Dissenters Be Damned!

Bush’s conception of judicial interpretation harks back to the dark days of monarchy.

Stephen J. Fortunato Jr.

He has made Judges dependent on his Will alone,” wrote Thomas Jefferson and the Continental Congress in 1776 to describe one of the grievances against George III that drove them toward independence and revolution. Jefferson, James Madison and their collaborators, as students of antiquity and recent European history, knew that a judiciary subservient to the executive was a danger to individual liberty. George W. Bush understands this principle — not as heir to our constitutional forbears, but rather to his monarchical namesake.

Claiming to reign by a manifestation of divine will, Bush has flouted laws and traditions (both national and international), mangled civil liberties and consolidated executive power. As our smirking despot could not have scorched the democratic landscape by himself, his reckless adventurism has been fostered by John Ashcroft, Donald Rumsfeld, and other neocon zealots, a Congress that is craven when not comatose and a mainstream media more aroused by the soiling of a blue dress than the shredding of the Constitution.

The transgressions of Bush and his cabal in the domain of civil liberties have been well-chronicled: the preposterous assertion that detainees, including U.S. citizens, seized in the so-called war on terror and held at Guantánamo Bay, Abu Ghraib and elsewhere have no rights to humane treatment or due process under either international or United States law, a contention rejected even by the Court that anointed him; the Patriot Act, with its secret courts issuing sealed warrants and its National Security Letters allowing warrantless searches authorized only by the sensibilities of the FBI; the push for increased use of capital punishment in federal courts by Ashcroft, who has said, in the face of mountains of statistical evidence to the contrary, There is no evidence of racial bias in the administration of the federal death penalty”; the confining of demonstrators in areas far removed from the targets of their protest, whether politicians at party conventions or corporate and government oligarchs at globalization meetings; the mass arrest of protesters without probable cause when they demand their historic rights to assemble in parks and public streets, and so on.

Bush knows that it is not enough to put draconian restrictions into statutes and executive orders. He needs obedient judges to stamp the imprimatur of legitimacy on the raw will of the administration and its cowering lapdog Congress. Bush maintains he has no litmus test” for the selection of federal judges, but in his stump speeches he never fails to announce that he will only nominate judges who will faithfully interpret the law, not legislate from the bench.” Bush also reminds his base that he admires Judge Antonin Scalia for his judicial philosophy” — a philosophy that cynically exalts majority values and prejudices. This is fine with Bush and his clique, who are acutely aware that over the past two decades the opinions of the majority have been shaped by a mass media serving as the unashamed conduit for the dominant political and economic ideology, minorities and dissenters be damned.

A telling example of Bush’s vision of judicial fitness is William Pryor, now serving as a recess appointment to the U.S. Court of Appeals for the Eleventh Circuit. During his time as Attorney General of Alabama, Pryor pronounced Roe v. Wade the worst abomination of constitutional law in our history,” apparently forgetting the pernicious sanctioning of slavery in Dred Scott v. Sandford (1857), or the approval of the internment of American citizens solely because of their Japanese ancestry in Korematsu v. United States (1944). Pryor’s pronouncement that the challenge of the next millennium will be to preserve the American experiment by restoring its Christian perspective,” makes him a paradigm of a Bush judge, one who will keep civil rights advocates, gays and feminists at bay, and who will express no qualms about Bush-Ashcroft dragnets of brown-skinned, Muslim people.

To justify the scrapping of civil liberties, Bush and his apparatchiks have attempted to rewrite Anglo-American legal history by falsely claiming that laws can be readily interpreted and that judges have no role other than to strictly apply them. Even Bush’s divine-right predecessors acknowledged the prerogatives of judges to restrain executive or legislative abuses. In 1616, King James I directed his chancellor, Francis Bacon, to draft a message signaling that the letter of the law could be trumped by considerations of equity and fairness. Bacon obliged, noting that judges enjoyed discretion to save our subjects” from being exposed to perish under the rigor and extremity of our laws.” Unlike King James I, Bush refuses to have his powers abated.

Writing 300 years after Bacon, Judge Jerome Frank, in his classic Law and the Modern Mind (1930), surveyed American legal history and concluded that it is impossible to create a body of rules which will exclude judicial innovation and thereby guarantee complete predictability.” In the universe of George W. Bush, the law” is not to be modified or rejected by judges, nor are courts to offer protection to minorities or dissidents. If this noxious and historically unsupportable view had prevailed in 1954, Brown v. Board of Education would have preserved racially segregated schools.

More than 200 years of U.S. legal tradition also contradict Bush’s insistence that the war on terror” permits him to recast the relationship of governmental prerogatives to individual liberties. James Madison did not draft the Bill of Rights with limiting provisos or riders attached to it. In 1866, with the rubble of the Civil War still smoldering, the U.S. Supreme Court rebuffed President Lincoln’s suspension of habeas corpus in regions where courts were still functioning, saying in Ex parte Milligan: No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of [the Constitution’s] provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”

So far, Bush has appointed nearly 200 people, or 22.6 percent of all active judges, to the federal bench. By selecting judges who swear fealty to his ersatz majoritarianism (ersatz because the majority’s consciousness is at once shaped and ratified by the corporate media), the great pretender seeks to build a foundation for the House of Bush that will endure for generations. If liberals, progressives, leftists and old-fashioned conservatives don’t unite to stop him, he just might succeed.

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Stephen J. Fortunato Jr. was as an Associate Justice of the Rhode Island Superior Court for 13 years. He is now an Adjunct Professor at the Roger Williams University School of Law.
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