A SHOCKING RIGHT WING COUP .......thenewliberator.com opinion:
Supreme Court Justices have awesome absolute power. The Constitution gives the Supreme Court no explicit power to declare laws unconstitutional, but in an early 1803 case, Marbury vs. Madison, Chief Justice Marshall boldly took that power for the Justices. Since then the 9 Justices have frequently used this power to declare laws made by a majority of Congresspersons, Senators and the President unconstitutional. This is an undemocratic feature of our democracy. When the Justices make an order, there is no further appeal. The only possible remedy is for the Senate to impeach wrongdoing Justices, but when the Senate is nearly equally divided, impeachment is impossible, since the Constitution requires a 2/3 vote of the Senate to impeach a Justice, and the Chief Justice of the Court Presides!
5 extremely conservative Republican Justices, appointed by Republican Presidents, used their absolute power to guarantee the "election" of a Republican President, and to nullify the 50,148,090 votes of the majority of voters in the 2000 Presidential election.. They thwarted the will of the majority in the most important choice that voters can make. In so doing, they used the Court for extremely right-wing partisan purposes, and irreparably damaged the Court as the impartial judicial body that a civilized nation desperately needs. 5 Supreme Court Justices, Rehnquist, O'Connor, Kennedy, Scalia and Thomas stole the Presidency from the American people.
These five power mad Justices saw no constitutional problem with stealing the election from the American voters. Let's think about what they stole. We have all been taught that we live in a democracy, that we govern ourselves by voting, and that Congresspersons, Senators and the President are elected by a majority of us voters. (Only one other time in our history, in 1876, has the Electoral College interfered with the concept that the President was elected by the majority, and we have forgotten that.) We voters are the most important first branch of government and the other three branches, the President, Members of Congress and the Supreme Court are our public servants, our agents. We have no King or Sovereign in this country. We the people are sovereign. One of the core precedents of the United States Supreme Court recognizing this sovereignty, ignored by the 5 Justices, is the 1819 case, McCulloch v. Maryland, 4 Wheat 316 where Chief Justice Marshall said:
"The government proceeds directly from the people and is 'ordained and established' in the name of the people...The government of the Union, then is emphatically, and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefits..."
It is breach of the Constitutional Oath and a supreme arrogance for the 5 members of the Court, our agents to misuse their Constitutional power we have entrusted them with, to prevent us from voting, to order that some of our votes not be counted, and to nullify a majority of our votes. As Lincoln taught us in the Gettysburg Address, ours is a government of, by, and for the people. The Preamble to the Constitution recites that We the People, in order to establish a more perfect union... do ordain and establish this Constitution, our government. We pledge allegiance to the Flag, representing this Constitution and our self government. In our nation, composed of many religious faiths, our self governing democracy has become the one faith that we hold in common.
This is how the 5 right wing revolutionaries managed to do it.
The Constitution in Article 1 states that the state legislatures shall be responsible for selecting Presidential electors in a manner to be determined by the state legislatures. As we have all now learned, voters do not elect the President directly, but instead vote for electors in each state who then vote for the President. Under this process, the constitution allows the electors to select a President even though he did not receive a majority of the votes nationwide since each state is given the number of electors equal to the total of Congresspersons and Senators representing a state. Small states with little population thus have disproportionate power.
The Florida legislature enacted a comprehensive procedure by which voters voted for presidential electors, with provisions for protests, for recounts, and for judicial review of the process by the Florida courts. All of the other 49 states had completed their processes and Gore had about the same number of electoral votes as Bush. Florida's 25 electoral votes would decide the Presidential election. The machine count in Florida gave the 25 to Bush, but there were many claims of error and a manual recount was proceeding.
This Florida process was proceeding under very difficult time constraints created by an 1879 Federal Act which the 5 Justices intentionally and erroneusly interpreted to require that the Florida process be completed 6 days before December 18, or by December 12. (3 U.S.C. Sec. 5) There is a serious question as to whether this old, never used, law even applied to state counting processes.
While the Florida recount was proceeding, with barely enough time to complete it by December 12, 5 Republican Justices, appointed by Republican Presidents, issued an extraordinary order on December 9 that the Florida recounters immediately stop their counting. These 5 Justices did this without notice to the Democrats or to Gore and without affording a hearing. 4 Justices vigorously dissented. This type of legal relief is called and "ex parte temporary restraining order" and for hundreds of years, courts have granted one rarely and then only on a very strong showing of "irreparable harm." The 5 right wing conservative Justices acted diabolically and arbitrarily.
The only irreparable harm the 5 Republican Justices found was irreparable harm to Republican candidate Bush, in that the continuing recount would show that Gore got enough votes to win, and this would undermine the legitimacy of the Bush Presidency in the eyes of the American people. This assumes facts not in evidence, that Bush was to be the next President. There was no irreparable harm in allowing the recount to proceed even if the results were later rejected. The real irreparable harm was to Gore, because the recount was halted and everyone knew there was insufficient time to restart it and complete it. The 5 Republican Justices knew this and this is of course why they issued the illegal order to halt recounting. The 5 are bitter right wing partisans who desperately wanted Bush to be president. Scalia wants to be Chief Justice when Rehnquist retires, and the 5 Justices are counting on Bush to appoint more extreme conservative Justices like Scalia Thomas and Rehnquist so that the court will be composed of 5 or more extreme conservatives who will outlaw abortions, authorize Christian prayer in Public Schools, and other matters dear to the hearts of right wing conservatives.
Because time as interpreted by the 5 Justices had nearly run out, the 5 Republican Justices well knew that it did not matter what the court said in its formal opinion. The opinion, no matter what it said, could not affect the basic result: Bush would be the next President. The coup was successful. All that remained for the court, was to preserve some tiny if phony semblance of respectability, some legalistic "spin" that would give the media something to be "objective" about and to mislead and confuse the American voters, and make them think that everything is proper and constitutional.
At 10 PM, December 12, when every one knew there was only 2 hours left for Gore to resuscitate the halted recount, the Court issued a Per Curiam opinion where the Justices Reversed the Florida Court's recount procedures and Remanded the case back to the Florida Court for further proceedings that the 5 extremist Justices stated could not be had, because of the time limits of the U.S. Code. A more gross case of false legal sophistry and "spin" for the purpose of deceiving non-lawyers cannot be imagined.
2 additional Justices, Souter and Breyer, in an effort to save the dignity and credibility of the Court, agreed that there might be "constitutional problems" with the Florida procedures which the Florida courts might quickly solve. These defects were not spelled out in the opinion, but in the questioning of lawyers in Washington on December 11, and from Republican arguments and briefs, the only constitutional "defect" was a phony claim that the Florida procedures allegedly violated the guarantee of equal protection of law to each Florida voter. Here is why the EP claim was false.
The equal protection clause was designed to protect the weak from arbitrary abuses of power of the powerful. Black former slaves were guaranteed that all state action would treat them equally with their former white masters. Here the powerful misused the guarantee of equal protection of law to protect the rich and the powerful. This claim of violation of equal protection of law was created out of whole cloth by Republican lawyers and the 5 right wing justices without constitutional or historical precedent.
The equal protection claim was based on the fact that various county canvassing boards in Florida had differing interpretations of the Florida standard "implementing the intent of the voter," as they conducted their manual recount. There was no claim of discrimination against Bush in each county. The same standards were used within each county for Bush ballots and for Gore ballots so the lack of uniformity hurt no one. Bush voters were treated exactly equally with Gore voters overall. No voter was denied the guarantee of equal treatment. All ballots were tested by the same standard, albeit a standard that different counties interpreted in different ways. It is somewhat akin to the legal definition of murder. On the same set of facts, a murderer in one county might be set free, while in another county he would be sentenced to death even though both counties use the same definition of murder. No one has ever claimed that this denied equal protection. Bush himself asked for a recount and got it in three counties and Bush did not claim the lack of equal protection when he sought recount. Different voting machines were used in some counties than in others, and some of these machines made admitted mistakes. Bush did not claim that these varying standards by voting machines violated equal protection. Finally, thwarting majority will of the American voters is an overwhelming violation of the Constitution that dwarfs the significance of the alleged equal protection problem.
Precedents of the Supreme Court expanding the guarantee of Equal Protection of Law are eagerly sought by the weak because a principle of law used by the powerful may also be used by the weak, for example to challenge the Senate's filibuster procedure, or to compel that every child within a state get an equal portion of the states money for education. Thus the Court was careful not to create an Equal Protection precedent that could be used as authority by others.
The right wing coup by 5 extremist Justices was successful and total. No legal or political appeal remained.
Al Gore, Democrats and Democratic and Republican voters should NOT bestow legitimacy to the coup or to the Bush Presidency by in any way suggesting that Bush's election by 5 right wing conservatives was fair or constitutional. The coup is just as illegal and unconstitutional, as it would be if Bush had caused General Colin Powell to take over the office of the President for him by a military force of NRA riflemen. Al Gore should allow the significance and the stench of this coup to settle on the American people free of any ameliorating deodorant concession that the process was fair, legitimate or constitutional.
There may be a silver lining in this dark cloud for non-extremists: Black voters, labor union members and Democrats are energized, outraged, and determined in ways that we have never seen before. Even without any clarification of election laws, these disenfranchised voters will make their voting power felt in the Congressional elections off 2002 and in the next Presidential election.Democratic voters and Senators, having experienced the arbitrary power of Supreme Court Justices, will scrutinize Bush's appointees with meticulous care, and reject extremists.
Congress will no doubt pass laws reforming and standardizing the Presidential election process and the way of counting votes. It may even modify or eliminate the Electoral College.
The naïve civic myth that ours is a democracy of by and for the people, with each voter sharing a fraction of the ultimate political power has been exposed and shattered. We citizens have been given a vast education in the realities of human political passion, of lust for power, of arbitrary abuses of power and of violation of constitutional oaths.
Justices Sandra Day O'Connor and Anthony Kennedy have been exposed as extremist arbitrary political partisans, and not merely conservative "centerist jusrists." Disheartening though this is, it is better to know the truth than to be deluded.
However, we badly need a wise, impartial Supreme Court in which we all have trust and confidence. Two of the principal underpinnings for civilization are an agreed upon set of rules for resolving disputes and some social controls over the powerful for the protection of the weak. Without these two, we are all vulnerable to whatever the rich and the powerful wish to do. A common complaint about the current climate in Russia is that it lacks these two safeguards and the society is largely run and controlled by greedy powerful persons.
We in the United States have always had a system of laws and fairly effective courts to resolve disputes and a Constitution that guarantees us equal protection of law. In other words we had an agreed upon set of rules to protect us from the greed and aggression of the powerful and wealthy. For us, this became more than a set of rules. It became our civic religiion. We memorized Lincoln's Gettysburg Address with its promise that ours was a government of, by and for the people. We pledged allegiance to the Flag symbolizing our Constitution and laws providing for "one nation with liberty and justice for all."
Until recently the courts, state and national have adhered to their oaths and have upheld this agreed upon set of rules and have maintained a detached dignity and a community consensus and rationality in their decisions that caused us to accept their interpretations of the agreed upon set of rules. It was our national habit of obeying the Court that lead Florida canvassing personnel to obey. Yet, nobody is obligated to obey an illegal and unconstitutional stay order. What if the Florida canvassing officials had simply ignored the stay order of the Justices? Who would have enforced it?
The 5 conservative members of the Supreme Court, Rehnquist, O'Connor, Kennedy, Scalia and Thomas have ripped to shreds this agreed upon set of rules, dignity, detachment, community consensus, and stable precedents.
They have made it clear that they are concerned only with their own political passions and that they are willing to abandon their own rules, precedents, legal and constitutional principles, and to act arbitrarily so that their private political agendas can prevail. In seizing the Presidency, they violated their own precedents and doctrines of avoiding judicial activism, of avoiding political questions, of judicial restraint, of requiring lower courts to rule first, of deferring to state courts, and of strict limitations of "standing" to bring a suit in the federal courts. They have exposed themselves once and for all as being partisan agents of the rich and the powerful, that they are not bound by any agreed upon set of rules, and that they, and the rich and the powerful can do what they please.
We who are not rich and powerful are left naked in an uncivilized jungle without legal or constitutional protection. The agreed upon set of rules based on community consensus is weakened and we now see that we cannot trust those judges who interpret the rules. We are asked to obey whatever law or rulings the rich and powerful may now make for us. We are asked to honor and obey a President because his lawyers, his brother, his brother's Secretary of State, and his Judges say that their law must be our law, whether we agree with it or not.
thenewliberator.com is disappointed that no Republican so far has condemned this coup. Are there any Republicans out there who still agree that ours is a government of, by and for the people, that each voter should have an equal share of political power through his vote, and that the majority should prevail? If there are not, we foresee very disagreeable, uncivil times ahead.
Have we learned the civic lesson? Will we now pay rapt attention to the Justices a President nominates to serve for life on the Supreme Court? Will we vote in the future only for Senators who promise to restore, preserve and protect our voting power, and our democracy? Do a majority of us understand that our Constitution and our democratic heritage are at stake? |
