Why a Democratic President is Vital for ’08: The Courts
Brief Update: In the comments section, this post was linked to GavelGab, the blog of the Justice at Stake campaign for judicial independence. I had not heard of this campaign and am delighted to discover it. It is bi-partisan and so does not endorse my conclusion that judicial independence depends on electing Democratic presidents in 08 and until balance is restored in the judiciary. Rather, Justice at Stake appeals to both Republicans and Democrats to stop politicizing the Courts. Please check them out and join in. I want to support their work and I love that it is bi-partisan. However, since this Court-packing strategy has been part of the reason the GOP has been winning most presidential elections since 1968, I find it hard to believe they will suddenly stop a strategy that pleases their base–at least, not in the short run. Perhaps with enough citizen power like the Justice at Stake campaign wants to mobilize we can see balance and sanity return to judicial nominations by both parties. (I think that would happen if a defeated GOP were to hark back, not to the model of the Reagan presidency which all the current candidates keep invoking, but to the legacy of such Republicans as Eisenhower, Nelson Rockefeller, Gerald Ford, the late Oregon governor and senator Mark O. Hatfield, Harold E. Stassen, or even, in his early career, Bob Dole. But as long as they want to keep the ideology of Reagan, Gingrich, etc., then I think that politicizing the judiciary will be a staple.) But in ’08, since none of the GOP candidates will support judicial independence, I stand by my claim that we need a Democratic president for the sake of the Courts. End Update.
This is my last political post before returning to some religious/theological reflections–probably for the remainder of the year. I have been asked why I am committed to voting for the Democratic nominee in ’08 even if it is someone who is far from my first choice–e.g., Sen. Hillary Clinton (D-NY) whom I consider far too hawkish in foreign policy, far too much of a free trade nut in economics, and whose vision for healthcare reform seems more like government handouts to insurance companies rather than what we need–universal, single-payer, not-for-profit healthcare like all other industrial democracies. Well, ending the war in Iraq and not starting one in Iran is so important that if Sen. Chuck Hagel (R-NE) had decided to run as a GOP “peace candidate” (as seemed possible briefly), I would have supported him in a general election that pitted him vs. Ms. Clinton–even though I am not fond of Hagel on many other issues. But since the only GOP candidate against the war is the libertarian Ron Paul(R-TX), who has even less chance of winning his party’s nomination than the wonderful ly progressive near-pacifist Dennis Kucinich (D-OH) does of winning the Democratic nomination, I cannot support any of the GOP candidates–especially those likely to win the nomination. So, I have been asked, if I don’t get one of the Democratic candidates whom I like (in order of preference based on their overall commitments to peace and economic justice in their platforms: Kucinich, Gov. Bill Richardson (D-NM), fmr. Sen. John Edwards (D-NC), who looks so much better to me than he did in ’04, or Sen. Barack Obama (D-IL) who looks poised to make history in many ways, but whose healthcare plan is actually worse than Clinton’s!), why don’t I just refuse to vote in ’08, or just vote in other races, or vote for a 3rd party candidate. My short answer: The Courts. The last 20+ years have shown me that I cannot trust Republican presidents to appoint good justices to the Supreme Court or judges to the federal courts, nor trust the Senate to block the appointment of unacceptable ones.
Conservatives think that when liberals and progressives make statements like I just did, that we are talking about abortion. But abortion is not my primary concern. I have given attention on this blog previously to why I think the practice needs to remain legal (mostly for religious liberty concerns), even while we try to reduce drastically the causes that lead pregnant women to seek abortions. But if one believes that all abortions should be outlawed (or even all abortions except for rape and incest and to save the life of the mother), then the way to accomplish that without disturbing the rest of “settled law” for the last 60 years or so would be to seek a constitutional amendment. If such a Human Life Amendment passed Congress and was ratified by 3/4 of the States, it would show broad support for the law and would ONLY affect abortion laws. But the strategy of Republicans has been, instead, to stack the Supreme Court with justices who will seek to overturn Roe v. Wade and Doe v. Bolton (the 1973 cases which struck down abortion laws and made, at least for the 1st trimester, abortion decisions a matter of privacy between a woman and her doctor–although those cases have been considerably curtailed by the later decisions Webster v. Reproductive Health Services, Planned Parenthood v. Casey, and especially Gonzales v. Carhart), but the Justices they appoint do not just oppose abortion, but have radical rightwing activist approaches to the law which Republican lawyer John Dean rightly calls “judicial fundamentalism.” There are currently 4 judicial fundamentalists on the Supreme Court (Chief Justice Roberts–ideologically fundamentalist, but methodologically minimalist, and Associate Justices Scalia, Thomas, and Alito) and 3 conservative minimalists (Associate Justices Kennedy, Souter, and Stevens) with 2 centrist/moderate minimalists (Associate Justices Breyer and Ginsburg). There are zero “liberal” justices on the current Supreme Court. Further, recent Republican presidents have stacked the ranks of the federal courts with judicial fundamentalists, too. The Supreme Court is one justice away from having a judicial fundamentalist majority (and justices Stevens and Ginsburg are elderly and not in great health). What would U.S. life and law look like in such a case? Well, because of the slow way that cases reach the Supreme Court, nothing would happen overnight, but John Dean and other legal scholars, Republican as well as Democratic, have outlined scenarios based on the writings and speeches of prominent judicial fundamentalists such as Justices Scalia and Thomas. The nightmare scenario would include:
- The “unitary executive” theory of nutcases like John Yoo in which the only check on presidential power is the electorate. This is the way George W. Bush governs–as an elected monarch with Congress reduced to the status of a privy council–and with elections every 4 years the only “accountability moment” for a president or his executive branch. (And then they rig the elections as they did with Florida in 2000 and Ohio in 2004.)
- Elimination of all campaign finance restrictions. Whereas polls show that most citizens worry about the influence of money in politics and want elected officials to respond to the wills of the people rather than big-monied special interests, the radical right believes that any limitations at all on campaign financing amounts to tampering with free speech because, in the words of Sen. Minority Leader Mitch McConnell (R-KY), “money is speech,” and one is entitled to all the speech one can pay for. But if money is speech then speech is not free and the wealthy have more “free speech” than the poor. McConnell took the McCain-Feingold campaign finance law to the Supreme Court which did strike down some of its provisions under reasoning similar to McConnell’s. A Supreme Court with a 5 person fundamentalist majority would eliminate even the few campaign finance restrictions we have now. We would return to the days of the 19th C. when people could literally stand outside polling booths and pay people to vote for the person they wanted!
- Although conservatives used to claim that they despised activist judges who “legislate from the bench” and wanted the courts to respect the legislative process and defer to it whenever possible, objective studies of the courts since the Nixon presidency have shown that judicial fundamentalists are far LESS deferential to the powers of Congress. The later Rehnquist Court struck down 30 provisions of the law from 1995 to 2001, especially in areas regulating health and safety standards or protecting the environment.
- Judicial fundamentalists favor big corporations. They understand the fundamental principle of law not to be promoting social justice, but as the maximization of wealth for the few. For example, although historically it has been political speech which has been protected by the 1st Amendment, with regulations allowed on commercials, judicial fundamentalists desire to protect “commercial speech,” and strip protections demanding truth in advertising, restrictions on whether tobacco can be openly marketed to children, demands for warning labels, etc. Legal scholar Carl Sunstein observes that judicial “fundamentalists are transforming the First Amendment into a species of laissez-faire economics.”
- Affirmative action will be abolished. The Roberts’ Court has already gone far in this direction in the decision in June of this year that used the words of the anti-segregation case Brown v. Board of Education (1954) to argue for the exact opposite effect: speeding up the resegregation of U.S. schools by forbidding ANY use of race as a criterion in deciding public school placement. Judicial fundamentalists and other conservatives see affirmative action not as working to correct historic racial and gender injustices and promote diversity and equality, but as “reverse discrimination” against rich, white males. These programs are already an endangered species. Under a high court with a fundamentalist majority, they will disappear and racial and gender discrimination (slightly disguised) will go on as long as it is not blatant–as long as some other reason can be given for not hiring or promoting people who don’t look like you.
- Judicial fundamentalists do not believe that the 14th Amendment’s incorporation doctrine is legitimate. (This is the doctrine that allows the Bill of Rights to be applied to states and other entities and not just to the federal government.) Thus, they would restrict the Bill of Rights (the 1st 10 Amendments), to the federal government, as they did before the 14th Amendment. So, states could establish particular religions (as long as there was no national religion), restrict free speech, or freedom of the press, etc.
- Judicial fundamentalists are pro-prosecutor and anti-defendant. Scalia has stated that Miranda was wrongly decided. So, prepare for a time under a fundamentalist court when the police no longer have to read you your rights when arresting you, when evidence obtained by illegal search and seizure is admitted in court, when you can be interrogated without counsel present (as is already the case under Bush for anyone the president happens to designate, for any reason, an ‘enemy combatant.’). And we’ve already seen that Republican presidents want to spy on citizens without warrant. A fundamentalist court will let them–even if Congress grows a spine and legislates against such practices. In the words of John Dean, the Chinese government will not have any powers over its citizens than the state governments under a fundamentalist Court that strips away the settled law of the last 60 years.
- We can kiss civil rights goodbye, too. The late Chief Justice William Rehnquist nearly lost his first nomination bid when it was found that he had previously worked to intimidate black voters (he perjured himself and claimed it did not happen, but the perjury was not proven until the lifetime appointment was already confirmed) and he nearly lost his second confirmation, from Associate to Chief Justice, when it was revealed that, as a clerk to Justice Jackson, he tried to get Jackson to vote against Brown v. Board saying that Plessy v. Ferguson‘s doctrine of “separate but equal” treatment of races was correct. Rehnquist has now had to answer to the Last Judge, but Scalia and (ironically) Thomas, have made clear their opposition to civil rights many times. They struck down sections of the Violence Against Women Act by claiming that it would restrict commerce! Thomas and Scalia have argued that the equal protection clause of the 14th Amendment does not even apply to women!
- Cruel and unusual punishment is banned by the 8th Amendment. Since the 1960s, the courts have debated just how much that applies to the death penalty. We once had some justices (e.g., Brenner, Marshall) who believed that capital punishment per se, was unconstitutional based on the 8th Amendment. We have not had any such voices on the Court for some time. But judicial fundamentalists want zero restrictions on the death penalty–they would reverse previous decisions outlawing capital punisment for minors, or for the mentally retarded. Further, Scalia has given speeches showing that he does not consider torture to be “cruel and unusual.”
- Environmental protections would go out the window. Judicial fundamentalists believe there is no constitutional foundation for the Environmental Protection Agency. They have shoehorned environmental restrictions into the 5th Amendment’s clauses about property takings (which covers things like condemnations) and then protected businesses by demanding that the government compensate any business for having restrictions on its supposed “right” to pollute its own land, streams, etc. (Ironically, and outraging even most Republicans, this same Court narrowly ruled in a different case that government could take land by “immanent domain” and use it, not for parks or other public uses such as had always been the case in the past, but give it to corporations to develop! Talk about “legislating from the bench!”)
- The few, hard won, gay rights would disappear. The judicial fundamentalists on the current Supreme Court were furious with the decision in Lawrence v. Texas which struck down so-called “sodomy” laws banning consensual, adult sex, between members of the same sex–even though enforcing such laws entails incredible invasions of privacy. Scalia, in his dissent, showed us what the law would become if his views became the majority–states should be able to ban gays from public schools, deny them boarding in rooms for rent, deny them employment, etc. because they are protecting themselves and their families from “a lifestyle they deem to be immoral and destructive.”
- Under a fundamentalist Supreme Court, the National Rifle Association can close its doors, because judicial fundamentlists view ALL restrictions on gun ownership as violations of the 2nd Amendment.
Dean and other scholars have gone on for several more pages. But this is sufficient to illustrate my point. All the GOP presidential candidates continue to pledge to appoint judges “in the mold of Scalia and Thomas.” Thus, until balance is restored throughout the federal judiciary, the Republicans cannot be trusted with the presidency of the United States–and we should probably be wary of having too many in the U.S. Senate which confirms court nominations, too. We need an independent judiciary for our republic to function rightly.
Since its founding, all our presidents have tried to appoint judges and justices which broadly reflect their own political and (if they have legal training) legal views. But throughout most of that history, they have also concentrated on getting excellent jurists and have not tried for uniformity of thought–and have had surprises. FDR moved the judiciary to the left in the ’30s, but an examination of his appointments shows that he appointed both Democrats and Republicans as judges and that his appointments were not lockstep ideologues–and some ruled against some of his own actions. No U.S. president, Republican or Democrat, made the courts a campaign issue until Richard Nixon’s 1968 campaign for the White House. As part of his “Southern strategy” to woo disaffected Southern whites (formerly Democrats when the Democratic Party coalition included a strong segment of Southern segregationists) who were upset at the Civil Rights movement and the anti-Vietnam War movement, Nixon vowed to appoint judges who would restore “law and order.” He invented a new term, not known before in American discourse, “strict constructionists.” William Rehnquist, who was then part of the Nixon admin., defined a strict constructionist as a judge who liked prosecutors and had little patience with defense attorneys or their clients, who preferred business to labor, and who took a dim view toward demonstrations in the streets. The packing of the Courts began in earnest under Reagan and George W. Bush has built on Reagan’s legacy to politicize the entire federal judiciary.
Since I have no desire to live in an America like that outlined above, an America much like that which Sen. Edward Kennedy (D-MA) attributed (rightly) to the dreams of failed Supreme Court nominee Robert Bork, I find it imperative to support the Democratic nominee in the ’08 election–even if that nominee is not my first choice. In the primaries, I will work for and vote my conscience and try to get the very best candidate as the Democratic nominee. But in the general election, since none of the GOP candidates are turning their backs on this rightwing judicial activism and court packing, I must support the Democratic nominee. The stakes are simply too high to risk otherwise.
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