April, 2005

The reason our Founding Fathers devised such absolutely clear and simple firewalls between the executive, legislative and judicial branches of government is that they knew each would hate the other most of the time. If any advantage accrued to one over the others the whole democratic experiment would be called because of rain.

They didn’t take this lightly. They were adamant. These separations are the very legs upon which stands American government and fortunately for our history, three-legged stools don’t wobble . . . can’t wobble by their very design.

Liberals and conservatives bark at each other constantly over which of them have an unfair advantage in the courts and the public patiently hopes for balance. Amazingly, what has come out of a half century of mostly Republican legislative control and corresponding judicial appointment is balance. The best evidence of that is how unhappy everyone is, conservative and liberal alike.

In a good many cases, strange things happen when a newly appointed judge slips the robe on for the first time, not the least of which is a sense of awe at the responsibility. Gazing out across his (or her) first courtroom, personal belief and prejudice are apt to be set aside for any of three compelling reasons; 1) a respect for the constitution under which we are governed, 2) the desire to be seen as fair in the eyes of defense and prosecution and 3) the hope that decisions will not be turned over at appeal. Those are certainly checks and balances as well.

I suspect that’s the overriding judicial philosophy that tripped up the silliness of the political right in the Terry Schiavo debacle. A long list of conservative judges at both state and federal level thought the various legislative branches of state and federal government had lost its marbles.

Tom DeLay, in a frantic effort to author another Newt-like contract with America, has ill-advisedly come out swinging against activist judges and suggests that it is time for Congress put a stop to it, whatever that means. Cutting to the chase, Republicans backing DeLay don’t much like what their own judges think of the evangelical right social agenda that many of them see as their voter base.

Disenchanted with the constitutional separations between church and state, the more radical among them would change the judges if they can’t change the law.

The American voter doesn’t much hold with that strategy and DeLay would be well advised to read up on Newt Gingrich’s fall from grace. From tall in the saddle to flat on the ground didn’t happen incrementally to Newt, it was all one horrendous stumble and hubris is what got him there. Hubris is defined as overbearing pride or presumption and it comes from politicians listening too intently to those who think exactly like themselves. Hubris lost John Kerry an election and he deserved to lose it.

Fund raisers and town hall meetings where the attendance is stacked are great for the ego, but they obscure the possibility that half the actual voters out there may not agree. It’s not wise to get caught off-base with your base and a proportion of Tom DeLay’s base think he’s in over his head on this issue. Whether that’s a Gingrich proportion or not remains to be seen but the Dems are putting up a serious candidate in Tom’s district and he may find that his unassailable seat is assailable.

Getting slapped by the judiciary can be painful and embarrassing, but a useful wake-up call. Slapping back seldom proves anything beyond one’s incapacity to govern.

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