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No Strict CONTORTIONIST For The Supreme Court

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As always we begin with the action page links. Please submit them both. (No right wing conservative to replace Sandra Day O'Connor) (Restore Habeas Corpus)

If the election results of this last week are any indicators, the American people are beginning to speak out in a way that has gotten the attention of Congress. For the last year we at the The People's Email Network have been preaching the power of the people speaking out. For those perpetual defeatists who have said that "they" (the Republicans because they were too controlled, and the Democrats because they were too spineless) would never listen to us, it is a wonder what a couple of election losses can do. This week we saw the breathtaking collapse of the majority cruelty budget with its agenda of budget cuts for the poor to finance additional tax cuts for the wealthy, and the conversion of the ANWR giveaway to the windfall profit pocketing oil companies into a virtual third rail. Our own participants generated 12,000 submissions opposing the latter. If only the people will speak out, they will be heard, and only if we are vigilant and CONTINUE to do so.

We are now at a critical crossroads in American judicial history. The Alito nomination represents a tipping point of disaster that the right wing has been spent 20 years working for. The only reason we are even approaching this looming crisis now has been the abject cowardice of those who are supposed to be protecting our rights (abetted by the failure of enough of us to speak out before), in waving through so many objectionable right-wing philosophical cronies without much more than a whimper of protest. All they need is one more John Roberts' style con job and we stand to lose our entire court system as a check and balance on the power of a president to impose corporate rule on every aspect of our lives. We have barely two months to build the people's consensus that will be needed to stop them and every day is increasingly precious.

It really is a very simple formula. If we all speak out to our members of Congress, one of two things MUST happen. Either 1) they will heed our voices and bend to the will of the people, and we win, or else 2) they further increase the motivation of those of us who are speaking out by ignoring us, in which case we have mobilized the base to vote them out of office next time, so again we win. The ONLY way we can lose is if not enough of us speak out. We created our one click resource so that you can send your personal message to all your members of Congress at once, and you can also make it a Letter to the Editor of your nearest daily newspaper, all at the same time. But most of all on this we need to have a unified message. We have proposed the following:


Please note that it is NOT enough to just oppose Alito on some particular statement or ruling. When Karl Rove climbed out from under his rock the other night to get a standing ovation (for getting away so far with outing a CIA agent?) from the Federalist society convention, he gloated about how they had already packed the courts with 200 of their ideological cronies. As they say in baseball, their bench is very deep, and it is not sufficient to bat away one, only to lay down for the next. They have their mantra and they have a corrupt corporate media to push it relentlessly. Their talking points are "Strict constructionist" and "It's a done deal" and "He deserves and up-or-down vote" and "Conservatives are the mainstream," despicable lies each and every one. And any one of us who dares let those words pass our lips in approval or resignation needs to have their mind washed out with soap.

Instead we must propagate our own concept and use every media resource in our power (especially the internet and progressive radio) to purge the propaganda of the other side. If you have a better idea as to what that theme should be, we would like to hear from you IMMEDIATELY so that everyone can be on the same page. But whatever it is we need to settle on it quick, fast and in a hurry, before the situation is allowed to drift any further to the right. So again, the key idea is that the most objectionable thing about Alito is that he is conservative at all, and in so being entirely out of step with what the American people are demanding from their elected representatives now. Some think he would be worse that Roberts. But regardless which one would win the reactionary potato sack race, we can ill afford yet one more. (No right wing conservative to replace Sandra Day O'Connor)

The first and biggest lie of all is that there is any such thing as a "strict constructionist," meaning the only role of the courts is to apply the laws that Congress passes in terms of some frozen idea of the intent of the framers of our Constitution. Historically, there have been some very bad laws passed (including a fast one from just the other day we will address in a moment), and it has been the duty of our courts to step in and apply the ultimate doctrine of all law, what is known as "equity". The word appears prominently in the Constitution specifically in defining "The judicial Power of the United States . . . in Equity." From the earliest times in our legal traditions there were separate Courts of Equity set up to dispense justice and to arrive at a fair result even without a controlling law. It has ALWAYS been the place of the courts to correct what is clearly wrong and twisted and contorted, whether given explicit guidelines on how to do it by law and precedent or not. That is exactly what the framers meant in the Ninth amendment to the Constitution when they said:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

For example, suppose there were no laws against pollution and someone is dumping arsenic into a stream feeding your medieval pond in ages past and all your fish die. You go to the king's Court of Equity and you ask them to intercede, and hopefully they look at the case (assuming they are not ignorant of the poisonous effects of arsenic) and order the polluter to stop what he is doing. But the "strict contortionist" would say that there is no such law and that the arsenic dumper is just exercising his own "liberty" in doing so. We would all agree that is the wrong result. And yet corporate ideologues on the benches of our courts are making such decisions in favor of industrial polluters right now in defiance of the laws that we DO have, and none of their reactionary supporters are accusing them of any kind of so-called judicial activism in that regard. Remember, NOT acting is itself also a form of activism, and activism itself is only in the eye of the one being ruled against.

But even the Constitution itself may be no protection where, as just the other day with little advance notice, the Republican majority in the Senate approved an amendment to the Defense Appropriation bill forever denying the detainees at Guantanamo and elsewhere the right to challenge the legality of their detention by habeas corpus. Leaving aside the thorny problem of whether the courts could correct a law removing their own jurisdiction, the "strict contortionist" would say that Congress can pass any damn law they please (assuming it's one they agree with) even if it's contrary to the Constitution, and the courts should just fall in line (unless they should not).

The 14th Amendment, AFTER speaking of the rights of citizenship, goes on to say that no "person" shall be deprived of life, liberty, or property without the due and equal process of the law. Article III makes it perfect plain that the judicial power of the courts extends to foreign nationals where the U.S. is a party. The motto emblazoned on the Supreme Court does not say "Equal Justice Under The Law for Americans Only." The "strict contortionist" is always babbling about judges who "legislate from the bench". And yet here the Congress is attempting to do an uninvited end run around an express ruling of the Supreme Court and in violation of the heart of the Constitution. Are you hearing anybody accuse them of "adjudicating from the legislature?" Maybe you just did.

McCain, who at least got the torture amendment right, in defense of his own vote to scuttle habeas corpus for those in Guantanamo said that we can't have them petitioning to complain about the food allowed. Well, gee, maybe they don't like being in lemon chicken hell with two kinds of fruit (just for staged photo ops) to be imprisoned indefinitely without charges. A spokesperson for the so-called moderate Senator Snowe asked "Do we need all those lawyers going down there to hear their complaints?" One can only wonder how much McCain would have appreciated it if a lawyer had turned up in his defense when he was being tortured himself in North Vietnam. But the "strict contortionist" would say that we can make up a subclass of humans called "enemy combatants," with the president king the sole arbiter of who should be so degraded.

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