One of the crucial requirements for the success of fascist and authoritarian political movements is to undermine the rule of law, and perhaps the most crucial component of the rule of law is an independent judiciary charged with reviewing the actions of the other branches of government in light of pre-existing, authoritative norms. The Nazis understood this well, as we noted on a prior occasion:
One of the most dramatic consequences [of the Nazi seizure of power] was in the judicial arena. Shirer points out, 'Under the Weimar Constitution judges were independent, subject only to the law, protected from arbitrary removal and bound at least in theory by Article 109 to safeguard equality before the law.' In fact, in the Reichstag terrorist case, while the court convicted van der Lubbe of the crime (who was executed), three other defendants, all communists, were acquitted, which infuriated Hitler and Goering. Within a month, the Nazis had transferred jurisdiction over treason cases from the Supreme Court to a new People’s Court, which, as Shirer points out, 'soon became the most dreaded tribunal in the land. It consisted of two professional judges and five others chosen from among party officials, the S.S. and the armed forces, thus giving the latter a majority vote. There was no appeal from its decisions or sentences and usually its sessions were held in camera. Occasionally, however, for propaganda purposes when relatively light sentences were to be given, the foreign correspondents were invited to attend....'
"In addition to the People’s Court, which handled treason cases, the Nazis also set up the Special Court, which handled cases of political crimes or 'insidious attacks against the government.' These courts 'consisted of three judges, who invariably had to be trusted party members, without a jury. A Nazi prosecutor had the choice of bringing action in such cases before either an ordinary court or the Special Court, and invariably he chose the latter, for obvious reasons. Defense lawyers before this court, as before the Volksgerichtshof, had to be approved by Nazi officials....'
Unsurprisingly, an attack on the independent judiciary has become a major agenda item for the authoritarian elements in the Republican Party, especially the aspiring theocrats. Attempts to restrict the jurisdiction of the courts, to appoint no one other than party and ideological loyalists regardless of qualifications to the bench, and to threaten removal or impeachment of judges who defy the Republican juggernaut are now all increasingly common policy items for the fascist and theocratic right in America.
The situation has degenerated so much that Chief Justice Rehnquist--a staunch conservative, but someone who, after more than three decades on the bench, has some regard for rule of law values--has made these attacks a focal point of what is likely his last year-end report.
Chief Justice William H. Rehnquist, delivering his 19th and most likely his last year-end report on the federal judiciary, returned on Friday to one of his longtime themes: a need to safeguard the independence of federal judges from intrusive Congressional oversight.
Criticism of judges and their decisions "is as old as our Republic" and can be a healthy part of the balance of power between the branches, the chief justice said in remarks issued by the court's press office. But he added that criticism from Congress had "in the eyes of some taken a new turn in recent years" - an oblique locution that nonetheless left no doubt that he himself was among those discerning a new and disturbing twist to the attacks.
Chief Justice Rehnquist mentioned a measure Congress passed in 2003 requiring special scrutiny of judges who issue sentences shorter than those called for by the federal sentencing guidelines. In his year-end report last year, the chief justice said this approach "could appear to be an unwarranted and ill-considered effort to intimidate individual judges."
This year he took account of more recent developments: "There have been suggestions to impeach federal judges who issue decisions regarded by some as out of the mainstream. And there were several bills introduced in the last Congress that would limit the jurisdiction of the federal courts to decide constitutional challenges to certain kinds of government action."
There have been calls in Congress to strip the federal courts of jurisdiction to hear challenges to the phrase "under God" in the Pledge of Allegiance, to the display of the Ten Commandments on government property and to the Defense of Marriage Act, a federal law that permits states to withhold recognition of same-sex marriages performed in other states.
On another front, a resolution with dozens of sponsors was introduced in the House last spring criticizing the Supreme Court for citing foreign legal authority in several recent decisions. The court has mentioned foreign law in such rulings as those striking down capital punishment for the mentally retarded and invalidating the Texas criminal sodomy statute.
The House measure, the Reaffirmation of American Independence Resolution, declared that "inappropriate judicial reliance on foreign judgments, laws or pronouncements threatens the sovereignty of the United States, the separation of powers and the president's and the Senate's treaty-making authority."
Justice Sandra Day O'Connor, addressing a judicial conference in California six months ago, called the resolution "very worrisome" and said the relationship between Congress and the federal courts was "more tense than at any time in my lifetime."
Representative Tom Feeney, a Florida Republican who was one of the resolution's main sponsors, said when he introduced it that judges who based decisions on foreign precedents would risk the "ultimate remedy" of impeachment.
Chief Justice Rehnquist said in his report on Friday that it had been clear since early in the country's history that "a judge's judicial acts may not serve as a basis for impeachment."
"Any other rule," he added, "would destroy judicial independence," since "judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."
How familiar Representative Feeney would have been to Herr Goering.
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