Making The Independent Judiciary A Joke

The independence of the judiciary means that the Courts should be free from improper influence from outside interests. What a great idea for having a transparent, fair judicial system. It's a concept that has so much promise. But in practice the present Supreme Court and its members may be driving it off a cliff. Today's news about Justice Thomas's wife's lobbying business may signal its ultimate demise.

The New York Times reports that Justice Thomas's wife,

who has raised her political profile in the last year through her outspoken conservative activism, is rebranding herself as a lobbyist and self-appointed “ambassador to the Tea Party movement.”

Virginia Thomas, the justice’s wife, said on libertyinc.co, a Web site for her new political consulting business, that she saw herself as an advocate for “liberty-loving citizens” who favored limited government, free enterprise and other core conservative issues. She promised to use her “experience and connections” to help clients raise money and increase their political impact.

Can you read that sentence again? "She promised to use her 'experience and connections' to help clients raise money and increase their political impact." Her connections. Well, her biggest, if not her only connection is her husband, who has more than once imposed his wackadoodle analysis of the law on the nation to benefit those who appointed him to the high court and whom he holds close to his heart: Bush v. Gore and Citizens United are only the top of the heap. Her connections indeed.

Of course, lawyers and law professors and others note that this is an ethical outrage:

Ms. Thomas’s effort to take a more operational role on conservative issues could intensify questions about her husband’s ability to remain independent on issues like campaign finance and health care, legal ethicists said.

Justice Thomas “should not be sitting on a case or reviewing a statute that his wife has lobbied for,” said Monroe H. Freedman, a Hofstra Law School professor specializing in legal ethics. “If the judge’s impartiality might reasonably be questioned, that creates a perception problem.”...

Arn Pearson, a vice president at Common Cause, a liberal group that has been critical of potential conflicts at the Supreme Court caused by Ms. Thomas’s work, said her new position, combined with Justice Antonin Scalia’s recent address before a closed-door seminar of the Tea Party Caucus, provided further evidence of “the politicization of the court.”

“The level of bias we’re seeing is really troubling,” Mr. Pearson said.

Mr. Friedman is too kind.

And how is it that Ms. Thomas got herself in this position?

Ms. Thomas’s founding of her own political consulting shop, Liberty Consulting, was first reported Thursday by Politico, which said she had begun reaching out to freshmen Republicans in Congress.

The move comes a few months after she gave up the top spot at Liberty Central, a conservative Web site that she founded in 2009 and that has strong links to the Tea Party movement.

An anonymous $500,000 donation to start up Liberty Central came from Harlan Crow, a Dallas real estate investor and Republican financier, Politico reported.

Mr. Crow, reached by phone Friday, would not say whether he was the source of the money. “I disclose what I’m required by law to disclose,” he said, “and I don’t disclose what I’m not required to disclose.”

You can be sure that Mr. Crow's $50,000 is just the first drop, and that there will be a torrent of money from others who want to buy influence from Ms. Thomas. And her husband.

And what's this about reaching out to "freshmen Republicans in Congress," the very people who are presently trying to repeal the health care bill either all at once (fail!) or piece by piece by piece? And what's this simultaneous news that the Virginia Attorney General is trying to take the Government's appeal that state's crazy health care decision directly to the Supreme Court?

Just coincidences, I'm sure. Just coincidences. I'm sure the Court can mind its own ethics.

Sarah P's Victim Game Jumps The Shark

Oh spare me. A Jewish congresswoman gets shot in Arizona. Various talking heads wonder aloud whether the level of talk of violence in current US politics, particularly on the right, might have contributed to the shooting. And persistent media hog Sarah P inserts herself in the discussions by saying this gem in a video:

"Journalists and pundits should not manufacture a blood libel that serves only to incite the very hatred and violence that they purport to condemn."

Oh the irony. The Jew gets shot; the non-Jew seeks to appropriate the blood libel for her own purposes. But I'm not spending time discussing the significance of the words blood libel to Jews. And I'm not raving about how America's most visible bigot, Pat Buchanan, thinks this is so very excellent. No. The question this latest kerfuffle raises for me is Sarah P's persistent pursuit of making everything be about her, and her even more consistent and tiresome efforts to be the primary victim in any story in which her monicker is inserted.

To have a victim you have to have a perpetrator. And if you have a victim (even if the perpetrator isn't quite visible or identifiable) you almost always have rescuers, those who want to come to the aid and defense of the seeming victim. There are probably more rescuers by far than there are victims, because each victim can have thousands of rescuers, thousands of defenders. So when a politician consistently grabs the victim mantle, she is probably manipulating her audience. You can bet the ranch on this. She wants them to rescue her, to defend her, to give her money, to argue in her behalf, to denounce the perceived perpetrators. But most of all to make donations. Big donations.

Seen in this context, Sarah P's speechwriters-- nobody believes for a second that Sarah P writes this stuff for herself, do they?-- sought again to ring their familiar bell. The bell that brings in the checks. This bell has but one note: Sarah P's victimhood. No matter. They sought to transform a story about the attempted assassination of a Congresswoman into one all about poor Sarah P. And they again attempted to mobilize all of those very gullible AM radio listeners who have been content repeatedly to stand up for a rescue of Sarah P from the unjust, unwarranted attacks on her egotism and grandstanding by the supposedly liberal press and/or the supposedly liberal D party.

But, alas, there's something weird about Sarah P's most recent claim of victimhood. For me, it's that there is something really familiar. And also quite off. No, I'm not referring just to Sarah P's many previous attempts at victimhood. Not just them. No, it reminds of a seminal event in September, 1991.

Confronted with allegations that he had committed sex harassment and violated Title 7 of the Civil Rights Act while he himself was running the EEOC, another circumstance chock full of irony, Clarence Thomas made a flat out drive to become a victim and, thereby, save his endangered Supreme Court nomination. When he made his move, he of course wrapped himself in America's taboo about discussing race. The future Associate Justice told the Senate committee considering his nomination this gem:

"This is not an opportunity to talk about difficult matters privately or in a closed environment. This is a circus. It is a national disgrace. And from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity-blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kow-tow to an old order this is what will happen to you, you will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree."

That bit of hyperbole, of course, made him a victim. It equated the Senate with the Klan, but no matter. It worked. And of course, the Senators voted 52-48 to rescue him. So it worked really, really well. And it went into the Republican play book.

And now, almost 20 years later, Sarah P's writers have trotted it out this well worn, but extremely effective ploy. Except Sarah P isn't Jewish. The congresswoman in critical condition is. But no matter, it's close enough for current politics. In current politics, like horseshoes close enough is good enough. Sarah P's speech writers have taken umbrage at the idea that Sarah P's speeches and web media might inspire lunatics to resort to Second Amendment solutions. And they say that the accusation is so unfair that it amounts to blood libel. Wow. Except, not quite. In fact, not at all. Not even close.

Seeing this video, all I can say is, "Oy gevalt, you writers for Sarah P are shameless after all."

The remaining question, in fact a question that really fascinates me, is whether Sarah P's present writer is the same person who wrote those unbelievably inventive lines for Clarence T. If it is, s/he has now officially jumped the shark.

Quietly Sanctioning Prison Beatings

Clarence Thomas may not have spoken in oral arguments at the Supreme Court in more than four years, but this morning Linda Greenhouse writes in the New York Times about Thomas's consistent, twice repeated argument that the Eighth Amendment does not proscribe "harsh treatment", including beatings of prisoners. You read that correctly. Prison beatings, according to Justice Thomas, aren't forbidden by the Eighth Amendment. And presumably, neither are stress positions, sleep deprivation and other forms of torture. And as if that position were not repulsive enough, Thomas apparently wants it to be adopted by the new majority of the Supreme Court.

Greenhouse points out that during his confirmation hearing, Thomas expressed his empathy for prisoners:

During his Senate confirmation hearing, he had claimed a certain empathy for prisoners. He described looking out the window of his chambers at the Court of Appeals and watching prisoners being loaded into buses to be taken back to their cells. “I say to myself every day, but for the grace of God there go I,” he told the members of the Senate Judiciary Committee.

Those sentiments, however, must have been added solely to manipulate the listeners. They must have been just another sleight of hand attempt to cast himself as a victim. Why do I say that? Because in 1992, four months after he assumed his seat on the Court, Thomas dissented in Hudson v. McMillan. Keith Hudson, if he believed what Thomas said during the confirmation hearings, must have been happy to have him on the Court to hear his case. Hudson "had been kicked and punched by three guards while he was handcuffed and shackled. He suffered bruises, swelling and loosened teeth, injuries that a federal appeals court, in dismissing his lawsuit, deemed so minor as to be beneath the notice of the Eighth Amendment." The Supreme Court reversed and reinstated the suit. In behalf of a 7-judge majority Judge Sandra Day O'Connor wrote, “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” Put another way, the Eighth Amendment forbids malicious and sadistic beatings of prisoners.

And what did Thomas (and Scalia) find objectionable with this ruling? Greenhouse puts it this way:

The new justice said that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The Eighth Amendment dealt with only the actual sentence, he maintained, and not with conditions inside a prison or deprivations that were not a formal aspect of the sentence. He said the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view, and he added, “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”

Isn't that wonderful? Guards have always beaten prisoners. The Constitution, and particularly the Eighth Amendment proscription against cruel and unusual punishments, according to Thomas and Scalia, doesn't apply in any fashion to these myriad beatings. The Constitution is silent about post sentence events, including beatings and torture and excessive solitary confinement and lack of medical care and brutality in all forms during a sentence. So prisoners have no recourse in federal court, when they are beaten or otherwise brutalized. So much for empathy. Long live hypocrisy.

Unfortunately, that's not the end of the story. Eighteen years later, in a 9-0 decision, the Supreme Court relying on stare decisis followed Hudson in Wilkins v. Gaddy. Jamey L. Wilkins claimed that a guard had answered his request for a grievance form by slamming him onto the concrete floor and then punching, kicking and choking him until another guard pulled the attacker off. Thomas and Scalia concurred in the result in a separate opinion, in which Thomas sought to solicit a case in which he and others in the new Supreme Court majority might overrule Hudson and advance the argument that the Eighth Amendment permits guards to beat prisoners who ask for grievance forms. Greenhouse writes,

Justice Thomas, joined by Justice Scalia, concurred only in the judgment, not the court’s opinion. “I continue to believe that Hudson was wrongly decided,” he said. But noting that “no party to this case asks us to overrule Hudson,” he said that he was going along with the majority because as long as the precedent was on the books, it clearly required the result the Supreme Court had reached.

Justices do not casually note that “no party has asked us to overrule” a particular precedent. It is an invitation to send the court just such an invitation, and it is a technique that Justice Thomas has used before to good effect. Concurring in a 1997 decision, Printz v. United States, which struck down a federal background check for gun purchasers on states’-rights grounds, Justice Thomas observed that no one has asked the court to look at the case through the lens of the Second Amendment’s right to bear arms. “Perhaps at some future date” the court would have the opportunity to consider the scope of the Second Amendment, he added, helping to initiate a project that came to fruition in the Heller decision in 2008.

I am horrified, but not surprised by Thomas's views. And to the rest of the world, these views make the United States appear to be a band of brutal barbarians. But, of course, there is really nothing that can be done about this. Thomas and Scalia were appointed for life. One has to wonder aloud how judges with such aberrant and bizarre views of the Constitution have been confirmed.

State Killing: Scalia Doesn't Care Whether You're Innocent, You Get Executed Anyway

In the middle of Justice Scalia's dissent in Troy Davis's case, a dissent that Clarence Thomas joined in, we have this remarkable, astonishing, shocking sentence:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.”

I cannot believe that they wrote this in a Supeme Court opinion. And I'm not alone in thinking I would never, never, never see something like this in a published opinion.

Let's begin with the trial. The State of Georgia tried Troy Davis for murder and it got a conviction. And that conviction was upheld on appeal. In fact, there was nothing the matter with the trial, nothing wrong at all according to the appeals courts except one small thing. The jury convicted an innocent man.

Troy Davis was convicted of the capital murder of Mark MacPhail, an off-duty police officer who as then working as a security guard. You might think that convicting an innocent person was a serious problem with the trial. Unfortunately, Davis's persistent claims that he was innocent of the crime weren't enough to convince anyone. It was only later on, after the trial, after the appeals, that the ugly circumstances in the case emerged.

There were nine witnesses to the crime in which MacPhail was killed. Anthony Davis was apparently in a pool hall with a lot of other people. A man named Sylvester Coles was beating a homeless man outside; people including Davis emerged from the pool hall to see what was happening. MacPhail came to the aid of the person being beaten and was shot and killed. At trial Sylvester Coles was the prosecution's star witness. Seven other people said Anthony Davis committed the crime. The gun was never found. There was no physical evidence of any kind. That was the trial testimony, and it lead to a conviction and the death penalty. And to several affirmances on appeal.

And then, and then, and then, ut oh. Seven of the eight witnesses who claimed under oath and at trial to see Davis shoot MacPhail gave affidavits that their testimony at trial was false and they recanted their testimony. And some said that Coles was the actual killer and not Davis and that police coercion forced them to testify against Troy Davis instead of the real killer.

So Anthony Davis sits on death row. And he's facing execution. And the case goes to the Supreme Court. The majority, thank goodness, sent the case back to federal court for a hearing. Good. But Justices Scalia and Thomas dissented. And it's their dissent that makes me cringe.

Why? Evidently, in Scalia/Thomas World, if the state tries and convicts the wrong man, one who is actually innocent, and there's no Constitutional error committed in the trial according to the state courts, there's no constitutional problem with the state's killing him. Even if he's innocent. In other words, it's 100% legal, 100% ok to kill an innocent person. Law Professor Paul Campos explains:

Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.

Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)

For more details on this case, and the recantations, see this.

I have written extensively about the barbarism that lies behind state killing. But I have never before seen anything quite like this statement from Justices Scalia and Thomas. It used to be a fundamental part of the law that it was better to let 99 guilty people go free than to convict 1 innocent person. In fact, the system of criminal justice in this Country was built on this very platform. But now, we have two Supreme Court justices writing that the death penalty can be upheld even when the person executed is innocent, that innocence just doesn't matter. Forget about the fact that if you're killing an innocent person, the person who actually did the crime hasn't been convicted.

That is chilling and simply disgraceful.

And it's another strong reason for ending state killing entirely. The machinery of death is an embarrassment to a civilized nation. Arguments like Scalia's and Thomas's reduce us to barbarians. And we're going to have evil, immoral arguments like these as long as there's a death penalty. That and we're going to continue to make it possible to kill innocent people.