Famed Attorney Martin Garbus Reveals the Horrors Ahead from a Winger Supreme Court

[demobabe]

A BUZZFLASH INTERVIEW

Words like judicial activism and judicial restraint have absolutely no meaning. If I have a liberal court, I want to see judicial activism. I want to see them go out and do things. If there’s a conservative court, I want to see judicial restraint, so they can’t do too much damage. The language that the Rehnquist Court and the conservatives have used over the last decades accusing the Warren Court of being too judicially active, and that they’re restrainers, is nonsense. The Rehnquist Court struck down more federal legislation than any other Court before it.

-- Martin Garbus, trial lawyer and author of The Next 25 Years.

* * *

Remember Bill Frist's "nuclear option," the one that threatened to do away with the Senate filibuster if the minority Democrats wouldn't play ball on judicial confirmations ("an up and down vote")? Remember the subsequent rubber-stamping of Bush's right-wing appointments to the Supreme Court, John Roberts and Samuel Alito? Martin Garbus is one of the country's leading Constitutional lawyers, and in his latest book he takes a steely look at where we're headed now that the Supreme Court has left behind its long history of a balanced, 4/5 pattern of voting. Garbus argues that the coming bench may imperil our way of life and endanger the liberties we have always viewed as our inalienable rights. He talked with BuzzFlash recently about this ticking time bomb.

* * *

BuzzFlash: What does the right-wing shift in the Supreme Court portend for Americans?

Martin Garbus: I think it means an end to integrated education. It also means an extraordinary amount of money going into the churches via the federal government. It means no environmental protection. It means the expansion of the rights of the states against the federal government, which means the diminution of any programs that the federal government passes, such as the Disability Act, the Aged Act, or the Violence Against Women Act. It also means serious inroads into other decisions of the Warren Court and the Roosevelt Court. It also means an extraordinary limitation on the one-man, one-vote principle, which was articulated by the Supreme Court back in 1962.

Interview here: http://www.buzzflash.com/articles/interviews/058

[Peace Patriot]

1. There is nothing we can do about this now. We have first to restore our right to vote.

THEN, there ARE remedies for the Bushcon court, among them...

1. FDR's solution, which the right wing of that era called "packing the Supreme Court." He did not succeed, but the threat of it changed one justice's mind, and thus Social Security was saved! The Constitution does not spell out the number of justices. Nine is an arbitrary number. FDR, in facing the greatest crisis our country had ever seen, since the Civil War--total economic meltdown--had to tangle with SC justices who had been appointed by the regimes who CAUSED the economic meltdown (Hoover, Coolidge et al). His plan was to add to the number of justices, and thus appoint younger, more left-leaning justices, to get approval for his New Deal economic programs. The rightwing screamed bloody murder ("Dictator!", "Tyrant!"), so FDR couldn't get the idea through Congress. But the POTENTIAL remains, that, with a sufficiently leftist (majorityist) Congress, we could expand the number of justices and solve the problem that way.

2. Amend the Constitution to limit their terms. Say, to four years, with time-served. Out, all of you!

3. Appoint a Special Prosecutor to dog their every hunting party, get the goods on them, and impeach them.

4. The most radical idea--invalidate the 2004 election, and rescind all of Bush's appointments since then (both to the Supreme Court and other federal courts). The 2004 election was obviously fraudulent. It was conducted on voting machines and central tabulators, run on 'TRADE SECRET,' PROPRIETARY programming code, owned and controlled by rightwing Bushite corporations--with virtually no audit/recount controls. Non-transparent elections are NOT elections. They are tyranny. Ask anybody in Stalinist Russia, or Hitler's Germany. And this is even before we look at the overwhelming evidence of fraud in '04. The system itself was fraudulent--fast-tracked into place by the biggest crooks in the Anthrax Congress (Tom Delay, Bob Ney). But because those crooks were abetted by corporatist/war Democrats (like Christopher Dodd and Terry McAuliffe), it will take quite a transformation of our political system to call it what it was: A fascist coup.

5. We are the Sovereign People of the United States. We can do whatever we need to do to protect our interests and to insure that the will of the people is implemented. We can amend the Constitution. We can replace the Constitution. We can dismantle corporations and seize their assets for the common good. We can utilize dormant powers in the Constitution, such as expanding the number of justices of the Supreme Court. WE are the rulers of this land. Never forget it. No matter how much the corporatists and war profiteers try to convince you otherwise--and make you feel hopeless and powerless--we and we alone hold sovereign power here. And don't think they don't know it--that's WHY they took away our right to vote--in the highly sneaky fashion that they did it (with secretly coded voting machines). Whatever looks hopeless now, is not hopeless--provided we restore transparent vote counting--vote counting that everyone can see and understand.

-----------------------

The corporatist/war Democrats (many of whom are also (s)elected by Diebold/ES&S and their "trade secret" code) are going to use the Bushcons on the Supreme Court and in the federal courts to limit reform, and protect bad actor corporations and war profiteers, and the moneyed class. They'll score points with the left by passing a bill, knowing that it will be shot down by the fascist courts. Upshot: We have to get rid of this rigged election system before any real reform is possible. And don't wait for Congress to do it. Their propoals so far have been mere bandaids, and contain some worrisome provisions. We have to do this at the state/local level. In that regard, I am ambivalent on the states' rights issue. In the '50s and '60s, "states rights" was used as an argument to retain bigoted anti-black laws in the states. But I think things may be reversed now. I can imagine a state passing a required paper ballot law, and a corporatist/war president/congress overruling it (the current Congress intends to GIVE the president more power over the election system, including power over the "trade secret" vote counting code).

Anyway, we have one helluva fight on our hands, to restore American democracy--and we can only take it one step at a time. The half-decent Congress we were able to achieve, by outvoting the machines in '06--may prevent further bad appointments. Let's hope so. I think the good Democrats in Congress (the truly elected representatives of the people) are up in arms, and are very determined, despite their (election fraud produced) weakness in numbers. I don't think they will tolerate any more Alitos or Robertses on the Supreme Court, and maybe the lower federal courts as well. (This may have been one of Rove's motives in purging/replacing US Attorneys--fascist judges will no longer get a pass, and the Bushcons are desperate for legal protection on their many, many crimes, as well as desiring to skew the election system some more.)

We simply have no remedy for these fascist court appointments, right now. Transparent vote counting is the key to this problem, and to all reform. It needs to be Priority no. 1. And I wish that more people in the legal and political professions, who are concerned about our democracy, were speaking out about it.

[loudsue]

2. This has to be the # 1 priority of all.

:applause: Well said, PeacePatriot!

"We simply have no remedy for these fascist court appointments, right now. Transparent vote counting is the key to this problem, and to all reform. It needs to be Priority no. 1. And I wish that more people in the legal and political professions, who are concerned about our democracy, were speaking out about it."

And the very next thing that HAS to happen, is we have to get the robber barons OUT of control of our news!!!


:kick::kick::kick:

[Peace Patriot]

3. Yup! nt

[demobabe]

4. I agree that we do need to deal with election issues, but this is still very important

Yes, we can't do much about the Supreme Court, but that doesn't negate the importance of what is going on and how we'll be affected by the court.

Voter fraud is important, but this is a great interview and worth a read.

[SoCalDem]

5. It's ELECTION fraud...not "voter" fraud.

The voters show up and vote. the problems are in registering and counting the votes:grr:

[demobabe]

18. Election fraud... yes, it is election fraud

That's what I meant. Brain fart on my part... hey, that rhymes!

[Peace Patriot]

11. I'm not saying it's unimportant. It's VERY important. And we do need to be

vigilant now so that no more bad appointments get through Congress. But it's kind of like the war. We have 75% of the American people opposed to the war, and all we could achieve in this rigged vote counting system is a 50/50 Congress.

I'm sure if you asked most Americans, do they want rightwing Bushites and corporate toadies on the Supreme Court and on the federal bench, they would overwhelmingly say "NO!". They would want objective people, fair people, wise people, people with the rights of individuals against the state and against the corporate rulers as a high priority. But how can we achieve this? Our sovereignty as a people has been seriously messed with. Our vote is the mechanism for exercising our sovereignty. And it is no longer in public control. So, basically, over the last six years we've had no say as to who sits on the Supreme Court. We could only manage to keep the very worst of the lot--Harriet Miers, for instance--from getting appointed. We must have the clout of the vote to influence things. It's pretty much our only power as a people. And, Lord, it's hard enough getting truly good judges--great Americans, true believers in the Constitution (not in corporate rule)--with the Democrats in power. With the Bushcons, we're getting gangsters, and liars, and fascist political operatives given lifetimes of power over us in our justice system. It's enough to make me puke. But we can only deal with so many democracy and policy campaigns at once. And if I had to choose, of all of them--including the war--I would choose election reform. It is the essential power we need to change things.

[demobabe]

19. Harriet Miers was never a serious consideration

They just floated her so everyone would flip out so the next one they offered would seem reasonable... and as a result, we have a Bush-appointed 50 year old man sitting as Chief Justice. He's gonna be there forever.

[robinlynne]

6. I agree with idea number four. I have been saying this for years. I dont find it

radical. All we need to do is count the ohioan votes.

[glitch]

8. I don't think it's radical either. Crimes were committed. Why should we allow them to benefit

from the crimes they committed? It doesn't make sense to keep them. Even the Senate approval shouldn't pass muster since the origins of the nominations were based on fraud.

[autorank]

13. They can either uphold the Constitution, sans goofy theories, or ge gone. You're right!

Thank you for stating what should be obvious and what will become obvious to all of our citizens.

We're in very deep trouble after six plus years of these nihilist incompetents. They've ruined
our name, our economy, and our environment through their death generating policies. The
corrections required may not even offer solutions to problems in the environment.

Imagine that, THERE MAY NOT BE A SOLUTION TO CLIMATE CHANGE. That's not just * and company, that's
neglect over the pat 50 years.

If Roberts and Alito think that they're going to defend the position of the world destroying faction
in this country and elsewhere, they can simply be impeached for being a threat to our future. We
don't need elaborate, drawn out Constitutional dramas. You introduce an impeachment resolution,
vote them out, and that's it.

It's time to reboot and reset our cognitive systems to look beyond built in limitations proffered by
people who think that there are still a few apples to pick in this orchard. Their time is over.

It's now time to fix things. Get on board or watch the train leave the station but you don't get
a ride unless you accept reality and work for healing and remediation of the terrible harms done
to this country and this world by the politics of profound, short sighted, harmful, and dangeroud
greed and stupidity.

Excellent point Peace Patriot. I Recommend your Reply!

[Peace Patriot]

23. You raise an excellent point--the definition of "high crimes and misdemeanors."

Impeachment is a mixed process--both political and legal--because the punishment is merely removal from office (not jail--deprivation of freedom). Gross malfeasance could be a reason for impeachment. Failure to uphold the Constitution could be a reason for impeachment. You don't have to prove commission of a crime "beyond a reasonable doubt" to throw an unamerican, corporate toady rat off the federal bench.

------

"If Roberts and Alito think that they're going to defend the position of the world destroying faction
in this country and elsewhere, they can simply be impeached for being a threat to our future. We
don't need elaborate, drawn out Constitutional dramas. You introduce an impeachment resolution,
vote them out, and that's it."

------

Think about this: Say the Bushcon Supreme Court rules that Diebold and ES&S's "right" to profit from our election system, with their 'TRADE SECRET,' PROPRIETARY programming code trumps the right of voters to know how their votes were counted--that ES&S cannot be compelled to divulge their secret code because of "private property rights"--the recent ruling of a lower court judge (who must be either a coward or a Bushcon) in the FL-13 election theft. (--18,000 Democratic votes for Congress 'disappeared' by ES&S voting machines, in a race decided for the Republican (naturally) by some 300 votes).

This would be a Supreme Court ruling that goes to the heart of the issue of corporations vs. democracy--and that kills democracy and gives private, rightwing, Bushite corporations total secret control over our election results--a ruling that is anathema to the very notion of a Constitution.

Or, say we go after Halliburton, pull their corporate charter, and proceed to dismantle them and seize their assets for the common good. It goes to the Supreme Court, which rules against the sovereignty of the people--our right to charter or NOT charter private corporations--in favor of CORPORATE sovereignty.

These would be rulings of such enormous malfeasance (not to mention treason) that they would be adequate grounds for impeachment. Is it a "high crime or misdemeanor" NOT to uphold the Constitution, which plainly establishes the sovereignty of the people in matters of voting and private business? Yes. There couldn't be a higher crime for a Supreme Court justice.

Then there is the matter of the 2000 Supreme Court appointment of Bush--a ruling that was so out of line, and so unusual, that it was a huge embarrassment to SC clerks, and the SC tacked on the provision that it was not applicable as a future precedent. It was an UNPRECEDENTED SC interference in state power over elections.

Really, the problem starts there--and it was Reagan judges who did it. How about we go back and unseat THOSE judges?

The interesting part of all this is that these are both political and legal determinations. This is where the rubber of fascist constitutional "theory" hits the road of the fundamental requirements of democracy. They say the Constitution calls for an emperor (the "unitary executive"). We say, "Unh-uh. No! You're out, Gonzo--and anyone who thinks like you!"

They twist the law into the opposite of what it says--and their pretzel legal interpretation assaults the most fundamental notions upon which the Constitution was based (for instance, the chief thrust of the Constitution is CURTAILMENT of executive power, not enhancement of it)--and what we do, in impeaching justices who impose views like these, is DISALLOW those views in our court system. Holding such views makes you UNFIT to be a judge in the U.S. of A.

We do need to be prepared for them to assert the most unbelievable bullshit, in fights over impeachment. (Look what they have asserted already!) However, ULTIMATELY this is a POLITICAL matter. A matter of numbers. A matter of the will of the majority. A matter of how the majority of Americans want our government to be conducted. We have always been protectors of minority views--even of very extreme views like these. But we are not obliged to honor the sneaky imposition of these far rightwing, fascist views, by an illegitimate president's appointments to the SC.

Another question will arise: What about the Senate confirmations of these judges? This may be a sideshow, or the main show. Hard to predict. Because the Senate elections in 2002 and 2004 are as seriously questionable as those of the president. In 2002, some of them (especially those with all-electronic, no paper trail election systems, such as Georgia). And in 2004, virtually all of them (because virtually all of them had non-transparent vote counting by 2004). This is a broader attack on our rigged election system, and will likely inspire broader resistance to exposure of fraudulent elections. But, if necessary, we need to (and can) invalidate a couple of Congresses as well. This would require following the trail of invalid state certifications of elections, that were then submitted to Congress, which rubber-stamped them without investigation. Congress holds the power to seat whomever they wish to seat, in given Congressional races. On fraudulent elections, the "buck stops" with Congress. They decide. But if they decided who their members were going to be on the basis of false or invalid information, a FUTURE Congress could rescind those rubberstamp votes, and subsequently invalidate everything that Congress did, including Supreme Court confirmations.

A future Congress doesn't need to do anything extraordinary to get rid of the Patriot Act, or Homeland Security, or the Bankruptcy bill, or the suspension of habeas corpus, or military tribunals, or the "Help America Vote for Bush Act" of 2002. It can just vote them gone--and can then re-organize national security, or the election system, on Constitutional principles. There may be some reason to act retro-actively on these and other laws--for instance, to respond to lawsuits of tortured prisoners who seek compensation, to remove any legal ground the torturers may try to stand on. But it is a different matter to rescind--undo, invalidate--the Bush Junta's lifetime appointments of fascist judges. This requires a more comprehensive view of the sovereign rights of the American people, which I was trying to get at, above. We have the right to do ANYTHING we need to, in our own interest. We can use grounds for impeachment that have never been used before, in a new interpretation of "high crimes and misdemeanors" or "gross misconduct" that addresses the NEW circumstance of badass, out-of-control, global corporate predators, and their sycophant, Bush-appointed judges. And we can also simply knock them off the bench due to the illegitimacy of the regime that appointed them, and the questionable legitimacy of the Senates that confirmed them.

We don't have to do things the way they have always been done. We can innovate. That's what democracy is all about. The Bush fascists innovated for the benefit of the few--and with malicious intent to destroy our democracy and cement corporate predator power. We can innovate right back, on the founding principles of our democracy.

[autorank]

25. "We can innovate right back..."

I love that, this too:

"A future Congress doesn't need to do anything extraordinary to get rid of the Patriot Act, or Homeland Security, or the Bankruptcy bill, or the suspension of habeas corpus, or military tribunals, or the "Help America Vote for Bush Act" of 2002. It can just vote them gone--and can then re-organize national security, or the election system, on Constitutional principles."

Vote the damn things null and void and start over.

In addition, there should be a news law, 100% enforcement: Congress must write bills that the public can read. That means, the bill is self contained rather than written with a bunch of references to other bills that disrupt the narrative. In fact, all bills should have a mandatory executive summary for the people to review and consider.

There is no real feed back loop for Congress and the courts. They just assume that, we the "sheeple" will go along like we always have. Not so, not anymore, there's a new deal and it includes us.

Sayanora to the same old, same old.

:hi:

[Peace Patriot]

27. Yeah! And maybe a mandatory period of review by the AMERICAN PEOPLE,

for major bills, or for certain categories of major change to any system (like our voting system).

Got to be put up on the web, at least--with plenty of time to review and comment--and put pressure on them, if something's not right.

And I would like to see a mailing, too--for any who request it, who don't have web access. They could use some tiny bit of the billions they are squandering on war and on traitor corporations.

[malaise]

14. Great post

Needs its own thread.

[warren pease]

15. States rights

You mention your ambivalence about "states rights," which used to be code for "so when can we start lynching 'em again?" I now think it's probably the only thing we have left to counteract the sheer overwhelming awfulness of BushCo and their corporate masters. Something like eight state governments have introduced legislation calling for impeachment, which is something that's just not going to happen with Pelosi and the DLC agenda running the house.

Cities and states are taking the lead on critical environmental issues, since they know there's no interest or funding coming from DC. Some have passed legislation re CAFE standards and carbon emissions that are much tougher than federal requirements, even those few that remain from the pre-coup era.

Cities have tried to address homelessness with plans that provide critical stuff like an address and phone number for job applicants, clean clothes and a place to clean up before an interview and a safe place to sleep. Some have skills assessments and job counseling programs, job referral databases and, in rare cases, some have set up training programs in an effort to help homeless people develop skills that could lead to a decent enough job to get off the streets and stay off -- at least until Glutco Manpower Solutions, Inc. lays off everybody in the US and moves to the imperialist paradise of Saipan.

So suddenly, states rights sounds like a pretty good idea. Secession sounds like a better one, but that's another thread.

And thanks for your always interesting and well-reasoned posts, peace patriot.


wp

[Morgana LaFey]

16. That's a wonderful, bracing post! Thanks. Everyone read this!! nt

[formercia]

7. Invalidate the 2000 election

and start with every one of Juniors appointments from then on.

[autorank]

17. Yep. That's what it's all about. Gore won, as we all know. What happened?

A Corporate Media coup of disinformation. Every judge steps down, new appointments; every official
gets an opportunity to come clean or face a real grilling. These felons can vote once they've served
their time though. Fair deal.

[formercia]

20. What happened?

Go watch F 9/11 at the beginning where Maxine Waters and the other representatives plead in the Senate and look at the faces in the Chamber. It tells volumes.

[MissWaverly]

9. I think the 2004 election will be overturned

on the very last day of this administration, why, becuz that would then give them a free
pass, the Repukes could have their "full" turn at power and at the same time they would
have no accountability, blaming Bush and crew not the republicans for the current mess.
Bush would be "removed" from the list of presidents and they would think up some reason
why Gore could not serve out his term. Meanwhile all the corporate toadies would get their
chance to cheat the American people with no liability becuz the Bush presidency would be
seen as the "lost years."

[Peace Patriot]

10. Oh, I'm for getting some of our money back, too.

I imagine that's why Halliburton moved its headquarters to Dubai. Texas and the USA are going to get a bit hot for them.

And I think we should strip them of their government pensions, and of all war profits. And, if we can nab them on any of their many crimes, my favorite punishment for BushCons is a lifetime of community service cleaning bedpans in Veterans hospitals.

But first we've got to get our power back--our right to vote--and undo all their works.

[MissWaverly]

12. yes, and anyone that bought non-government equipment

using government purchase orders: like the office supplies that morphed into the Dukestir yacht for Cunningham, they should have to make restitution.

:-)

[formercia]

21. Triple damages n/t

[MissWaverly]

24. yes, indeed

to compensate for the mis-allocation of funds.

[JNelson6563]

22. I know, it really sucks

This is why we are all so screwed. Say you don't like the Dem nominee, well that's too bad. The SCOTUS is at stake so you better line up behind the nominee.

It is the only reason I will consider voting for my least favorite Dem.

Julie

[Peace Patriot]

28. JNelson6563, I'm as dismayed as anyone by the current choice of presidential

candidates, but I think we need to get out of the "knight in shining armor" syndrome, expecting someone to come along and save our democracy. WE are our democracy. And if we have poor choices to pick from, for the top leadership of the country, and may end up having to vote for people we abhor, or with whom we are in major disagreement, then we are just going to have to live with it, and work with it, as best we can, until we can create a democracy in which the best leaders and ideas can rise to the top--regardless of how much money they can accumulate--and in which they can actually be voted into office, with vote counting that everyone can see and understand.

Our democracy wasn't destroyed in a day, and it won't be restored in a day. It's a long term project. And it is--and must be--a bottom up project, a grass roots project, a project of the American people. I very, very much believe that this IS happening. I also think we are at the beginning of a long road. But at least the first steps are being taken. In the '06 elections, the people outvoted the machines. That's what happened. So now we know we can do that. Also in that election, there was a huge increase in Absentee Ballot voting--up to 50% in some places--indicating a greatly improved awareness of the rigged electronics. This provides a significant constituency for transparent vote counting. And there is a big leftist (majorityist) insurgency in the Democratic Party, and many events on many issues--for instance, impeachment resolutions and antiwar resolutions in many towns and cities--indicating an reactivated citizenry. There is also some sign of disarray among the corporate rulers and Bushcons, and serious dissent of many government professionals (including the military). We have seen many acts of courage--whistleblowers and leakers, and acts of refusal at the risk of careers.

I have never lost faith in the American people. Never. When I saw that stat, in Feb. '03, before the invasion of Iraq, that 56% of the American people opposed it, my love affair with great progressive American majority began. And my admiration has only grown since then. There has never been a more thoroughly--and more subtly--propagandized people in the history of the world. And they didn't buy it. And their intelligence, skepticism and common sense have now produced another amazing stat: 75% now opposed to the war and wanting it ended. There are many other heartening stats like this, and have been along. You just have to get past the toughest piece of propaganda to penetrate--that we are in the minority (or ever were). This is a people, and a democracy, worth fighting for. Now they've got to figure out how this coup happened, and how to repair its damage. We may not be able to prevent another imposed president. But democracy doesn't happen at the top. It happens at the bottom. And at the bottom--the citizenry--there are signs of life, and of sturdy commitment to democracy, and to lawful and decent government. My other fave stat: 63% of the American people oppose torture "under any circumstances" (May '04). That one made me cry. It meant so much to me. They were not willing to forgo ethical behavior, even under threat. "Under any circumstances." 63%!

These people didn't vote for Bush. No way. I don't even need the mountain of evidence that they didn't. But what we have to undo and untangle is not easy. It's been a long time coming--since the '80s, at least. So what I think will happen is, either Gore will enter the race (or be drafted) and will sweep the opposition away in a landslide (the voting machine rigging will go into meltdown, before the onslought)--and he will be a great president and combine with grass roots to really change the country fast, or we'll get stuck with Hillary or someone else who is uninspiring and hogtied to the corporate rulers and war profiteers, and the grass roots rebellion will continue to boil beneath the surface, changing things more slowly, but inevitably. I'm a little vulnerable to the "knight in shining armor" syndrome myself. I long for us to have great leadership--but not so much because I trust Gore or some other great leader to do it all, but because I have faith that the people WILL respond--I think they are hungry for direction of their immense and creative energy, and it would be a wonderful thing to see them get the great and positive leadership that they truly deserve.

[hootinholler]

26. Good thing we have those stockpiles of dry powder!

We're gonna need it!

-Hoot