GOP Outraged by ... Whatever

Republicans see Obama's nomination of ... anyone ... for Justice Souter's seat as outrageous, divisive, activist, pick a negative adjective.

The merits of this summer's choice are irrelevant. Facts, law, intellect, these things don't matter. Republicans want to attack anything that is not Republican.

As Adam Nagourney and Jeff Zeleny write today:

The nation’s capital geared up Friday for a battle over a Supreme Court vacancy that appeared likely to test President Obama’s success at skirting divisive social issues, with conservative groups saying they viewed the opening created by the retirement of Justice David H. Souter as an opportunity to regroup after a series of political setbacks.

Obama need not fear the Republican attack machine regrouping. Or be cowed into nominating someone who is only sort of into the rule of law and protecting liberties.

He should appoint a Laurence Tribe, Diane Wood, Kathleen Sullivan, or Cass Sunstein.

Obama ought to antagonize and declare war in effect with the GOP slime machine.

It doesn't matter. Republicans are dogmatic bad actors and will attack anyone. So stick up for liberty and intellect and have some fun.

By the way, the coming fight will see many of the same actors in the last spectacular Supreme Court fight that saw the nominee bite the dust, Robert Bork in 1987.

Joe Biden, who was the ambitious Senate Judiciary Committee Chair in '87 is vice-president now. Sen. Arlen Spector who crossed party lines to vote against Bork and engaged in some of the most dramatic and substantive examnation of a nominee ever, has now crossed party lines again.

Patrick Leahy, Ted Kennedy and all those civil rights-loving women and blacks and Hispanics will be back.

Some works on Supreme Court fights and rightwing judicial dogma: The New Right v. the Constitution by Stephen Macedo and Battle for Justice: How the Bork Nomination Shook America by Ethan Bronner.

From Macedo:

"When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."

Gonzo on Habeas Corpus Was the Perfect Bushie

That Bush could let an Attorney General express the opinion that the "U.S. Constitution doesn’t expressly recognize habeas corpus" and not fire the person as both an unimpressive lightweight and an ignoramus with no understanding of the liberties enshrined in our Constitution is revealing of Bush's shallow (shallow because the man does not hold deep and nuanced opinions) contempt for classical liberal thought.

Robert Parry has a great piece at Consortiumnews.com.

Writes Parry:

First, (Gonzo's comment) exposed the narrow, ideological thinking that has pervaded the legal analysis of Gonzales and other Bush administration lawyers.

Neoconservative and right-wing legal operatives have long functioned with the notion that if they could conjure up a clever legal argument – no matter how flimsy – that their argument must be accepted as sound or at least treated with the utmost seriousness. If we can devine a rationale, we must be right.

That self-absorbed thinking has been at the core of the legal theories behind George W. Bush’s treatment of profound issues such as presidential power, government secrecy, and limitations on the inalienable rights of individuals who are not in Bush’s inner circle.

... Article I, Section 9, of the Constitution states that “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.”

Liberty scares the hell out of rightwingers, and yet they repeat their "they hate us for our freedom" braying endlessly.

A reader objecting to the challenge here to Bush's appropriation of extra-constitutional powers in the Jose Padilla case commented:

Interesting. If the U.S. was an actual fascist state or descending into one, you wouldn't be able to say things like that without getting arrested or worse.

What escapes rightwingers is the fact that authoritarian and fascist states do not inflict their power on all citizens uniformly. Discrete minorities (like disaffected Muslims here) suffer disproportionally at the hands of the state.

If Bush were to go after the elites (like McCarthy and Nixon did) or after someone protected by a political culture of openness and civil liberties (like a news blogger in Wisconsin), the political reaction would be devastating to the administration.

That's why writers are able to say things without getting arrested or worse.

Liberty has a prominent placement in the Constitution.

But I wonder if Bush has ever read the document, despite his canned judges-ought-to-interpret-and-not-make-law sound bites.

Warning of the emergence of a new authoritarianism in the early 1980s, Prof. Richard Epstein writes in the preface to Prof. Macedo's The New Right v. the Constitution, "... partisans of the New Right advocate ... a fundamental narrowing of judicial protections of individual rights. ... But the New Right's claim to the Founders' legacy is dubious, its allegiance to the Constitution largely rhetorical, and its stature in relation to the great tradition of American constitutional thought unimpressive."

Epstein and Macedo's work applies well today to Bush and his Constitutional lightweights.

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