Are We Facing The Mutually Assured Destruction of the Legal System?

Brian Tamanaha

As everyone knows, we are looking at a huge battle over O’Connor’s replacement. To take seriously the idea that we might be collectively striding toward the Mutually Assured Destruction (MAD) of the legal system, it is important to first be reminded of how committed the combatants are, and to understand how far they are willing go.

Consider the implications of the fact that Christian conservatives were actually pleased by the Court’s rulings against the Ten Commandment displays, as David Kirkpatrick’s report makes clear. “I’m almost glad [the decision to remove the Commandments] is so outrageous,” said born again Christian evangelist Charles Colson.

"People in churches across America had better get busy and demand the right kind of appointments to this court," [Colson] said. He added, "There is no bigger issue on the Christian agenda."

Representative Tom DeLay of Texas, the House majority leader, called the ruling against the display in Kentucky hypocritical, given the depiction of Moses and the Commandments in the Supreme Court.

Mr. DeLay promised that Congress would "look at all avenues" in oversight of the courts.

Representative Ernest Istook, Republican of Oklahoma, said he planned to try to revive a proposed constitutional amendment to permit government displays of the Commandments as well as school prayer and the recitation of the phrase "under God" in the Pledge of Allegiance.

Republican Party strategists were gleeful:

Ed Goeas, a pollster who worked for President Bush's campaign last year, said the court decisions would help Republicans bring out their base next year for the midterm elections when the dominant party is often vulnerable.

"Normally in politics, the incumbent party has less intensity because those on the outside tend to scream more loudly and more intensely than those on the inside point with pride," Mr. Goeas said.

But in the last election, he said, court decisions like support in Massachusetts for single-sex marriage helped incumbent Republicans rally conservative Christians.

"Certainly what we saw in the last election," he said, "is that the courts, to some extent, became for those voters kind of the incumbent, if you will. The action of the courts, whether in gay marriage or the Ten Commandments, seemingly put them in control. So in a sense the courts were saying, 'We are the incumbents.' "

Thank you very much Supreme Court, said the right, for to striking the Ten Commandments displays, providing more ammunition in the bigger battle to take over the Court itself, and the entire judiciary along with it, as well as to consolidate the right’s hold on Congress.

Sticking with a successful strategy, Christian groups plan to petition local officials to put up more religious displays, knowing that courts will likely order that they be removed. This will get the Christian soldiers even more riled up for the impending battles over Court appointments.

Steven R. Shapiro, legal director of the American Civil Liberties Union, said that it would continue to sue to remove such displays "to try to enforce the principles that I think the Supreme Court reaffirmed, that government should not be in the position of supporting religion."

Soon Republicans will be sending checks (anonymously) to the ACLU, as it continues to aggressively press this issue in court.

Left groups are responsible for starting many of these fights:

…Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said his group had four pending suits to remove other displays of the Commandments.

But perhaps they are beginning to realize that successfully removing more Ten Commandments displays is not worth adding to the risk of losing the Congress for another term and the courts for a generation.

Mr. Lynn said his group would hold off further legal challenges to focus on battles in Congress and over the courts."I think our hand was strengthened significantly yesterday, but we are not planning to go and launch a vast new set of lawsuits," Mr. Lynn said. "Because we do need to fight these efforts in Congress, which will be more immediate and have a greater potential for doing damage."

There is no question, as the rhetoric makes clear, that all sides see this as a war.

My broader point is not to urge the left to be more strategically savvy, but to encourage reflection on the battles that have erupted through and over the law, on the systematic and comprehensive efforts to seize the law and to use it against opposing groups. We have become so inured to this seemingly growing frenzy that it is hardly reflected upon any more. All sides, liberal and conservative, groups of every stripe, are eagerly engaged in and equally responsible for these fights. All sides show a single-minded pursuit of their objectives in and through the law with nary a thought of the harmful consequences that might follow to society or the legal system.

Multiplied a thousand fold, this is the setting for the fight over O’Connor’s replacement.

Already, groups on the left and right are preparing for what they anticipate will be the worst ever fight over a judicial appointment--focused squarely on the ideology of the appointee. Indeed a right group spent $700,000 in preemptive ads before O'Connor's retirement was announced. And of course there’s the looming possibility of a second vacancy…

How many battles of this sort can the legal system absorb before everyone simply takes for granted that the judge’s ideology is everything—that the law doesn’t matter? Or have we already passed that point?

At least in theory, law is a system that maintains social order, and courts are forums that resolve disputes. We are witnessing, instead, that courts attract disputes, and their rulings generate further disputes. These groups want to fight. And now the worst disputes are over who will be the judges, with each group reasoning that if the judges share their ideology, they will prevail in future fights.

During the decades long nuclear standoff between the US and the USSR, when Mutually Assured Destruction (MAD) kept the peace, I occasionally contemplated what I would do if I were the President and the other side had launched all of their weapons, assuring our obliteration. Each time I decided that I would not retaliate, reasoning that we were dead anyway, and humanity must continue. Of course, I would not have told the other side that in advance. Call me a weak liberal, but it made sense.

Please pardon the gross stretch, but go with the analogy for a moment. As the various parties ready themselves to launch their arsenals in the battle over O’Connor’s replacement, consider whether we are collectively risking the Mutually Assured Destruction of the legal system.

MAD worked because all sides knew that certain destruction awaited them. The problem here is that few among the combatants of left or the right seem to recognize, or care, that the very integrity of the legal system is threatened by the overwhelming politicization of the judicial appointments process (not to mention by the battles they incite in and through the law).

There is another problem: a severe imbalance of power—the right clearly has the upper hand and knows it. They have reasonable grounds for thinking they can prevail.

Given that the right plausibly thinks it can win, and that it fails to recognize (or care) that the integrity of law might be at risk, it is all but inevitable that they will fight the war over O’Connor’s replacement with everything they have. Besides, many Christian conservatives seem so committed to their cause that nothing can dissuade them (though there are other conservatives who might be persuaded about the risks).

Assume the worst case scenario: say Bush nominates an extreme ideologue.

Let’s consider the unthinkable for the left: Hold back. Don’t politicize the process in response. Talk about judicial qualifications. Talk about judicial temperament. Talk about the candidate’s commitment to follow the law. Let a Bork go through. Take the high road. Stand down.

Call me a weak liberal, but it is the right thing to do to for the legal system. The left survived the Rehnquist Court. Judges come and go. Majorities come and go. Justices regularly surprise. But even if the appointee proves to be a hard core conservative as a judge, the destruction of the belief that law matters would be worse for all of us than a conservative Supreme Court.

Of course, the left can’t tell the right in advance that it might do this, and the right will not appreciate the sacrifice the left committed for the greater good. I raise it now because it must be contemplated before things get so ugly that the damage to the legal system is done.

If it is already too late, then, by all means, engage in the fight, as there is nothing to lose. We will have collectively gone MAD.
Posted 7:08 PM by Brian Tamanaha [link]