April 9, 2005 - When the Federal Courts at every level refused to order Teri Shiavo’s feeding tube restored Congressman Tom Delay is quoted as having referred to an “out of control” judiciary and promising that the judges involved in rejecting the Shindler’s appeals would pay the consequences. He accused the judges of ignoring what he called the will of Congress when they refused to issue orders to reinsert the feeding tube. Coming from the Majority Leader of the House of Representatives it was a barely concealed threat of impeachment. Yesterday in a video-taped address to a conference of conservative activists he repeated his attack on the judiciary and made the threat to impeach judges with whose decisions he disagrees quite explicit citing abortion law, school prayer, and racial discrimination as areas in which the Congress should exert control over judicial decisions. Fellow Texan Senator Cornyn seemed to join the chorus with a speech on the Senate floor but then quickly disavowed the sentiments he expressed. The President, speaking from Rome, proclaimed his support for an “independent judiciary” and declined to support his Majority Leader’s attack.

Yes, the Judiciary is out of control. It has been since it was created in 1787. That is the way that was designed – to be free of control of the legislature; out of control of the executive. The men who met that hot Philadelphia summer had experience with judges dependent on the whims of the sovereign. They created a judicial branch independent and free to base their decisions on the law and the Constitution protected from retaliation for unpopular decisions.

Delay’s cynical use of one family’s tragic controversy to divert attention from his own transgressions in Texas and around the world moved Chief Justice Rehnquist and other conservative judges to describe Teri’s Law as an encroachment on the Constitutional independence of the judiciary. It is significant that the Federal judges who considered the Shiavo case did not find new protections or innovative doctrines to decide the matter but relied on long established principles of law governing injunctive relief to reject the remedy that Delay had attempted to mandate legislatively.

Were Mr. Delay and the “religious” right to which he is pandering be successful in their drive to dismantle the Constitutional independence of the judiciary the individual citizen will be deprived of the protections against the excesses of government that our system guarantees. We will have become a society in which the rule of law is replaced by the whim of powerful men. Justice Delayed will indeed be justice denied.