Supreme Court: Loyal Bushies On The Bench

Were an opening on the Court to arise in Bush's remaining days in office, he would likely view it as an opportunity to use whatever little political capital he has left to challenge the Senate and empower his legion of "activist conservatives intent on leading a judicial counterrevolution."

JUNE 29, 2007 by Faiz Shakir, Nico Pitney, Amanda Terkel, Satyam Khanna, and Matt Corley
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Loyal Bushies on the Bench

Yesterday’s 5-4 decision by the Supreme Court in a landmark racial desegregation case, which instructed local authorities “that they cannot take modest steps to bring public school students of different races together,” marked a fitting yet disappointing conclusion to the first full term of President Bush’s two Supreme Court appointees, Chief Justice John Roberts and Justice Samuel Alito. Reading his dissent from yesterday’s decision aloud in the courtroom, Justice Stephen Breyer aptly described the court’s sharp rightward slide. “It is not often in the law that so few have so quickly changed so much,” he said. The majority opinion, authored by Roberts, served as a microcosm for the traits that have quickly come to define the Court: an alarming lack of respect for precedent, irreverence for the democratic process, and disregard for constitutional history. Early in his first term, Roberts publicly proclaimed his desire to seek greater consensus, but his “fractious” Court has produced a “higher share of 5-4 decisions than any term in the last decade.” He has forced Justice Ruth Bader Ginsberg to undertake rare readings of “powerful dissents from the bench,” a sign of the concern that marks the new divisive era on the Court. Despite how out-of-the-mainstream the high court currently is, it could get even worse. “It is a conservative court, but at the same time, just barely so,” said constitutional scholar Eugene Volokh, noting the “moderating influence” of Justice Anthony Kennedy. Were an opening on the Court to arise in Bush’s remaining days in office, he would likely view it as an opportunity to use whatever little political capital he has left to challenge the Senate and empower his legion of “activist conservatives intent on leading a judicial counterrevolution.”

The New York Times opined that yesterday’s racial desegregation decision “is the height of activism: federal judges relying on the Constitution to tell elected local officials what to do.” But it did not occur by accident. Instead, the newly-emboldened conservative wing of the Court has picked cases on appeal through which it could implement its agenda. When Justice Sandra Day O’Connor was still on the Court, the justices denied review to a racial desegregation school program in Massachusetts. But in June of last year, “the court, reconfigured by the additions of Roberts and Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear” the school desegregation appeals, even though there was no disagreement in the lower courts on the validity of such programs. In a separate case on price-fixing announced yesterday, Breyer asserted, “I am not aware of any case in which this Court has overturned so well-established a statutory precedent.” Slowly, legal and political scholars are taking notice of the Court’s new activism. Norm Ornstein of the American Enterprise Institute said the Supreme Court’s decision this week in a campaign finance reform case demonstrated “not a careful, conservative deference to Congress” but instead “a willingness by Roberts to toss aside Congress’ conclusions to fit his own ideological predispositions.”

A FALSE PROMISE: When Bush nominated Roberts and Alito, he argued they deserved bipartisan support because they would “interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans,” and they would not “impose their preferences or priorities on the people.” Roberts went before Congress and testified that he had “no agenda.” He added, “Saying a judge is result-oriented…[is] about the worst thing you can say, because what you’re saying is you don’t apply the law.” For his part, Alito said he believed “the judiciary has to [interpret broad principles of the Constitution] in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.” (Read more of their false promises here.) Duke University law professor Erwin Chemerinsky writes today that “the testimony given by John Roberts and Samuel Alito at their confirmation hearings just months earlier was a lot of baloney.” Alito and Roberts have shown little independence, siding with one another approximately 90 percent of the time. They have voted together in 21 of the 23 cases that have divided the Court 5-4 this year. “Prior to this year, the Court was split right down the middle in the close ideological cases — each side won about half. But this year, the hard-core conservatives won more than twice as many of the close cases, including virtually all of the most important decisions.”

THE ALITO FACTOR: The most devastating change on the Court has been the ideological shift that came with Alito’s replacement of O’Connor. “That switch almost certainly changed the outcome of many of this year’s most important decisions,” with the following results: eliminating the nearly half-century old guarantee of equal pay opportunity for all Americans, regardless of race, gender, age, ethnicity, or disability (Ledbetter); limiting Congress’s power to keep corporate money out of federal campaigns (Wisconsin Right to Life); cutting back on protections for reproductive freedom (Carhart); slamming the courthouse door on people who make technical mistakes (Bowles); cutting back on protections for people facing capital punishment by, among other things, allowing imposition of the death penalty on defendants deprived of even minimally adequate representation (Landrigan, Ayers, Uttecht); and making it impossible to challenge the Bush administration when it uses public funds to promote favored religions (Hein). While the media has focused on the fact that Alito the was the number one ally for corporate interests in a Supreme Court term that may have been the most pro-business in decades, what is most notable is Justice Alito’s hostility to the rights of workers, shareholders, and consumers

IT COULD GET WORSE: As much as the Court has lurched to the right in the past two terms, the results could get worse if another Court opening were to occur during Bush’s remaining days in office. The oldest justices are John Paul Stevens and Ginsburg, members of the more progressive bloc. Justice Kennedy has generally been a conservative vote, “but unlike Roberts and Alito, he has maintained some degree of independence.” In yesterday’s racial desegregation decision for example, Kennedy affirmed that school districts can still take race-conscious measures to achieve diversity, though he felt the Louisville and Seattle programs focused much too exclusively on race. In an earlier decision, Kennedy sided with the majority to tell the Environmental Protection Agency to reconsider its refusal to regulate greenhouse-gas emissions from new cars and trucks. Last term, he voted with the majority in Hamdan to limit the Bush administration’s extravagant claims of executive power in denying due process to detainees. Among the issues at stake in the future are: a woman’s right to choose, the environment, voting rights, congressional power, free speech and the First Amendment, and the protection of fundamental rights and liberties. O’Connor was a key vote on many of these issues, and the new Court could soon have these protections in its crosshairs. Washington Post columnist E.J. Dionne writes, “If another conservative replaces a member of the court’s moderate-to-liberal bloc, the country will be set on a conservative course for the next decade or more, locking in today’s politics at the very moment when the electorate is running out of patience with the right.”


RADICAL RIGHT — WOLFOWITZ JOINS THE NEOCONSERVATIVE AMERICAN ENTERPRISE INSTITUTE:  In an interview with the Financial Times, former World Bank President Paul Wolfowitz — who resigned in scandal after granting a substantial pay raise to his girlfriend — “vowed to continue in political life.” In that effort, “he said would be joining the American Enterprise Institute, a conservative think-tank in Washington, which would allow him to continue influencing public policy.” AEI has become notorious for its stronghold on the Bush administration. In February, President Bush stated, “I admire AEI a lot. After all, I have been consistently borrowing some of your best people. More than 20 AEI scholars have worked in my administration.” Some of the “best people” that Bush has recruited include former U.N. ambassador John Bolton; Fred Kagan, the “architect” of the Iraq war; Richard Perle, an early proponent of regime change in Iraq; and John Yoo, an architect of Bush’s detainee torture policies. Despite the lack of progress in the war, AEI analysts like Fred Kagan continue to argue that “we are turning a corner in Iraq.” Wolfowitz’s tenure at the World Bank — filling top posts with Iraq war allies, doctoring climate change reports, and pursuing anti-abortion policies — are in line with AEI’s policies. Wolfowitz also said that he is “[leaving] open the possibility of rejoining the government, in what would be a remarkable political rehabilitation.”

Yesterday, the White House “asserted executive privilege” and “rejected lawmakers’ demands for documents that could shed light on the firings of federal prosecutors,” setting the stage for a constitutional showdown with congressional leaders. In a letter to Congress, White House counsel Fred Fielding explained that “the doctrine of executive privilege exists, at least in part, to protect such communications from compelled disclosure to Congress, especially where, as here, the president’s interests in maintaining confidentiality far outweigh Congress’s interests in obtaining deliberative White House communications.” The documents in question are part of a congressional investigation into whether the Justice Department and the White House politicized the hiring and firing of federal prosecutors. The White House has previously claimed that “Mr. Bush’s aides approved the list of prosecutors only after it was compiled” by the Justice Department. But recently released documents suggest otherwise. A legal memorandum written by Solicitor General Paul Clement and attached to Fielding’s letter reveals that “the White House was deeply involved in selectively targeting attorneys for removal” and suggests that the subpoenaed documents uncover “the motives of the White House in purging the U.S. attorneys.” Responding to White House, Senate Judiciary Chairman Patrick Leahy (D-VT) said that “this is a further shift by the Bush Administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances.” Similarly, House Judiciary Chairman John Conyers (D-MI) observed that “the executive privilege assertion is unprecedented in its breadth and scope, and even includes documents that the Adminstration previously offered to provide as part of their ‘take it or leave it’ proposal.”

Earlier this week, PBS’s Charlie Rose interviewed House Speaker Nancy Pelosi (D-CA). During their discussion, Rose asked Pelosi about her opinion of the immigration bill in the Senate (which was defeated yesterday). Pelosi praised several provisions of the bill but strongly criticized the bill’s vehement opponents on the radical right — especially on talk radio. Pelosi objected to their tactics saying that “talk radio, or in some cases hate radio…just go on and on and on in a xenophobic, anti-immigrant” manner. Pelosi noted that when it comes to bashing undocumented immigrants, “all of a sudden, all these people of faith are just very unforgiving.” Pelosi’s characterization of the “xenophobic” and “anti-immigrant” dialogue on talk radio is well-documented. In recent weeks, Media Matters has highlighted several particularly egregious examples. For example, Bill O’Reilly asserted that supporters of the immigration bill “hate America” and “want to flood the country with foreign nationals, unlimited, unlimited, to change the complexion” of our society. Michael Savage called a Hispanic advocacy group, National Council of La Raza, “the Ku Klux Klan of the Hispanic people” and said that La Raza “is the most stone racist group I’ve ever seen in this country!”. Similarly, Neal Boortz argued in favor of the controversial border fence, stating, “I don’t care if Mexicans pile up against that fence like tumbleweeds in the Santa Ana winds in Southern California. … [J]ust run a couple of taco trucks up and down the line.” Though conservatives may take up 91 percent of the talk radio airwaves, talk radio is not representative of the American people, who broadly supported the key components of the legislation. More information about the radically conservative bias in daytime talk radio HERE.


“This year is on track to be the second warmest since records began in the 1860s and floods in Pakistan or a heatwave in Greece may herald worse disruptions in store from global warming.”

105: Number of full-time positions President Bush has filled with recess appointments. In contrast, President Clinton had used his recess appointment powers to install just 42 people in full-time jobs at the same point in his presidency.

Just as violence in Afghanistan is “heating up” with “civilian casualties rapidly escalating, the health-care system is breaking down, according to Afghan and international medical experts.” The International Committee of the Red Cross said it “faces a more restrictive environment than it has in two decades of work in Afghanistan.”

Yesterday, ousted U.S. attorney John McKay spoke out about his regret for initially supporting Attorney General Alberto Gonzales and telling “lawyer friends it was good news when Gonzales was confirmed”: “I said, ‘You’re gonna like this guy — he’s humble, he’s honest, he’s hard-working, and he’s smart. And he’s proved me wrong.'”

The “largest Pentagon overseas construction project” is now at least $50 million over budget, and “pocked with vandalism and shoddy construction.” Yesterday in a congressional hearing, the House Oversight and Government Reform committee sharply criticized the project, which has had “inadequate oversight from the military,” and “demanded accountability from the Air Force.”

Five American soldiers were killed and seven wounded in a coordinated attack in southern Baghdad involving a roadside bomb and rocket-propelled grenades, the U.S. military announced Friday.”

And finally: During one response at last night’s Democratic presidential debate, Sen. Chris Dodd (D-CT) ran over his allotted time. Cutting him off, debate host Tavis Smiley referenced CNN’s recent decision to dump filmmaker Michael Moore in favor of a Paris Hilton interview, stating, “Senator Dodd, I was going to say, were you Paris Hilton you could have an hour, but you’re not, so…”

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Yesterday, House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Harry Reid (D-NV) signed the “Live Earth Pledge” created by Al Gore. The pledge demands “governments to cut global warming pollution by 90 percent in developed countries and by more than half worldwide by 2050.”


MISSOURI: A “negative political climate” is stalling plans for expanding a prominent stem cell research center.

OREGON: Lawmakers approve tax breaks, with the biggest winners being businesses that will take “big steps into alternative energy.”

DISTRICT OF COLUMBIA: House lifts a ban on using tax dollars to provide clean needles to drug addicts, handing city leaders “a crucial new weapon against a severe AIDS epidemic.”


THINK PROGRESS: Flashback: President Bush awards Iraqis their sovereignty — “Let Freedom Reign!”

THINK PROGRESS: Sen. George Voinovich (R-OH) lashes out at Sean Hannity: “You’re not going to intimidate me,” then hangs up.

EAT THE PRESS: Wall Street Journal reporters “walk-out” to protest the potential sale of Dow Jones to Rupert Murdoch’s News Corporation.

SCHOOL INTEGRATION: Joint statement of nine university-based civil rights centers on Supreme Court’s desegregation ruling.


“I took ‘Mission Accomplished’ out. I was in Baghdad and I was given a draft of that thing and I just died. And I said, it’s too inclusive. And I fixed it and sent it back. They fixed the speech but not the sign.”
— Former Secretary of Defense Donald Rumsfeld quoted in Bob Woodward’s 2006 book State of Denial


“There was a comment Rumsfeld made in one of those books where he claimed that he took the phrase mission accomplished out of the speech itself but that he couldn’t get the banner pulled down. That’s just wrong. I went back and looked at every draft of the speech. That phrase was never in it.”
— Former White House counselor Dan Bartlett, 7/07

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