Romney Hopes to Bork the Courts

bradblog/Ernest A. Canning/27 Apr 2012

“If we play Russian Roulette with the Supreme Court,” Sen. Edward Kennedy (D-MA) said during the Clarence Thomas confirmation hearings, “if we confirm a nominee who has not demonstrated a commitment to core constitutional values, we jeopardize our rights as individuals and the future of our nation.”

“We cannot undo such a mistake at the next election or even in the next generation,” he warned. Too bad more of his Democratic colleagues failed to listen.

With four of the nine Supreme Court Justices now in their seventies, and the GOP Senate minority having bottled-up the Obama administration’s nominations to the federal trial and intermediate appellate courts, the decision by the presumptive Republican nominee, Mitt Romney, to select Robert Bork (see video below), founder of the ultra-radical, right-wing billionaire-funded Federalist Society as his chief legal adviser has turned the 2012 Presidential election into a new, and far more serious game of “Russian Roulette” — one that would give the same forces that were behind the Bush v. Gore judicial coup and the infamous Citizens United decision a super majority on the Supreme Court.

The harm to the rule of law that would accompany the expansion from four

Supreme Court radicals in robes to seven could not be remedied, as Kennedy warned, by “the next election or even in the next generation”…

Robert Bork & the ultra-radical Federalist Society

“If Hillary Clinton had wanted to put some meat on her charge of a ‘vast right-wing conspiracy,’ she should have had a list of Federalist Society members and she could have spun a more convincing story.” – Grover Norquist

For many Americans Robert Bork first became a household name during an event known as “the Saturday night massacre

At the height of the Watergate scandal, a Democratic-controlled Senate Judiciary Committee insisted that Richard Nixon’s choice for Attorney General, Elliot Richardson, agree to name a special prosecutor to investigate issues pertaining to Watergate. Richardson appointed Archibald Cox, a former U.S. Solicitor General. Cox’s aim was true. He went after the tapes of Oval Office conversations — the very tapes that ultimately led to the “smoking gun” revelations that supported Articles of Impeachment and culminated in Nixon’s resignation.

When Nixon tried to stonewall, Cox obtained a federal court order for their release. Nixon ordered Cox to stop pursuing the tapes. Cox not only refused but told Nixon he would seek a court order holding him in contempt. In succession, Attorney General Richardson and Deputy Attorney General William Ruckelshaus chose honor over personal loyalty, resigning rather than carrying out the order to fire Cox. Nixon then turned to Solicitor General Robert Bork, who apparently had no ethical qualms about sacking Cox.

Bork’s and the Federalist Society’s reactionary goals were best summarized by Senator Edward (“Ted”) Kennedy’s remarks during the floor debate over Bork’s unsuccessful 1987 nomination to the U.S. Supreme Court by President Ronald Reagan:

This debate has been a timely lesson in this bicentennial year of the Constitution of our commitment to the rule of law, to the principle of equal justice for all Americans and to the fundamental role of the Supreme Court in protecting the basic rights of every citizen.

In choosing Robert Bork, President Reagan has selected a nominee who is unique in fulminating opposition to fundamental constitutional principles as they are broadly understood in our society.

He has expressed opposition time and again, in a long line of attacks on landmark Supreme Court decisions protecting civil rights, the rights of women, the right to privacy and other individual rights and liberties. Judge Bork may be President Reagan’s ideal ideological choice…but that choice is not acceptable to Congress and the country, and it is not acceptable in a Justice of the nation’s highest court.

Unlike after his warnings about Thomas’ nomination, Kennedy’s colleagues — both Democratic and Republicans — heeded his warnings and Bork was rejected and forced to withdraw from his nomination.

Nonetheless, in announcing Bork’s inclusion in his campaign, Romney has said that he “wish[ed] he was already on the Supreme Court.”

Bork’s views, as radical as they are, are hardly unique. They are the views held by Federalist Society-funding billionaire oligarchs, like the Koch brothers, who would mask their authoritarian corporate capitalism under an Orwellian concept of “liberty”, defined as a two-tiered system of “justice” assuring elite impunity by a “bought-and-paid-for” judiciary.

Opportunity to end right-wing domination of the court

Those familiar with this writer’s body of work need only to turn to the sub-section, “Litany of Betrayal,” in “A Thoughtful Response to Robert Gibbs from the ‘Educated Left” to appreciate just how critical the author has been of our incumbent President.

But, that “litany of betrayal” does not extend to Obama’s nominations to the federal bench, including Supreme Court Justices Sonia Sotomayor and Elana Kagan.

Sotomayor, the President’s first Supreme Court nominee, not only dissented in Citizens United, but was the only current member of the Supreme Court to openly question the validity of the concept of “corporate personhood” during oral arguments.

While some commentators have questioned
whether Kagan, if she had then been a member of the Court, would have sided with the dissenters, Yale Law Prof. Bruce Ackerman expresses no doubt that she would do so. While a forceful case can be made that every one of the Federalist Society Supreme Court Justices fits Law Prof. Cass Sunstein’s definition of a “radical in a robe,” Ackerman describes Kagan’s legal philosophy as “mainstream.” Kagan, Ackerman insists, subscribes to “real-world constitutionalism.”

As The BRAD BLOG reported in the wake of the Vermont Senate vote to end “corporate personhood,” the Supreme Court will have the unique opportunity to revisit its infamous Citizens United ruling. A “real-world constitutional jurist” would likely be receptive to the pronouncement by Justices Ginsberg and Breyer that the Court should re-examine the validity of Citizens United “in light of the huge sums of money deployed to buy candidates.” A “real-world constitutional jurist” can be expected to give serious consideration both to the arguments presented by the Montana Supreme Court majority as to the corrupting influence of corporate campaign contributions and the blistering assault leveled by Montana Supreme Court Justice James C. Nelson in his dissenting opinion against the concept of “corporate personhood.” A “real world constitutional jurist” would not be unmindful of the growing calls for a Constitutional Amendment to overturn Citizens United, if the Court fails to do so, or the fact that 83% of Americans oppose the Court’s infamous, democracy-destroying decision.

A radical ideologue committed to the Federalist Society agenda cannot be expected to impartially rule simply because they don a judicial robe. Indeed, the history of the past 30 years reveals that Senators who voted to confirm the likes of the ethically-challenged Clarence Thomas simply deluded themselves into believing that the man would rise to the level of trust and impartiality that should accompany an appointment to our nation’s highest court.

The flip side of the irreparable harm to the rule of law that could accompany the election of Mitt Romney, an Obama re-election could produce an end the control of what Jim Hightower described as “a Corporatist Supreme Court Cabal.

Something to think about while attempting to tune-out the endless stream of corporate-purchased, political campaign propaganda that will pass for discourse during the upcoming Presidential campaign.

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Video ‘Don’t Let Romney Bork America’ follows…

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).

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