Guest blogged by Ernest A. Canning
In light of GOP Presidential front-runner Newt Gingrich's recently revitalized attacks on the judiciary as, apparently, not yet extreme or activist enough for his tastes --- though he finds, like most of the other GOP candidates, Justices Roberts, Scalia, Thomas and Alito to be "pretty darn good" --- it's worth taking note of just some of the recent behavior, judicial temperament and fundamental principles of those far-Right extremist Supreme Court Justices he apparently does approve of.
To that end, the opening paragraph of a Nov. 14 Los Angeles Times article was disturbing but not surprising:
While basic canons of judicial ethics suggest that judges should avoid even the appearance of impropriety, it remains exceedingly doubtful that the gathering of signatures on a Credo Action Petition will prompt either of these two "radicals in robes" to recuse themselves...
Federalist Society perversion of the judiciary
While many now flocking to Occupy Wall Street focus on the pernicious impact of a gaping wealth disparity and the near total domination of our executive and legislative branches of government by corporate wealth, too few have come to appreciate how court-packing by the ultra-radical, right-wing Federalist Society has undermined the rule of law.
"By the end of 2005," John Dean observed in Conservatives without Conscience, "'about 60 percent of the federal appeals courts were appointed by Republican presidents,' and of 'the 13 circuit courts of appeal, 9 have majorities of judges by Republican presidents.'"
In an August 2001 report, "The Federalist Society: From Obscurity to Power," the People for the American Way documented how the Federalist Society, founded by Robert Bork and funded by right-wing billionaires --- "the John M. Olin, Lynde and Harry Bradley, Sarah Scaife, and Charles G. Koch foundations" --- became a clearinghouse for judicial appointments under GOP regimes. (The GOP tactic under the Clinton and Obama administrations has been to turn the confirmation process into a bottle neck so as to assure vacancies during GOP administrations.)
Four of the nine Justices now sitting on the U.S. Supreme Court --- Associate Justices Scalia, Thomas & Samuel Alito along with the Chief Justice John Roberts --- are affiliated with the Federalist Society, though the Bush administration took pains to conceal the Chief Justice's affiliation during his confirmation hearings.
It is an affiliation that prompted Jim Hightower to describe the four as "a Corporatist Supreme Court Cabal," in which both Scalia and Thomas have regularly attended the Koch brothers' plutocratic political functions and in which these radicals-in-robes have done the hard-right's bidding through such democracy-destroying decisions as Citizens United --- the case which will live in infamy and the judicial coup that was Bush v. Gore.
Above the rule of law
In its coverage of Scalia and Thomas being feted at a dinner sponsored by pharmaceutical giant Pfizer Inc. and a law firm which will argue against the constitutionality of President Obama's healthcare law, Los Angeles Times brushes aside the appalling lack of propriety by noting that these two miscreants "have been attending Federalist Society events for years," and, besides, Supreme Court Justices "are exempt from the code of Conduct that governs the actions of lower court judges."
While that standard makes a mockery of the words which appear above the portico to the U.S. Supreme Court --- "Equal Justice Under Law" --- it squares with Law Professor Paul Campos' observation that it "is very unlikely [that Thomas would] be prosecuted or otherwise sanctioned for the simple reason that, in the United States in 2011, we have a two-tiered system of laws" where, for the vast majority of citizens, "an unusually harsh criminal code" has given rise to "by far the biggest prison population in the world." Nonetheless, he added, "our political and financial elites operate with something approaching complete impunity."
We were warned
A salient but much overlooked fact is that the Federalist Society was founded in 1982 by Judge Robert Bork.
For many Americans Bork first became a household name during an event known as "the Saturday night massacre."
At the height of the Watergate scandal, a Democratic-controlled Senate Judiciary Committee insisted that Nixon’s choice for Attorney General, Elliot Richardson, agree to name a special prosecutor to investigate issues pertaining to Watergate. Richardson appointed Archibald Cox, a former U.S. Solicitor General. Cox’s aim was true. He went after the tapes of Oval Office conversations --- the very tapes that ultimately led to the "smoking gun" revelations that supported Articles of Impeachment and culminated in Nixon’s resignation.
When Nixon tried to stonewall, Cox obtained a federal court order for their release. Nixon ordered Cox to stop pursuing the tapes. Cox not only refused but told Nixon he would seek a court order holding him in contempt. In succession, Attorney General Richardson and Deputy Attorney General William Ruckelshaus chose honor over personal loyalty, resigning rather than carrying out the order to fire Cox. Nixon then turned to Solicitor General Robert Bork, who apparently had no ethical qualms about sacking Cox.
Bork's and the Federalist Society's reactionary goals were best summarized by Senator Edward ("Ted") Kennedy's remarks during the floor debate over Bork's unsuccessful 1987 nomination to the U.S. Supreme Court by President Ronald Reagan:
Unfortunately, Bork's views are not unique. They are the views held by the Federalist Society-funding billionaire oligarchs, like the Koch brothers, who would mask their authoritarian corporate capitalism under an Orwellian concept of "liberty" as the two-tiered system of "justice" entailing elite impunity is assured by a "bought-and-paid-for" judiciary.
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.