Saturday, January 05, 2008

Are Republicans Conservative? (Part II)

Part II of III

by Jeffrey Robbins

In Part One we used domestic discretionary spending as our metric and discovered that when the dream came of both the Legislative and Executive branches being controlled by their Party, the Republicans grew government faster than the Democrats had been able to when they controlled both the Legislature and Executive branch. Let's now turn our attention to the Judiciary Branch.

The Supreme Court - Republican Nominees Without Conservatives

"But even if the Republicans are big spenders, we need to elect someone who will appoint conservative judges," says the apologist. Among the Justices serving on the Court during the Republican Revolution, how many were put on the bench by Republicans and how many by Democrats? The Supreme Court composition from 1994-2005 was William J. Rehnquist (Richard Nixon), John Paul Stevens (Gerald Ford), Sandra Day O'Connor (Ronald Reagan), Antonin Scalia (Ronald Reagan), Anthony Kennedy (Ronald Reagan), David Souter (George H.W. Bush), Clarence Thomas (George H.W. Bush), Ruth Bader Ginsburg (William Clinton), and Stephen Breyer (William Clinton). During the time of the Republican Revolution, we see that the Republicans had more of "their guys" on the Supreme Court than the Democrats by a 7-2 margin.

Yet, in the eyes of many, the Court was known to be "evenly divided" in this period, perhaps with a slight conservative slant. The well-known conservative block consisted of Rehnquist, Scalia, and Thomas; the liberals were Breyer, Ginsburg, and Souter; with Stevens, O'Conner, and Kennedy being the "moderates." Are we to believe that the Republican Presidents Ford, Reagan, and Bush were unaware that the Justices they were nominating were "moderate" at best, and often part of the liberal voting block? One would think, if this reason to vote for the Republicans holds water, the exclamation would be, "Look! We have been able to nominate 7 conservative Justices." Yet, if the Establishment Republicans couldn't get it right on 5 of 7 tries, are we really getting what we are voting for by voting for Republican Presidents?

By my count, as far back as the early Warren Burger Court in 1970-1971, Republican nominated Justices have held at least a 5-4 margin over Justices nominated by Democrats. Even as far back as the 1981-1986 Warren Burger Court, the Republican nominees had a firm 7-2 lead over nominees to the Court by Democrats. To a large extent, the Jury, so to speak, remains out on George W. Bush nominated Justices Samual Alito and John Roberts. They replace Rehnquist and O'Conner, thus maintaining the 7-2 margin.

In sum, given a nearly forty year run of more Republican nominated Justices sitting versus Democrat nominated Justices, which direction has the slope pointed?

I have heard it said that even if the Establishment Republicans are big government spenders at best, it will be worth their continued election for the Supreme Court nominations they are able to make. First, the statistics above certainly cast doubt on the ability of Republican Presidents to carry out their voters' wishes. Second, the statement of relative worth waves the white flag on the issues of unconstitutional spending, the addition of trillions of dollars (Trillions!) in unfunded liabilities on the back of U.S. taxpayers, the further encroachment into education by the federal government, government spending increasing far greater than inflation, another illegal war, to name just a few, are worth it, all in the name of getting some nominees that history (we have just learned) shows us might be conservative.

I could ask a simpler question. We can see that during this entire time period of 1994-2006, all three branches of the federal government, the Executive, the Legislative, and now, the Judicial Branch, have been put in power by Republican voters seeking conservative principles, who favor smaller government, individual rights, and defense of the Constitution. The result? Who among us believes our federal government has shrunk as a result of less spending, our state has less debt, we count on lower future taxes due to the reduction in future unconstitutional liabilities, and that our freedom has been resolutely expanded? Anyone? A truly unusual event when our allegedly capitalistic, limited-government, Constitutionalists have controlled most of the federal government for twelve years.

The Rollback of Judicial Activism?

What significant Constitutional precedents could be pointed to given the long run of a Supreme Court dominated by Justices nominated by Republicans? In "Has the Court Moved Right?" the author cites a New York Times article which observes that the new Court, while heralded as "the Supreme Court that conservatives had long yearned for and that liberals feared," has managed to overturn only three precedential opinions, two of which related to missed filing deadlines.

The article continues: "...when ruling on federal environmental controls in Massachusetts v. EPA, none of the “conservative” justices questioned the constitutionality of the federal Clean Air Act. It was a golden opportunity to declare that the Constitution does not authorize Congress to regulate the environment. Not a single justice addressed that opportunity. In fact, in a 5-4 decision a majority of them concluded that the Environmental Protection Agency not only possessed the authority to regulate greenhouse gases in auto emissions but must regulate those gases unless it provided a scientific basis for not regulating."

"The court’s 5-4 decision against partial-birth abortion is viewed as a swing to the right. But this ruling must be kept in perspective: it kept on the books a federal law against a form of infanticide (killing a baby while in the process of being born) without challenging the infamous Roe v. Wade decision legalizing abortion on demand."


Pro-choice and Republican voters believe that if only more pro-choice Conservatives are able to be placed on the Supreme Court, the Court could then overturn Roe v. Wade at the Federal level, at the very least throwing the power back to the States. However, a look at the Roe v. Wade Court itself compels one to a different conclusion. The vast majority of voters likely believe as I once did that the Roe v. Wade Court comprised itself of mostly holdovers from FDR, JFK, and LBJ. Yet, at the time of Roe v. Wade, the number of Republican-nominated Justices outnumbered Democrat-nominated Justices by a 5-4 margin. In fact, in spite of the 5-4 margin enjoyed by Republican nominated "conservatives" the vote itself was 7-2, with only Rehnquist (Nixon) and White (JFK) dissenting. Yet, how many millions of pro-life citizens of any Party affiliation have cast votes for Republican presidential candidates and senators using the abortion issue as a litmus test? Indeed, it is arguably the largest question of contention during confirmation hearings and a prominent question if running for legislative office at virtually any level of government. Perhaps it is time for voters who vote strongly Republican due to this issue to rethink voting blindly based on their candidates rhetoric, without looking at the results such candidates have achieved.

Others, including author, talk-radio host, and pastor Chuck Baldwin have asserted that the vast majority of Republicans are full of hot air when they make claim to their pro-life stance. An article Mr. Baldwin wrote on the topic can be found here:

In the article Baldwin points out a piece of legislation introduced by Ron Paul (R-TX), the Sanctity of Life Act. In introducing the legislation in 2005 and 2007, Rep. Paul is recognizing a check on the Judiciary provided for in Article III, Section 2 of the Constitution. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." The bill would recognize that life begins at conception and as such nullify the Roe v. Wade decision throwing the authority back the each individual State to decide. Among all the so-called pro-life Republicans in the House, how many came out with Ron Paul to sign as a co-sponsor? Four. Did pro-life McCain, a very senior Senate member, push to introduce it in the Senate? Why in 2005, with the Legislature resolutely in control of the Republicans did a Bill seemingly this important to their constituency and these Republican lawmakers not even make it out of sub-committee for a vote?

Rise of the Justice Department, the Decline of Freedom

It also occurs to me that another important cog (and all too often ignored in the discussion of Courts and the law) to consider is that position which comes with the job description of "chief law enforcement officer of the United States government" - the U.S. Attorney General. First up, John Ashcroft, George W. Bush's nominee. Surely a Republican U.S. Attorney General would uphold the Republican principles of limiting government intrusion into the personal lives of U.S. citizens. Yet, Attorney General Ashcroft spent countless hours promoting the Patriot Act during his tenure. If you are not already familiar with the gross suspensions of personal liberties that the Patriot Act allows, Ron Paul (R-TX) provided the following summary on May 2, 2005:

"Many of the most constitutionally offensive measures in the Act are not limited to terrorist offenses, but apply to any criminal activity. In fact, some of the new police powers could be applied even to those engaging in peaceful protest against government policies. The bill as written defines terrorism as acts intended “to influence the policy of a government by intimidation or coercion.” Under this broad definition, a scuffle at an otherwise peaceful pro-life demonstration might subject attendees to a federal investigation. We have seen abuses of law enforcement authority in the past to harass individuals or organizations with unpopular political views. Congress has given future administrations a tool to investigate pro-life or gun rights organizations on the grounds that fringe members of such groups advocate violence.
The Patriot Act waters down the Fourth amendment by expanding the federal government's ability to use wiretaps without judicial oversight. The requirement of a search warrant and probable cause strikes a balance between effective law enforcement and civil liberties. Any attempt to dilute the warrant requirement threatens innocent citizens with a loss of their liberty. This is particularly true of provisions that allow for issuance of nationwide search warrants that are not specific to any given location, nor subject to any local judicial oversight.
The Act makes it far easier for the government to monitor your internet usage by adopting a lower standard than probable cause for intercepting e-mails and internet communications. I wonder how my congressional colleagues would feel if all of their e-mail headings and the names of the web sites they visited were available to law enforcement upon a showing of mere “relevance.”
It's easy for elected officials in Washington to tell the American people that government will do whatever it takes to defeat terrorism. Such assurances inevitably are followed by proposals either to restrict the constitutional liberties of the American people or spend vast sums from the federal treasury. We must understand that politicians and bureaucrats always seek to expand their power, without regard to the long-term consequences. If you believe in smaller government, ask yourself one simple question: Does the Patriot Act increase or decrease the power of the federal government over your life? The answer is obvious to those who understand that freedom cannot be exchanged for security."

In sum, the Patriot Act, among other things:
Expanded the federal government's ability to use wiretaps without judicial oversight;
Allowed nationwide search warrants non-specific to any given location, nor subject to any local judicial oversight;
Made it far easier for the government to monitor private internet usage;
Authorized “sneak and peek” warrants enabling federal authorities to search a person’s home, office, or personal property without that person’s knowledge; and
Required libraries and bookstores to turn over records of books read by their patrons.

For more on the dangers inherent in the Patriot Act, please read two articles:
"Ashcroft's Reign of Terror" ("This man is the harbinger of the American Counterrevolution: the liberties the patriots of 1776 fought and died to establish are being systematically disestablished by John Ashcroft, a Torquemada for our times.")
"Why Ashcroft Must Go" (How the Patriot Act was used against Brandon Mayfield. "Using the power granted them by the "PATRIOT" Act, FBI agents broke into his house and conducted a search in his absence, rifling through his kids' Spanish homework, and leaving the doors double-bolted - which immediately alerted the Mayfield family that someone had been on the premises.")

Et tu Alberto?

Let's move on to Alberto Gonzales, the next George W. Bush appointee, who came close to impeachment proceedings, at least in part due to his role in the dismissal of seven US Attorneys from the US Department of Justice. Gonzales compounded his problems when he was frequently caught in inconsistent testimony as well as demonstrating a remarkably poor memory in regards to the matter.

From the entry on Alberto Gonzales: On January 18, 2007, Gonzales was invited to speak to the Senate Judiciary Committee, where he shocked the committee's ranking member, Arlen Specter of Pennsylvania, with statements regarding the right of habeas corpus in the United States Constitution. Habeas Corpus is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person. The right of habeas corpus - or rather, the right to petition for the writ - has long been celebrated as the most efficient safeguard of the liberty of the subject. An excerpt of the Spector-Gonzales exchange follows:

GONZALES: The fact that the Constitution—again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But it’s never been the case, and I’m not a Supreme—
SPECTER: Now, wait a minute. Wait a minute. The Constitution says you can’t take it away, except in the case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus, unless there is an invasion or rebellion?

Senator Specter was referring to 2nd Clause of Section 9 of Article One of the Constitution of the United States which reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This passage has been historically interpreted to mean that the right of habeas corpus is inherently established.

As Robert Parry writes in the Baltimore Chronicle & Sentinel:

"Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully. Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment…"

Further controversy over Gonzales ensued when it was revealed that the National Security Agency, the U.S. government's cryptologic intelligence agency, was engaged in eavesdropping of U.S. citizens without proper warrants. Problems continued with Executive Order 13233, drafted by Gonzales and issued by George W. Bush on November 1, 2001 shortly after the September 11, 2001 attacks, attempted to place limitations on the Freedom of Information Act by restricting access to the records of former presidents.

In Part III we will explore the further consolidation of power in the Executive with a tool called signing statements. The use of signing statements began in earnest with President Ronald Reagan, quickened under Presidents George H.W. Bush and William Clinton, and have flourished under George W. Bush. As they have often been used over recent decades, will they prove to our reader a tool for conservative, Constitutional governance? Part III will push us to some conclusions and also, I hope, a beginning for some of the readers.

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