Water Man Spouts

Monday, August 18, 2008

The Presidency & the Federal Courts

" The day after that press conference where {President Nixon} tried to frame the thirty-fifth president of the United States for murder, as Americans absorbed the Attica massacre, he received the resignation of eighty-five-year-old Supreme Court justice Hugo Black. Almost simultaneously, Justice John Marshall Harlan announced that he, too, would retire.

"John Mitchell proposed Richard Poff of Virginia, the ranking Republican on the House Judiciary Committee, who had offered amendments to strip from the 1966 civil rights bill the power to sue for civil rights violations. Poff decided he didn’t welcome the confirmation fight, so Nixon cast his eye over Democrat Robert Byrd: another thing for the Dems to scratch each other’s eyeballs out over. ‘He’s a real reactionary. The Democrats just made him their whip. And he was in the Ku Klux Klan when he was young. Send them a message.’ (That was George Wallace’s slogan.) A list of six candidates leaked to the American Bar Association revealed the political opportunism: Byrd, who’d never been admitted to the bar or practiced law; three undistinguished women, a nod to the ERA ferment (one was a segregationist leader); an appeals court judge who’d built his reputation defending Mississippi governor Ross Barnett against contempt charges when he’d refused to let James Meredith attend Ole Miss. Chief Justice Burger said he’d resign if any of them were appointed. ‘Fuck him,’ Nixon responded. ‘Fuck the ABA.’ Which somehow made it into the New Republic. Which received a prompt letter from John Ehrlickman: ‘The simple fact is that in the many hours I have spent with the President I have never heard him use the word attributed to him in Mr. Osborne’s piece.’

"Nixon was deferential enough to the ABA to change course: one of the eventual nominees was a former ABA president, the Virginian Lewis Powell. The other was the Justice Department’s William Rehnquist. Both were received well by the experts. The White House heaved a sigh of relief: two conservatives passed the smell test. Powell was the author of a memo to the Chamber of Commerce arguing that ‘the American economic system is under broad attack ….from the college campus, the pulpit, the media, the intellectuals and literary journals, the arts and sciences, and from politicians.’ He proposed a multipoint plan(‘a long road and not one for the faint-hearted’) to ideologically monitor universities and the media, push for more aggressive pro-business intervention in the courts, and politically organize corporations. Rehnquist had reportedly called for law and order in times of domestic insurrection ‘at whatever cost in individual liberties and rights.’

" ‘Rehnquist is pretty far right, isn’t he?’ Kissinger asked Haldeman.

" ‘Oh, Christ,’ Haldeman replied. ‘He’s way to the right of Buchanan.’ "
--Rick Perlstein; Nixonland: The Rise of a President and the Fracturing of America; pages 604-605.

The next President of the United States will probably appoint two justices to the United States Supreme Court. More, he will decide numerous other federal court appointments. The public will decide if John McCain or Barack Obama will determine the nature of those federal court justices. And those individuals will define Constitutional Law for the next generation.

"But it has to be noted that the US Constitution is only what those who warm the bench say it is. At present, we have two right-wing zealots on the bench; two right-wingers (we’ll know later if they are zealots); one normal, moderate Republican; and four ordinary, sensible people. So we have four justices who are frightening or potentially frightening, and five who are not.

"America should realize that if one of the five retires or dies, and Bush (or any conservative successor of his) appoints only one more right-winger to take his or her place, America, incrementally, will become a different nation, for the worse, to live in. We are that close, just one justice, from waking up in the morning to a new America. Hypothetically – and I’m not saying that five right-wing justices would necessarily make such a ruling – if a search and seizure case came before the court in which the police, though having time to get a search warrant, broke into an American home without one, and the court held that this was not an ‘unreasonable search and seizure’ under the Fourth Amendment to the US Constitution, America would change overnight."
--Vincent Bugliosi; The Prosecution of George W. Bush for Murder; page 248.

We simply cannot afford to have John McCain in the Oval Office. Let’s dedicate ourselves to the effort to elect Barack Obama this fall. There is far too much at stake here to do otherwise.


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