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The Supreme Court's Partisanship
Originally published in ConsortiumNews.com yesterday, 27 January 2010
The U.S. Supreme Court’s landmark ruling that lets corporations spend all they want to punish political enemies and reward political friends is a reminder that the panel’s Republican majority has become one more potent weapon in the Right’s already intimidating arsenal.
Over the past several decades, the American Right has assembled such an array of political weaponry – ranging from a vast propaganda apparatus that defines “reality” for tens of millions of Americans to specialized attack groups that can target troublesome figures in the press or academia – that it’s hard to envision how this powerful grip on U.S. democracy can now be broken.
The Right's influence is so wide and so deep that it can front for wealthy special interests under the guise of “populism” and persuade many Americans that their real enemy is not Big Corporations, but Big Government.
Guided by Fox News and other well-financed parts of the right-wing media, the Tea Partiers apparently believe they are engaged in a movement to free the Republic from the tyranny of the federal government, when they’re actually helping consolidate the power of corporations against the only force that can possibly check corporate domination, a democratized federal government.
Adding to this political imbalance, the Supreme Court voted 5-4 on Jan. 21 to cede more power to corporate money by striking down restrictions on what corporations and other special interests can do to finance attacks on – or support for – a particular political candidate.
The five Republican-appointed justices left little doubt that they will be very active when partisan questions come before the court, despite their prior assurances that they detest “activist judges” and despite their promises to show great respect for legal precedents. The campaign-finance decision shattered decades of precedents and tilts the political playing field even more in the Republican direction.
This transformation of the federal courts into a powerful line of defense for Republican and corporate interests began several decades ago when the Right denounced "liberal judges" who ended racial segregation and restricted state anti-abortion laws.
Packing the courts with politically reliable partisans became a key behind-the-scenes goal of President Ronald Reagan in the 1980s. Yet, because turnover on the Supreme Court is slow, Reagan took aim first at the influential U.S. Court of Appeals in Washington, D.C., appointing hardliners like Laurence Silberman and David Sentelle.
Reagan’s strategy paid off after the Iran-Contra scandal exploded in November 1986, with disclosures that Reagan’s White House had been running a secret war in Nicaragua funded, in part, by illegal weapons sales to the radical Islamic government of Iran. White House officials were caught lying about both Nicaragua and Iran.
The Reagan administration’s response was to sacrifice a few low-level officials, such as Lt. Col. Oliver North, and insist that senior officials had been kept in the dark.
To avert a constitutional crisis, congressional Democrats mostly went along with this cover story, concentrating their criticism on North and letting Reagan and then-Vice President George H.W. Bush mostly off the hook.
The Walsh Factor
However, the Iran-Contra cover-up ran into trouble when special prosecutor Lawrence Walsh conducted a methodical investigation that stripped away one layer of lies after another.
Walsh was a former Republican judge who was appointed to run the Iran-Contra criminal investigation by a three-judge panel then headed by another Republican, senior U.S. Appeals Court Judge George MacKinnon.
However, both Walsh and MacKinnon were old-school Republican conservatives from the Eisenhower era. They took seriously their duty to pursue justice and the truth.
Despite legal difficulties created by congressional grants of immunity, Walsh won convictions against North in 1989 and Reagan’s national security adviser John Poindexter in 1990. Republicans scrambled to keep the scandal from spreading to Reagan and his successor, President George H.W. Bush.
Some of that fury played out within judicial circles. In Firewall, Walsh’s memoir about the Iran-Contra scandal, the special prosecutor described how black-robed Republican appointees to the U.S. Appeals Court in Washington “waited like the strategic reserves of an embattled army.”
A leader of this partisan faction was Judge Silberman, an obstreperous neoconservative who had served as a foreign policy adviser to Reagan’s 1980 campaign. At one point during the Iran-Contra scandal, Silberman berated MacKinnon – Walsh’s principal protector – for supporting the special-prosecutor law.
“At a D.C. circuit conference, he [Silberman] had gotten into a shouting match about independent counsel with Judge George MacKinnon,” Walsh wrote. “Silberman not only had hostile views but seemed to hold them in anger.”
On the North appeal in 1990, Silberman teamed up with a younger conservative, Judge Sentelle, to overturn the three felony counts against North. The appeals court vote was 2-1, as these two Republican “law-and-order” judges suddenly were voting to expand the rights of criminal defendants in cases involving limited immunity, which North had secured from Congress before testifying.
Sentelle, a protégé of conservative Sen. Jesse Helms, R-North Carolina, also served on a second appeals panel that overturned the conviction of Poindexter on similar grounds.
Despite the reversals, Walsh continued to make investigative progress, stripping away one layer of the cover-up after another. In early 1992, he brought obstruction-of-justice charges against former Defense Secretary Caspar Weinberger and several senior CIA officials. The case was moving dangerously close to then-President Bush.
Picking a Partisan
At that point, Walsh received a call from MacKinnon with some troubling news. U.S. Supreme Court Chief Justice William Rehnquist, who controlled appointments to the three-judge panel that picked special prosecutors, had decided to oust MacKinnon, Walsh’s ally.
Rehnquist was pushing MacKinnon out and putting Sentelle in. Rehnquist made this move although it defied the legal language of the 1978 Ethics in Government Act, the law that created the special prosecutor post.
As a safeguard against partisanship on the three-judge panel that picked special prosecutors, the law stipulated that in appointments to the panel, “priority shall be given to senior circuit judges and retired judges.”
That provision had always been followed – until 1992 when Rehnquist waived its provisions and reached down for an active junior judge, Sentelle.
Beyond Sentelle’s lacking “senior” status, he was known as one of the most conservative partisans on the federal bench. A Reagan appointee, Sentelle had named his daughter, Reagan, after the President.
Sentelle also continued denouncing liberals even after his appointment to the federal bench. In one article published in the Harvard Journal of Law and Public Policy in winter 1991, Sentelle accused “leftist heretics” of wishing to turn the United States into “a collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially permissive state.”
By picking Sentelle, Rehnquist guaranteed that future special prosecutors would be more politically attuned to Republican political needs. Through the 1990s, Sentelle did what he was expected to do, make sure that conservative prosecutors controlled the special prosecutor apparatus, especially on politically sensitive cases.
In Senate testimony in 1999, Sentelle explained that he consciously selected political adversaries to conduct these investigations. For instance, Sentelle said he looked for Republicans “who had been active on the other side of the political fence” to investigate President Bill Clinton and his administration.
Beyond the view of many legal experts that prosecutors should be as impartial as possible – neither friends nor foes of the person under investigation – Sentelle also had applied his selection strategy differently in 1992 when the subject was George H.W. Bush’s administration. Then, he picked a fellow Republican, Joe DiGenova, to handle the investigation.
Hunting the President
Most famously, Sentelle picked Republican lawyer Kenneth Starr to investigate Clinton, first over his Whitewater real estate investment and later over Clinton’s sexual dalliance with Monica Lewinsky.
Arguably, the hidden hand behind this anti-Clinton strategy was Supreme Court Chief Justice Rehnquist, who had been named to the Supreme Court by Richard Nixon and elevated to Chief Justice by Ronald Reagan. Rehnquist handpicked Sentelle who, in turn, handpicked the special prosecutors.
Before his death in 1995, MacKinnon told his family that if he had remained in charge of the special prosecutor panel he would not have appointed Starr. A son, James D. MacKinnon, said Judge MacKinnon objected to Starr’s appointment in 1994 because of the appearance of partisanship arising from Starr’s senior position as Solicitor General in the prior administration.
Judge MacKinnon also expressed concern about Starr’s frequent public appearances, which the judge felt “were wholly inappropriate for an independent counsel,” James MacKinnon stated. “My father always felt that independent counsels and judges should be extraordinarily discreet with any public comments, and be as anonymous as possible and simply do their work.”
As the U.S. Judiciary grew more partisan during the Reagan and Bush-I years, the stage was set for the Supreme Court’s direct intervention into the political process.
In 2000, when Al Gore and George W. Bush were locked in a tight election in Florida that would determine the presidency, Gore sought – and got – a state court-ordered recount in Florida.
The statewide recount began on the morning of Dec. 9. Immediately, the canvassers began finding scores of legitimate votes that voting machines had missed. Bush’s lawyers first raced to the U.S. Appeals Court in Atlanta to stop the count. Though dominated by conservative jusges, that court found no grounds to intervene.
A frantic Bush then turned to the U.S. Supreme Court in Washington. There, in the late afternoon, the court took the unprecedented step of stopping the counting of votes cast by American citizens.
Justice Antonin Scalia made clear that the purpose of the court’s action was to prevent Bush from falling behind in the tally and thus raising questions about his legitimacy should the Supreme Court later declare him the winner.
That outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency, explained Scalia. "Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia wrote.
Trusting the Law
Still, Gore and his lawyers voiced confidence that the rule of law would prevail, that the U.S. Supreme Court would rise above any partisan concerns and insist that the votes be counted and that the will of the voters be respected.
The Gore team went before Rehnquist’s court on Dec. 11 apparently still not cognizant of the reality that whatever they argued, the five conservative justices were determined to make Bush the next President.
At about 10 p.m. on Dec. 12, 2000, five Republican justices – Rehnquist, Scalia, Clarence Thomas, Sandra Day O’Connor and Anthony Kennedy – ruled that the Florida recount was flawed and gave the state only two hours to correct the shortcomings and complete the tally.
Since that was impossible, the ruling essentially handed the White House to Bush.
Later, information emerged revealing that the five Republican justices had flipped their legal rationale nearly 180 degrees between Dec. 11, when they were first prepared to rule in Bush’s favor, and the night of Dec. 12 when the decision to make Bush the next President finally was announced.
The judicial gymnastics showed that the five justices settled on their desired political outcome – Bush’s victory – and then dressed up their partisan choice in acceptable legal verbiage.
In an article on Jan. 22, 2001, USA Today’s legal correspondent Joan Biskupic described the inside story of the strains that the Bush v. Gore ruling had created within the court.
Though the article was sympathetic to the five conservative justices, it disclosed an important fact: that the five justices were planning to rule for Bush after oral arguments on Dec. 11. The court even sent out for Chinese food for the clerks, so the work could be completed that night.
The legal rationale for stopping the recount was to have been that the Florida Supreme Court had made “new law” when it referenced the state constitution in an initial recount decision – rather than simply interpreting state statutes.
Even though the argument was technical, it at least conformed with the conservative principles of the five-member majority, supposedly hostile to judicial “activism.”
However, the Florida Supreme Court threw a wrench into the plan. On the evening of Dec. 11, the state court submitted a revised ruling that deleted a passing reference to the state constitution. The revised state ruling based its reasoning entirely on state statutes that permitted recounts in close elections.
This revised state ruling drew little attention from the press, but it created a crisis for the five justices. O’Connor and Kennedy no longer felt they could agree with the “new law” rationale for striking down the recount, though Justices Rehnquist, Scalia and Thomas still would.
O’Connor and Kennedy then veered off in very different direction. Through the day of Dec. 12, they worked on an opinion arguing that the Florida Supreme Court had failed to set consistent standards for the recount and that the disparate county-by-county standards constituted a violation of the “equal protection” rules of the 14th Amendment.
This argument was quite thin and Kennedy reportedly had trouble committing it to writing. To anyone who had followed the Florida election, it was obvious that varied standards already had been applied throughout the state.
Wealthier precincts had benefited from optical voting machines that were simple to use and eliminated nearly all errors, while poorer precincts with many African-Americans and retired Jews were stuck with outmoded punch-card systems with far higher error rates. Some counties had conducted manual recounts, too, and those totals were part of the tallies giving Bush a tiny lead.
The statewide court-ordered recount was designed to reduce these disparities and thus bring the results closer to equality. Applying the “equal protection” provision, as planned by O’Connor and Kennedy, turned the 14th Amendment on its head, guaranteeing less equality than letting the recount go forward. The O'Connor-Kennedy "reasoning" ensured that the votes of wealthy Floridians were given greater weight than those of minorities and the poor.
Yet possibly even more startling than the stretched logic of O’Connor and Kennedy was the readiness of Rehnquist, Scalia and Thomas to sign on to a ruling that was almost completely at odds with their original legal rationale for blocking the recount.
On the night of Dec. 11, that trio was ready to bar the recount because the Florida Supreme Court had created “new law.” On Dec. 12, the same trio prevented the recount because the Florida Supreme Court had not created “new law,” the establishment of precise statewide recount standards.
The five conservatives had devised their own Catch-22. If the Florida Supreme Court set clearer standards, that would be struck down as creating “new law.” If the state court didn’t set clearer standards, that would be struck down as violating the “equal protection” principle. Heads Bush wins; tails Gore loses.
Rationalizing the Rationale
After the court's Dec. 12 ruling and Gore's concession the next day, Justice Thomas told a group of high school students that partisan considerations played "zero" part in the court's decisions. Later, asked whether Thomas's assessment was accurate, Rehnquist answered, "Absolutely."
In later comments about the court’s role in the case, Rehnquist seemed unfazed by the inconsistency of the legal logic. His overriding rationale seemed to be that he viewed Bush’s election as good for the country – whether a plurality of voters thought so or not.
In a speech to a Catholic service organization on Jan. 7, 2001, the chief justice said sometimes the U.S. Supreme Court needed to intervene in politics to extricate the nation from a crisis.
Rehnquist’s remarks were made in the context of the Hayes-Tilden race in 1876, when another popular vote loser, Rutherford B. Hayes, was awarded the presidency after justices participated in a special election commission.
“The political processes of the country had worked, admittedly in a rather unusual way, to avoid a serious crisis,” Rehnquist said.
Scholars interpreted Rehnquist’s remarks as shedding light on his thinking during the Bush v. Gore case as well.
“He’s making a rather clear statement of what he thought the primary job of our governmental process was,” said Michael Les Benedict, a history professor at Ohio State University. “That was to make sure the conflict is resolved peacefully, with no violence.” [Washington Post, Jan. 19, 2001]
But where were the threats of violence in the 2000 election?
Gore had reined in his supporters, urging them to avoid confrontations and to trust in the “rule of law.” The only violence had come from the Bush side, when protesters were flown from Washington to Miami to put pressure on local election boards.
On Nov. 22, 2000, as the Miami-Dade canvassing board was preparing to examine ballots rejected by the voting machines, a well-dressed mob of Republican operatives charged the office, roughed up some Democrats and pounded on the walls. The canvassing board promptly reversed itself and decided to forego the recount.
The next night, the Bush-Cheney campaign feted these brown-shirts-in-blue-blazers at a hotel party in Fort Lauderdale. Starring at the event was crooner Wayne Newton singing "Danke Schoen," but the highlight for the operatives was a thank-you call from George W. Bush and his running mate, Dick Cheney, both of whom joked about the Miami-Dade incident. [Wall Street Journal, Nov. 27, 2000]
The Journal also reported that the assault on the Miami-Dade canvassing board was led by national Republican operatives "on all expense-paid trips, courtesy of the Bush campaign."
The Journal noted that "behind the rowdy rallies in South Florida this past weekend was a well-organized effort by Republican operatives to entice supporters to South Florida," with House Majority Whip Tom DeLay's Capitol Hill office taking charge of the recruitment.
If one were to take Rehnquist’s “good-for-the-country” rationale seriously, it would mean that the U.S. Supreme Court was ready to award the presidency to the side most willing to use violence and other anti-democratic means to overturn the will of the voters.
But it seems more likely that Rehnquist and the other four justices were just acting as partisan Republicans.
That reality of a deeply politicized judiciary – willing to manipulate court cases for partisan purposes – also means that the nature of American democracy has changed.
With its unique position as the final arbiter of American law, the U.S. Supreme Court, now controlled by five conservatives, has appropriated the power to use whatever “logic” is handy to deliver the politically appropriate result.
Almost a decade after Bush v. Gore, with John Roberts replacing the late William Rehnquist as Chief Justice and right-wing legal theorist Samuel Alito filling Sandra Day O’Connor’s seat, the Court has now reshaped the political landscape to make it even more favorable for Republicans by opening the floodgates so corporate money can flow at unprecedented rates.
As Iran-Contra special prosecutor Lawrence Walsh might have appreciated, the Supreme Court has emerged as the ultimate “strategic reserves” for the Republican Party -- and for an entrenched army of corporate interests.
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.
This article is republished in the Baltimore Chronicle with permission of the author.
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This story was published on January 28, 2010.