You will often hear pundits and politicians say that America is a country of laws. In 2021, Is it?
I contend that it is becoming a rule of philosophy country. We saw a glaring and scary example of it last Friday night when the 5th Circuit did a “Friday night news dump” reinstating the clearly unconstitutional Texas Abortion ban. There is an element on the courts that decides what outcome they want and then tortures the law and English language to “justify” its decision. This has been a long time in coming; liberals just started paying attention to the courts – the Republicans have been doing it since the Reagan administration and it finally has come home to roost.
One of the right wing’s legal heroes is the late Antonin Scalia. He was a prime example of a rather smart person who used that gift for evil purposes. Remember he is the justice who “got around” the well regulated militia part of the Second Amendment by declaring any American citizen to constitute a well regulated militia. That perversion and torture of the English language is found in most right wing mythology justifications of everything.
The 5th Circuit is stacked with right wing extremists nominated by Republican presidents. Last Wednesday a federal judge threw out the Texas abortion law in large part because it violates the current (last 50 years or so) interpretation of the Constitution denying American women a constitutionally guaranteed right in the process. Until and unless (and I feel it is until – watch Dobbs whose hearing is scheduled for December 1) the Supreme Court overturns Roe it is the law of the land.
Under Trump (who, at least in the short run, proved to be the useful idiot the right wing had been looking for in the Oval Office) Mitch McConnell made it the almost exclusive work of the Senate to confirm federal judges. This capped a long term project of the GOP.
Few of us follow the federal courts with the exception of the Supreme Court. The last three confirmations were dandies that illustrated how far the GOP will go to “stack the deck”. The seat currently occupied by Neil Gorsuch was held open for about a year despite President Obama nominating a rather moderate judge for the position. Mitch and then Senate Judiciary Committee Chair Chuck Grassley wouldn’t even give him a hearing.
Then with the suspicious retirement of Anthony Kennedy (I suspect there is a great story that I hope to learn someday behind that one) we ended up with a credibly accused rapist in Brett Kavanaugh. The “investigation” into the accusations would have been the scandal in any administration that wasn’t as scandal plagued as Trump’s, Nixon’s or Grant’s.
Last we had the rush job to confirm Amy Coney Barrett when Ruth Bader Ginsburg died just prior to the 2020 election in which the Republican incumbent president was a decided underdog.
Getting back to Friday and Texas; Friday afternoon Texas Attorney General Ken Paxon, who is currently under federal criminal investigation, filed an appeal of the Wednesday ruling voiding the law. Within five hours a three judge panel found in his favor. The speed was astounding especially when you consider two circumstances in this very case. The judge who issued the Wednesday ruling had scheduled a preemptive hearing on the law before it took effect. A three judge panel from the 5th Circuit cancelled that hearing. On the eve of the law taking effect various pro-choice entities appealed to the Supreme Court for a stay. It took them two days to issue a one paragraph statement allowing the glaringly defective and unconstitutional law to take effect.
Now let me compare this to another current event. On January 6, 2021 – over nine months ago – right wing terrorists attacked the Capital Building in an attempt (failed like most other Trump and Trump inspired efforts) to overturn American democracy and its governmental function in the process. Most cases, and more appallingly most investigations, are pending. So, if a state willfully violates the Constitution the judicial process to defend those actions must be super swift. On the other hand, if domestic terrorists attack the seat of government we need to take our time investigating it and treat them with kindness exploring why they may have done what they did.
Thursday Steve Bannon informed Congress that at the advice of former President Trump he will not comply with a subpoena. This is part of the Trump playbook to try to run out the clock, in this case hoping control of the House changes in the interim. Let’s see how soon he is locked up. What do you think would happen to some poor Black kid who defied a subpoena?
The real bottom line here is that the Republicans have been working on stacking the courts with judges that would rule on philosophy and not law. They finally appear to have enough people in the right places to get the outcomes they desire regardless of the law while simultaneously portraying it as law. Their beliefs , no matter how absurd, trump law. Is there any question why I refer to the rise of fascism in 1930’s Europe?
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