In fact, rumor burned through DC on Friday that the President would announce Rehnquist’s decision to partake in renewal at Carousel when he returned from his Euro-love-in in Scotland.
So here we have it, a chance to remake the U.S. Supreme Court and undo 50 years of the fight for equality, justice and a secular Republic. In the immortal words of the great American poet Ice-T – no Sean, not that quote – but these immortal words: “it’s on!”
Forget the war on terror, forget Iraq, forget the economy, forget the environment, forget all of it, this is all there is going to be everywhere from everyone for the next several months. Nearly everyone with any kind of pull or a coalition or a mailing list is even now starting to hustle the money from constituents to fight this royal battle.
I would like to start this discussion by cribbing ruthlessly from those far more learned than I, namely the great Publius at the Legal Fiction blog, who, as usual, has done a masterful job of reviewing the bidding for us, especially in regards to the meta-dispute in all of this regarding the place of politics and rhetorical review in the proceedings.
In particular he points out something that we here at the mojowire here from our legal counsel again and again concerning our various troubles with Article I of the constitution and what the hell ever the word “commerce” means in the first place. And it is simply this: law is politics.
Take it away Pub:
“There is only politics. Law is politics, especially constitutional “law” – which is not “law” at all but a jumbled, incoherent collection of political victories attained by different political coalitions at different points in our history. Because law cannot be separated from politics, and because constitutional “law” is generally the imposition of political preferences on vague indeterminate text, we should abandon the Kabuki dance nomination process and talk more openly about politics.”
Now, even by his own admission this is a bit strong, and yet it makes the point more than adequately. Before when we told you to forget that particular laundry list of items crawling across the bottom of your FoxNews feed, it was by of saying that this decision will have a radical effect on all of those other issues, from the way we legalistically prosecute a war on terror, to an individual’s relationship to the state or the state’s ability to engage in commerce to whether we can really have a state mandated flavor of Christianity.
Moreover, it is said, again by Publius among others, that this is much different from the garden variety statutory divination done by most courts and even the Supremes on occasion, again with the Publius:
“I think that constitutional law falls much, much closer to the “pure politics” end of the spectrum than other types of legal decisions. By “constitutional law,” I mean interpreting and applying (or claiming to) vague indeterminate legal text. This is a wholly different exercise from statutory interpretation – which I think courts do quite well, largely because interpretation relies upon a set of neutral, non-political principles that judges generally agree upon. In other words, statutory interpretation works because – like baseball – judges usually agree on the rules that govern.
In constitutional law, by contrast, the judges are not just arguing about the proper result, but about the very rules that should apply in the first place. And in my opinion, history has shown us that these disputes are essentially political battles…
Being human, judges can and should be expected to act in their own political self-interest. That’s why Judge Taney used his tricksie ouija board to unearth a constitutional provision that said blacks couldn’t be citizens. That’s why Republican-appointed judges in the early 20th century found that the Constitution barred some of those pesky legislatively-enacted labor regulations. That’s why the New Deal Court adopted a jurisprudence that miraculously allowed all of FDR’s legislation to pass.”
So we are with you Publius, this is very much a political campaign about what are essentially political ideals on how we should live and what our government should be like as embodied in the Constitution.
And with yet another in a long line of examples from the “how low are they willing to stoop” file, there are certain members of the Senate like Bill Frist and Mitch McConnell trying to sell us all the idea that a nominees judicial philosophy or their personal political ideologies are irrelevant to the job of being the nation’s final arbiter on judicial philosophy or political ideals.
This is an example of how seriously they are taking it in terms of the political campaign aspect of all of this. That they are even now spinning up the echo chamber with various lies and misdirections, with such whoppers as “there has never been a filibuster of a Supreme Court nominee in history…”
Wrong again Dr. Frist…in fact there has been and it was a Republican Senate minority that did it for the first time during the Johnson Administration when the Chief Justice Earl Warren retired and Johnson named Associate Justice Abe Fortas to the Chief’s chair. And a Republican Senate minority sent him packing with a filibuster and Johnson withdrew the nomination.
Moreover, every right wing Kool-Aid chugging tinfoil hat brigade irregular is now cracking open their check books and sending what’s left of their Social Security checks to a number of different groups like the Family Research Council that are planning on making W’s like miserable if they don’t get their way.
This, again, is the real nuts and bolts politics of this thing at work. A lot of people like Ralph “boxcars” Reed, Pat Robertson, Gary Bauer and his various minions put their personal political lives on the line in getting George Bush elected again last year, even though a lot of evangelicals and their ghoulish doppelgangers out in Redneckistan had their doubts.
And there was only one thing they wanted for their support. They promised that they could deliver the Supreme Court, and if they don’t then their political power with the Red Staters is going rate somewhere down around the “Save the Spotted Owl Society.”
So you had better believe these guys are going to go all out to make sure that they get their guys on the court. At first, we had thought that perhaps the whole right wing nutjobbery resistance to Sparky Gonzales might be nothing more than a put up job designed to make him a little more palatable to the moderates in the Democratic Party.
In some regards it has worked, even if it was just an unintended consequence as we are now starting to believe it is. Especially given that the shortlist for O’Connor’s seat includes such luminaries as Priscilla Queen of the Bench Owenms, and Janice Rogers Brown, or William Pryor, and all with easily a good 20 years in front of them on the bench.
Those devilworshipping nighcrawlers have conservative credentials that would make Pat Buchanan sit down and weep. And there are a host of others, and again, perhaps some of these names are merely being used as stalking horses to make a lot of Democrats think: “well, sure Al Gonzales thinks the U.S. can torture can kill anyone it wants with impugnity in the name of the war on terror, but hell, at least not this freekin’ guy…”
But there is no doubt that the movement conservatives are taking this deadly serious, whether they think they are being played or not by the West Wing (and part of us really hope that is the case). The very survival of the Movement as a real political force in America depends on their being able to deliver the court into their hands for generations to come.
So when Publius, and other noted progressive thinkers want to talk about addressing the Supreme Court nominations as political campaign be assured that it is not crass or disrespectful. It is simply a reflection of the reality that the other team is already doing so, and as with so many other times in the past five years, have a good furlong head start on us…
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