Referring to the infamous statement he made on the Senate floor, Sen. John Cornyn said to the Houston Chronicle, "The lesson I learned is that Washington is a very tough political environment and if people can take what you say out of context and use it against you, they will."
While Cornyn has already been embarrassed in the national media for making the remarks, one shouldn't let him apply the "out of context" excuse. The reason so many are offended is because Cornyn's inflammatory remarks were taken in exactly the context they were made.
To be sure, the senator is not explicitly calling for violence against judges, but he does seem to imply that courtroom violence is an understandable, if not excusable, result of judges' decisions. Specifically, judges who uphold the law instead of ruling in favor of conservatives.
Cornyn's speech is several pages long. We can't print all of it here, but we can print the paragraphs immediately preceding the statement and the paragraph immediately following. The "context" doesn't change the meaning of the words one bit.
"I make clear I object to some of the decision making process that is occurring at the U.S. Supreme Court today and now. I believe insofar as the Supreme Court has taken on this role as a policymaker rather than an enforcer of political decisions made by elected representatives of the people, it has led to increasing divisiveness and bitterness of our confirmation fights that is a very current problem this body faces today. It has generated a lack of respect for judges generally. Why should people respect a judge for making a policy decision born out of an ideological conviction any more than they would respect or deny themselves the opportunity to disagree if that decision were made by an elected representative? Of course the difference is they can throw the rascal out and we are sometimes perceived as the rascal if they do not like the decisions made, but they cannot vote against a judge, because judges are not elected. They serve for a lifetime on the Federal bench.
"I believe the increasing politicization of the judicial decision making process at the highest levels of our judiciary has bred a lack of respect for some of the people who wear the robe. That is a national tragedy.
"Finally, I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country - certainly nothing new; we seem to have run through a spate of courthouse violence recently that has been on the news. I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up to the point where some people engage in violence, certainly without any justification, but that is a concern I have that I wanted to share.
"We all are students of history in this Senate, we all have been elected to other bodies and other offices, and we are all familiar with the founding documents, the Declaration of Independence, the Constitution itself. We are familiar with the Federalist Papers that were written in an effort to get the Constitution ratified in New York State. Alexander Hamilton, apropos of what I want to talk about, authored a series of essays in the Federalist Papers that opine that the judicial branch would be what he called the 'least dangerous' branch of government. He pointed out that the judiciary lacked the power of the executive branch, the White House, for example, in the Federal Government and the political passions of the legislature. In other words, the Congress. Its sole purpose - that is, the Federal judiciary's sole purpose - was to objectively interpret and apply the laws of the land and in such a role its job would be limited."
For those who wish to read the full text of the speech, it can be found on Sen. Cornyn's Web site, cornyn.senate.gov.
Cornyn knew exactly what he was saying and why he was saying it. It was the latest in a series of conservative attacks against "activist judges."
The term is meaningless. It was ostensibly once used to refer to those judges who disagree with "strict constructionism," a judicial philosophy that laws should be interpreted literally and in the context of the original author's social mores. But "strict constructionism" itself was appropriated during the Nixon era to mean judges who "will generally not be favorably inclined towards claims of either criminal defendants or civil rights plaintiffs," according to a memo written by then-head of the Office of Legal Council William Rehnquist to Nixon's attorney general, John Mitchell.
Conservatives are now using the term "activist judges" to refer to any judges - broad or strict constructionist - who rule in ways conservatives don't want them to. Having marginalized the Democratic Party, the right wing is trying to undermine their only other opponents to seizing total power, the independent judiciary.
Politicians aren't any more immune to making stupid statements than the rest of us. If Cornyn is genuinely repentant, perhaps an apology can be accepted at face value. But trying to wriggle out of it with an "out of context" excuse in order to continue to undermine the judiciary compounds Cornyn's guilt and is simply unbecoming of a senator from Texas.
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