Friday, July 01, 2005

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.


Well, when I was a leftist, and a law student, the crit theory was that law is mystification, and that the sooner the people realized that law is politics, the better off we would all be (except the oppressors, who would be worse off). Your "mutually assured destruction" seems to be nothing more than wider acceptance of the foregoing, "liberated" view.

"The left survived the Rehnquist Court." But how?

Reagan appointed a woman, resisting conservative opponents rightly hesistant about some her moderate tendencies. Dems rightly supported her.

Dems resisted Bork eventually leading to the confirmation of Kennedy, a key moderate swing justice.

Bush41, partly because he is more moderate than his son and partly because he knew the Dems would not accept two strong Scalia sorts, nominated a NE Republican to replace Brennan.

Clinton nominated two of the justices on the Court, while a third was an old time libertarian Republican (Stevens).

So, inaction isn't how the left "survived." Nor was it simply politics. It was the mixture of those two plus restraint by Republican presidents (Ford, Reagan and Bush). This will be necessary here as well.

So, hypo-reactions on all sides should be looked upon with a bit of disfavor. This includes the "let Bush have his nominee, no matter who it is" arguments that two commentators here have put out there. They go too far in the opposite direction of the assumed (who knows who the nominee will be) result and seem more written for effect than anything else.

Obviously I've stumbled into what I would consider to be a Leftist-oriented site.

I have to ask, as Scalia often does, what is a moderate interpretation of the Constitution? Is it a legal contract or isn't it? Mr. Tamada decries the possibility that "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." And "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?"

It isn't the conservative justices alone that have gotten us here, not by a long shot. They haven't been the ones legislating from the bench, and they aren't the ones who have brought us to the brink of dismissing the rule of law as just another political tool to accomplish what has been impossible to get through legislation. It has been the "conservative" justices who have at least tried to adhere to the rule of law, while the "liberal" justices seem to make it up as they go along. As someone said recently, the Kelo decision in favor of developers and government power wasn't surprising coming from the Left: restricting the government's power to do evil also restricts its power to "do good."

I'm looking forward to the battle over the next nominee, myself. It will tell us all something about our opponents, and about our president. And if it denigrates into Mutually Assured Destruction, well, perhaps it's about time.

Scary post, but right on the money. As a weak conservative, may I suggest the same reasonable course of action as you recommend to the left.

Sadly, I'm not very hopeful.

Geez... at least you could've incinerated Moscow.

A conservative interpretation of the law is long overdue. As Kevin said, it is the liberal judges that have made the law up as they went along.

If this is to be a battle over Roe v. Wade, then so be it. No matter how hard anyone tries to use a magic decoder ring, the "right" to an abortion is simply nonexistent in the bill of rights.

The separation of church and state is not in the bill of rights or the constitution.

The reason that these ideas are not present in the constitution or bill of rights is that the legally empowered groups (congress and senate) did not include them. This separation of powers - that judges do not make law, but elected legislators do - is crucial to the functioning of American society.

The right to own private property is most assuredly in the fifth amendment. This is absolutely fundamental to the economic and political system of the United States. And yet, the largely liberal court has deemed itself capable of overriding this fundamental right.

If George Bush nominates Ann Coulter, then the left has only themselves to blame. Such a nomination would not be necessary had the court simply stayed within their constitutional mandate, rather than making laws up and striking out whole sections of the bill of rights as they went along.

All of this talk about the left and the right is relative to what?

This current crop of conservatives would have been considered moderate democrats 40 years ago. The left wing of the present democrat party would flat out be socialists.

I can't imagine Bush nominating a hard-core, right-wing, paleo-conservative that would be worthy of the name a couple of decades ago.

The lines are drawn between the rightist-left and the leftist-left. Thats all. Nobody wins.

I have a proposal for how to save the courts from politicization: how about we stop having the courts make political decisions?

The reason the courts are poltical is because for decades, the left has used them to achieve political outcomes that could not be achieved by democratic processes.

If you want to change the constitution, use the democratic processes that are provided in the constitution instead of going to a court to find new emanations for you. It was this "ends justifies the means" thinking that brought the courts into disrepute and the way to bring back confidence in the courts is to appoint justices that will follow the democratically passed laws and constitution. In other words, the kinds of justices that Bush promised to appoint.

BTW, in case you are wondering where all the conservatives came from: you have been instalinked.

Are there any conservatives on Bush's list who are objectively more extreme than Ruth Bader Ginsburg on the left (who got 96 votes in the Senate, as I recall, because Republicans were not obstructionists)?

Thank you for sharing the information with us

Thank you for sharing

Post a Comment

Older Posts
Newer Posts