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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".

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