The Constitution vs. Conservatism

Reply Fri 17 Jan, 2003 07:20 pm
(I have excerpted a rather long essay to begin this thread. It will be cited on request.)

I'm just plain confused about what we Americans describe as "democracy."

Here's why: a short while ago, a certain Federal Court judge, John Bates (a Bush appointee), ruled that Congress, through its own duly appointed agency, the General Accounting Office, had no entitlement to documents that the administration developed in its meetings to establish energy policy, despite the fact that Congress is responsible for oversight of the administration, since it holds the pursestrings for everything the administration can do.

Funny thing...before he was confirmed to his Federal judgeship, John Bates worked for a independent prosecutor by the name of Ken Starr, and his primary task in Starr's investigation was to pry loose all of Hillary Clinton's papers with regard to the Whitewater investigation. Bates had no problem pressing for Presidential or Presidential wife's document transparency when the right wing wanted something of a Democratic president and his wife. In his capacity as Federal judge overseeing a couple of cases involving Mr. Bush and company, however, he thinks differently about transparency in government.

Not long after Judge Bates' confirmation, a few Congressmen (thirty-two of 'em to be exact) decided to file suit against the Bush administration for its arbitrary withdrawal from the ABM treaty. Bates told them, in essence, piss off, you don't have standing.

Now, in legalese, "lack of standing" means that the party really doesn't have anything to do with the issue. At base, this means that the complainant hasn't been injured directly, so they can't really have been harmed by the defendant in the suit. Without demonstrated harm, there's no cause for suit. To put it in simpler terms, if I hit and injure a pedestrian at a crosswalk with my car, and another person, twelve miles away, with no personal or business interest in this accident decides to sue me for the accident, I'm not liable to them because they have no real interest in it. They have, in legal terms, no standing.

In the first case, Bates decided that an authorized agency of Congress acted independently of the wishes of Congress by asking for Vice President Cheney's energy task force papers, because Congress had not specifically, by legislative mandate, authorized the GAO to seek those papers. Therefore, the GAO had no standing. To Judge Bates, the fundamental Congressional mandate of the GAO to oversee administration operations on behalf of Congress did not apply: there was no specific resolution to investigate this specific instance of the administration's operation, even though a 1921 law passed by Congress authorized the GAO to do so at its own discretion, within the limits of that law. Judge Bates suggested, in his ruling, that Congress had the power of subpoena, so they should have done so, even though prior law did not require them to do so.

No wonder I'm confused. The GAO is chartered by law, in perpetuity, to act in Congress' oversight interests. They're the watchdog for Congress. They don't need specific legislation to act - they have already been authorized by Congress to do so.

In the second case before him, Judge Bates said that, "In the year since President Bush announced his intention to withdraw from the ABM Treaty, neither the House nor Congress has made any attempt whatsoever to register disapproval as a body, or to insist on a role in the termination of the treaty," and, according to Bates, he did not want "to encourage congressmen to run to court any time they disagreed with presidential action...or were on the losing end of a piece of legislation."

In this instance, the problem is even more obvious - the Senate is the sole body authorized by the Constitution to enact treaties as the "supreme law of the land" as Article XI of the Constitution requires. There is no authority provided in the Constitution for Presidential authority to nullify any treaty voted upon by the Senate. Simple logic would have the Senate, initially responsible for ratification of treaties, also responsible for dissolution or deratification of treaties and that the executive branch of government has no standing in the matter of treaties, since ratification of treaties is the sole province of the Senate.

Judge Bates' ruling says, in effect, nope. That because a majority of the Senate wasn't interested enough to object, the President, by fiat, is entitled to dissolve a previously-ratified treaty and declare it null and void. Judge Bates cited the still-controversial Supreme Court ruling of Raines v. Byrd as justification for his ruling, which itself stretched the notion of injured parties to the breaking point, even though members of Congress, as direct representatives of the people and with Constitutional mandate on behalf of the people, could reasonably be seen as aggrieved parties acting as surrogates for the peoples' interests under the Constitution.

Herein lies the problem with so-called "conservative" judges as promoted by the Bush II administration, the Bush I administration and the Reagan administration, and, ultimately, the Nixon administration. Judge Bates, in his capacity as a newly-appointed adjudicator of the Constitution, clearly owes his loyalty to an administration and a Presidential ideology rather than to the Constitution. The Constitution and its intent are more than clear on both of these issues recently ruled on by Judge Bates. "Strict constructionism" becomes, judicially, the code phrase for a right-wing legal crutch based on tenuous, greatly extrapolated interpretations, rather than as defense of the Constitution and the people's interests.

It's not a stretch to declare, bluntly, that Bates and other right-wing appointees are using arcane, vague and solipsistic interpretations of the law to establish policy in favor of right-wing administrations, and to deter further legal action by the very parties injured by administration policy and executive order, to include Congress and the people.

What are your opinions regarding the appointment of "strict constructionists" to the Federal bench?
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Reply Fri 17 Jan, 2003 07:46 pm
I'm not particularly concerned. Supreme Court Justices are often not particularly committed to the ideologies of their nomimators, and frequently have proven embarrassment to same. Besides, they have to be moderate enough to pass scrutiny of both of the two legislative houses and parties. It really is not feasible to "Pack" acourt. Justices tend to be reasonable and honorable folks for the most part. That's pretty much how they get the job.

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cicerone imposter
Reply Fri 17 Jan, 2003 07:54 pm
First off, I never did trust GWBush. I didn't trust him when he was a candidate for president, and I don't trust him now. What has he done to win my trust? He's given the largest portion of the tax breaks to the rich, his ecology stance is abismal, he wants a war with Iraq to pay back the oil interests at a cost of billions while our citizens suffer from unemployment, no health care, many seniors unable to buy prescription drugs, our schools lacking repair, our medical costs increasing at alarming rates, our roads going to pot, we have lost the respect of the world community, he's willing to destroy the prestine landscape of Alaska to dig for oil, he wants to do away with affirmative action for blacks while the likes of GWBush can attend Harvard/Yale because of his daddy, and he calls himself a christian. c.i.
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Reply Fri 17 Jan, 2003 09:52 pm
The Supremes are notorious for surprising their nominators and once appointed they often do the right thing. I might not agree with every decision but they make informed decisions. They have not overturned Wave v. Roe or Miranda or Brown v. Board of Education.

I find this discussion on changes in the Court to be fair and objective.

The Impact of New Justices: The U.S. Supreme Court
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Reply Fri 17 Jan, 2003 10:01 pm
I'd not be terribly upset to see R Bader-Ginsberg replaced ... never did trust those hyphenated types.

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