Leading the charge against "activist" judges in the House, Texas Republican Tom DeLay is himself in danger of wrongheaded activism on this issue.
Taking steps to fulfill his promise that judges in the Terri Schiavo case would "answer for their behavior," majority leader DeLay last week asked the House Judiciary Committee to investigate federal court decisions related to the case, and come up with possible legislation. Mr. DeLay is furious with the judges for not intervening, calling the judiciary "out of control."
He may have since apologized for his "inartful" language, but he remains intent on bringing to heel judges who create laws from the bench, and who have ruled against social conservatives on such issues as having "under God" in the Pledge of Allegiance.
The Constitution gives Congress considerable power over the federal courts. But how it wields that power is something DeLay and and his colleagues should consider more deeply.
While he did not specify what kind of legislation the Judiciary Committee might come up with, DeLay pointed to past House legislation (it failed in the Senate) that would have broken up the liberal Ninth Circuit Court of Appeals, and removed federal courts' jurisdiction over certain issues such as the Pledge of Allegiance.
Perhaps DeLay was nonspecific because of existing legislation to restrict federal jurisdiction. The proposed Constitution Restoration Act - in both the House and Senate - would restrict federal courts from cases involving the acknowledgment of God. Violation of this and other provisions would be an impeachable offense. Indeed, a cry is rising among some conservatives for "mass impeachments" of judges who don't strictly interpret the Constitution.
Congress has rarely impeached a judge - only seven times in the nation's history, and mostly for crimes. To impeach judges for their interpretation of the Constitution would undermine the finality of the law, and reinforce the notion that there's always a way to get around a ruling one doesn't like. Such a practice would turn Congress itself into a court, violating the judiciary's independence, and prompting judges to look over their shoulder to consider what Congress might think of a ruling.
Congressional limiting of federal jurisdiction is also rare, concerning far less controversial subjects than God and the law (for instance, establishing a dollar threshold for certain cases to be heard). Meanwhile, barring an issue from federal courts simply shoves it down to the state courts.
The federal courts are not infallible. And they've had to take on more social issues because legislatures have failed, through extreme partisanship like DeLay's, to resolve these issues.
The way to address disappointment with judges is not through congressional activism, but through the usual mechanisms: proper vetting of judicial appointments and the election of able politicians who make and confirm those appointments.