"Federal judges are a more serious threat to America than Al Qaeda and the Sept. 11 terrorists, the Rev. Pat Robertson claimed yesterday.
"Over 100 years, I think the gradual erosion of the consensus that's held our country together is probably more serious than a few bearded terrorists who fly into buildings," Robertson said on ABC's "This Week with George Stephanopoulos."
"I think we have controlled Al Qaeda," the 700 Club host said, but warned of "erosion at home" and said judges were creating a "tyranny of oligarchy."
Confronted by Stephanopoulos on his claims that an out-of-control liberal judiciary is the worst threat America has faced in 400 years - worse than Nazi Germany, Japan and the Civil War - Robertson didn't back down.
"Yes, I really believe that," he said. "I think they are destroying the fabric that holds our nation together." "
And, a few weeks ago, from Tony Perkins, head of the Family Research Council:
“The court has become increasingly hostile to Christianity, and it poses a greater threat to representative government -- more than anything, more than budget deficits, more than terrorist groups.”
Just to state the obvious: we haven't controlled al Qaeda; judges are not more of a threat than al Qaeda is, and they are certainly not the greatest threat we have faced in our history. But there's a larger point, which I've been wanting to make for some time, and may as well make now.
As I have mentioned before, I have a strong conservative streak, using the word 'conservative' in its original sense. Among the things that bring out my conservative streak most strongly are political institutions, whose existence I sometimes think is almost miraculous. Take the rule of law, for instance. It is not surprising that someone should have had the idea of deciding cases on the basis of general principles: as anyone who has spent time with three year olds can tell you, this idea comes naturally to us. It is not surprising that some ruler, somewhere, should have decided to rule in accordance with this idea, despite the many occasions on which that ruler would have been tempted to violate those rules: hilzoy's law of large groups explains that. But it amazes me that enough rulers should have subjected themselves to laws for long enough that we have come to take the rule of law for granted.
The existence of complex political systems based on the rule of law is even more astonishng. Montesquieu wrote in the Spirit of the Laws:
"One would imagine that human nature should perpetually rise up against despotism. But notwithstanding the love of liberty, so natural to mankind, notwithstanding their innate detestation of force and violence, most nations are subject to this very government. This is easily accounted for. To form a moderate government, it is necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the other. This is a masterpiece of legislation; rarely produced by hazard, and seldom attained by prudence. On the contrary, a despotic government offers itself, as it were, at first sight; it is uniform throughout; and as passions only are requisite to establish it, this is what every capacity may reach."
We owe the founders of this country a profound debt for having designed such a "masterpiece of legislation". But it seems to me that we owe them an even greater debt for having abided by the system they designed, not completely, but consistently enough that it endured. Consider, for instance, the amazing fact that George Washington stepped down after his Presidency was over. At the time, the country was facing very serious problems. Washington could easily have convinced himself that he was the best person to deal with these problems, and it is not obvious to me that he would have been wrong. Had he decided not to step down at the end of his second term, he might have had the noblest of motives: the thought that the dangers facing the country were very real, that it was important that the right policies be adopted to deal with them, and that he was the person most likely to adopt those policies. He would have had considerable popular support. And since the Constitution he decided to follow was new, it would have been much, much easier to set it aside then than it would be now. And yet, despite all this, Washington stepped down. That is, to me, extraordinary, as are all the other acts by which the Constitution was, in those early days, respected, and which largely account for the fact that we can now take it for granted that our government is subject to it.
The deeply conservative side of me leads me to think of traditions like respect for the rule of law and the Constitution as inheritances that we owe to the astonishing foresight and forbearance of those who went before us, and which it is up to us to preserve and strengthen for future generations. This requires forbearance on our part as well. It often happens that all that stands between us and some outcome we think is extremely important is either that annoying Constitution, those exasperating Courts, or the incomprehensible inability of our elected representatives or our fellow citizens to see the obvious rightness of our point of view. Likewise, it often seems to us that some decision or other is profoundly wrong. (Roe v. Wade, Bowers v. Hardwick, Bush v. Gore; take your pick. Or go back to Plessy and Dred Scott.) The temptation to try to bypass these obstacles or disobey this wrong decision is obvious, and it is strongest not in its selfish form but when it seems to have morality behind it: when we believe that what's at issue is really, really important, and that it is clear that we are right.
When the legal technicalities stand between you and some genuine good, a concern for existing procedures, legalities, and the like can seem quaint and fussy. And when you think the courts have made a serious mistake, it's tempting to think that they have forfeited all legitimacy. But I think that playing by the rules, even when we hate the outcome, is extremely important. For it is only if enough of us respect our system of government enough to abide by its dictates, even when we think it's getting things badly wrong, that we can preserve it for those who come after us. And so it bothered me when, during the political firestorm over Terri Schiavo, people like David Brooks said things like this:
"If you surveyed the avalanche of TV and print commentary that descended upon us this week, you found social conservatives would start the discussion with a moral argument about the sanctity of life, and then social liberals would immediately start talking about jurisdictions, legalisms, politics and procedures. They were more comfortable talking about at what level the decision should be taken than what the decision should be.
Then, if social conservatives tried to push their moral claims, you'd find liberals accusing them of turning this country into a theocracy - which is an effort to cast all moral arguments beyond the realm of polite conversation."
Brooks is casting a concern for the rule of law as something other than a moral argument, and liberals' concern with it as an attempt to rule "all moral argument" out of bounds. This is profoundly wrong. Caring about making decisions lawfully can be an evasion, but it can also be motivated by serious moral arguments, of the sort I've been gesturing at here. To write as if the two were clearly distinct -- as if morality could never stand behind a concern that the law be carefully and conscientiously followed -- is to presuppose the view of the law as at best orthogonal to genuine moral concerns, and at worst an impediment to them. And this is wrong.
I believe that if any single thing constitutes 'the fabric that holds our nation together', that thing is our respect for the rule of law, which leads us to abide even by decisions we think are wrong. And if anyone is threatening this fabric, it is not judges; it is those who vilify judges and the judicial system to advance their own agendas: those who compare them to the KKK, claim that they murdered Terri Schiavo, say that they are waging war on people of faith. who now claim that they are more of a threat than al Qaeda, Nazi Germany, Japan and the Civil War; and who urge people to revolt against them.
Our country will probably weather this storm, as it has weathered others. Our political system is resilient. But no responsible person would ever try to put its resilience to the test; and those of us who care about our country should, I think, try to fight the view that it's open season on judges, that the courts are corrupt or illegitimate, and that they threaten our country; and we should do this even as we continue to criticize any decisions that seem to us to have been decided wrongly. There's a difference between being wrong and being illegitimate, and it matters very much that it be preserved.