Slightly Less Than Supreme

The Triangle of the Week is morphing into a debate about the human beings behind the Supreme Court's robed figures.

The overture to Anita Hill by Mrs. Clarence Thomas, piquant as it may be, leads to speculation about her career as head of Liberty Central to oppose the "tyranny" of the Obama Administration and from there to the increasingly overt politicization of the Court.

On the day she left the now-famous message, Mrs. Thomas was profiled in the New York Times, citing "the most partisan role ever for a spouse of a justice on the nation’s highest court, and Mrs. Thomas is just getting started. 'Liberty Central will be bigger than the Tea Party movement,' she told Fox News in April, at a Tea Party rally in Atlanta."

Imagine the reaction on the Right if Justice Ginsburg's husband had been panhandling for ultra-liberal attack ads. (In contrast, Martin Ginsburg, a law professor and amateur chef who died in June, once told a reporter that "my wife does not give me any advice about cooking, and I do not give her advice about the law.")

Now, in the final days of campaigning, the Citizens United decision, which the President denounced in the State of the Union to a headshake from Justice Alito, is looming large in the surge of Republican money to drown Democratic incumbents.

Bad enough for the Roberts Court to have opened the floodgates, but having the wife of one pouring the muck is insult to injury.

In a symposium inspired by all this, one Supreme Court scholar notes, "While we no longer believe that justices are 'black-robed gods,' as they were routinely described until the 1930s, we do expect them to perform a feat that is, on a certain level, superhuman...to perceive their own biases, confront their own prejudices and wrestle them down. Subdue them. Refuse to be governed by them.

"This is the 'judicial temperament,' as it’s known, and Lord knows it can’t come easily."

These days, what does? But if the last bastion of government not under frontal attack by the forces of ignorance starts to crumble, the worst fears of the Tea Party about destruction of American values may well come to pass, leaving us all to ponder the wisdom of Pogo: "We have met the enemy, and he is us."

The voting on November 2 is about more than which flavor of folly dominates the next Congress. If ignorant insurgents take over a Republican majority, will be this Supreme Court be willing and able to curb their excesses?

Supreme Degradation

The President's choice to succeed John Paul Stevens on the Court may be less significant for the country than the ugly confirmation process that is sure to follow. A legal saint, if there were one, would only be the excuse for a Senate auto de fe to embarrass the Obama Administration and curry favor for Tea Party votes in November.

"Justice Stevens," the New York Times editorializes, "has been an eloquent voice for civil liberties, equal rights and fairness. Mr. Obama should fill his seat with someone equally committed to these principles."

In today's poisoned political climate, those qualities will be viewed as anti-American as Justice Sonia Sotomayor's "empathy" when she was being vetted for the last vacancy.

To underscore that, as Justice Stevens announced retirement, the President had to withdraw his nomination of the eminently qualified Dawn Johnsen to head the Office of Legal Counsel at the Justice Department after a year of bitter Senate stalling.

“After years of politicization of the office during the previous administration," a White House statement said, "the president believes it is time for the Senate to move beyond politics and allow the Office of Legal Counsel to serve the role it was intended to--to provide impartial legal advice and constitutional analysis to the executive branch.”

But "impartial legal advice and constitutional analysis" are out of style on Capitol Hill, where the standard is now pandering to the prejudices of self-proclaimed patriots who have been whipped into an anti-Obama frenzy.

Ironically, all this would seem to argue for a Presidential choice that abandons caution and welcomes the ideological engagement that is sure to follow.

Is he up for that? At the very least, he should recall the immortal words of Sen. Roman Hruska in favor of Nixon's nomination of G. Harrold Carswell in 1970, who was deemed mediocre by legal experts across the political spectrum:

"Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Frankfurters and Cardozos."

Why not? The mediocre and worse have taken over Congress and, judging from the Republican field so far, have a shot at the presidency in 2012. Can't we try for excellence somewhere in Washington?

Super Week for the South Bronx

The New York Yankees went on a winning streak at their new stadium last week, and two products of the neighborhood have scored big on the political scene--Colin Powell in a challenge to save the Republican Party from Dick Cheney and today Sonia Sotomayor as President Obama's pick for the Supreme Court.

As the confirmation buzz starts, Americans will get to know much more about the new nominee, potentially the first Hispanic on the Court, but for a start, Judge Sotomayor grew up near Yankee Stadium and, in one of her first notable cases as a jurist in 1995, ended the Major League baseball strike by ruling against the owners for trying to subvert collective bargaining in labor negotiations.

In the past half century, the South Bronx has become the poster child for urban poverty and devastation but, as a product of that neighborhood, I can testify that, through generations of Eastern European refugees, African-Americans and Hispanics, it has also housed families with a burning desire to educate their children into the American Dream.

In the era of Barack Obama, efforts to improve life in such communities are part of the national agenda, and the emergence of such figures as the new Supreme Court nominee foreshadows the dividends that those investments could be paying in the future.

Update: In announcing the selection of Judge Sotomayor, President Obama praised her "rigorous intellect, a mastery of the law” and added that it is vitally important that a justice know “how the world works, and how ordinary people live.”

Sotomayor described herself as "a kid from the Bronx." She sounds like all of the above.

Monica, the Movie

As Hillary Clinton arrives in Mexico to admit that America's "insatiable demand for illegal drugs fuels the drug trade,” the cocaine-consuming capital of Hollywood announces a new HBO movie about Monica Lewinsky and you-know-who.

The film, we're told, is "actually about the frustrated efforts of former British Prime Minister Tony Blair to form a working relationship with President Clinton, who seemed increasingly distracted by the fallout from the scandal." The title (wink, wink) is "The Special Relationship" with Dennis Quaid and Julianne Moore as the former First Couple. Monica herself will appear only in old clips.

The news comes as the Supreme Court considers a case about "Hillary: The Movie," a so-called documentary starring Ann Coulter and Newt Gingrich that was made with corporate money last year to derail Mrs. Clinton's candidacy and may have run afoul of federal election laws.

All this cinematic activity is going on as the polls show the Secretary of State with a sky-high approval rating in presenting a new foreign-policy face to the world. At least the perpetrators of the Frost/Nixon fiction waited until the Unindicted Coconspirator was long gone before cashing in.

If HBO cares about one customer vote, turn off the project's greenlight and put the money into a sequel of "Traffic," which would be much more dramatic and timely and a lot less tacky.

Another Woman in Denver

Lilly Ledbetter is the latest addition to the list of speakers at the Democratic convention next week, and her appearance may possibly do Barack Obama as much good as Hillary Clinton's.

In today's Washington Post, Ruth Marcus explains: "Ledbetter was on the losing end of a Supreme Court case last year on equal pay. A manager at a Goodyear tire plant in Alabama, she consistently received smaller raises than her male counterparts. The Supreme Court threw out her suit because, the five-justice majority said, she waited too long to complain, even though she didn't know about the pay difference earlier.

"Now, a bill to fix this equal pay Catch-22 is pending in Congress--and the Ledbetter case has emerged as a key piece of Obama's effort to woo women. In particular, working women, less-educated women, older women. Women who voted for a certain woman and haven't come around to the guy who defeated her."

Obama is co-sponsoring legislation to reverse the result in the case. McCain opposes it. When Lilly Ledbetter takes the stage in Denver next week, her presence may make a stronger argument for the Democratic nominee than anything Hillary Clinton could possibly say.

Bush Legacy: Dung and Dirty Air

In San Francisco, there is a new ballot initiative to name a sewage plant for him, but George W. Bush's farewell gift to the environment may be less solid--strong-arming the EPA to water down its opinion to the Supreme Court on pollutants in the air.

The original answer to a 2007 ruling requiring a report on greenhouse gases and health dangers has been in limbo for six months until the environmental agency removed sections that support regulation, including its judgment that curbing motor vehicle emissions could produce $500 billion to $2 trillion in economic benefits over three decades.

According to a senior official quoted by the New York Times, the original EPA report “showed that the Clean Air Act can work for certain sectors of the economy to reduce greenhouse gases. That’s not what the administration wants to show. They want to show that the Clean Air Act can’t work.”

This week, the EPA will tell the Supreme Court that greenhouse gases are a complicated issue involving legal and economic issues that have yet to be resolved and, when Bush departs in January, his final gift will be a reminder of the cleaner air we could have been breathing if an Al Gore presidency hadn't been smothered in infancy by the Court with its 2000 Florida recount decision.

Iraq Mousetrap for the Next President

As Democratic candidates make promises to voters about troop withdrawal, George W. Bush is in the Middle East trying to tie the hands of his successor in office.

In November, he joined Prime Minister Nouri al-Maliki in a declaration of principles to negotiate an agreement to guarantee US troop presence for years. It would replace the existing Security Council mandate authorizing multinational forces in Iraq and become a sworn obligation for the next president. Yesterday, Bush announced in Kuwait that they are moving ahead with the plan.

According to Michael Hirsh of Newsweek, "The target date for concluding the agreement is July, says Gen. Doug Lute, Bush's Iraq coordinator in the White House--in other words, just in time for the Democratic and Republican national conventions."

The intention is to bypass Congress and commit the next president to Bush's agenda. "We don't anticipate now," Gen. Lute has said, "that these negotiations will lead to the status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress."

Last month, Hillary Clinton urged Bush not to sign any such agreement without congressional approval since it would be difficult if not impossible for a future president to breach. White House silence has been deafening.

Touting the Surge's success, Bush said yesterday that "long-term success will require active U.S. engagement that outlasts my presidency."

If the Democratic Congress tries to head him off at the pass with legislation, its legality would be challenged and the Bush years would end where they started--in the Supreme Court.

A Conservative's Tears

In 1990, when Supreme Court Justice David Souter was sworn in, he said, “Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right."

Ten years later, we now find out, his mind, heart and being were troubled by the 5-4 decision to stop the Florida vote recount and hand the presidency to George W. Bush, even though he could not possibly have imagined how many human lives would be changed by that decision.

In his new book, “The Nine,” Jeffrey Toobin writes that while the other justices put the case behind them, “David Souter alone was shattered,” at times weeping when he thought of the case.

“For many months, it was not at all clear whether he would remain as a justice...At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same.”

The irony of Souter’s dissent in that case and distress afterward lies in the fact that he was appointed to the Court by George W. Bush’s father in the belief that he was a true conservative. He was and is, but not in the warped sense that the Bushes have given the word in the years since.

Murdoch to Buy Bush Administration

On the heels of the Dow Jones deal, Rupert Murdoch has made an offer to acquire the assets of the nearly bankrupt Bush Administration, reliable sources reported today.

Insiders speculate that, among other moves, the media baron plans to merge the White House Press Secretary’s Office with Fox News in a 24/7 effort to counter liberal media bias.

The synergy of the proposed merger is intriguing media analysts, who foresee joint efforts by the newly acquired Wall Street Journal and the Treasury Department to ease trade imbalances and stimulate corporate investment as well as initiatives by the State Department to improve relations with the People’s Republic of China where Mr. Murdoch has been making significant progress in advancing U.S interests.

Off the record, Mr. Murdoch has reassured stockholders of continuity of top management in the White House but has not ruled out lower-level changes such as replacing Attorney General Alberto Gonzales with a legal expert of Australian extraction and moving Karl Rove to the New York Post as editor of Page Six, which has lost some of its bite of late.

If negotiations should fail, Mr. Murdoch is prepared to settle for a smaller acquisition, reported to be one or both houses of Congress.

Another possibility is the Supreme Court, where News Corp. has previous ties with a $1 million book advance to Justice Clarence Thomas.

Not Doing It for the Money

For those who wonder if public service would attract better people if it paid more, there is sobering news from the economic journal TV Guide.

Last year Oprah Winfrey earned $260 million, more than twice as much as Bush, Cheney, Congress, the Supreme Court and governors of all 50 states combined. As public servants struggle along on their six-figure pittances, voters might give a thought to how poorly they are paid.

During the Presidential campaign, we learned that John Edwards earned $479,512 from his part-time job with a hedge fund, and yet here he is working so hard to get a position that pays less than that for long hours and much more stress.

Policy wonks who study the latest figures should look for an explanation for the fact that Simon Cowell ($45 million), Judge Judy ($30 million) and Katie Couric ($15 million) earn more than the headliners of all three Federal branches combined.

Meanwhile, taxpayers can take comfort in knowing that they are getting such good government at bargain prices.

Supreme Court Racist: Free at Last

As he goes off on vacation, perhaps to write the book for which Rupert Murdoch gave him a $1 million advance, Clarence Thomas can take satisfaction in having embarked on his real life’s work--dismantling the progress in race relations since Brown v Board of Education in 1954.

In her syndicated column today, Ellen Goodman points out a significant statement by the usually silent Supreme Court Justice in the decision striking down voluntary integration plans in Seattle and Louisville schools:

“One sentence leaps out of the footnotes: ‘Nothing but an interest in classroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts' racial balancing programs.’ He trivialized the values of diversity to a matter of aesthetics and closed with a warning: ‘beware of elites bearing racial theories.’ So much for a half-century of civil rights.”

With Bush appointees Roberts and Alito enabling a 5-4 conservative majority on the Court, Thomas is, in the words of the man who made it possible for him to pursue his life goal, “free at last” to express his inner disdain for African-Americans without the skills, desire or coldness of heart to Uncle Tom their way to the top.

Thomas didn’t invent the stereotype of a self-hating minority member--Jews have had their share--but he is practicing the art at the highest level ever.

The Price of Law and Order

It was never just about abortion. The struggle for America’s soul goes deeper, as the Supreme Court and Congress have been showing us this week.

It was never as simple as faith vs. reason. Rational people can recognize a Higher Power, the religious can respect science and logic.

What it has been about is the conflict between our hopes and fears, between the risks of freedom and the comfort of control, between our needs to feel decent and to feel safe.

Before the trauma of 9/11, the tension between those impulses could be kept in balance. Without that, the vicious idiocy of Bush’s Neo-Cons would never had free rein. For a time, the frustrations of Vietnam allowed Nixon’s paranoia and secrecy to subvert basic American values, but it never came to this.

This is an Executive Branch that makes Nixon look like a paragon of openness and respect for the law.

This is a Congress without the will and guts to stop a war started out of fear and stupidity and too craven to resist the hysteria over immigration and navigate through competing passions and interests toward a responsible compromise.

This is a High Court retreating from messy freedoms such as individual privacy, racial equality, protections from predatory business practices and the right to express unpopular opinions.

A living symbol of all this is Justice Anthony Kennedy, who has emerged, at least for now, as the deciding voter in our losing 5-4 struggle to balance freedom and responsibility.

The duty of judges, he once told an audience, is to "impose order on a disordered reality." But at what price?

By January 2009 we may, to our sorrow, have found the answer to that.

Undoing America

In 1954, after coming home from an unavoidable war, I was proud that, with Brown v. Board of Education, the country I fought for was taking a big step toward racial justice by declaring separate but equal schools were wrong.

It never occurred to me I would live long enough to see my country trapped in an avoidable war and taking steps back toward segregation, as the Supreme Court did today.

It never occurred to me that a President who had avoided fighting for his country would appoint a Chief Justice who, despite his avowed respect for precedent during confirmation, would move so swiftly to start undoing half a century of social progress.

Who are these people and what kind of America are they creating for our children and grandchildren?

Scalia Spanks the Chief Justice

In his years on the Supreme Court, Antonin Scalia has been chafing at the bit to have his views prevail.

Now that Bush has put him into a tenuous conservative majority, Scalia is apparently impatient, as indicated by his public scolding of the new Chief Justice John Roberts, 19 years his junior, for not moving far or fast enough in their mutually chosen direction.

In today’s New York Times, Linda Greenhouse reports that Scalia in two opinions this week characterized the Chief Justice as “a wimp and a hypocrite” for “judicial obfuscation” and “meaningless and disingenuous distinctions.”

Scalia and Roberts are not likely to be palling around together on hunting trips like the one with Dick Cheney that led to Scalia’s controversial refusal three years ago to recuse himself from a case involving the Vice President’s right to keep secret the membership of an advisory task force on energy policy.

Explaining the innocence of the trip, Scalia pointed out that he had merely asked Cheney to join a friend of his and that they had flown down to Louisiana together on a Government jet, duck-hunted and fished in what “was not an intimate setting” and never even shared a blind.

Just as well. Given Cheney’s later shooting of a hunting companion in the face, proximity might have made the question of recusal moot but created another opening for a Bush appointee to the Court.

Bush-League Supreme Court

Of the damage this presidency has done to American society, the worst and longest-lasting is just becoming visible.

As the Supreme Court ends its 2006-2007 term, signs of a tectonic shift in the legal landscape show an ultra-conservative majority in place to curtail individual rights to privacy and protections from discrimination.

In the most striking decision so far, the Court in April upheld by 5-4 a federal law banning a type of abortion in the middle-to-late second trimester.

In her dissent, Justice Ruth Bader Ginsburg pointed out that the majority opinion "cannot be understood as anything other than an effort to chip away a right declared again and again by this court.”

In the New Yorker this week, Jeffrey Toobin notes that, with the coming of Roberts and Alito, the Court is now poised to fulfill the long-hoped-for conservative agenda: “Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade, and allow states to ban abortion.”

It took two Bushes to accomplish this. As a new biography of Clarence Thomas reminds us, in 1991 the first President Bush claimed to have chosen Thomas, who had only one year of experience as a judge, without regard to race to follow the distinguished first African American on the Court, Thurgood Marshall.

After the confirmation hearings, which he had complained were an attempted “high-tech lynching,” Thomas’ presence on the Court turned out to be a boon for the Bushes as his vote created the 5-4 majority that halted the Florida recount in 2000 and awarded the presidency to George W.

Attempting to duplicate his father’s feat of replacing a demographic giant with a dwarf, W in 2005 nominated his White House counsel and former personal attorney, Harriet Miers, for the seat vacated by Sandra Day O’Connor. Conservative outcry led to the withdrawal of the nominee described by Bill Maher as “Bush’s cleaning lady.”

Today the hard-right majority is still tenuous, depending on the swing vote of Justice Anthony Kennedy. But with a year and a half left of the Bush term, human mortality could change that before a new President is sworn in. Either way, whoever takes the oath in 2009 will have a lot to say about American values from then on.