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June 21, 2007

Finding The Way Out Together

Posted in: BushCo,Legal

The above clip is one of my favorite scenes from The West Wing, wherein Leo reaches out to Josh after the glass-breaking incident — the story about the man in the hole, and the friend jumping in to save him because he’s already been there and knows the way out is priceless.  And so we start this morning, together, in the hole with the rest of America…

Under the Bush Administration’s watch, the rule of law and the very principles on which this nation was founded have been under assault.  When I am asked, and I often am, why it is that I blog every day — why I bother getting involved in politics at all when I could be doing something much more fun, and much less stressful, with my time, my answer is pretty much the same:  because someone has to ask the questions that need asking and to demand accountability, and I am not willing to leave my child’s future in the hands of someone else who may not do the work.  And it is these questions about the restoration of the rule of law and respect for liberty and justice which get me up and at the keyboard every morning.

So, when I woke up to this today, I said that Nancy Keenan — who sat on her hands and NARAL’s mound of fundraising cash through both nomination fights – and Joe Lieberman and every other spineless, non-fighting Bush-enabling person who didn’t dare stand up to be counted when our nation needed them to do so were asking for a wake-up call as well.  From the NYTimes:

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”?It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. It surely will not be the last….

So the question is not whether the Roberts court will overturn more precedents, but how often, by what standard and in what terms. As to which precedents will fall next, there are several plausible candidates as the court enters the final days of its term, including the 2003 decision that upheld advertising restrictions in the McCain-Feingold campaign finance law; a 1968 decision that let taxpayers go to federal court to challenge government policies as violating the separation of church and state; and an antitrust price-fixing case from 1911. (In an 8-to-0 decision last term, the court overturned a pair of antitrust precedents from the 1940s that were noticeably at odds with modern antitrust analysis.)

Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.

As a technical matter, the new decision, Gonzales v. Carhart, left the earlier ruling still on the books, doing its overruling “by stealth, without having the grace to admit that is what they were doing,” in the words of Ronald Dworkin, the legal philosopher, who wrote a highly critical appraisal of the new decision in The New York Review of Books last month. “Justices Roberts and Alito had both declared their intention to respect precedent in their confirmation hearings, and no doubt they were reluctant to admit so soon how little those declarations were worth,” Professor Dworkin said from London in an e-mail message….

The Roberts Court has already shown its willingness to tinker with precedent, turning on an ideological dime, on a number of occasions. And Roberts has only been Chief Justice since September 29, 2005.  Imagine, as the years stretch out before us as a nation, what damage might be wrought in our names…and you see why Jane and I fought so hard against both the Roberts and Alito nominations from the start.

Overturning precedent is not always bad for the nation — look at the differences between the Dred Scott decision (wherein the Court held that a slave of African descent could never become a citizen) and the Plessy decision (wherein the Court upheld the repugnant  ”separate but equal” doctrine) versus the later opinion of Brown v. Board of Education (wherein the Court declared the Plessy decision to be overruled by a doctrine of racial equality in public education). 

Sometimes the sentiment of the country naturally moves forward from a place where discrimination or some other egregious conduct is no longer considered tolerable by a majority of the nation’s citizens.  We have seen that happen with civil rights laws, with equal rights for women, with questions of labor treatment and numerous other examples through the years of changes for the better — which lift up a segment of society or a particular issue which had previously been shoved to the side or derided as unworthy of decent treatment only a few short years beforehand.

It is the decisions where we turn away from lifting up the powerless, to further dividing the nation into camps of those connected to power and those who are not — where we turn away from the principles inherent in our founding and the possibilities of who we could be as a nation, and instead settle for who we are at the moment because it happens to suit the people in power, where we lose our way. 

Or those weird rationalizations that get pretzel-twisted so that a blastocyst in a petri dish that is scheduled to be thrown out on Tuesday from the in vitro clinic where it’s been in deep freeze for three years is more important than the life of a living, breathing human being who might be saved through a tiny portion of those unused, soon to be in a trash can cell fragments.  Or where the life and mental health of a living, breathing, all-too-feeling woman, rape or incest victim or otherwise, is treated as less than nothing when compared to a life that may never, ever come to pass.

These are not abstract problems to be considered in a vacuum.  As Justice Thurgood Marshall understood all too well from his work for the NAACP, and his life as a black man in a racially oppressive nation, the real world has enough horrors of its own for all of us to look square in the face and try to solve for the betterment of us all — we don’t need to invent fake reasons to inflict more misery on each other in the name of God and man.

Former Justice Thurgood Marshall, who was instrumental in the Brown argument when he was a lawyer for the NAACP, is quoted at the end of the NYTimes article this morning, and it is telling how apt that quote is today as well: 

“Power, not reason, is the new currency of this court’s decision making,” Justice Marshall declared on the final day of the court’s 1990 term.

The way forward with the Supreme Court is to once more establish balance and reason in the face of the current swing toward ideological enforcement. The nation loses when the Court’s balanced is tipped too far either way — the well-reasoned discussion and dialogue behind-the-scenes at the Court has given way to an atmosphere of divided camps, just as it had in Thurgood Marshall’s day near the end of his tenure on the bench.  And the nation will continue to suffer for it, so long as this is allowed to continue unabated.

This is why it is crucial to elect a Democrat to the Presidency in the next election. 

It is the Presidential prerogative to appoint new justices to the Supreme Court, with the advice and consent of the Senate.  The nation needs a more balanced approach to the law — and to its political implications — than what we have now, and the only way to obtain this is for new justices to be appointed by a liberal President whose appointees will provide an intellectual counterbalance and counterargument to those currently serving on the court. 

We must find a way out of this together. 

The answer, oddly, to this judicial question is a political one:  as the Founders envisioned, the nation gets off kilter during times of crisis or during times of war, and then the political will of the people eventually swings the balance back toward the center and eventually to the other side.  We saw the first wave of that in the last election cycle when the Democratic party overtook both houses of Congress as a first step to check the enormous power grab of the Bush presidency. 

Justices Ginsberg and Stevens cannot be expected to pull the entire court on their own shoulders for the rest of eternity — and in order to ensure that some counterbalance is added in any new appointments, there must be a Democratic President elected to make those appointments. 

And we must work even harder going into the next election cycle to swing things back into balance again with more Democratic gains so that they will have the ability to reverse so many of the wrongs that have been visited on our nation for more than six years now.

Sidney Blumenthal has a frightening glimpse as to why the Republican party cannot be relied upon to cleanse itself:

In private, Bush administration sub-Cabinet officials who have been instrumental in formulating and sustaining the legal “war paradigm” acknowledge that their efforts to create a system for detainees separate from due process, criminal justice and law enforcement have failed. One of the key framers of the war paradigm (in which the president in his wartime capacity as commander in chief makes and enforces laws as he sees fit, overriding the constitutional system of checks and balances), who a year ago was arguing vehemently for pushing its boundaries, confesses that he has abandoned his belief in the whole doctrine, though he refuses to say so publicly. If he were to speak up, given his seminal role in formulating the policy and his stature among the Federalist Society cadres that run it, his rejection would have a shattering impact, far more than political philosopher Francis Fukuyama’s denunciation of the neoconservatism he formerly embraced. But this figure remains careful to disclose his disillusionment with his own handiwork only in off-the-record conversations. Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, “Not everything we’ve done has been illegal.” He adds, “Not everything has been ultra vires” — a legal term referring to actions beyond the law. The resistance within the administration to Bush’s torture policy, the ultimate expression of the war paradigm, has come to an end through attrition and exhaustion. More than two years ago, Vice President Dick Cheney’s then chief of staff I. Lewis “Scooter” Libby and then general counsel David Addington physically cornered one of the few internal opponents, subjecting him to threats, intimidation and isolation. About that time, the tiny band of opponents within approached Karen Hughes, newly named undersecretary of state for public diplomacy, hoping that the longtime confidante of President Bush, now assigned responsibility for the U.S. image in the world, might be willing to hear them out on the damage done by continuation of the torture policy. But she rebuffed them.

Two weeks ago, Hughes unveiled her major report, extolling “our commitment to freedom, human rights and the dignity and equality of every human being,” but making no mention of detainee policy. The action part consists of another of her campaign-oriented rapid-response schemes, this one a Counterterrorism Communications Center, staffed by military and intelligence officers, to rebut the false claims of terrorists. Asked whether the administration’s policies might be a factor contributing to the problem, Sean McCormick, the State Department spokesman, replied, “You’re always going to get people criticizing policy.”

Gen. David Petraeus’ declaration on May 10 against torture reflected less the ringing authority of an order than the impotence of a personal credo. “Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary,” he said. But his moral sentiment had been dismissed long before he had uttered it. The commander’s strongly worded statement, putting him by implication in the category of “people criticizing policy,” had no effect on the elaborate system of “enhanced interrogation techniques,” black site prisons, maintenance of Guantánamo, or the 20,000 Iraqi prisoners incarcerated on U.S. military bases without due process. Petraeus has no more influence over the president who says he listens to his military commanders than the commanders who have opposed the policy since its inception.

There is no taking of responsibility for mistakes or for repeatedly and consciously overstepping the bounds of law simply because they think they can. (And I note, for the record, that Sidney has both I. Lewis Libby and David Addington, the Cheney legal enforcement squad for torture policy, cornering some other Bush Administration official for daring to ask questions about an extra-legal, anti-Geneva Convention tactic that the Vice President’s office has advanced.  Swell folks, aren’t they?)  There is no sunshine in terms of the exposure of wrongdoing and errors by those within the Administration who have witnessed them first hand — there is only a pervasive atmosphere of self-preservation and keeping one’s mouth closed and hoping things will get better without any individual intervention.   But we all know that this will not happen with the Bush Administration — things will not change, because they consistently refuse to admit — to themselves or to the public — that things need to change, because there is fundamentally no acknowledgment that any mistakes have been made.

The President recognizes only his authority to do as he wishes – one only need look to his myriad signing statements for a tiny glimpse of what has been attempted in his name to understand how pervasive and how ego-driven so much of this has been.

The same can be said for the Roberts Court, especially in the way that the precedent was overridden without any real explanation as to why this was necessary in the Gonzales v. Carhert decision from earlier this month.  We are in for a very bumpy ride for the next year and a half.  The nation needs healing — our divisions are growing ever wider, as our problems grow more difficult and more devastating by the day.  But such healing cannot come through artifice and obfuscation, and it certainly cannot come without some personal accountability on all sides of the messes that have been made in our name.

This disrespect for the rule of law has been more than pervasive in the Bush Administration — it is a fundamental tenet of their supporters that the rule of law must be changed to suit their view of how the world ought to work.  Not so that the oppressed or the downtrodden can get a fair shake, or so that equality and justice might prevail, but rather so that they and their cronies might benefit and further profit from the increasing divide between those with connections and those without. 

It is ultra-conservative ideology writ large for fun and profit for the neocons, the Federalist Society enforcement squad, and their hangers-on.  And the re-shaping of America’s courts in the image of Robert Bork is only one of their goals toward ideological dominance and control.  Instead of tyranny of the majority, what we face today is tyranny of the largest egos with the most to gain for the fewest in number who wish to climb the ladder of success on the backs of anyone who gets in their way, and to hell with the long-term consequences for the nation as a whole.

That is wrong.  Worse, it is un-American.

And so, here we are, in this mess with no easy answers.  Let us find our way out together…not just for our own sakes, but for the sake of generations to come.  We deserve better than what we are getting at the moment.  Let us stand up and say so.


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