In what may be a coming trend, two right wing organizations have broken ranks with Republicans and are urging the defeat of the nuclear option and retention of the filibuster. They are the Gun Owners of America and the National Right to Work Committee.

[Note: All sources listed below are available on Lexis.com.]

The Gun Owners of America, which has strong libertarian leanings, has broken ranks before. It opposed the Patriot Act, and in particular, sneak and peek searches. [The National Journal November 3, 2001]. In 1998, it opposed Sen. Jeff Sessions ill-conceived and Dickensian juvenile crime bill, S. 10, that was proposed in response to the Arkansas school shootings that year. [Legal Times, March 30, 1998]

The group was an invaluable ally of defense lawyers when we were fighting for reform of the civil asset forfeiture laws and when we battled Newt Gingrich's Contract on America, specifically, the provision that would have made a good-faith exception for warrantless searches and seizures. It co-signed a letter saying:

by TChris

Sounding the alarm against right-wing attacks upon an independent judiciary -- attacks disguised as righteous reaction to judicial activism -- is this piece in Salon.

[T]he Schiavo case presents an opportunity to stem what conservatives frequently call an "out-of-control" judiciary. By "out of control," they mean out of their control; in the Schiavo case, after all, we saw two branches of the federal government succumb to the will of this savvy minority, while a third branch remained determinedly out of reach. Now that third branch is under attack. It is far from clear that the judiciary will survive unscathed.

Who are these activist judges?

Justice Kennedy is in the cross-hairs of the radical right.

Conservative leaders meeting in Washington yesterday for a discussion of "Remedies to Judicial Tyranny" decided that Kennedy, a Ronald Reagan appointee, should be impeached, or worse.

by TChris

In 1996, Washington Supreme Court Justice Richard Sanders attended and spoke at a right-to-life rally. The State's Judicial Conduct Commission investigated, but Justice Sanders wasn't sanctioned.

Justice Sanders was sanctioned, however, after he "took an educational tour of the treatment facility for violent sexual predators at the McNeil Island Special Commitment Center." The Commission suggested that Justice Sanders called into question his ability to be impartial by speaking to inmates who had cases pending before the court. It's unclear, however, whether those conversations had anything to do with the pending cases.

Why was discipline imposed in the latter case but not the former?

Sanders immediately branded Friday's decision "bizarre." The 59-year-old Libertarian-leaning justice, who often is a lightning rod for criticism from prosecutors on his individual rights rulings, said the case resulted from people who have been gunning for him politically.

by TChris

More ominous words from Tom DeLay as he continues his effort to distract the nation from his ethical lapses. Preaching to the conservative choir at a conference entitled “Confronting the Judicial War on Faith,” DeLay announced (via videotape) that "Judicial independence does not equal judicial supremacy," adding:

"I believe the judiciary branch of our government has overstepped its authority on countless occasions, overturning and in some cases just ignoring the legitimate will of the people."

Substitute “the right-wing agenda” for “the legitimate will of the people” to make the statement slightly more accurate. Of course, the Constitution’s Supremacy Clause requires courts to honor the Constitution when it is “the will of the people” to disregard it, a foundational principle of our country that DeLay and his ilk choose to ignore.

Press Release From Office of Senator Harry Reid, regarding the petition drive by Coalition for a Fair and Independent Judiciary:

One million Americans Wednesday petitioned their Senators to stand up against any attempt to circumvent our government’s checks and balances and silence debate in the U.S. Senate. The petitions against the proposed “nuclear option” were presented to Senate Democratic Leader Harry Reid on the steps of the Supreme Court, and later delivered to targeted Senate offices on Capitol Hill.

“Today, over one million Americans have spoken with one voice against the arrogance of power in Washington,” said Reid. “They’ve told the Republican Party loud and clear to stop any attempt to abuse their power and silence Senate debate.”

by TChris

With armed vigilantes making headlines, it may not be surprising that right-wing politicians find it understandable that judges who disagree with their extreme views might become targets of violence. Not surprising, but still shocking.

Earlier this week, TalkLeft called attention to Senator Cornyn's distressing claim that courthouse violence is caused by frustration with activist judges.

The frustration "builds up and builds up to the point where some people engage in" violence, said Mr. Cornyn, a former member of the Texas Supreme Court who is on the Senate Judiciary Committee, which supposedly protects the Constitution and its guarantee of an independent judiciary.

As the New York Times editorially opines today, "when a second important Republican stands up and excuses murderous violence against judges as an understandable reaction to their decisions, then it is time to get really scared."

CBS Legal Analyst Andrew Cohen writes in the Denver Post of the madness of the Terri Schiavo case and the blood libel of the radical right in trying to blame judges for her death. He has done an outstanding job in commenting on this case since the beginning.

First, on Christians and Schiavo:

This madness was so palpable, the raw emotion was so high, that we saw and heard Schiavo compared to Jesus Christ. This is not as surprising as it may seem at first. According to a new Newsweek poll, 78 percent of Americans today believe that Christ rose from the dead and no doubt many in that number believed, in spite of the best medical evidence to the contrary, that Terri Schiavo eventually could have and would have actually improved after living 15 years in a persistent vegetative state. This mystical gloss on secular reality shone even more brightly because the apex of the case occurred over Easter weekend, with all it connotes about life, death, miracles and God.

Congress returns from its Spring Break this week, and among the hot topics will be the Republican attempt to end filibusters over judicial nominations by instilling the nuclear option. Lots of lobbying money will be spent on both sides. Here's what the Democrats have planned:

The liberal group People for the American Way said it was spending $5 million on television advertisements. On Tuesday, the Alliance for Justice will begin running commercials in which an animated character, Phil A. Buster, asks viewers to help "save checks and balances." MoveOn.org is already running ads, and Mr. Kerry's re-election committee will start a newspaper advertising campaign on Tuesday.

by TChris

TalkLeft has frequently written in opposition to the "nuclear option" -- the Republican threat to change the Senate rules to eliminate the filibuster. (Previous posts are here, here, here and here.) The president and some Senate Republicans are unhappy that ten unqualified candidates for federal judgeships were blocked during the president's first term, notwithstanding the 200-plus nominees who were confirmed. If they can't have their way, every time, they throw a tantrum.

The NY Times editorial page today, as it has in the past, takes a stand against the nuclear option.

Many of the wisest Republicans are well aware that their leaders are playing a dangerous game and that they are doing it for frivolous reasons. The judicial nominees can easily be replaced. But the sense that there are certain rules that all must play by, whether to their advantage or not, is something that cannot be restored. Senators need only to look at the House to see what politics looks like when the only law is to win at any cost.

Judge James D. Wittemore of Tampa is bound to become the latest target of the right if he decides not to order the reinsertion of Terri Schiavo's feeding tube. Given his background and history, I don't think they have a leg to stand on.

He is a former federal defender, former Circuit Court Judge for Hillsboro County and Clinton appointee to the federal bench. Like all federal judges, his appointment is for life. A review of his published opinions and news articles on his decisions do not show political partisanship, or even liberal tendencies. Here's a good size sampling, all sources are listed and available on Lexis.com.

• In a high-profile case in Tampa, he ruled a "county can regulate nudity in private clubs to protect residents from an increase in crime and prostitution as well as the degradation of women." Sarasota Herald-Tribune, January 15, 2003.

• He "denied an adult business owner's attempt to bar the State Attorney's Office from prosecuting him under a state racketeering law if he sets up shop in Polk County." Lakeland Ledger, February 5, 2003.

• He refused to find Polk County's use of antiracketeering laws and high bail unconstitutional. Tampa Tribune, March 2, 2003.

• He ruled that "Manatee County nudity ordinances do not infringe on exotic dancers' constitutional rights of expression." Sarasota Herald-Tribune, April 3, 2002 .

• He "dismissed a lawsuit filed against the Polk school board by parents and students who said the mandate to wear uniforms violated their civil rights." Tampa Tribune, November 20, 2002,

Chief Justice William Rehnquist returned to the bench today. He swore in new lawyers and listened to oral arguments.