American Taliban Study Article III

I am sure most of my readers have heard how Sen. Frist is planning on appearing via video at the fringe religious right meeting Sunday that is accusing Democrats and Reagan appointee Justice Kennedy as being "Against people of faith." And you probably have heard that the Senate Majority Leader who can't wait to step down to run for president is being admonished by leaders of his own faith-- Presbyterianism-- for linking arms with the American Taliban. That is, those religious leaders who want to rid our country of judges who don't look to the bible when deciding cases.

But what you might not know is that they are calling on Frist to eliminate the 9th circuit (I assume they mean the court of appeals and not the entire circuit, but who knows) and/or strip funding for any non-Christian fundamentalist federal judges. Family Research Council founder James C. Dobson explained his Article III scholarship thusly "Very few people know this, that the Congress can simply disenfranchise a court," Dobson said. "They don't have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th Circuit doesn't exist anymore, and it's gone." Tony Perkins, also of FRC, chimed in noting "There's more than one way to skin a cat, and there's more than one way to take a black robe off the bench," Perkins added What they're thinking of is not only the fact of just making these courts go away and re-creating them the next day but also defunding them." House Majority Leader Tom DeLay, the ethically challenged insect exterminator, is pointing his spray at the Judiciary as well. "We set up the courts. We can unset the courts. We have the power of the purse."

The Ninth Circuit does some wacky things and is probably the most overturned circuit out there, but they also have about twice the caseload any other circuit. Getting rid of their funding, or worse yet, getting rid of the circuit all together, would be a disaster. I am down with splitting the circuit, like they did for the 4th and 11th, which would allow Bush even to appoint more judges but reduce the case load of the 9th [my plan would be to split it North-South, with SoCal staying with Arizona et al and Northern Cal staying with Alaska and Idaho and co.]

If getting rid of the filibuster for judicial appointees is the "Nuclear Option," then getting rid of the district and appellate courts is the "Nuclear Winter Option."© [Third Avenue, 2005] Now their plan would be to eliminate the lower courts one day, and the next recreate it so that Bush could replace the entire bench, of say the 9th circuit. But why should the power hungry stop there, why not the entire judiciary save the Supreme Court, which was created by the Constitution, not by the Judiciary Act of 1792?

This possibility, while remote due, scared me enough during Civil Procedure last semester to repeatedly ask my professor if it really was theoretically possible. He said yes, but doubted anyone would have the political power to do such a thing, comparing it to FDR's court packing scheme after winning reelection in 1936.

I almost think this is worse than adding 6 new justices. The vast majority of cases in the Federal system are decided at the district court level, and most of the rest are decided by the appealate courts. Only a tiny number of cases are even heard by the US Supreme Court's writ of Certiorari and limited Jurisdiction. The basic idea behind the Family Research Council's plan has been tried before by Jessie Helms, who tried to strip the federal court's jurisdiction from hearing school busing/desegregation claims, school prayer cases, flag burning, and pledge of allegiance cases. All failed to pass the Senate.

Such neutering of the judiciary would make it possible for Congress or the states to pass an unconstitutional law but give injured parties virtually no avenue to vindicate their claims. Sure, state courts could hear some of the claims but their decisions are not binding on other states or the federal government’s actions.

Even think they doubt that they will succeed in completing the Nuclear Winter Option. All this is really just a base rally, a warm up for the real battle royal this summer: replacing Chief Justice Rehnquist [and possibly naming a CJ out of the current court, a.k.a Scalia or Thomas]. "Folks, I am telling you all that it is going to be the mother of all battles," Dobson predicted at the March 17 meeting. "And it's right around the corner. I mean, Justice Rehnquist could resign at any time, and the other side is mobilized to the teeth." They don't just want a anti-Roe judge or a generally conservative judge like Scalia. They want a 19th century justice who will look at every case asking not WWJD, but WWFRCD [what would the Family Research Council Do?] and reinstate the "Constitution in Exile."

What they don't realize is that if all this were explained to Americans, the vast majority of them would not go along with Dobson's plan or appointees. People love Social Security and the New Deal reforms that brought about government oversight, civil rights, workers rights, and environmental protection. These guys basically advocating to build a way back machine that would magically transport us to 1937, or even further back to when judicial opinions cited King James [version of Bible] more than James Madison to justify their actions.