So now you're in favor of the Executive branch being able to command that the judiciary take up a case?
Have you thought through the implications of this?
I have thought through the full implications of the case.
I am not in favor of the Executive Branch commanding the judiciary to take up the case. Rather, Congress was set to hold hearings and conduct its own investigation. The justice department (Executive Branch) should conduct its own independent investigation.
The problem we have is that the our system is designed to have three co-equal branches of government, but in the past 50 years, the Judiciary has morphed itself into the senior, superior branch, the branch with the FINAL authority in any issue on which it asserts itself.
It has been able to do this only because of capitulation on the part of the Executive and the Legislative branches.
In this specific case, an innocent life hangs in the balance, and THAT is more important than maintaining the constitutional status quo, which has incorrectly given the Judiciary supreme power in any event.
Just as the Executive Branch conducts its independent review of the facts and decides to override the Legislature and Judiciary in a death penalty pardon case, when the life or death of a citizen is at stake, the Executive needs to assert its co-equal power of independent review of the facts. A judge has decided this woman must die. But we've all see plenty of really problematic evidence in the case. All of the superior judges have lined up in solidarity with this judge, not on the basis of de novo review of the facts, but on the basis of institutional power. They have, I believe, asserted a supreme power that the Judiciary DOES NOT HAVE unless the Executive and Legislature allow it to by default. Congress subpoenaed Terri Schiavo and others. Federal supremacy trumps state law. But a STATE judge simply ignored a CONGRESSIONAL subpoena. That should not be allowed to stand. But it HAS been, because neither the Governor nor the President used executive power to back up the supremacy of a Congressional subpoena over a matter of state law. (The Supremacy Clause of the Constitution is pretty clear.) Instead, we went through the charade of asking federal judges to fulfill an executive function.
Anyway, the Bush boys did not elect the confrontational route. The Judiciary uniformly sided with itself as the final arbiter of the matter. The Congress, having taken a principled stance, found new principles on reading the public opinion polls, and the Republican Party in the Senate is now using this incident as an excuse to back away from the nuclear option, which is the only way to actually CHANGE the composition of the Judiciary, if in the end we've decided as a nation that the Judiciary IS the supreme and final authority in our government. It has asserted that for a long time. Congress and the Bushes, this week, acted as though they believe that is true too.
So, the supreme branch of government is the Judiciary. That is what Congress and the Executive conceded by allowing the judicial murder of a citizen, and the override by a STATE judge of a series of FEDERAL subpoenas.
If that is the case, then control of the judiciary is crucial, and that is what the nuclear option is all about. But the Republicans in Congress backed away from that in the same week.
In short: when the rubber met the road, the GOP welched. They can still save themselves as a party by voting the nuclear option. The Bushes, however, have tainted themselves. The 11 years olds who got themselves arrested bringing water to Terry showed the courage of their convictions, and now will actually be convicted. The Bushes played Pontius Pilate, and will be regarded that way by a million pro-lifers.