August 11, 2005

My Big Worries About Discrimination, Fascism and Roberts

John G. Roberts is the current nominee to SCOTUS and he has very, very little of a written track record related to his own stint as a federal judge. He's also not so well published like previous candidates. It makes it kinda hard to read him. Plus, it doesn't help he looks like the "auto pilot" from Airplane.

I've been spending a fair amount of my free time trying to find out more on him, but of course, I don't have access to the papers the WH is withholding because of a bullshit thing called attorney-client privilege. (Will somebody point out the anti-Clinton decision negating that rationale, puh-leeeeeze???). Most telling is one recent article reciting written testimony of Roberts a few years back wherein he recited his favorite justices. The list:

Justices Oliver Wendell Holmes, Louis D. Brandeis, Felix Frankfurter, Robert H. Jackson and John Marshall....and of course, his friend and mentor for whom he clerked...William Rehnquist.

Odd list, huh? Not really. They have a great deal more in common than one would think at first glance.

Holmes- The original Harvard Man. Served in the Civil War. Had a fancy daddy. And was of the most elite social class of his time. Big proponent of judical restraint and not letting personal opinions affect decisions on the Court. Friends with Felix Frankfurter and Brandeis. And a believer of "the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion." (i.e. majority rule controls who is elected, therefore, the elected official represents the will of the people and should be obeyed unlessthere is a major fuck up). Privacy rights were not even a blip on his radar. Just what was in the Constitution.

Brandeis- Leader of the American Zionist movement and known for giving the government what it wanted so long as it didn't seriously abridge fundamental Constitutional rights (see the Whitney case). He upheld the conviction of anyone charged with espionage or being subversive. Saw the government as having a broad right to protect itself from dissenters. Today "fundamental" Constitutional rights can be seen as right to bear arms, eminent domain remuneration, free speech within some constraints, free market capitalism and that's about it. Figure that one out..... No penumbras???? Awww, come on....

Frankfurter- didn't want to vote for Brown v. Board of Education but did so as a sign of solidarity of the Court on an important subject(i.e. his arm was twisted). Founding member of the ACLU and was on the Sacco & Vanzetti trial. Very conservative on the Court- he was the Original Souter-esque stealth candidate. FF wrote the Korematsu decision essentially approving the wholesale jailing/segregation of people of a certain race for no real reason and giving the government broad war powers (now used in upholding BS Patriot Act provisions). FF was also a well-known Zionist. Big government, 14th Amendment to be interpreted narrowly. Closest thing to a true strict constructionist as there has ever been since he evaded his own personal beliefs to rule the way he did. Repeatedly.

Robert H. Jackson- Not much is known about this guy other than he and Black fought and he headed up the Nuremburg trials. One quote- "Sadly, today his name usually is best remembered for spurning the efforts in 1953 of his then law clerk, now Chief Justice William J. Rehnquist, to maneuver him into upholding the court's 1896 decision in Plessy vs. Ferguson and the constitutionality of racial segregation." In Brown, people!!! He voted like FF as a favor. Oh, and more importantly- he didn't see the 14th Amendment as extending the 5th Amendment right against self-incrimination to the States. In other words, you could be forced to testify against yourself in a state trial.

John Marshall- The original architect of Federalism. Established judical review which gave SCOTUS equal footing as the executive and legislative branches in Marbury v. Madison. But extended "implied powers" of the legislative branch in McCulloch. The aboslute first activist judge. He was an activist FOR the federal government. This flies in the face of alleged strict construction. Moreover, it reinforces my fears about Roberts doing away with social reform gains for the furtherence of his own agenda.

William Rehnquist- clerked for Jackson and tried to convince him not to derail segregation. Roberts clerked for Rehnquist who was/is also associated with keeping blacks from voting at the polls as a member of the RNC. Roberts worked on the FL2000 case in Florida where voting was a problem for blacks....and Rehnquist voted to give Bush the election. His entire legal and political career has been about limiting the 14th Amendment and broadening government power especially if it jives with his personal views ala Marshall.

The writings we do know about- briefs and arguments made before SCOTUS and other Courts about affirmative action, enforcing anti-discrimination laws, etc.- show a very smart guy who doesn't want to made this country free of dsicrimination. He (at least professionally) argues it's okay. What gets me is he's a fan of judicial restraint (see Holmes, and Frankfurter) and thinks the government should have broad powers to legislate until they run afoul of a very strict construction of the Constitution, but he has spent the better part of his career finding and creating loopholes so that Congress's laws don't have to be strictly followed (see the Reagan era stuff on enforcing anti-discrimnation statutes by Roberts). It doesn't make sense.

What does make sense is that a broad view of his associations, religious affilitions, political bent and cases he has worked on show a social conservative who uses his vast intellect to achieve social reform and advance uber conservative philosphies. Sure, his nomination is a political spoil, but he's been groomed for this his whole life. Every step, every pro bono case, every handshake and perfectly coifed moment has been staged for a reason.

Look at his cases- they all involve Republican views or interests except for two- the low-income tenant stuff and the gay referendum stuff in Colorado. The tenant stuff was put forward early on. Big deal you might say, but the gay stuff was leaked. By the WH no less. There's one thing about Washington DC- no one leaks without a well-thought out reason. In a town where information is power, you don't share info unless you get something for it. Leaking the gay case makes people rethink whether this guy is that conservative and whether he will legislate from the bench. I tell you he will. Seriously, who gives two shits about a case in the Rockies when a federal law can be passed by Congress usurping states' rights on the issue? Especially if Griswold and its progeny (including Roe) are overturned.

The Court has already accepted certain social hot button issues for its next term- gay rights, abortion and religion will be on the docket in soem form or another. Saying you accept stare decisis means nothing when the first cases of SCOTUS deny privacy rights. Hell, Rehnquist tried to get Plessy reinforced by Jackson. It's pretty damn easy to wipe out the newer cases for older law.

Don't trust this guy. Don't think for a minute that he will be conservative on the bench. He's not a conservative. He's a well-connected, very dedicated uber conservative. He will kill Roe, he will kill Lawrence, he will kill Griswold and he will allow our government broad powers in advancing a bullshit war on terror. His whole life has been groomed to get to this point and too many people have worked to put him in position. Rehnquist chief among them. Rehnquist isn't stepping down until Roberts is in the door.

Roberts is the Manchurian candidate. And he's on auto pilot.

2 Comments:

Blogger Digitalicat said...

When you mentioned Frankfurter, all I could think of was Frank N. Furter. I think Frank N. Furter could be a guiding influence. The court would be headed for exciting new places.

PS - I changed URLs. I'm now at http://tossedmysalad.blogspot.com. Update your link when you get a chance?

11:42 PM  
Blogger Psychomotor Agitator said...

I wonder how a FOIA request would fly?

7:15 PM  

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