October 10, 2002
Martin Garbus, Author of "Courting Disaster"
A BUZZFLASH INTERVIEW
Martin Garbus has written one of the most important and timely books about the right-wing control of the judicial branch of government. In his book, "Courting Disaster: The Supreme Court and the Unmaking of American Law," Garbus articulates how important control of the federal courts are to the right-wing and how it happens under the radar from the American public.
Martin Garbus is one of the country's leading 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.
BuzzFlash highly recommends "Courting Disaster" to anyone concerned about the future of American law and politics. We were honored to interview Mr. Martin Garbus on September 19th, 2002.
"The Supreme Court has the power to shape the national future; and Garbus tells us where the Court might go. No one will be able to say that we haven't been warned." --Arthur M. Schlesinger, Jr.
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BUZZFLASH: There's probably no greater difference between Democrats and Republicans than who they appoint to the federal judiciary. Would you agree with that, and elaborate?
MARTIN GARBUS: I think it's a very substantial issue. I would hope to see greater differences on Iraq, but yes.
BUZZFLASH: Explain the difference between the Republicans and Democrats to the extent that, according to your book Courting Disaster, the Republican party has sought to appoint not qualified jurists per se to the federal judiciary, but, rather, conservative ideologues. Judges that would agree with Republicans and essentially continue and forward the conservative agenda, or maybe more specifically, the right-wing agenda.
GARBUS: I agree. Basically what has happened is that Republicans have started to look for both right-wing ideologues and people of youth. Clarence Thomas is one of them. And these are people who basically have a romantic view of the country prior to the New Deal days. They have some sense that prior to 1935 and '36, which is when the Roosevelt Court started to make fundamental changes or helped make fundamental changes, there was a golden period. And there should be a free market in play, and that government should not regulate, first of all, to the extent that it does.
And then there's a whole body of conservative scholars and jurists who think that any kind of regulation is unconstitutional. They think that all agencies are unconstitutional. I went to a lecture a few days ago by Justice Douglas Ginsberg. He was the justice whose name was submitted after Bork was shot down. And I heard him talking about why child labor laws were inappropriate, why you have to look at the benevolent employer -- at the way capitalism, and race issues, and religion will flourish if the government keeps their hands off policy. And they have a very consistent argument showing why the government's involvement in things like child labor laws or environmental protection, or the government's involvement in desegregating schools, or the government's involvement in furnishing aid, or trying to keep the two religions separate -- he will show you why the government's actions have been counterproductive and unconstitutional.
And as I said, he's talking about an America that never was. And there are many conservative ideologues -- not just Robert Bork, but Scalia and Thomas, and the people who will be appointed as their successors -- who believe that.
BUZZFLASH: In the 19th century, Alexis de Tocqueville said that eventually every problem in America will be decided or is decided in the courtroom. It seems that conservatives understand that and have really used it. The Supreme Court does not receive attention, although it's the third branch of government, like the executive and the legislative branches. And so it seems that all of this goes under the radar. What's your response to that?
GARBUS: I think you're right. I think that what happens is that the law speaks in its own language. Court opinions are difficult to follow. They are generally misreported in the printed press. And on television, all you get is the buzzline. So there's really no way of understanding the complexity of many of the cases that are now being decided. Also, the Rehnquist Court is a very technical court, so they decide things on technical grounds -- things like standing, or who has a right to sue. Or whether you can be in a state or federal court. And, as a result of that, when they do deprive you of rights -- when I say "you," I mean the citizen -- then the citizen is rarely aware of it.
And the language that is used in the debate now -- state's rights, federalism, separation between church and state -- are words that don't have easy, hold-on meanings for most of the people. I think that Senator Leahy said that people in the United States don't understand the Supreme Court, and it's true. The recognition of judges on the street -- Supreme Court judges -- they're really not known. The only one who's known at all is Sandra O'Connor, because she was the first woman. And the only one really known before that was Byron White, because he was an All-American football player. But if someone today saw Souter, Stevens or Ginsberg, there would be no recognition of them. And the other part of that is that they live in a world that is totally unconnected to the world in which they're making decisions.
BUZZFLASH: Let's say one side of the coin could be, well, we've gone through a liberal court, and now it's just the reverse of the coin. Is that, in fact, true? Or is there something more cynical and maybe significantly different than, let's say, the liberal Warren Court that preceded the Rehnquist Court?
GARBUS: I think that what you've said is fundamentally true, but there's another way of looking at it. I'm not a believer that the Constitution is like a Bible and has to be very, very strictly read. I think that the Warren Court read the Declaration of Independence into the Constitution. The Declaration of Independence precedes the Constitution. And what they do is they look at the Constitution as a document to set up a government, with the ideals etched in the Declaration of Independence.
The Declaration of Independence, after all, talked about equality. It talked about the things that are the bedrock of this country. I don't think that the framers ever thought that they, 230 years ago, could foresee what was going to happen at some future time. As a matter of fact, at the convention, one of them was asked: Do you think we'll have a democracy? This country comprised of colonies, stretched from the East coast to West coast. And one of them said: Well, I don't see how you can possibly have that.
There were so many things they couldn't foresee. Now I think that the Warren Court has done a proper reading of the Constitution. I think that it has read words like equality into the Constitution. I think that the Rehnquist Court is doing an improper reading of the Constitution. On the other hand, the Warren Court fundamentally reaffirmed basic democratic values. The Rehnquist Court, it seems to me, is affirming a kind of state's rights concept -- that the states are paramount of all the governmental entities and that state dignity trumps individual rights.
When the Constitution came into play, everybody realized that we were rejecting a monarchy. We were rejecting that kind of awesome power. And what the states' rights people do -- the Rehnquist people do -- is they reinterpret the Constitution so that even if the state has done something wrong to you, you have no legal redress. If the federal government has done something wrong to you, you have an arsenal of legal redress. But what they have done in a series of cases -- it's about 55 cases -- is basically absolve the states from responsibility for gender discrimination, race discrimination, age discrimination.
So I think that it basically comes out what your values are. A great value of mine is equality and liberty. I think that the Republican value or the conservative value -- certainly the right-wing value -- is very powerful states that have control over people and are free basically from the federal government, which they see as a very, very limited government.
BUZZFLASH: I'm looking at a story that we pulled off a Washington A.P. wire. There are several federal appointments before the Senate Judiciary. One of them is Mr. Michael McConnell. He's been a career pro-life activist. He testified, I will quote: "I will consciously enforce the law, including laws and precedents I don't agree with." But, you know, we've heard this before from other justices, and even the during the Attorney General confirmation hearings of Mr. John Ashcroft. Our hope is that the Democrats don't cave in on the nomination and stick to their principles. Do you have any thoughts about the chance that McConnell will, in fact, be appointed?
GARBUS: My judgment is that Michael McConnell will be approved. And one of the reasons he'll be approved is there's an academic community that is generally liberal but is supporting him. And the reason the academic community -- not everybody, but some prominent members of the liberal community -- is supporting him is because they believe that he can stick to those words. I don't believe he can. I don't believe that a man who has held such firm beliefs as he has about abortion and about church-state, and about a whole host of issues, can just wash them away.
And I think that you now have a Supreme Court of five-to-four, and, presumably, if Bush is in for four years, he'll have two or three more appointments. It'll be a totally right-wing court. So McConnell will be enforcing the law as articulated by the Rehnquist court. So I think that the argument also being made for McConnell is that he's not a quote, you know, a low-down politician, which he's not. But his conservative ideology should be an issue.
BUZZFLASH: Let me give you another example. Miguel Estrada, who is a Bush nominee to the U.S. Court of Appeals for the District of Columbia. He is Hispanic. It seems that we could be following a similar path in terms of Clarence Thomas, where there is a call for a greater diversity ethnically on the Court. But in terms of ideology, this is the same old conservative ideology coming up.
GARBUS: I agree with you. And just as it was hard for the Democrats to oppose Thomas -- until you had the Anita Hill allegation -- up until that time, he was a shoe-in. Scalia, as you may remember, went in 98-to-nothing. So I think that the Hispanic chord is being used by Estrada. And it'll be nearly impossible to muster a majority in the Senate to shoot down Estrada, because of his ethnicity will over ride his conservative ideology.
BUZZFLASH: Let's go on to something else. The 2000 election -- Bush versus Gore. Over here at BuzzFlash, we've characterized it as a judicial coup, a judicial hijacking. How do you characterize that decision, where essentially the conservative five put their guy in power? And as Vincent Bugliosi reminds us, should face impeachment hearings. What's your response to that?
GARBUS: I think that the court acted improperly. The court was guilty of making the legal decisions openly rendered purely political. It was a conservative Republican split. It was every reason in the world for the Court not to take the case. And I think what one has to look at and be afraid of is there really wasn't nearly a five-four decision. In many ways, it was a seven-two decision, because several of the more liberal members of the Court crossed over on many of the major issues of the case.
And I think what gets lost in these five-four decisions is that the four are characterized as liberals. They're not that at all. They're moderates. And on certain issues, they totally leave the liberal side. Breyer, for example, in certainly totally predictable church-state cases, goes over to the other side. So just the church-state cases wind up six-three. And the worst case that came down last term, the school voucher case, although it was five-to-four -- and that's a very dangerous decision -- you can see where Breyer might break ranks with the four if other cases like that come up again. You now have a solid majority for school vouchers.
BUZZFLASH: Early in the book, you commented that Bill Clinton did not fight hard enough for his judicial appointments. Explain.
GARBUS: Well, I think Bill Clinton was in trouble early. In 1994, he lost the Congress. And then, later on, he had the Monica Lewinsky problems. And he chose not to fight for a liberal court. In fact, when he was the governor of the state in Arkansas, he then didn't spend that much time on the judiciary and didn't see it as a political background. So as president he tried, early in 1992. But he started to see his people get shot down. And what he did was he withdrew some wonderful appointments -- Peter Edelman in Washington, for example. People who could have, had there been a fight, probably gotten in. But he didn't want to expend capital, and his face-saving device was to say that he appointed more women and minorities, which was true. But they were not liberal judges per se.
BUZZFLASH: This election in November, in terms of who will control the Senate, will be paramount. There are three Supreme Court justices that have been discussed whose seats could come up for appointment. They include Sandra Day O'Connor, John Paul Stevens, who's 82, and, of course, the Chief Justice, William Rehnquist. How many appointments do you expect Bush to potentially make after the general election in November?
GARBUS: Well, I think that Rehnquist and O'Connor will step down. I don't know what will happen to the health of a lot of the other people, like Stevens. On average, a president has an appointment every two years. Now Bush hasn't had any thus far. So I think you're probably looking at him having two or three appointments. And I think that the appointments will be to the right of the people who are stepping down. There's a lot of dissatisfaction within the conservative movement against Rehnquist because of the way he has voted on a whole host of issues in criminal law cases. So I think that there's a very high possibility that someone in the Scalia-Thomas mold, which is what Bush says he wants the mold to be, will be appointed.
And the difficulty is making the quote American public aware of the significance that that has to their everyday lives. That's what I've tried to do in the book -- translating what the Court does to how it affects every American's rights.
BUZZFLASH: One issue that I was surprised that the Court did not take up was the Emerson case that emerged from Texas about whether they would issue an interpretation on the Second Amendment. (I should point out that Emerson challenged Federal law that says if you are guilty of domestic violence and there is a restraining order against you, then you cannot legally possess a firearm.) The Court passed on hearing the case and, in effect, a Second Amendment interpretation supporting either a collective right to bear arms or an individual right to bear arms? Do you foresee, in the ongoing debate with gun control, the Court eventually issuing a decision on that?
GARBUS: I think the Court will. I think the reason it hasn't come up thus far is you need four votes to take a case. I think that Scalia, Thomas, perhaps even Rehnquist, would vote for the right to bear arms. I think the three of them recognize that if they brought up the case now, they would lose. The majority doesn't want to bring it up because they're not sure of the context. If it comes up in the context of the criminal case, that's different than if it comes up in some kind of other context -- injunctive, declaratory relief, et cetera. So I think that until the Court's composition changes, you will not see the case taken. And when the composition changes, you'll get a Court that is conservative, that believes in the right to bear arms. There is a 1933 case, United States against Miller, which they would be fundamentally overruling. The Supreme Court's standing ruling is that the 2nd Amendment is a state's collective right to a militia.
BUZZFLASH: It seems to me that the Constitution is so very clear in terms of the Preamble. It's essentially the Constitution's mission statement -- ensure domestic tranquility, provide for the common defense, promote the general welfare, secure the blessings of liberty. Why is the Preamble not rooted in rulings more often? It's a very progressive statement, and it seems to be neglected. And my interpretation has always been that the Constitution is only a structure to serve those aims. Gun control, for example, falls into that category. The Second Amendment was drafted before handguns were invented -- before the repeating rifle was even an invention. How do assault rifles or handguns fit into the general welfare, or domestic tranquillity statement?
GARBUS: Well, you and I are in agreement. I think that the Preamble to the Constitution, plus the Declaration of Independence, articulate America's moral values. And I think that the Constitution set up the structure of government and should be interpreted of a larger value. And the larger values don't mean that people have guns, and kids are getting killed by guns, and you have guns in schools. There was a case in 1995 when the Rehnquist Court struck down laws that keep the guns out of schools. Recently Ashcroft was featured on the cover of an NRA magazine, and the caption was something like Ashcroft being a breath of fresh air in the government. Ashcroft is totally for handguns and against any gun controls.
BUZZFLASH: Mr. Garbus, thank you so very much for your time.
GARBUS: Thank you.
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