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Another Glaring Example of Failing to “Call It Out”

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In Monday’s Washington Post, there’s an excellent op/ed about a threat to the integrity of our nation’s judicial system. That is, the piece is excellent but for one glaring omission.

Entitled “Keep politics out of the courthouse,” it is written by retired Chief Justices of two of our states’ Supreme Courts, Ruth McGregor of Arizona and Robert D. Orr of Indiana. McGregor and Orr give three examples of how altogether inappropriate kinds of political pressure have lately been brought to bear upon our “independent” judiciary.  

The first of these comes from Oklahoma, where “political efforts to bully and weaken Oklahoma’s courts” played an important role in the botched execution of a death-row inmate:

[T]he governor announced that she would disregard the court’s ruling. A legislator introduced a resolution to impeach the five justices who had voted for the stay, alleging “a willful neglect of duty and incompetence.” The Supreme Court ultimately dissolved its stay and allowed Lockett’s execution to proceed.

These two retired jurists rightly call this episode “profoundly disturbing.”

Another example comes from Missouri where a “bill in the Missouri legislature would have permitted lawsuits against state officials, including judges, for enforcing federal gun laws.” And finally there’s Kansas, where, “In retaliation for court decisions, Kansas lawmakers removed the Supreme Court’s authority to pick chief district court judges and weakened its authority over the judiciary’s budget.”

Finally, McGregor and Orr describe how “Courts are also under growing pressure from the increasing amounts of money being spent in judicial elections.”

Interest groups spent more than $1.3 million in a North Carolina primary this month involving a single Supreme Court seat. In Tennessee, because the Supreme Court selects the state’s attorney general, a multi-million dollar effort is being discussed to unseat three justices. These kinds of big-money judicial elections threaten to turn judges into politicians in black robes.

The conclusion these retired state Chief Justices come to seems right on target: “These threats imperil our constitutional traditions, our heritage of rule of law and the strength of our democracy.”

So far, so good. But the essential point is missing.

Here’s the heart of the matter, of which there’s not even a hint in the article: All of these threat to our “constitutional traditions” and “the rule of law” and “the strength of our democracy” come from the right, come from so-called “conservative” Republicans.

This matters. Indeed, there’s hardly a chance that anything can be done to protect what McGregor and Orr want protected unless the real nature of the problem is recognized: Today’s Republican Party has become the instrument of a destructive force that has launched a comprehensive assault on our democracy and its fundamental values.

This attack on the independent judiciary is coming from the same force that’s suppressing voters; that’s strengthening the forces of plutocracy; that lies to delegitimize a president; that abuses the filibuster….

It is a force that cares only about power, and thus is hostile to our constitutional system– which, after all, was created as a mechanism to creates obstacles to the rule of raw power.

One of those obstacles is the independence of the judiciary. Another is a system of checks and balances. Another is putting power in the hands of ordinary citizens.

The force that’s taken over the Republican Party is working to demolish all those safeguards that give justice and genuine human choice a chance to supplant the age-old principle declared by the Athenians: “The strong do what they can, while the weak suffer what they must.”

It is that force, and therefore its instrument, the Republican Party, from which the judiciary, and the nation as a whole, need to be protected.



But McGregor and Orr give no hint that this is where the threat is coming from.

One might suspect that this omission is due to both of these jurists being Republicans, who gained their appointments from Republican governors in their states. But the problem is much bigger than that. Liberal America has too often failed at calling out this evil for what it is, too– as when President Obama complains about what “Washington” does, or “Congress” does, when it is really only today’s Republicans.

It seems part of a systemic weakness — debilitating Liberal America, as well as responsible conservatives like McGregor and Orr — this failure to point the finger to where the heart of our national disease is to be found.

Hence the motto of my campaign:

See the evil. Call it out. Press the battle.