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Sapere aude - dare to be wise
Saturday, March 26, 2005
Politics, Schiavo, and the rule of law
Posted 6:17 PM by Luke
Some have questioned the alleged political motivation behind the congressional GOP's efforts to reinsert Terri Schiavo's feeding tube: if a vast majority of Americans oppose reinserting the tube, then how can their efforts be politically motivated?

I have one theory, supported by some recent developments, which speaks directly to the rule and legitimacy of law in this nation. Republican legislators have done pretty much everything in their power, short of open defiance of court orders, to get the feeding tube reinserted. And when Terri dies, they can shout at the top of their lungs: 'look at these activist judges with all this power! they are out of control!'

Look at the Terri Schiavo Act passed last week. It was publicized as intending to change the jurisdiction of the case, such that a federal district judge could hear the case. Now that that tactic failed, and judges consistently affirmed lower court decisions, the congressional GOP leadership did a 180 and suddenly proclaimed yesterday that the law they passed was intended not just to change the jurisdiction but actually to ORDER the reinsertion of the feeding tube.

Forget for a moment that if this really were the intention, that the law would have been blatently unconstitutional. The problem is that this new intention arose from thin air--why? So the GOP can yell: 'damn activist judges ignored our law.'

Republicans are upset, justifiably so to a large extent, that too many justices have ruled from an aspirational and not a traditional/textual philosophy, and that this is tantamount to legislating from the bench. But the manner and rhetoric many of them use to attack the judiciary, now, is injuring the legitimacy of the court and the rule of law. Have we forgotten that last year the House GOP passed a law that would have removed the Defense of Marriage Act from the Supreme Court's jurisdiction? And a few weeks ago, Sean Hannity was showing off some dude who advocated putting term limits on supreme court justices.

Too many in the public see the courts, the Supreme Court included, as bodies that should carry out their wishes, should make policy. Judicial aspirationalism itself is partly to blame for this attitude, but the latest GOP attacks on the court are perpetuating it.

Tis so short-sighted of them.

[listen to my thoughts on the Republicans attack on the Constitution in this audio post from last year]

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