abortion. "For 44 years, the Supreme Court has been on a campaign to limit religious freedom," Dobson said. He continued, "We do have a right to participate in this great representative form of government." From the way the crowd cheered, you'd have thought someone had told them they didn't.
Conflating the right to participate with the right to evangelize, Mohler said, "We are not calling for people to be moral, we want them to be believers in the Lord Jesus Christ."
That's a valid position for a religious figure to take, perhaps, but since Mohler also argued that Christians can't separate their public responsibilities from their spiritual obligations, it seemed as if he was arguing for the right of judges to impose Christianity. If so, the real problem isn't discrimination against "people of faith." It's the claim that "people of faith" have the right to discriminate.
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About the writer Michelle Goldberg is a contributing writer to Salon. She is working on a book about America's culture war to be published next year by W.W. Norton.
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