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Not Just Any Imperial Presidency

A BUZZFLASH GUEST CONTRIBUTION
by Steven C. Day, creator and author of The Last Chance Democracy Cafe (new site opening Feb. 1st)

Contrary to what you’ve been hearing, the problem with putting Samuel Alito on the United States Supreme Court isn’t that he wants an Imperial Presidency, as such. He doesn’t, not in any general sense. No, what he wants is a Republican Imperial Presidency.

If a Democrat happens to win in 2008, just watch how quickly the Emperor will lose his clothes.

Partisan politics has always been the elephant in the room (or is it the hack in the hallway) of the modern Republican jihad to stack the federal courts. Take the infamous Federalist Society, of which Alito is a member of long standing. Funded, in large measure, by the usual (wealthy conservative) suspects -- Kristol, Koch, Scaife, Olin and the like, its agenda mirrors that of its benefactors: It seeks to radically reduce the power of government to protect workers, consumers and the environment, while at the same time significantly increasing governmental power to restrict individual liberties and invade personal privacy.

Bottom line -- the Federalist Society isn’t, as it is so often portrayed in the media, simply some sort of conservative version of the American Bar Association. It’s the John Birch Society, with lawyers.

And, this being true, let me offer a little free advice to our so often hapless Senate Democrats: In what little is left of this confirmation battle, cut the crap about the nominee’s “judicial philosophy.” When it comes to far right judges like Alito, judicial philosophy really isn’t their bag. These are political operatives. They aren’t trying (primarily) to change the law: They’re trying to change America, and to change it in ways that are repugnant to the vast majority of Americans.

If you doubt this, take a little time to examine how the Supreme Court’s previous ultraconservative trio of Rehnquist, Scalia and Thomas voted in politically charged cases; you’ll see a remarkable consistency. Not as to judicial philosophy, of course -- as to that they were all over the board, pro-states rights here, pro-federal supremacy there. No, the consistency came in the political impact of how they voted -- pro-conservative and pro-Republican, almost every damn time.

Bush v. Gore is the big dog here, of course. (Remember how during his confirmation hearings, Alito claimed that he has never really thought about whether the case was properly decided, a comment which, for someone like Alito, is roughly equivalent to an offensive coordinator for an NFL team saying he has never really thought about whether the screen pass is a good play).

But in some ways, it’s another, less notorious, case that best proves just how much partisan politics weighs on the deliberative processes of many of today’s far right jurists. The story begins just east of the Rocky Mountains in Denver, Colorado, where the newly ensconced Republican majority in the state senate (joining a Republican controlled house) faced a disturbing conundrum: Bob Beauprez, a Republican representing Colorado’s 7th Congressional District, had won the last election by only 121 votes, suggesting that something as awful as, well, a little real democracy might happen in the 2004 election -- meaning an honest to God competitive race, possibly even leading to a Democratic win. Disinclined to leave such an odious possibility to chance (or the people’s will), the Republicans decided to shore up Beauprez’s position by giving him some extra Republican voters through a handy-dandy Tom DeLay, Texas-style early reapportionment of the state’s congressional districts.

In subsequent litigation, the Colorado Supreme Court, in what seems to have all of the earmarks of a well reasoned opinion, ruled that the early reapportionment violated the Colorado Constitution, and struck it down. The losing parties sought review by the United States Supreme Court, but there seemed little chance the Court would actually take the case: After all, the Colorado court had acted exclusively on the basis of the Colorado Constitution, and the jurisdiction of the US Supreme Court does not extend to pure issues of state law. And so, sure enough, the Supreme Court did deny review, but it did so over the strenuous dissent of our three intrepid Mega Conservative Warriors (action figures to be released in time for Christmas) Rehnquist, Scalia and Thomas.

The arrogance of this dissent was, frankly, astonishing. Even aside from the fact the case involved issues of state, as opposed to federal, constitutional law, the plain truth is that granting review would have been against the institutional interests of the Supreme Court. After the beating the Court’s reputation took in Bush v. Gore, the last thing it needed was to leap unnecessarily into another politically charged dispute on a dubious pretext.

As The New York Times noted in a strongly worded editorial aptly titled, A Troubling Dissent,

The dissent attracted little notice because it fell one vote short of the four votes needed to review a case. But it is disturbingly reminiscent of the court's ruling in Bush v. Gore, in which five justices who had long been extremely deferential to state power suddenly overruled the Florida Supreme Court's interpretation of Florida election law.

Cases like these quite naturally invite skepticism. As the court learned in 2000, it does grave harm to its reputation if it appears to be deciding election-law cases for partisan advantage. In cases of this sort, the court must make a special effort to show that it is acting on the basis of legal principle, the only basis for a court to act. By departing from his deeply held belief in state autonomy to side with the Republican Party in a redistricting case, Chief Justice Rehnquist has once again invited the public to question this court's motives.

Yet, the Fearsome Threesome were undeterred, and this despite the fact that the Supreme Court accepts only a tiny percentage of the cases in which review is requested. So, why this one?

The answer, I’m afraid, is as obvious as it is depressing -- taking the case and reversing the decision of the Colorado Supreme Court, thereby reestablishing the GOP friendly reapportionment, would have helped to assure the retention of a Republican majority in Congress. End of story.

The pattern repeats itself in case after case. In lawsuits with strong political implications, Federalist Society type judges consistently rule in ways favorable to conservative, and more specifically, Republican interests.

Consider campaign finance reform. Ultraconservatives like Rehnquist, Scalia and Thomas routinely vote to strike down such laws, contending that the “right” to spend money in election campaigns constitutes Freedom of Speech. It was on precisely this basis that they dissented when the Supreme Court in 2003 voted five-to-four to uphold most of the provisions of the McCain-Feingold campaign finance law (Justice O’Connor, incidentally, was one of the five votes, so guess what happens the next time the issue comes before the court).

Yet, when the subject turns to the Freedom of Speech for ordinary, non-wealthy, Americans, these same far right justices often found little difficulty in granting the government broad powers. This from a summary by People For the American Way,

Scalia's and Thomas' dissents from Court rulings protecting free speech would allow more direct government restrictions on political expression. For example, Scalia and Thomas joined a 1992 dissent by Chief Justice Rehnquist that would allow municipalities to significantly limit free speech by charging controversial speakers large permit and police protection fees. (See Forsyth County v. The Nationalist Movement)142 Scalia and Thomas would allow prosecution of cross-burning without proof of an intent to intimidate, with Thomas suggesting that the First Amendment should not apply at all. (Virginia v. Black, 2003)143 A 1995 Scalia dissent would allow the government to prohibit anonymous leaflets on policy issues. (McIntyre v. Ohio Election Comm.)144 If this position had been applied at the time of our Founders, as Justice Thomas recognized, it would have banned Thomas Paine's "Common Sense" and other important political speech in that tradition. In a 1992 concurrence with a plurality opinion Justice Scalia even argued that the areas within 100 feet of polling places, including the sidewalks and streets within that zone, do not constitute traditional "public fora" - public gathering places where public discourse traditionally takes place. Therefore, in Scalia's view, speech in those areas should not receive full-fledged constitutional protection. (Burson v. Freeman).

So why do right wing judges consider spending unlimited amounts of money in election campaigns by the wealthy few (often to the point of drowning out other, less affluent voices) to constitute Freedom of Speech?

Well, as the man said, “follow the money.” Who benefits when politics is all about money?

And while we’re on the topic, why are they so free in allowing restrictions on the “common man’s” ability to express his or herself?

It all kind of speaks for itself, doesn’t it?

And, unfortunately, with Alito on the Court, it’s going to continue speaking, louder and louder all the time.

A BUZZFLASH GUEST CONTRIBUTION

Links

A Troubling Dissent
http://www.nytimes.com/2004/06/11/opinion/11FRI2.html

People for an American Way quote:
http://www.pfaw.org/pfaw/general/default.aspx?oid=11162

Read Steven Day's The Last Chance Democracy Cafe episodes and visit the new web site on February 1st.