Saturday, January 30, 2010

More GOP hissy-fit headlines we'll never see: Bringing down Alito


"[A]s usual, the disingenuousness levels are off the charts: imagine the reaction if Ruth Bader Ginsburg had done this at George Bush's State of the Union address."
-- Glenn Greenwald, on right-wing blithering that the bad actor in the SOTU controversy was not Justice Alito but President Obama

by Ken

This is Glenn Greenwald playing his version of our favorite game, If the Shoe Were on the Other Foot. Of course Justice Sonia Sotomayor hasn't been on the bench for a Republican president's SOTU, but just imagine the response of the moron jackals of the All Lies, All the Time Right if she did such a thing. Which leads us logically to our next batch of GOP Hissy-Fit Headlines We'll Never See, which concern the now-famous incident:

GOP Leaders Urge "Politicized" Supreme Court
Justice Alito to Quit, Talk About Impeachment

"Slammin' Sammy" Alito Says He Will Recuse
Himself From All Cases That Involve Obama

Embattled Activist Justice Alito to Step Down,
Apologizes for Lying at Confirmation Hearings

In case you don't get what the fuss is about, after all he just shook his head a little and mouthed "not true," it is in fact an inviolably accepted reality that members of the Supreme Court and the Joint Chiefs of Staff do not react in any visible way during the SOTU. At this point let's turn the floor over to Glenn G, who by the way actually agrees -- on First Amendment free-speech grounds -- with the Court's Citizens United ruling, and who prefaces these remarks, in his post, "Justice Alito's conduct and the Court's credibility," by repeating his view that Rep. Joe Wilson's shouting "You lie" was no big deal since both he and the Obama were political figures in a political arena, makes the case in what seems to me pretty unshakable fashion:
[T]he behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words "not true" when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars. The Court's pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court's credibility in this regard has -- justifiably -- declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more "liberal" Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about "judicial restraint" and "activism" -- all while the judges they most revere cavalierly violate those "principles" over and over -- exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John "balls and strikes" Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived -- and to act -- as one of the few truly apolitical and objective institutions.

Justice Alito's flamboyantly insinuating himself into a pure political event, in a highly politicized manner, will only hasten that decline. On a night when both tradition and the Court's role dictate that he sit silent and inexpressive, he instead turned himself into a partisan sideshow -- a conservative Republican judge departing from protocol to openly criticize a Democratic President -- with Republicans predictably defending him and Democrats doing the opposite. Alito is now a political (rather than judicial) hero to Republicans and a political enemy of Democrats, which is exactly the role a Supreme Court Justice should not occupy.

In the matter of the appropriateness of the president's remarks on the Court ruling, Glenn amplifies his own comment ("Many of the Court's rulings engender political passions and have substantial political consequences -- few more so than a ruling that invalidated long-standing campaign finance laws. Obama is an elected politician in a political branch and has every right to express his views on such a significant court ruling") by directing us to a comment from a commenter of his, casual_observer:
Article II, Section 3
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient."

First, it's not only allowed that the president would give his views on the 3rd branch's ruling, it is a constitutional requirement, if he feels it needs consideration by Congress.

Second, Obama is absolutely correct that, regardless of how you stand on the court's ruling, it is an important ruling and unarguably merits consideration by congress.

Third, the SCOTUS is a guest at the SOTU. They are there by courtesy. The constitution clearly states that the business of the communication is between second and first branches.

Fourth--Alito's behavior is exactly what one would expect from an activist judge. One so unrestrained that he cannot control himself even at an event where he plays no role and has no function.

And in the matter of precedent, Glenn directs us to Yale Law Prof. Jack Balkin's report that: "About a fourth of [Franklin D.] Roosevelt's 1937 State of the Union Address was devoted to criticism of the Supreme Court for striking down New Deal legislation and asserting that the Court should adopt a different method of constitutional interpretation."

About the only counter I can imagine to Glenn's case is that no real damage was done, since we already knew what Alito is -- and Scalia and Thomas and Roberts as well (and whatever the heck Kennedy is, it amounts to almost the same thing). If Alito's partisan hackery reduces respect for the Court, that's only as it should be. (I think of Peter Sagal's quip this morning on Wait, Wait...Don't Tell Me! that after Justice Alito's performance, Justice Scalia threw him a herring.)

Of course, there's no easy way for the Court ever to regain the lost respect, but then, neither is there much prospect either of the Court deserving more respect at any time in the foreseeable future. After all, the justices that President Obama is most likely to be faced with replacing are soon-to-be 90-year-old John Paul Stevens and ailing 76-year-old Ruth Bader Ginsburg, bulwarks of the Court's centrist bloc (as I keep noting, there is no "liberal" bloc; for that matter there's hardly even a "conservative" one -- it's now pretty much honorable centrists and wild-eyed wackadoodles, and, oh yes, one wackadoodle wannabe), and given the dynamic of the Sotomayor appointment and confirmation, it now appears that she is the farthest-left candidate now judged appointable.

There is of course no established limit as to what constitutes "too far right." If you point to that wackadoodle before his time Robert Bork, it's true insofar as Bork's judicial beliefs were all a matter of record. Far from trying to conceal them, at least until it came to his actual confirmation hearings, Bork had been ostentatiously public about them. Of course he didn't seem too happy when his own words were quoted back to him, a trait that has come to afflict Republicans generally, who ever since have referred to this scandalous practice as "Borking." After all, how dare they be held accountable for the stuff they say and write? Talk about dirty politics!


And swore their eternal vow to obliterate truth from all public discourse, a project that finally came to fruition in the 2008 Republican presidential campaign? (And of course has endured as the guiding principle for all Republican speech during the Obama administration.)

Of course the wackadoodles have greatly refined their technique since the days of Bork. Now they find stealth wackadoodles, on whom nothing can be "pinned" except via the "known associates" file. Most of what we thought we knew about High Court nominees Smilin' John Roberts and Slammin' Sammy Alito was based on who they'd been close to throughout their careers, although in both cases there were more than enough incriminating writings to hint at the wrecking-crew mission they planned to undertake on constitutional law.

So it's now established that Supreme Court nominees will say essentially nothing in their confirmation hearings. This included then-Judge Sotomayor, of course, and that drove the Judiciary Committee Republicans (admittedly a selection of the most cretinous and corrupt life forms knuckle-dragging the earth) just nuts, as if they didn't know where the strategy had come from. Those same buffoons had, after all, grinned from the depths of their tiny brains as Roberts and Alito, even while saying hardly anything of substance, still managed to lie their stinking carcasses off through their confirmation hearings.

A colleague passed along these nuggets gleaned from the transcript of Day Two of Slammin' Sammy's Senate bullshit slingfest. Here, in response to a question from that paladin of judicial restraint Utah Sen. Orrin Hatch, "Does that mean that the Supreme Court should perhaps be even more cautious, even more self-restrained, since there is no appeal from any errors that they might make?," he said:
I think that's a solemn responsibility that they have. When you know that you are the court of last resort, you have to make sure that you get it right. It is not true, in my judgment, that the Supreme Court is free to do anything that it wants. It has to follow the Constitution and it has to follow the laws. Stare decisis, which I was talking about earlier, is an important limitation on what the Supreme Court does. And although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so. It should be limited in what it does.

Just to be perfectly clear, he added later:
Because a constitutional decision of the Supreme Court has a permanency that a decision on an issue of statutory interpretation doesn't have. So if a case is decided on statutory grounds, there's a possibility of Congress amending the statute to correct the decision if it's perceived that the decision is incorrect or it's producing undesirable results. I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided, and not going to broader grounds for a decision when a narrower ground is available.

I dunno, maybe the Slambang Boy was just trying to be funny?


One superficially sensible-sounding complaint that's been registerd about the president's SOTU remarks on the Supreme Court's Citizens United decision is that the Court was left unprotected, with no way to respond. But of course anyone who says this is truly too stupid to live, let alone be flapping his/her gums.

The Constitution expressly gave Supreme Court justices lifetime tenure for this exact purpose.

Short of committing impeachable offenses, Supreme Court justices can't be touched in any way. Even Wall Street and bankster crooks under the protection of the Treasury Dept. and the Fed don't have this kind of protection. I suspect that, once confirmed, Supreme Court justices are protected even if it's shown that they flat-out lied in their confirmation hearings.

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