Caught up in the tide

After all that talk about "black-robed tyrants" and hints that any violence directed their way might be well earned, the prominent Republicans involved in the new right-wing attack on the judiciary backed down -- a bit -- at "Justice Sunday" last weekend.

Bill Frist did his best to sound moderate, especially after his earlier intemperate remarks about Democrats attacking "people of faith". I guess when people like Ted Olson and Charles Krauthammer are telling you that this whole line of attack is a bad idea, Republican leaders have decided to step back from the brink and reconsider where their old friends on the extremist right are carrying them.

There's one little problem, though: They're too late. They've created a beast they think they can control. I wonder if they're about to get a rude awakening.

No doubt a lot of their hesitation has to do with the kind of image the Republicans have gotten out of their association with the extremists driving the attacks on the judiciary, from Terri Schiavo to "Justice Sunday." That is, they're beginning to look a lot like the folks with their eyes rattling around in their sockets screaming for Judge Greer's scalp.

Columns like Colbert King's in the Washington Post probably helped:

The statement by one of the sponsors of tomorrow's event, Tony Perkins, president of the Family Research Council, is an example of the Holy War that is being launched by the right. In one of the most outrageous smears to be uttered by a so-called religious leader, Perkins said that "activist courts, aided by liberal interest groups . . . have been quietly working under the veil of the judiciary, like thieves in the night, to rob us of our Christian heritage and our religious freedoms." That is an unmitigated lie that should not be allowed to stand.

Which judges are out to rob Christians of their heritage? That is religious McCarthyism. Perkins should name them, provide evidence of their attempted theft of "our Christian heritage" or retract that statement with an apology. Don't count on that happening.

Of course, it didn't happen. As Max Blumenthal reported in The Nation, the conference -- Frist's seeming meekness notwithstanding -- was a wall-to-wall attack upon the integrity of the judiciary. Moreover, Perkins was in fact the figure who benefited most from the attention lavished upon the conference by ostensibly "mainstream" Republicans like Frist:

Four years ago, Perkins addressed the Louisiana chapter of the Council of Conservative Citizens (CCC), America's premier white supremacist organization, the successor to the White Citizens Councils, which battled integration in the South. In 1996 Perkins paid former Ku Klux Klan Grand Wizard David Duke $82,000 for his mailing list. At the time, Perkins was the campaign manager for a right-wing Republican candidate for the US Senate in Louisiana. The Federal Election Commission fined the campaign Perkins ran $3,000 for attempting to hide the money paid to Duke.

It also became clear that Perkins has national aspirations, and intends to use the anti-judiciary campaign as his springboard:

On Justice Sunday, Perkins introduced Frist as "a friend of the family." "I don't think it's radical to ask senators to vote," Frist said from a giant screen above the audience. "Only in the United States Senate could it be considered a devastating option to allow a vote." His face then disappeared, and Perkins returned onstage to urge viewers to call their senators.

But there is more at stake here than the fate of the filibuster. With Justice Sunday, Perkins's ambition to become a national conservative leader was ratified; Bill Frist's presidential campaign for 2008 was advanced with the Christian right; and the faithful were imbued with the notion that they are being victimized by liberal Democratic evildoers.

Of course, a claim of persecution and martyrdom is central to the campaign. Christians are being singled out and persecuted for their beliefs, "Justice Sunday" believers were told time and again. The federal judges being filibustered by Democrats were chosen just because they were Christians, they were told. See, for instance, the sympathetic report at the Baptist Press site on the speech by R. Albert Mohler of the Southern Baptist Theological Seminary, in which he described nominee Charles Pickering as just such a victim:

The Senate Judiciary Committee thought Pickering was radical because he believes Christians should base their worldview on the teaching of Scripture, Mohler said. Senators who opposed Pickering focused on comments he made while serving as president of the Mississippi Baptist Convention.

"That (Pickering's view) is normative Christianity," Mohler said. "That is what it means to be a believer in the Lord Jesus Christ and to be a Christian incorporated into the body of Christ and to be a faithful believer in the church.

"He (Pickering) was speaking as a Christian to fellow Christians about our Christian responsibility, but in the views of some radical secularists, that invalidates him from serving on the federal bench. And we as Americans had better hear that as a wakeup call because if it is judge Pickering now, it will be you and me tomorrow."

Of course, what Mohler describes has little to do with why Pickering's nomination was held up. As I've explored a couple of times, the problems with Pickering's appointment had a great deal more to do with the tremendously bad judgment he has displayed in several key cases, including a cross-burning case that reverberated with his past connections to white citizens' councils -- not to mention his less-than-forthcoming testimony on those subjects.

But hey, a few facts never stood in the way of a good martyrdom story before, so why stop now?

But as Blumenthal describes, there is indeed a great deal at stake: namely, the very shape of jurisprudence itself, which would be transformed by these religious fundamentalists into a kind of legal fundamentalism. It would have dramatic ramifications for Americans across a broad variety of issues from gay rights to abortion to birth control to scientific research to basic matters of privacy, perhaps even to segregation -- and ultimately, for the heart of their campaign, the separation of church and state.

See, for instance, these key passages from the BP News story:

Mohler singled out two pivotal cases from the past 35 years: the 1973 Roe v. Wade case, which established a "constitutional right" for abortion on demand, and the 2003 Lawrence v. Texas case, in which judges overturned anti-sodomy laws.

"[Roe v. Wade] was a wakeup call for Americans to say, 'Now wait a minute; there is nothing in the Constitution about abortion.' By no stretch of the imagination did the founders of this nation and the framers of that document intend for anyone to be able to read those words and find a right to kill unborn children," he said.

" ... [And] does anyone believe that the framers of our Constitution intended for [a constitutional right to practice sodomy] to be there? By no means. If it's not there, how did the court decision get there? By reading into the Constitution what they wanted to find, which isn't there but is constructed there by expanding the Constitution by reinterpretation."

Mohler said that Christians, above all people, should understand the importance of a strict interpretation of the Constitution because of the way in which some have twisted the Bible to "say what it doesn't mean."

"We have seen that pattern (of distorting Scripture)," he said. "God's people have had to learn to discern and say 'no, the text is the inerrant and infallible Word of God. It is what God said it is.' But now there are judges who are using the same exercises of interpretation to find in the Constitution of the United States what is not there."

Now, as I've argued previously, the "strict construction" of which fundamentalists are so enamored is nothing but a new name for old-style "formalism," the approach to jurisprudence that wrought such exemplars of the law as Dred Scott and Plessy v Ferguson. As such, its ramifications for American law could be profound, since widespread adoption would mean overturning an entire slate of progressive innovations of the 20th century and return us to the bad old days of the late 19th century, when robber barons ruled the land.

At the Family Research Council's own site, one can get a sense that just such a radically reactionary course is what they have in mind:

Q -- How have activist judges abused their power?

A -- Judges are abusing their power if they read into the Constitution principles that are not declared by the plain language of the Constitution. For example, the First Amendment says, "Congress shall make no law respecting an establishment of religion." But nowhere does it say that there should be a strict "separation of church and state" at all levels of government, barring any acknowledgment of God. The decision legalizing abortion was based on the "right to privacy" -- but no such right is declared in the Constitution.

That response should make clear the two issues, above all, that are directly in the sights of the religious right:

1. The separation of church and state.

2. The right to privacy.

Of course, most Americans tend to take a right to privacy for granted, but little realize that it exists almost solely, according to Supreme Court rulings, as a Ninth-Amendment "natural right" not enumerated by the Constitution, or as a "penumbra" of other rights that have been written out.

Likewise, they understand that "separation of church and state" -- like "religious freedom" -- exists as a principle of the Constitution, even though the phrase doesn't appear written there. (The educated among us are even aware of the use of the phrase by founders Thomas Jefferson and James Madison in later explanatory letters.)

But what they little understand, for now, is that those rights are in the gunsights of the religious right -- and they are zeroing in even now.

The more thoughtful conservatives remaining in Republican ranks may hesitate for now. But the religious right has built up its impetus, and it seems unlikely that the GOP, in the end, will be able to resist going along for the ride.