Et Tu, Florida?

For half a century, a populist and intolerant strain of the far right complained that federal judges were sticking their noses where they didn’t belong. That included ordering Southern governors to admit black children to white schools and, more recently, overruling legislators who had decreed gay sex to be a crime. “Leave it to the states” long ago became a Republican mantra. Because the Constitution doesn’t explicitly mention abortion, school prayer or homosexuality, they said, let state legislatures and judges settle these issues. The assumption was, of course, that states would decide the “right” way.

That was before Terri Schiavo.

Last year, Congress debated stripping federal judges of the authority to decide cases involving the Pledge of Allegiance and Ten Commandments monuments. Resolutions were introduced directing judges not to consider how other nations have resolved questions such as whether 16-year-olds can be executed or gay people can have sex. In 2003, the president signed a requirement for federal judges to defend their sentencing decisions if Congress or the attorney general challenge them.

But once Massachusetts judges decided gay couples could marry, and their Florida colleagues cleared the way for the removal of Terri Schiavo’s feeding tube, states’ rights suddenly looked less like a sure thing to social conservatives -- especially now that they find themselves in charge in Washington. What Republicans once claimed as a principled belief, they dropped as fast as any other failed tactic.


With wailing protesters outside Schiavo’s hospice begging judges and lawmakers to “choose life,” Congress leaped to give Florida’s federal judges -- hopefully sympathetic appointees -- unprecedented new jurisdiction to consider whether Schiavo had been deprived of her constitutional rights.

Federal courts, from the trial court in Florida to the Supreme Court in Washington, didn’t take the hint -- they have sensibly declined to intervene. Their reluctance enraged elected officials.

In an interview with National Public Radio on Saturday, Rep. Steve King (R-Iowa) fumed: “The judicial branch is totally out of control. [It] rejects the Constitution and federal law. It’s time for Congress to assert authority over the federal courts.... We can limit jurisdiction, but I’m not sure that gets the job done. We could cut the [courts’] budget and prohibit the Justice Department from enforcing the orders of the court. When their budget dries up, we’ll get their attention. If we’re going to preserve our Constitution, we must get them in line.”

So much for the founding fathers’ bedrock belief in the separation of powers. Who knows, if both state and federal courts continue disappointing the far right by applying the law, maybe the Steve Kings and Tom DeLays of the world will advocate the creation of a whole new judiciary, a network of morality or religious courts that would have jurisdiction over pressing social issues.

The Republican Party is at a point where former Sen. John Danforth, in a commentary in the New York Times on Wednesday, charged that a conservative religious agenda has hijacked the GOP that he served most of his life. If the likes of King do not represent his party, it is time for other elected Republicans to speak up, not just grumble privately.