Well, let’s of course unleash the full fury of the academy on him.
But as for a political response, I think this is clearly an instance where we should employ the “Don’t Take the Bait” strategy I’ve been advocating for quite some time.
What are supposed to do, argue in favor of judges ignoring the will of the people? Make the case that judges shouldn’t be concerned with the will of the majority? Once again, for the millionth time, argue in favor of the rights of the minorities?
Can’t we see this one coming and avoid it? Are we truly Wile E. Coyote?
Let’s launch the “sore losers” meme, if you will. But let’s put it in a frame that has broad, unassailable support. For example, when discussing Mr. DeLay’s ideas, we can say,
“Judicial review and independence is part of our shared traditions as Americans and we certainly want no part of meddling with the system of checks and balances that has served us so well for over two centuries. Just because things don't go your way is no reason to cry foul and try to change the well-settled rules that all Americans support.”Now, was that so hard? And no matter what they say, just keep saying those words over and over. Let them explain Marbury to the American people.
At the same time, in the event there are other progressives who want to regain power, let me suggest that we need to demonstrate leadership on this. I’d like some enterprising politician out there (paging Democratic Congressmen, ambitious Democratic Congressmen) to propose a new federal initiative to adequately fund the courts in this country. After years of Republicans starving the courts, the time has arrived to provide the courts with the funding they need, for amongst other things, security. I believe we’ll have no trouble getting a whole gaggle of Republican judges on board this program. It should specify a large, inspiring amount of money ($5 billion, for example, over 3 years), and direct that the funds be used as directed by the US Judicial Conference, which is an administrative body within the judiciary. We should suggest that the funds be used of course to provide adequate security to all judges and judicial branch personnel, but also to allow for judges to study, to hold conferences, to get continuing judicial education, to hire and train adequate staff, and finally to computerize and open up technologically the US courts. Hell, I’d even mandate that we put cameras in the courts and make C-SPAN add C-SPAN IV. But that’s me – I actually like democracy.
If we got the Democratic machine on board, we could start to give reporters something to talk about besides how wonderful dear leader is. We could elevate judges at just the time the other side wants to reduce them formally to the role of lapdog. We could move off of the ridiculous “activist judges” meme, which is so ridiculous even I won’t bother explaining it again. At least not today.
Now there are potential pitfalls here. We might end up packing the federal courts with a whole bunch of newly created judgeships held by kooky Bushies. So be it. Isn’t that about where we are already? And when we regain control of the government, we can pack it right back. Truth is, judges are cheap in the scheme of things. We can always hire more.
So here’s the bottom line. Let the academy handle the defense of Marbury. They love that stuff. Democratic politicians should chastise Republicans for being sore losers and trying to re-write the rules that are part of our shared heritage thathas served us so well for over two hundred years. And some ambitious Democratic Congressmen should propose an initiative to save the judiciary by providing it with enough funding to Keep Our Judges Safe.