November 24, 2004
Martin Garbus Peers Into the Future of the U.S. Justice System
Clarence Thomas is articulating the view that precedent doesn't count... I think that if Bush were to appoint people who believe that precedent doesn't count, you would really see a carnage of the laws passed by the New Deal courts.... I think that this...new Court is perfectly capable of reaching back and substantially reversing and eroding the decisions of the Supreme Court in the late 1930s. And that, to me, is a great danger. --Martin Garbus
A BUZZFLASH INTERVIEW
For expert analysis on the future of the Supreme Court, especially with
the looming retirement of Chief Justice William Rehnquist, BuzzFlash turned
to Martin Garbus, the legal scholar who best understands the right-wing
campaign to dominate the judiciary with conservative ideologues to implement
a far right agenda.
Martin Garbus has written one of the most important and timely books about
the right-wing control of the judicial branch of government. In Courting
Disaster: The Supreme Court and the Unmaking of American Law, Garbus
articulates how important control of the federal courts is to the right-wing
and how it happens under the radar from the American public.
Martin Garbus is one of the country's leading First Amendment and civil
rights trial lawyers, appearing before the Supreme Court, teaching law,
and arguing trials and speaking as a First Amendment expert throughout
the country. A legal commentator for NBC and CBS, he has written for the
The New York Times, The Los Angeles Times, The Washington
Post, and other publications.
We spoke with Martin Garbus about who Bush might appoint to be the next
chief justice of the Supreme Court, if and when Rehnquist retires; his
thoughts on the appointment of Alberto Gonzales as Attorney General; and
how progressives are doing in building the base, especially in training
would-be progressive lawyers.
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BuzzFlash: Justice William Rehnquist is currently battling
thyroid cancer, and has long been rumored ready to retire. He's already
conservative, so a Bush appointee would not dramatically upset the balance
of power, especially with respect to Roe v. Wade. But since Bush will
no doubt nominate someone from the far right to take over as chief justice
when Rehnquist does retire, my question to you is how much power does
the chief justice really have?
Martin Garbus: Well, I'm going to refute that. In other
words, I don't know that he's going to nominate someone from the far right
to be chief justice. He may well nominate, let's say, Sandra O'Connor
to be chief justice while he fills another spot with somebody else. The
easiest thing for him to do would be to put O'Connor there on the assumption
that she's going to step down shortly.
BuzzFlash: But relative to the other members of the Supreme
Court, how much power does the chief justice really have? Essentially,
if the wrong person is nominated as chief justice, is that position worth
filibustering by the Democrats?
Martin Garbus: I think it's worth filibustering if a
very conservative justice is appointed, whether the justice is appointed
to be chief justice or to be just an associate justice. Bush may elevate
someone from within the court to the chief justice's position. Now I think
there are also justices out there that are far more conservative than
Rehnquist. There are other areas that Rehnquist has never even put a toe
in, at least in any substantial way; namely something totally obscure
called the "takings clause" of the Constitution, which fundamentally
allows you to do away with a great deal of governmental regulation. It
would severely set back and further destroy and perhaps end the environmental
movement. It would also limit the government on its ability to set health
and safety standards, to do zoning, and to do a host of other activities.
Rehnquist, although he's joined opinions on it, has never spoken out forcibly
on that area.
The chief justice position technically has minimal power. He's not the
person who assigns decisions. He's really not even the person who regulates
the argument. His prime function comes by force of his personality, which
is either there or is not there. Someone like Earl Warren was a conciliator
who could bring people together. Someone like Warren Berger could not
do that. So I think that he has more power than the other judges, but
it's not that great a difference.
BuzzFlash: What are the odds that, if and when Rehnquist
retires, Bush would nominate one of the conservative justices, such as
Antonin Scalia or Clarence Thomas, as chief justice?
Martin Garbus: Well, I think it's totally unlikely that
he would nominate Scalia or Thomas, because I think that would create
a firestorm. At the same time that he's nominating that judge, he's also
nominating someone for the empty slot. And I hope that the Democrats would
declare war on that nomination. I think it's much easier for him to get
someone who may be equally radical in a different way. I think, for example,
Ted Olsen, by virtue of his previous position, becomes a very likely nominee.
It's very hard to turn down a solicitor general. Now Ted Olsen, basically
his views of the law are no different than Scalia or Thomas. But I think
that it would be hard to turn him down. It's not like someone like Bork
coming in so much from the outside. Or someone like Alberto Gonzales,
for example, who, in the same way that Reagan got a lot of currency because
he appointed the first woman, I think that Bush would get a great deal
of currency for appointing the first Hispanic.
BuzzFlash: So in some respects, you expect somewhat of
a sophisticated operation from the administration -- to replace open Supreme
Court seats with one of their own people, but not causing an uproar.
Martin Garbus: Yes, exactly.
BuzzFlash: In terms of retirements that would significantly
upset the balance of power on the Court, one of those justices would of
course be Sandra Day O'Connor, who, although as you pointed out was a
conservative and a Reagan appointee, is moderate on Roe v. Wade. And I
would say the most devastating loss would be if a liberal, such as John
Paul Stevens, who is 84 years old, were to resign.
Martin Garbus: Yes, you're exactly correct. Also, Ruth
Ginsburg had been ill a while back, and there was talk that she had cancer,
which everyone understands to be in remission. None of the other justices
are 25 years old. I mean, Stephen Breyer -- something could happen to
him or he could decide to retire, likewise with David Souter. But yes,
I agree with you that the most likely to step down would be John Paul
Stevens. And that would have an extraordinary effect.
On the other hand, I think O'Connor is too often seen as a mediator, as
a compromiser. In fact, that's not that often the case. In the school
voucher case, which I think was probably one of the most important cases
of the last four years, she was in fact for the conservative majority.
Now she split a hair in the affirmative action case, but I don't think
there was much else that she could have done, frankly. I don't think the
court wanted to totally outlaw affirmative action. I think in the area
of abortion, I think they probably would not overrule Roe against Wade
unless they had 6 to 3. I think overruling Roe against Wade 5 to 4 would
be difficult.
I think the other thing is that Clarence Thomas is articulating the view
that precedent doesn't count. And to the extent that more justices are
appointed who take the position that precedent doesn't count in the American
legal system, then it becomes very easy to overrule cases like Roe against
Wade. I think that, right now, Thomas stands pretty much alone in taking
the position that precedent doesn't count. No one ever thought that would
be his position, and no one in the Supreme Court has ever articulated
a view like that.
I think that if Bush were to appoint people who believe that precedent
doesn't count, you would really see a carnage of the laws passed by the
New Deal courts. Right now, when we talk about what the Rehnquist Court
has done, if you're a critic of it, as I was in my book, then you're talking
about how it's undermined the last 20 to 30 years of the law that has
come down since the Warren Court. But there's a whole body of law that
was developed in the 30s during the presidency of Franklin Delano Roosevelt
which upheld the administrative state, which upheld the welfare state,
which upheld all kinds of regulations against corporations, against monopolies.
Now I think that this Court -- the new Court -- is perfectly capable of
reaching back and substantially reversing and eroding the decisions of
the Supreme Court in the late 1930s. And that, to me, is a great danger.
I think they've already undercut a good deal of the last 30 years. I think
that they may have undercut it. Let's say Miranda was not overruled directly.
But in fact, Miranda or Brown against the Board of Education, or even
Roe against Wade have been overruled in many, many different ways.
Abortion is something that, in many states, is now nearly impossible to
get. The federal government and state governments have passed rules and
regulations that make it very difficult for abortion clinics to stay open
or to function. They load them down with paperwork. They load them down
with exorbitant costs. And the result is that it is very hard today for
a woman without means to get an abortion in many, many states. So you
can achieve that result without overruling Roe against Wade.
You achieve the same result in the criminal law -- Miranda against Arizona,
which talked about the rights of a defendant to be advised of the fact
that he has counsel, and that he has a right to remain silent -- has fundamentally
been eroded. Even though the Court has said, yes, we respect the right
of Miranda, it's been eroded by all kinds of hairsplitting decisions,
so that the protection that the defendant once had in the police station
is fundamentally gone.
BuzzFlash: Sen. Bill Frist (R-TN) and the Republicans
are threatening to change the Senate rules to prevent the Democrats from
filibustering any judicial nominees. Is it simply a majority vote that
is needed to change that rule -- to stop filibusters in the Senate?
Martin Garbus: It's more than a majority rule. I believe
it's 60, as a matter of fact. And I think that Sen. Frist will fail to
change the court rule. Clearly, Frist is seen as the next Republican nominee,
so he's a man of great power.
BuzzFlash: On that note, you've written extensively on
how the right wing has learned to dominate especially the lower federal
circuit and appellate courts with conservative ideologues -- and this
is important, considering that 99 percent of all cases in the federal
system are decided by lower federal, circuit and appellate courts. Over
the last four years, I think -- my numbers could be slightly off -- the
Democrats, as far as I know, have filibustered about 10 of Bush's 200
or so nominees to the federal bench.
Martin Garbus: Right.
BuzzFlash: Many political observers would say there's
a limited number of filibuster cards for the Democrats to use. And, as
we pointed out, they may even lose that power, depending on how the Senate
resolves that issue. But it seems to me, that the Democrats will resist
using up a filibuster on a lower federal judicial nominee with the Supreme
Court hanging in the balance. Would you agree with that?
Martin Garbus: I think they will use a filibuster on
circuit court judges. There's trial judges, circuit court judges, and
Supreme Court justices. I think that it's unlikely they would use it up
on a trial judge. But I don't think it's unlikely that they would use
it on a circuit judge. I would hope that the Democrats are not going to
do what you may have suggested -- namely, preserve their rights and just
go after the very worst. I think that what they did in the last four years,
as you point out -- attacking 10 of about 255 judicial nominations or
so-- I thought was an abnegation of responsibility. I don't see why the
Democrats are playing softball in a time when it's clear that the other
side is not. The kind of candidates that Bush has, both for circuit court
nominees and for potential Supreme Court nominees, is awful.
I don't see why the Democrats should not make a continued effort to get
a balanced court. If they permit Bush to do what they permitted Bush to
do last time, by the end of Bush's period, you will have levels of courts
that are so solidly Republican -- not just Republican, but conservative
-- that they're going to dominate American law for 20, 30, 40 years.
One of the things that the Republicans have learned to do in a way that
no one has done before is to appoint very, very young judges. Clarence
Thomas was relatively young. And Clarence Thomas will probably be with
us until the year 2030. Now there are many, many young conservatives.
If Gonzales were appointed, he could conceivably be on the Court for 30-35
years.
So given the fact that the court, at this point, is so heavily Republican,
and given the fact that Ginsburg, Breyer, Souter -- I doubt that they
would get through two or three Republican terms. Now they may last through
the Bush years. But you may see a legal system unlike any that we've ever
had in the United States. You know all the statistics. I don't have to
go into them. But this Court has been sitting as a body, as a group, longer
than any other Court in history.
President Clinton was hampered in his ability to choose judges. Breyer
and Ginsburg, although they seem liberal by today's standards, were certainly
not following in the steps of Marshall, Black, Douglas. It's a very different
Court. And the possibilities of a Democrat ever appointing a Black, Douglas,
Warren, or Marshall, would appear to be nonexistent for a very, very substantial
part of our lives.
BuzzFlash: You're a First Amendment lawyer. What are
your thoughts about White House Counsel Alberto Gonzales being nominated
as attorney general as John Ashcroft steps down? Could he be any worse
than John Ashcroft?
Martin Garbus: Well, I think you have to look at Gonzales'
appointment as a step to the Supreme Court. I think he's solely there
to get his conservative credentials, which are somewhat impaired because
he didn't vote as clearly as the conservatives would have liked on the
abortion issues in the Texas Supreme Court. So I think before he could
be endorsed fully by the conservatives, he would have to become more conservative
than he has been in the past, or seemingly more conservative than he has
been in the past. So I would think that he will, in a different way, in
a nonconfrontational style, he will do exactly what Ashcroft has done.
I don't think Ashcroft did anything that the conservatives in the Bush
administration didn't want him to do. I think that he was more hysterical,
less responsible. But I think that Gonzales will, in a more responsible,
more somber way, try and achieve the same results. We all know that the
memos that he wrote on Guantanamo were horrendous, un-lawyerlike, and
totally political. And he is a totally political being, as is Ashcroft.
BuzzFlash: Tell us what it's been like on a personal
level, fighting for free speech and civil liberties under this current
administration, with John Ashcroft as the Attorney General. What do you
think are the worst abuses by this administration in terms of the Constitution
and our personal freedoms that people should know about?
Martin Garbus: I think clearly it's been awful under
this administration. I think that there's a sense of a kind of McCarthyism
-- that if you believe in certain things, you're treasonous. I think the
worst thing that they have done is their way of labeling people. It came
out in the political campaigns. It comes out in other ways as well. It's
labeling people who disagree with them as either traitors or people who
support Saddam Hussein, or who are anti-American, who are anti the lives
of American soldiers. I think that no administration since the McCarthy
period has done it with the vitriolic effects of this administration.
And clearly, a very substantial portion of America has bought their argument.
BuzzFlash: In terms of creating organizations to rival
the right wing Federalist Society, give us a sense of what, if anything,
progressives are doing at building the base among law students, legal
scholars, law professors, would-be prosecutors, judges, all of that. What
do progressives need to do to keep building the base and training progressive
lawyers and legal scholars?
Martin Garbus: The progressives have been awful. Since
1980, you've had the rise -- I mean, it started before 1980, with Ed Meese's
ideas -- but the Federalists have come to dominate the legal system. In
order to be a member of the legal system, you have to be a card-carrying
member of the Federalists. They have created a very, very effective operation.
Though no more than 15 percent of the students on campuses, they dominate
the campuses. There is no counteractive organization.
Georgetown and NYU have recently created some new groups, but basically
throughout the country, the Federalists dominate. And the Federalists
do it very, very well. In New York, in any given week, there will be two
or three Federalist meetings. There was one recently called "Let's
Do Away with the FCC" that will have prominent speakers -- the Scalias,
the Thomases, the Ted Olsens -- and they work every single day in taking
their ideas, in articulating them, in teaching them, in writing about
them. They have been extraordinarily effective.
Now I think that the other thing that's happened is that the churches
had given people a sense of community -- getting away from nationals and
legal churches -- but they've given people a sense of community. Years
ago, the labor movement gave that to people. There's nothing now that
the Democrats have that organizes at a ground level. We do not have a
secular church. People are looking for community. People are looking for
some support in a very confusing world.
The progressive or Democratic articulation that the 52 million people
who voted for Bush are foolish, stupid, naïve, is a gross oversimplification.
I think that one has to learn how to communicate with these people. My
mentors outside of the law are Caesar Chavez and Saul Alinsky. They were
people who were interested in organizing movements, in speaking for people
in a way that other people heard them, in not looking down on people,
and not disparaging views. I think that there's a need that many of these
53 million people speak to -- not all -- that has to be met somehow.
I think the progressives have to -- without giving up any of their values
-- have to meet that challenge and organize people. I mean, the ability
of the Republicans to get out votes, or the ability of the Republicans
to deluge the Congress with e-mails, memos, et cetera, in support of certain
kinds of justices or lower court judges, far surpasses anything that the
Democrats or the progressive forces have done. Both in the law schools
and out of the law schools, the progressive forces have been deficient.
BuzzFlash: Marty, it's always so good to speak with you.
Martin Garbus: It's my pleasure.
A BUZZFLASH INTERVIEW
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RESOURCES:
Martin Garbus official web site
http://www.martingarbus.com/
Fantastic resource on Federal Courts -- Independent Judiciary, project
of the Alliance for Justice
http://www.independentjudiciary.org/index.cfm
BuzzFlash Interview with Martin Garbus, Author of "Courting Disaster:
The Supreme Court and the Unmaking of American Law" - October 10,
2002
http://www.buzzflash.com/interviews/2002/10/10_Garbus.html
BuzzFlash Interview with Martin Garbus, on the Democrats Filibustering
the Miguel Estrada Nomination -- March 15th, 2003
http://www.buzzflash.com/interviews/03/03/15_garbus.html