Unsurprising for more than one reason, but still yet another measure of how much fifty years of judicial fiat on abortion has twisted our institutions. Chuck Schumer will push forward in his efforts to burn down his Senate Democrat caucus majority today by demanding a futile vote on his radical bill federalizing abortion and forcing states to allow it on demand until birth.
Why would such a political arsonist intent on burning down his own house care about fire-setting elsewhere?
"Are you comfortable with protests that we saw outside the homes of Supreme Court justices over the weekend?"
CHUCK SCHUMER: "Yes"pic.twitter.com/lUYITm73fZ
— RNC Research (@RNCResearch) May 11, 2022
“Are you comfortable with the protests that we saw outside the homes of Supreme Court justices over the weekend?” a reporter asked Schumer at a press conference.
“If protests are peaceful, yes. My house — there’s protests three, four times a week outside my house. The American way to peacefully protest is OK,” Schumer said before checking his ringing phone, noting his wife was calling him.
“Maybe there’s a protest outside,” the New York senator joked. He then reemphasized his earlier point that as long as the protesters remain peaceful, it’s all right that they demonstrate outside the justices’ homes.
Schumer’s levity aside, this argument runs up against a couple of reality checks. In the first place, pressure-campaign protests aimed at legislators are much different than pressure-campaign protests aimed at judges. In fact, it’s so different that Congress made the distinction official by creating a federal statute that criminalizes such efforts when aimed at federal judges. Allahpundit wrote about 18 USC 1507 over the weekend, emphases his:
Whoever, with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge, juror, witness, or court officer, or with such intent uses any sound-truck or similar device or resorts to any other demonstration in or near any such building or residence, shall be fined under this title or imprisoned not more than one year, or both.
Congress passed this law because it recognized the constitutional difference between the two branches of government. Legislatures pass laws, executives enforce them, both of which have legitimate avenues for political lobbying. Judges decide cases on the basis of the law and the Constitution, however, not on popular opinion. The Constitution grants lifetime appointments to the federal bench in order to ensure that popular passions and politicking don’t interfere with the rule of law.
That Schumer wants to treat the Supreme Court as a legislature shows just how far judicial activism has warped these institutions. The Supreme Court historically bears much of the blame for their whole-cloth legislating in decisions such as Roe, but Congress and a whole series of presidents are just as blameworthy for their decades-long efforts to avoid tough issues by attempting to get courts to address them instead. They’d much rather see the pressure campaigns aimed at judges than at themselves.
The big question here is why the federal government hasn’t enforced the law already on the books to protect judges from illegitimate mob-rule pressure campaigns. Or better yet, as Andrew McCarthy asks in today’s column at The Hill, why Biden and Schumer are encouraging the lawbreaking:
With Democrats and their radical-activist base continuing to seethe after the criminal leak of a draft Supreme Court opinion that would overturn Roe v. Wade’s concoction of a supposedly constitutional right to kill the unborn, White House press secretary Jen Psaki made this statement Tuesday, on behalf of President Biden:
“I know that there’s an outrage right now, I guess, about protests that have been peaceful to date, and we certainly do continue to encourage that, outside judges’ homes, and that’s the president’s position.”
The best interpretation of this astonishing assertion is that Biden wants people who choose to protest outside the homes of Supreme Court justices to remain peaceful, but is not recommending that they conduct such protests.
A more rational interpretation is that the president is encouraging people to violate federal law by protesting at Supreme Court justices’ homes, and that he views this as appropriate as long as the protesters do not resort to violence. This interpretation accounts for Biden’s constitutional duties to execute the laws faithfully and to protect both the security of the courts and the administration of justice,
To be clear, it is a criminal offense to picket or parade near a residence of a federal judge for the purpose of influencing the outcome of a judicial proceeding. It is not a defense that the behavior is nonviolent. When a statutory crime does not necessarily involve forcible conduct, the fact that people commit it “peacefully” is irrelevant.
Sen. Tom Cotton (R-AL) agrees and also wonders why the Department of Justice hasn’t taken action. Yesterday, Cotton sent a letter demanding an explanation from Attorney General Merrick Garland:
Senator Cotton’s letter to Attorney General Garland deserves wide distribution. More important by far is that the AG enforce the law immediately. pic.twitter.com/ISIKyaXjIq
— Hugh Hewitt (@hughhewitt) May 11, 2022
“If you don’t take immediate action to enforce the law even-handedly against your party’s political opponents,” Cotton writes, “perhaps the next Congress should take matters into its own hands with impeachment proceedings.” I believe Cotton meant political allies, but the point is clear. This is a dereliction of duty, and would certainly be an impeachable offense.
One could argue, of course, that 18 USC 1507 would not survive a real criminal prosecution over what would otherwise be normal political activity in any other proximity. (Federal appellate jurists might be more open to the distinction than we think after this, of course.) That might be true, but it’s still the law until Congress repeals it, and Garland’s DoJ is supposed to enforce it. And it’s ludicrous for Biden, Psaki, and Schumer to encourage behavior that remains illegal for the purposes of illegitimately pressuring judges to act politically rather than judicially, all in an attempt to salvage an atrocious example of judicial legislating that has warped the courts and American politics for 49 years.
By the way, Schumer’s chief deputy yanked the rug out from underneath Schumer shortly afterward:
Sen. Dick Durbin (Ill.), the No. 2 Democrat in the Senate, on Tuesday called the protests outside of Supreme Court justices’ homes “reprehensible” in an interview.
“I think it’s reprehensible. Stay away from homes and families of elected officials and members of the court,” the Senate Judiciary Committee chairman told CNN when he was asked about his thoughts on the protests.
“You can express yourself, exercise your First Amendment rights, but to go after them at their homes, to do anything of a threatening nature, certainly anything violent, is absolutely reprehensible,” he added.
Indeed. And illegal, too, at least at the moment.