Monday, August 29, 2005

Personal connection--dating service or judicial nominee criterion?

Normally I would not post more than once a day, but while researching the other entry, I came upon this little gem in the Boston Globe online ("Bush picks jurist for top court, calls for a 'dignified' process", July 20, 2005):

After a day filled with rumors, the announcement of Roberts as the court nominee took much of Washington by surprise.

A senior White House official stressed yesterday that the choice reflected a personal connection that Bush made with Roberts during the vetting process.

''He really hit it off with Roberts," the official said. ''As you know, the president is a person of intuition and he saw in [Roberts] not only a brilliant legal mind but a terrific judicial temperament."
Okay, quick quiz. About whom did Bush say the following:

<>I looked the man in the eye. I found him to be very straight forward and trustworthy and we had a very good dialogue. I was able to get a sense of his soul. He's a man deeply committed to his country and the best interests of his country and I appreciate very much the frank dialogue and that's the beginning of a very constructive relationship.
If you guessed Vladimir Putin in June 2001, you're correct! And if you've been following any news over the past four years about developments in Russia--or should I say, frightening regressions from anything an American would recognize as democratic process, or care for the vast majority of the citizens of Russia--then you can be the judge of just how wrong Bush's intuition can be. Or, how specious. Is recourse to "intuition" just another rhetorical tool for dodging the possibility of being asked about any specifics?

I've posted in the past about how government is no place for these kind of criteria when we're considering filling positions of importance--lifetime positions that will shape the legal reality under which we all live, no less. Of course, you want the President to be able to work with people on his own staff (although there is a little something called professionalism that should prevail in the interests of serving the public). But what legitimate relevance the president's personal liking for a person who will not even serve in his branch of governance, let alone his office, has in this case, I am at a loss to say.

Operation Iraqi--I mean, Supreme Court Freedom

While browsing through links from a friend today, I happened upon a most interesting page in the Christian Broadcasting Network (CBN) site. The page is titled "Operation Supreme Court Freedom", and it features a letter from Pat Robertson, "prayer points", and encourages you to submit your "pledge to pray". Pray, for what?

In brief, the militaristic name of the "operation" plays on "freedom" as it relates grammatically to "Supreme Court", oscillating between the ideas of negative liberty (freedom from something) and positive liberty (freedom to do something). On the one hand, the letter advocates freedom from the "black-robed tyrants" who have occupied the bench for the past 40-odd years. These judges pushed a "radical agenda...with devastating results...But now the scales seem poised to tip in the other direction." The idea is to allow the, I suppose, natural inclinations of the Supreme Court to prevail:
Today, we can look forward to the very real possibility of a conservative majority on the Supreme Court — justices who will uphold the original intent of the Constitution and not impose their personal or political beliefs on the American people.
So, we can also look forward to the rectified Supreme Court's freedom to uphold the "original intent" of the Constitution, which directly implies freedom from "personal or political beliefs" held by individual justices.

A few thoughts here. First, the blanket vilification of the Supreme Court as an entity, by metonymy with the people who sit on the bench (you know, the "tyrants", initially represented as inclusive of all the justices in the past 40 years), is lifted when the majority of people who staff it hold conservative positions. So the legitimacy of the institution appears to be pegged not to its Constitutionally-mandated existence, but to the broadly defined ideology of those who staff it. But second, what is crucial is that the court be free from "justices who...impose their personal or political beliefs on the American people". Did I miss something, or wasn't it just established that there are people who should be imposing their personal and/or political beliefs on us--conservatives? Gee, that sounds downright...tied to politics!

Third, the emphasis on the "original intent" of the Constitution rubs a bit uncomfortably against "prayer point" no. 3, "Pray that the justices of the Supreme Court would rule according to the Constitution as written and not man's opinions." To begin with, once you start discussing "intent", you are in the realm of interpretation, a distinctly human activity. Further, is there anyone who would suggest that the Constitution was in fact not composed of "man's opinions"? Such language is better fitted to the way some people talk about the Bible: as handed down by God. This conflation, which applies the religious concept of reverence to a undoubtedly man-made document, is at the heart of how power brokers manufacture a popular desire for a strict constructionism ("prayer point" no. 12) that would, in fact, disadvantage the majority of citizens: broadly, women, non-whites, and those outside of the economic elite. It strikes me as a cruel and dirty trick to put honest people to work advocating for their own destruction by wrapping the pernicious idea of returning to a specifically 18th-century world-view in the garb of piety. Granted, not every judicial decision based on a non-literal interpretation of the Constitution will stand up to scrutiny, because there must be human opinion involved. That's where appeals come in. But as I've written before, is illegalizing abortion at the cost of vitiating our established (but not explicitly written) right to privacy the best way to combat the entailed human suffering?

Ehem. Robertson continues, further down:
Before the president's announcement [of his nomination of John Roberts], I had the privilege of going over a briefing book that was provided by the American Center for Law and Justice (ACLJ). The book contained a short list of justice candidates who fit the president's judicial philosophy, and I am delighted to say that John Roberts was at the top of this list, though at the time, we thought the president would select a woman to replace Justice O'Connor.
Interested in this briefing book business, I hopped over to the ACLJ site and used their search engine, which turned up not their own book, but a July 10, 2005 L.A. Times article, "Legal Activists Ready to Go Once President Bush Puts Up Supreme Court Nominee". Apparently, the genre of the briefing book is now de rigeur amongst such organizations in the event of nominations. But of particular interest was this excerpt:

...Groups on the right that scarcely existed a decade ago now have the ear of the Oval Office, a level of access liberal organizations say they never had under President Clinton.

"We're in regular consultation with the White House," said Jay Sekulow, executive director of the American Center for Law and Justice and the evangelical community's representative on a group of advisors, assembled three years ago, that helps set conservative strategy on judicial issues.

The other members of the group, nicknamed "the four horsemen," are Edwin Meese III, attorney general in the Reagan administration; C. Boyden Gray, White House counsel to President George H.W. Bush; and Leonard Leo, executive vice president of the Federalist Society for Law and Public Policy Studies, a libertarian think tank whose membership includes about 20,000 lawyers.

In the closing lines of a Newsweek article published the next day ("The Battle Over a Supreme Court Nominee Begins", also catalogued in the ACLJ site), Howard Fineman and Debra Rosenberg note:
As he prepared to fly off to the G8 summit in Scotland, Bush took along briefing books about the shortlist candidates, none of whom he has formally interviewed.

The Boston Globe concurs, and goes Newsweek one better in a July 20 article, "Bush picks jurist for top court, calls for a 'dignified' process":

Bush's short list of potential nominees included 11 candidates, according to White House officials. The president took a notebook filled with biographical information during his trip to Europe this month; poring over the briefing books aboard Air Force One, Bush discussed the issue with aides and allies, swearing them to secrecy.

Aides being in on a secret--that's one thing. Who are these anonymous "allies", and why are they being treated to secrets? And is that the language coming out of the White House staff--implying there are interested Americans who are enemies? Because if Robertson's "prayer points" are any indication, that is religious language: "Pray that any plan of the enemy for the Senate confirmation hearing would be thwarted. Take authority over the schemes of Satan concerning the Supreme Court."

I suppose that the president is entitled to consult with whomever he pleases (within the limits 0f the law). One improvement in this nomination process was that Bush did meet with senior Democratic Senators, a concern raised regarding the last batch of judicial nominees ("Bush Meets With Senators About Supreme Court", Tuesday, July 12, 2005). At the meeting with Senate party leaders Frist (R-TN) and Reid (D-NV), and ranking Judiciary members Specter (R-PA) and Leahy (D-VT), the Democrats advanced three sitting judges whom they considered "consensus candidates". However,
The [senior Democratic] aide said neither the president nor Chief of Staff Andy Card suggested any names themselves, and that Reid made it very clear he hoped Bush would consult with Democrats with specific names before any announcement is made. The aide said Reid told the president that he didn't want Democrats to be in the position of learning the president's nominee by reading about it in the media. The aide added that the White House made "no specific promise of that" but gave a general pledge to consult further.

Reid said several senators had suggested names to the White House, but it's important that Bush share names, too, because he has "hundreds of names" to consider. Asked about Democrats' objections to specific candidates said to be under consideration, White House spokesman Scott McClellan said, "No individual should have veto power over a president's selection."

Wait, "veto power"? That's a pretty far leap from "consult"--a courtesy apparently given to "allies", which, according to the ACLJ's Jay Sekulow, includes unabashed ideologues and special interest groups like his own. If I'm getting the picture correctly, the ACLJ and Pat Robertson have an inside track on the nomination deliberations of the White House; leaders within the opposition party hope not to learn about the decision after the staff of every newspaper that prints the name.

Maybe Robertson's letter is right to interpret recent events as "the direct result of prayer and intercession":
[I]n July of 2003, The 700 Club launched Operation Supreme Court Freedom, a nationwide 21-day prayer campaign. During that time, we asked our partners and viewers to pray for God to intervene and restore righteousness and justice in our land. Tens of thousands of people responded to this massive prayer offensive and cried out to the Lord to change the court. And God heard those prayers!
I will concede that it is possible that the prayers of 700 Club members did convince God to intervene and cause Justice O'Connor to resign from the Supreme Court--although I consider the monetary contributions of the faithful likely to be more effective in Washington. Either way, we should all be careful what we wish, or pray, for. I'm not sure that our Supreme Court could sustain the kind of ideological factionalism and growth of vigilante "justice" that has thus far constituted Iraqi "freedom".