David Michael Green: It's Scalia Time!

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Original Content at http://www.opednews.com/articles/opedne_david_mi_070705_it_s_scalia_time_21.htm

I WANT YOU TO KNOW, I NEARLY KILLED MYSELF TRYING TO PARE THIS DOWN TO THE REQUIRED LENGTH--GO READ IT ALL--IT'S WORTH YOUR TIME!
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July 5, 2007

It's Scalia Time!

By David Michael Green


Thirty-three years ago, on assuming the presidency in the wake of Richard Nixon’s resignation, Gerald Ford famously sought to ease the worries of a troubled nation with these words: "My fellow Americans, our long national nightmare is over"...After Gerry Ford proclaimed that "our long national nightmare is over", he followed that famous lines with these words: "Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule."

Methinks we may have yet another chance to test that proposition in the near future.
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Today, I am tempted to offer a warning, not a palliative: My fellow Americans, our long national nightmare is just beginning.

I say this because, just as the Bush administration and the regressive political movement of which it has been the most recent and most potent manifestation are recessing into a toxic pool of failure, incompetence, disaster and public abhorrence – purely of their own making – the politics they represent have now been all but firmly established on the Supreme Court for the foreseeable future. Like a nice case of herpes, this is a gift that will keep on giving for a very long time.

It is also precisely according to plan. The Supreme Court is arguably the most powerful lawmaking institution in American government – the be-all, end-all and final stop for any policy debate in which the country is engaged – and was therefore always the great prize for the cancer of regressive politics which has been metastasizing in America since Reagan, if not earlier. The presidency was always important to the right, and Congress too, especially the Senate. But the chief importance of these institutions was ultimately their capacity to serve as vehicles for remaking the third branch of government, by loading it up with young reactionaries serving lifetime terms, who would therefore sit on the bench making policy for a very, very long time. And who, by virtue of the Constitution’s design, would be all but untouchable by any influence, check or balance, likely including public opinion.

That this was crucial to movement conservatives became obvious in one of the rare episodes where actions taken by King Bush manage to enrage them, and where they abandoned and reviled him across the miasma of their noxious talk radio swampland. When a second vacancy on the Supreme Court opened up, Bush’s instinct was to choose someone he could count on to stand foursquare behind his single most important issue in all of American politics. So he chose Harriet Miers, a sycophant’s sycophant, whose most compelling credential was unquestioning loyalty to The Man, a loyalty that even a guy with Bush’s level of prescience could foresee would be very necessary in the years to come. That was his issue – not abortion, not Guantánamo, not school prayer not stem cells – just finding a reliable vote to keep George out of jail no matter what. Conservatives went crazy at this real and apparent betrayal. This was supposed to be their big moment, the opportunity they had been scheming and striving toward for decades, and what does Bush do (after they had spent years backing him, right down the line)? He nominates a candidate for the court who was all about George, not about regressivism. Miers possessed neither the dependability of a solid conservative record to assure them she wouldn’t become another Blackmun, Stevens or Souter and move to the left while on the Court, nor the intellectual heft to shape its decisions or to persuade other justices to vote for regressive policies. So the movement hammered its own president, Miers withdrew her name from consideration, and they got Sam Alito instead.

Then we all got Alito. Stupidly, and with great cowardice aforethought, Senate Democrats helped confirm both Alito and Roberts before him, both of whom had learned from Robert Bork’s experience that honesty is, ahem, not always the best policy. Are you a Neanderthal who wants to be on the Court? My advice is to hide your politics well while testifying before the Senate. There’ll be a lifetime of opportunity later to swing your wrecking ball as wide as you want. Meanwhile, though, refuse to take any position (even previously articulated positions) on the principle that every case is unique and you can’t commit to a decision on future matters. Be sure, also, to hide behind vague judicial platitudes like your general respect for honoring precedent. If you want to really do it up right, like Clarence Thomas did, you can even pretend that you’ve never really thought much about abortion, probably the single most controversial issue in American politics prior to the Iraq war. Trust me, Democrats in the Senate will not block your confirmation. Many will even vote for you. Some will go so far as to publicly sing your praises. Then, once the vote is in, you can party down all you like. There’s no going back. And so it was that the regressive movement got its great and long sought after prize – a Supreme Court so backward that many of its decisions would have looked retro even in the nineteenth century. And not just the Supreme Court, either. Between Reagan and the two Bushes – not to mention classic Clintonian centrism in judicial appointments – the entire federal judiciary is now heavily stacked with right-wingers pledged to maintain their destructive march to the sea, and all of them sitting in jobs with lifetime appointments. This was the movement’s great quest all along, and the decisions of the Supreme Court this year demonstrate the scope of their victory, with far more to come...The great ironies of all this are at least two-fold. The first is that this regressive judiciary has now only fully consolidated its power at the very moment when its core ideology is being repudiated by the public, and that repudiation is showing up powerfully nowadays in the other two branches of American government. Congressional Republicans got a "thumpin’" in 2006, and now see that 2008 looks far worse. Accordingly, they are opening up Grand Canyon-like fissures between themselves and a Republican president who is in the process of transitioning from just plain unpopular to truly despised. And yet it is this very same loser ideology which will continue to determine public policy because of lifetime appointments to the federal court system, and the very intentional program of populating it with ideological clones. It’s sort of like a latter-day version of the Boys From Brazil. Only even more fun, because these nice young fellows have control of the world’s sole superpower...

The other great irony here emerges from the first. Americans love to believe that they are proud owners of the world’s greatest democracy. But the final arbiter of much policy making in the United States is the Supreme Court, not only the least democratic of the three branches of government, but in fact almost completely non-democratic at all. Consider the present case. Policy in this country is now being decided by five individuals clothed in black robes, meeting in secret, and offering whatever explanation or criteria they choose to offer (or not) to justify their decisions. They are chosen through a process which might be described, at best, as indirectly quasi-democratic in nature. They serve for life. They cannot be removed from office except by impeachment, which almost no one considers to be justified for the crime of possessing bad judicial politics. Or even – like Scalia or Thomas – horribly bad politics. You basically have to be caught with a bag of cash or a law clerk under your robes to be impeached, and probably neither of those would actually be sufficient. And, if you think that is bad, consider this. Changing the ‘five’ in the above scenario to just one would not be an inaccurate description of our current governing arrangement. Indeed, because of existing political configurations, there is quite arguably just one person – robed in black, serving for life, chosen through a non-democratic process, unanswerable to anyone, and almost completely untouchable – who sets policy in this country. His name is Anthony Kennedy and, just about every time it counts, he is very regressive.




Authors Website: www.regressiveantidote.net

Authors Bio: David Michael Green is a professor of political science at Hofstra University in New York. He is delighted to receive readers' reactions to his articles ([email protected]), but regrets that time constraints do not always allow him to respond. His website is www.regressiveantidote.net.

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