|
The
Constitution vs. Conservatism
January 17, 2003
By punpirate
 Again,
I'm just plain confused about what we Americans describe as
"democracy."
Here's why: a short while ago, a certain Federal Court judge,
John Bates, a Bush appointee, ruled that Congress, through
its own duly appointed agency, the General Accounting Office,
had no entitlement to documents that the administration developed
in its meetings to establish energy policy, despite the fact
that Congress is responsible for oversight of the administration,
since it holds the pursestrings for everything the administration
can do.
Funny thing.... John Bates, before he was confirmed to his
Federal judgeship, worked for a notoriously partisan independent
prosecutor by the name of Ken Starr, and his primary task
in Starr's investigation was to pry loose all of Hillary Clinton's
papers with regard to Starr's Whitewater investigation. Bates
had no problem pressing for Presidential or Presidential wife's
document transparency when the right wing wanted something
of a Democratic president and his wife. In his capacity as
Federal judge overseeing a couple of cases involving Mr. Bush
and company, however, he thinks differently about transparency
in government.
Not long after Judge Bates' confirmation, a few Congressmen
(thirty-two of `em to be exact) decided to file suit against
the Bush administration for its arbitrary withdrawal from
the ABM treaty. Bates told them, in essence, piss off, you
don't have standing.
Now, in legalese, "lack of standing" means that the party
really doesn't have anything to do with the issue. At base,
this means that the complainant hasn't been injured directly,
so they can't really have been harmed by the defendant in
the suit. Without demonstrated harm, there's no cause for
suit. To put it in simpler terms, if I hit and injure a pedestrian
at a crosswalk with my car, and another person, twelve miles
away, with no personal or business interest in this accident
decides to sue me for the accident, I'm not liable to them
because they have no real interest in it. They have, in legal
terms, no standing.
In the first case, Bates decided that an authorized agency
of Congress acted independently of the wishes of Congress
by asking for Vice President Cheney's energy task force papers,
because Congress had not specifically, by legislative mandate,
authorized the GAO to seek those papers. Therefore, the GAO
had no standing. To Judge Bates, the fundamental Congressional
mandate of the GAO to oversee administration operations on
behalf of Congress did not apply - there was no specific resolution
to investigate this specific instance of the administration's
operation, even though a 1921 law passed by Congress authorized
the GAO to do so at its own discretion, within the limits
of that law. Judge Bates suggested, in his ruling, that Congress
had the power of subpoena, so they should have done so, even
though prior law did not require them to do so.
No wonder I'm confused. The GAO is chartered by law, in perpetuity,
to act in Congress' oversight interests. They're the watchdog
for Congress. They don't need specific legislation
to act - they have already been authorized by Congress to
do so.
In the second case before him, Judge Bates said that, "[I]n
the year since President Bush announced his intention to withdraw
from the ABM Treaty, neither the House nor Congress has made
any attempt whatsoever to register disapproval as a body,
or to insist on a role in the termination of the treaty,"
and, according to Bates, he did not want "to encourage congressmen
to run to court any time they disagreed with presidential
action...or were on the losing end of a piece of legislation."
In this instance, the problem is even more obvious - the
Senate is the sole body authorized by the Constitution to
enact treaties as the "supreme law of the land" as Article
XI of the Constitution requires. There is no authority provided
in the Constitution for Presidential authority to nullify
any treaty voted upon by the Senate. Simple logic would have
the Senate, initially responsible for ratification of treaties,
also responsible for dissolution or deratification of treaties
and that the administrative body of government has no standing
in the matter of treaties, since ratification of treaties
is the sole province of the Senate.
Judge Bates' ruling says, in effect, nope, because a majority
of the Senate wasn't interested enough to object, the President,
by fiat, is entitled to dissolve a previously-ratified treaty
and declare it null and void. Judge Bates cited the still-controversial
Supreme Court ruling of Raines v. Byrd as justification for
his ruling, which itself stretched the notion of injured parties
to the breaking point, even though members of Congress, as
direct representatives of the people and with Constitutional
mandate on behalf of the people, could reasonably be seen
as aggrieved parties acting as surrogates for the peoples'
interests under the Constitution.
Herein lies the problem with so-called "conservative" judges
as promoted by the Bush II administration, the Bush I administration
and the Reagan administration, and, ultimately, the Nixon
administration. Judge Bates, in his capacity as a newly-appointed
adjudicator of the Constitution, clearly owes his loyalty
to an administration and a Presidential ideology, rather than
to the Constitution. The Constitution and its intent are more
than clear on both of these issues recently ruled on by Judge
Bates. "Strict constructionism" becomes, judicially, the code
phrase for a right-wing legal crutch based on tenuous, greatly
extrapolated interpretations, rather than as defense of the
Constitution and the people's interests. It's not a stretch
to declare, bluntly, that Bates and other right-wing appointees
are using arcane, vague and solipsistic interpretations of
the law to establish policy in favor of right-wing administrations,
and to deter further legal action by the very parties injured
by administration policy and executive order, to include Congress
and the people.
In the first instance described, the Congress' delegated
authority, the GAO, presumably acting in the people's interest
in governmental transparency, has sought simple explanation
of the administration's processes and contacts in the matter
of energy policy development. The administration has stonewalled
every effort of Congress' delegated authority to obtain that
information, on behalf of the people, via the vague assertion
that executive privilege is involved (let us make this very
clear - executive privilege is a non-Constitutional assertion
first made by the Nixon administration) and on the matter
of lack of standing - that the GAO was not directly injured
by the actions of the administration - it's a bit like saying
that because the Comptroller General was himself not hit by
the car, he has no interest in the matter, although his father,
Congress, was run over.
The second instance, that the administration has the right,
under the Constitution, to abrogate treaties approved by the
Senate, also has no clear and simple basis in law. Approval
of treaties is the province of the Senate. No Constitutional
authority is given to the President or the administrative
branch to make any such abrogation. That strongly suggests,
in law and logic, that termination of any treaty is solely
the responsibility of the Senate, and that a treaty remains
in effect until that treaty is terminated by the Senate, not
the President.
Lately, the administration, in the assertion of its rights,
has said that it is simply protecting Presidential authority
against encroachment by Congress, that it is protecting administration
authority from diminution by Congress. Nothing could be less
true. The notion of an imperial presidency began with Richard
Nixon, personally and organizationally. Nixon proved that
the Presidency had to have a watchdog, and in the aftermath
of Watergate, Congress once again asserted its role as watchdog
of the administration. Conservatives have, ever since Nixon's
resignation, sought to emasculate Congress of its Constitutionally-mandated
oversight role. That is no more true than today, with the
Bush administration's attempts to install judges of profoundly
right-wing and anti-Constitutional attitudes who would protect
the administration's institutional authority over the rights
of the people as expressed by Congress, or by a coalition
of its representatives.
What experience suggests is that, for all the talk from conservatives
about their appointment of judges on the basis of legal scholarship
and merit, both Democratic and Republican administrations
seek to appoint judges to the Federal judiciary who match
their respective philosophies. The evidence of that is no
more apparent than in John Dean's latest book, The Rehnquist
Choice. Richard Nixon's primary considerations in judicial
appointments, as evidenced by transcripts from Oval Office
tapes, particularly in his last two nominations to the Supreme
Court were: "conservative" decisions, Republican Party membership
or sympathies, antipathy to civil rights law, a devotion to
"states' rights" as a means of subverting Federal government
legislation, an overweening desire to appoint a Southern judge,
an anti-busing posture, a strong belief in "law and order"
and, late in the process, anyone who found the Miranda decision
odious. Every nomination sent to the American Bar Association
by the Nixon administration was done so with a calculated
political intent - even when Nixon was saying, privately,
that "women shouldn't be educated," he sent the nomination
of Mildred Liddie to the ABA in the hope that there was political
gain in nominating a woman to the Supreme Court, but only
if that woman had demonstrated rightist credentials. In all
cases, the issues of legal scholarship and juridical experience
were secondary to ideological concerns. The tapes from the
Nixon administration informs us of the process in all administrations.
The differences in those appointments from administration
to administration, however, are extreme. From Nixon onward,
Republican administrations have sought to secure the appointment
of so-called conservative judges who, by their rulings, would
consolidate power for existing authority. That authority might
be in the hands of Executive branch, or in local police, or
in state authority in defiance of federal law, or in favor
of corporate and business interests seeking consolidation
of economic power and who might also benefit politicians by
contributions made possible by increased economic power in
society at large.
By contrast, the "liberal" judges appointed by Democratic
presidents tended to rule in favor of the rights of the individual,
which, in some less precise sense, still adhered to the basic
tenets of the Preamble to the Constitution - "to secure justice...
promote general Welfare and... secure the Blessings of Liberty
for ourselves and Posterity." Those "liberal" Supreme Court
justices, Frankfurter, Brandeis, Douglas, Thurgood Marshall,
and to lesser extents, Hugo Black and Earl Warren, wrote decisions
favoring the rights of all ordinary people and disfavoring
the right of government to infringe upon the rights of ordinary
citizens.
The simple truth is that, today, the law has become complex
enough that any bright lawyer can find a prior citation to
justify almost any ruling (if the Rehnquist Five can subvert
Constitution and Congress and their own belief in states'
rights in the coronation of GWB, anything is possible). The
difference in the two parties' appointments is in ideology,
and everyone, in and out of the legal community, ought to
acknowledge this, reluctantly or enthusiastically, as the
case may be.
As for the people, if they consistently vote for conservatives
who then appoint judges acting in contravention of the rights
of individuals, only the people can correct that. After thirty
years of increasingly right-wing courts, created by the nominations
of right-wing presidents and by an obsequious deference on
the part of liberals in the confirmation of such judges, the
judiciary has become politicized in favor of institutional
authority and corporate interests, rather than being politicized
in favor of individual and human rights.
Is there a solution to the problem of a judicial right-wing
bias? Simply, yes. First, proponents of democratic rule in
the Senate should invoke two-thirds majority rules for the
appointment of any judge. This would help prevent the appointment
of any judge on narrowly-defined ideological grounds when
the majority-minority ratio is slim, as would the resistance
of democrats to the confirmation of any judge whose rulings
smacked of a conservatism favoring institutional authority
over the rights of the people.
Second, when a judge has clearly bent decisions to the will
of a right-wing ideological force, rather than rule in favor
of the intent of the Constitution and the overall rights of
the people, the House should invoke impeachment proceedings,
and the Senate should act upon those impeachment bills. To
date, impeachments of Federal judges appointed for life have
been rare, and have been reserved for those few judges who
let greed consume them.
Now, for the preservation of democracy, impeachment of Federal
judges for failure to observe Constitutional mandates on behalf
of the people should become the norm, rather than the extreme
exception. Failure to uphold the Constitution is a violation
of oath, a perjury falling under the "high crimes and misdemeanors"
rule. In demonstrative terms, such would be game-playing with
the judiciary, a supposedly independent body, but the reality
today is not that the judiciary is independent, but, rather,
that the judiciary is composed of individuals who became judges
at the behest of presidents with an agenda. The greater issue
is one of the nature of the prescriptive intent of those presidents
- whether to uphold the Constitution's mandate to protect
the people from the excesses of government, or to enable the
diminution of people's rights in favor of increasingly dictatorial
institutional authority.
The Constitution, in its literal wording and in the historical
record of its creation, intends to protect the public against
any and all excesses of government, and, through the Bill
of Rights, specifically protects the individual's legitimate
human rights in favor of any arbitrary rights assumed by government.
Any interpretation otherwise by any judge should be sufficiently
suspect to warrant impeachment proceedings. The Constitution,
as affirmed by recent legislation, demands open government,
and any administration effort to conceal its workings from
the people it represents should be roundly trounced by the
judiciary. Any failure of the judiciary to affirm the Constitutional
rights of natural people should be addressed by Congress in
appropriate fashion.
Judge John Bates is now the poster child for bad judges,
because he has twisted the law to partisan ends favoring the
interests of authoritarianism, rather than ruling in the interests
of the people. He ought to be the first to be impeached and
thrown out on his black-robed ass, simply because he disingenuously
used the law to defend an administration's interests in secrecy,
at the expense of the people's right to know of the workings
of their government and, therefore, subverted the original
purposes of the Constitution.
Every judge, every official, takes an oath to uphold the
Constitution. Sly interpretations of law to benefit the authoritarian
interests of a sitting President (or Vice-President) may be
technically legal, but they are not providential, nor are
they fitting under the spirit and intent and language of the
Constitution, which, foremost, establishes both the rights
of the governed in their governance and the limits placed
on those governing with respect to the governed.
punpirate is a New Mexico writer who hopes the only Bates
scaring us is Norman, the one in Alfred Hitchcock's "Psycho".
|
