Three times in recent political history state courts have captured national attention by grossly overstepping their proper bounds. Each time a Republican governor huffed, puffed and ultimately did nothing of consequence. We are watching the steady erosion of government by the consent of the governed and the rise of an imperial judiciary.
Twice the passive Republican governor was named Bush. On the other occasion he was a Romney. The great Republican dynasties evidently haven't retained enough vitality to bear the considerable burdens of executive responsibility. Their scions should stick to the U.S. Senate, the natural home for flaccid gasbags of both parties.
What became of the Republican Party's commitment to republican government? Are the princes of the GOP in charge of the Massachusetts and Florida executives really stupid enough to believe that they work for the judiciary or are they just too cowardly to do the hard job they were elected to do?
Jeb Bush has indicated that he won't defy the web of court orders that mandates Terri Schiavo's death because he lacks the authority to do so. This is either idiotic or dishonest. Either way it is appalling. Jeb isn't subordinate to the courts and he cannot both do his duty and passively accept the judiciary's view of his authority.
This is the same Jeb Bush who could have resolved the entire Florida 2000 fracas simply by announcing immediately after the statutory recount that the election was over, the result was certified and that, regardless of any court order, the certified result would not be changed. All subsequent recounts and court proceedings would then have been moot. As a matter of abstract constitutional principle this would have been the best possible outcome. When the courts run amok it is the executive that must bring them back in contact with reality.
I can forgive Jeb for failing to do his duty in the election contest. His blood ties to the victorious candidate gave him a conflict of interest that was, at a minimum, embarrassing.
In the Terri Schiavo case his passivity is despicable. He professes to believe action is justified and his power to act is absolutely clear. He is cowering at the prospect of doing something solely because action would put him in conflict with some pissant judge in Pinellas County. That is beneath contempt.
The courts made a hash of Terri's case. Hash is the principle output of the judicial process; the law truly is an ass. But primary responsibility for the horror show now unfolding doesn't lie with the courts. It lies with the man who has the power to cut through all the judicial foolishness, but not the courage. Someday, in the infernal regions, Jeb Bush and Pontius Pilate will co-host a fascinating panel discussion on the moral implications of spinelessness. The rest of us can only hope, in all humility, that we won't be in the audience.
As for Mitt Romney -- what can we say about a man who is ordered to issue marriage licenses to same-sex couples on the laughable ground that there is no rational basis for confining marriage to sexually complimentary couples, and who meekly complies? Does Romney's vocabulary lack the word "no?"
Marriage licenses are issued under executive authority. The people who issue them in Massachusetts work for Mitt. All Romney had to do when the Massachusetts Supreme Judicial Court held that the state was bound to sanction oxymoronic "homosexual marriages" was to announce that the court was wrong and the executive branch would not comply with its absurd order. If any functionary tried to obey the court rather than the governor, Mitt could have taken administrative action to have that functionary tossed out into the street with revocation of pension benefits.
What exactly could the courts have done? Issued injunctions? Ignore them. Entered judgments for damages? Refuse to pay them. When the courts deliberately distort constitutional law to bolster their own power they should be ignored. Make them come to terms with their own impotence. Obeying them only fans the flames of their megalomania.
A governor cannot be true to his oath of office if he slavishly accepts even the most fraudulent judicial pronouncement about what that oath requires. Promising to uphold the law is very different from promising to obey every crackpot edict that can attract a majority on a court packed with fools.
If you know anything at all about American constitutional law you understand that governors and presidents have to determine for themselves what the constitution and laws require of them, regardless of what any court may say. All of our most revered leaders have recognized this and talked about it, including, among others, Jefferson, Lincoln, Franklin Roosevelt and Ronald Reagan.
How has the Republican Party's aristocracy so completely lost sight of the simplest, most basic constitutional principles? If Republicans won't oppose the ridiculous imperial pretensions of the judiciary who will?
I wish I knew.
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