This is the tale of the demise of the Supreme Court’s reputation, but also it’s rise as a political beast. It started well before the latest Clarence and “Ginny” Thomas incident.
The LA Times reported on Sunday that the wife of Supreme Court Justice Clarence Thomas has created Liberty Central Inc., a non-profit, “non-partisan,” Tea Party-linked lobbying group that was inspired because of Pres. Obama’s “hard-left agenda.” There is nothing illegal about it, with Virginia (Ginny) Thomas having been a conservative activist, including being tied to the Heritage Foundation and Dick Armey, for quite some time.
Her biography notes that Thomas is a fan of Rush Limbaugh and Mark Levin, author of “Men in Black: How the Supreme Court is Destroying America.” “She is intrigued by Glenn Beck and listening carefully,” the bio says. [...] As a 501(c)(4) nonprofit, Liberty Central can raise unlimited amounts of corporate money and largely avoid disclosing its donors. …
The outrage over the Thomas situation denies a depressing, but very real situation.
First, let’s disabuse ourselves of the canard that the Supreme Court is above politics. The Court has been used as a political tool since William H. Rehnquist decided to use his power for political ends. It’s an arcane bit of history, which revolves around the three-judge panel whose jurisdiction is independent counsel investigations.
Once upon a time, before Pres. Bill Clinton set the right’s hair on fire, the presiding judge of the three-judge panel was a man by the name of Judge George A. MacKinnon of the U.S. Court of Appeals for the District of Columbia. MacKinnon was a conservative, but he also had a creed: “Attorneys with strong ties within the Washington Beltway–of either party–were generally excluded from consideration,” to quote Ken Gormley. Any judge that was mixed up in national politics “or anywhere near its orbit” was just too risky to be on the panel. Judge Rehnquist would change this and history with it, because the Arkansans coming to Washington seemed like a good target for conservatives. They had plenty of home spun enemies, so it wouldn’t be hard to make new ones in the snake pit of Washington, D.C.
In the fall of 1992, just weeks before Governor Bill Clinton defeated President George H. W. Bush in the November elections, Chief Justice Rehnquist made a quiet move that would forever reshape history. He replaced the elderly Judge MacKinnon with Judge David B. Sentelle, a fifty-on-year-old federal appeals judge in Washington known for his strong Southern, conservative Republican roots. Rehnquist also added Judge Joseph T. Sneed… who was even more conservative than Sentelle. – Ken Gormley, “The Death of American Virtue: Clinton v. Starr” (p. 152-153)
On its face this sounds quite innocuous, but what lies beneath tells the tale.
It was Judge Sentelle who would eventually fire the very respected independent counsel Robert Fiske, which coincidentally happened after a lunch meeting between Sentelle, Sens. Jesse Helms and Lauch Faircloth. Ken Starr would be named to replace MacKinnon, much to everyone’s stunned disbelief. Five former ABA presidents denounced this little conservative lunch tête-à-tête, with three-dozen senators protesting Starr’s appointment, demanding he resign because of the circumstances of his appointment. We all know that didn’t happen. As an aside, Jesse Helms had sponsored Sentelle for his appointments to the federal district and court of appeals, with Sentelle also having once been a local Republican Party chairman, all of which Ken Gormley also details in his book.
Anyway, the point of this little detour is to remember that whatever outrage there is over the Judge Thomas’ possible or potential and eventual “conflict of interest” is going to fall on deaf ears. The Supreme Court has been a political animal since Judge Rehnquist used it as his personal stalking horse against Pres. Bill Clinton. So unless the legal community get pushy all of this will continue to pull the Supreme Court into disrespect and mediocrity.
After Judge Alito’s petulant silent protest of Pres. Obama during the SOTU this year, I think it’s time everyone come to grips with the reality. That is if Bush v. Gore didn’t already drill it home.
The Supreme Court of yore is no more.
Excellent post Taylor!!!
Judge Thomas’s wife should have known that her affiliation with the TEA Party undermines the appearance of impartiality that her husband is required and expected to have. Let’s just say for instance that she did not endorse the tea part movement but instead endorsed a financial firm with relations to a lawsuit before the court? Would that automatically cause Justice Thomas to recuse himself from the deliberations and arguments necessary for him to do his job as a Supreme Court Justice due to this conflict of interest? How can this be any different? Seems to me that dysfunction is not limited to the White House and Congress.
…First, let’s disabuse ourselves of the canard that the Supreme Court is above politics…
True, but to pick a certain person, time, and event to declare when the Supreme Court became political, is in itself, political. The Supreme Court became political the moment it was established by the Constitution then implemented under the Judiciary Act of 1789.
Even the process of getting a judge on the Supreme Court is political (no matter what party). If the current Supreme Court is such an affront to our way of life, the President upon taking office with a majority in the House and ‘super” majority in the Senate should have tried what President Roosevelt proposed. Since there were to many conservative judges during his time in office he introduced the Judiciary Reorganization Bill. Simply, add (or pack) more Supreme Court judges. Pack it with the people the President wants. Make it 11, 13, or more. Or is that too political?
To resolve a Supreme Court opinion that is in disagreement there is a solution. Write new legislation; pass new laws. Or is that too difficult in the day and age? Or is it just easier to whine? And if that is not possible fall back to the old standard; hope they die off when your party is in power.
As for this ongoing controversy that came from the State of the Union, this problem is also easily solve. Don’t have a SOTU address. There is nothing any where that says you have to have an address, just post it on a website. Problem solved. Or if people want an address, don’t invite the Supreme Court, the Joint Chiefs of Staff, just don’t invite anyone, just have congress there and have a free for all.
If people cannot understand what the ‘bigger picture’ is of having a SOTU address in its current format, then that is a pity.
And concerning the SOTU. If President Obama believes that his comments will gain any political advantage, he is wrong. To keep rehashing this, especially coming out of the mouth of Mr. Gibbs is petty. He sounds more like stubborn five year old than an educated person. No one is saying that people cannot criticize the Supreme Court and the decisions they issue, everyone has that absolute right (the Supreme Court will even back that up). It’s just the TIME and PLACE that was/is an issue. On that issue, President Obama was/is wrong.
The Court’s always been political really, just read the Wiki on Rehnquist and you can see that was always involved in party politics. At one point, he was addicted to Placidyl and was hospitalized for it, hearing voices plotting against him and seeing hallucinations–although his colleagues said it never affected his work, aside from him slurring his speech. Ha…wow.
I’m not sure how I feel about Thomas’ wife doing this; on the one hand, it’s probably inappropriate in some sense [although I confess I couldn't say why, to be honest]; on the other hand, she is a person in her own right, and if she wants to further her own politics, there’s no law preventing it. And, it’s not as if people don’t already KNOW about Justice Thomas’ particular political perspectives, is it? Everyone is well aware of his conservative views.
So, since I’m ambivalent about the political end of it, I’ll just add the gossip!
Wiki entry [sorry no link, just google it]
“After Rehnquist’s death in 2005, the FBI honored a Freedom of Information Act request detailing the Bureau’s background investigation prior to Rehnquist’s nomination as Chief Justice. The files reveal that for a period, Rehnquist had been addicted to Placidyl, a drug widely prescribed for insomnia. Placidyl can be addictive and it was not until he was hospitalized that doctors learned of the depth of his dependency.
Rehnquist was prescribed Placidyl by Dr. Freeman Cary, a physician at the U.S. Capitol, for insomnia and back pain from 1972 through 1981 in doses exceeding the recommended limits. The FBI report concluded, however, that Rehnquist was already taking the drug as early as 1970.[75] On December 27, 1981, Rehnquist entered George Washington University Hospital for treatment of back pain and dependency on Placidyl. While hospitalized, he had typical withdrawal symptoms, including hallucinations and paranoia. For example, “One doctor said Rehnquist thought he heard voices outside his hospital room plotting against him and had ‘bizarre ideas and outrageous thoughts’, including imagining ‘a CIA plot against him’ and seeming to see the design patterns on the hospital curtains change configuration.”[76]
For several weeks prior to hospitalization, Rehnquist had slurred his words, but there were no indications he was otherwise impaired.[75][77] Law professor Michael Dorf has observed that “none of the Justices, law clerks or others who served with Rehnquist have so much as hinted that his Placidyl addiction affected his work, beyond its impact on his speech”.[78]
Thanks dafederalist, always good to remember what conservatives do in the name of “justice,” especially where liberals are concerned.
It’s another reason why it’s so incredibly depressing to see Obama not exactly moving mountains on the judiciary on the whole, though he did just recently appoint a young jurist.
As far as the SOTU speech, I think it was actually inappropriate for Obama to blast the Court specifically; he has a right to express his dismay or concern for the consequences using far better language; his intent, and his words were pure demogoguery, and he knew full well that the Court was confined to sitting and taking it. My personal assessment as to resolution?
SCOTUS should not attend SOTU speeches anyway; it is a purely political forum.
Good post, Taylor. I remember Hillary pointing out that 3 judge panel in response to a question she was asked at the time the whole Monica Lewinsky thing was going on. She also warned Bill at the inauguration of 1993 that Rehnquist was out to get him. She was right.
The Supreme Court is, and has always been, a creature of Congress. In the begining (March 4, 1789) there was only one guy on the Supreme Court (Article III Section I), Chief Justice John Jay. He complained to Congress that he was overworked. So Congress passed the Judiciary Act on September 24, 1789 giving him five associate justices. For a long time the SC had six members and sometimes seven until, eventually, the number was increased to nine. The SC gave Roosevelt so much trouble with his New Deal legislation that he wanted the Congress to increase the number from nine to eleven or thirteen. If Roberts keeps mouthing off the Congress should fire everybody on the court and start all over again. Obama can hire 9 Liberals and we can all rejoice. Peace
Also, remember the Republican Fisk had already authorized the preliminary reports. . Fiske conducted investigations, and released an interim report on June 30 that in summary concluded that President Bill Clinton and White House officials had not interfered with the Resolution Trust Corporation, which was investigating the failed Madison Guaranty Savings & Loan, a partner of the Whitewater Development Corporation. Fiske’s report also concluded that Vince Foster committed suicide. It only took Sentelle and his right wing cronies 36 days to develop “reasoning: to replace the insufficiently partisan Fisk with Kenneth Starr.
“As for this ongoing controversy that came from the State of the Union, this problem is also easily solve. Don’t have a SOTU address.”
Wellllll actually it sorta says you have to have one in the Constitution if I’m not mistaken.
” If Roberts keeps mouthing off the Congress should fire everybody on the court and start all over again. Obama can hire 9 Liberals and we can all rejoice.”
Here’s where that pesky(Bush refered to it as “a God Damn’d piece of paper”)ol Constitution gets in the way again. It pretty clearly lays out how you impeach a supreme court justice.
Actually the President has to do a yearly ‘report’ on the SOTU. Doesn’t have to an address.