WASHINGTON -- Those who are shocked at the ideological vitriol spewed at the judiciary these days in the wake of the Terri Schiavo and other cases are either too young or too old to remember the "Impeach Earl Warren" billboards, signs and advertisements that were commonplace throughout much of the country nearly 50 years ago. In certain areas one could hardly drive 10 miles without bumping into some demonstration of hate for the third branch of government generally and the chief justice of the United States specifically.
Conservatives in Congress, both Republican and Southern Democrat, held Warren and his fellow members of the Supreme Court in about the same esteem as their current counterparts hold the federal courts today, even though Warren was a Republican appointee. The young editor of a backwoods Kentucky weekly remembers his shock during a town meeting when it was suggested that it would be a good idea to shoot liberal Justice William O. Douglas when he made a hiking trip through the county.
The difference was that in those days the leadership in both houses of Congress generally didn't join in the hysteria over the civil rights and criminal justice decisions like the Miranda ruling that were emanating from the courts of the 1950s and '60s.
Today, however, we have the majority leader of the House, Tom DeLay, issuing ominous remarks about what might occur to judges who don't understand their responsibilities in cases like Schiavo's. DeLay, who was at the center of the congressional intervention in the Schiavo case, seems to believe the legislation forcing the matter into the federal courts was a mandate for one judge or another to order restoration of Schiavo's feeding tube. In other words, here is what you're supposed to do whether that is the way you see it or not.
If there was any doubt about this attitude, it was dispelled when a spokesman for DeLay was quoted as saying that House Republicans feel that the courts ignored the intent of the Schiavo legislation and that this should be looked into by Congress.
It is anyone's guess how much of DeLay's angst over Schiavo is genuine or just a play to his ultra-conservative base both in and out of Congress, which he now needs if he is to survive an onslaught of ethical allegations. New questions about his dealings with lobbyists and about his campaign finance activities are growing daily including a revelation that he has paid his wife and daughter some $500,000 in campaign funds for their work on his reelection bids. It has not been lost on him that former House Democratic Speaker Jim Wright's forced resignation came about because of a lack of support from his party's liberal base.
Senate Majority Leader Bill Frist's defense of a "fair and independent" judiciary clearly seems to indicate a growing concern that DeLay and other Republicans who have been publicly grousing about the federal courts are in danger of going too far and that it would be well to begin distancing the party from what is being seen as an assault on the constitutional separation of powers. It also shows an understanding that there has been a public backlash to the Schiavo legislation and that if it were presented today, it would not pass. Liberal Democratic Rep. Barney Frank of Massachusetts predicted to a group of reporters recently that a new bumper sticker soon would emerge stating "Justice DeLayed is Justice Denied."
Frist also saw the need to head off the virile anti-judiciary tone in the House from efforts to find some way of ending Democratic filibusters against judicial nominees considered too conservative. If the anti-filibuster effort is seen as linked to an overall threat to the judiciary, any number of Republicans would not join in.
During the assault on Warren and his colleagues, mainstream GOP lawmakers kept the criticism from producing lasting repercussions by standing up to their Democratic counterparts mainly in the Senate where powerful Southerners tried desperately to scuttle civil rights legislation. Judges appointed by Republican President Dwight Eisenhower led the way in overturning years of segregation, acting fairly and independently as the Constitution intended them to.
Republicans with ideological axes to grind should remember this legacy and understand that pendulums swing back and forth both in the control of the Congress and in the philosophical nature of the courts.
X Dan K. Thomasson is former editor of the Scripps Howard.