Wednesday, April 20, 2005

Black robes

It begins, it seems, with right-wing extremists threatening judges on the radio for failing to bend the law to their desires. Then you have right-wing fringe transmitters spewing the same kind of hatred of the judiciary on multiple TV appearances, and Oxycon-artist radio hosts ranting out the same lines over the nation's airwaves.

Next thing you know, you have House leaders threatening retribution for judges who refused to jump through their hoops, and Senators warning judges that they might be bringing violence upon themselves for making decisions people don't like. Suddenly, a focused, heavily organized campaign springs into action, poised to combat those evil liberals who pervert the normal American way of life -- the dark, dreaded men in black robes. (And hey, just coincidentally in time, you can buy the book!)

Huh? Where did this come from? This wasn't even an issue in the last election! It all seems like it's coming out of far right field, doesn't it?

Well, duh.

In fact, this very subject -- especially the rhetoric involving "black robed traitors" and "betrayal of our Christian heritage" -- has long been a hoary staple of the extremist right in America. You used to hear this kind of talk all the time at militia meetings ten years ago, and at Aryan Nations congresses ten years before that. Hatred of the judiciary is a centerpiece for the Posse Comitatus, the tax-protester extremists and Identity adherents like the Montana Freemen, and the Bircherite paranoids who have accused the judiciary of harboring Communist subversives since the days of, well, Brown v. Board of Education. Funny, that.

Nowadays, these themes enjoy much more powerful -- and supposedly mainstream -- proponents, as well as their respective audiences. Case in point: this coming Sunday's right-wing hatefest, dubbed "Justice Sunday", though as the New York Times reports, it really is a chance to promote Bill Frist's campaign to portray Democrats as "against people of faith" for opposing Bush's most radical nominees to the federal bench. (See Frederick Clarkson for more.) As the NYT story pointed out:
Some of the nation's most influential evangelical Protestants are participating in the teleconference in Louisville, including Dr. James C. Dobson, founder of Focus on the Family; Chuck Colson, the born-again Watergate figure and founder of Prison Fellowship Ministries; and Dr. Al Mohler, president of the Southern Baptist Theological Seminary.

This kind of lineup offering singularly mainstream support for an all-out ideological attack on the judiciary was reflected in the kickoff event for the anti-judiciary campaign: "Confronting the Judicial War on Faith," a conference organized by a bevy of right-wing figures, notably Phyllis Schlafly.

As Dana Milbank's report on the event for the Washington Post pointed out:
This was no collection of fringe characters. The two-day program listed two House members; aides to two senators; representatives from the Family Research Council and Concerned Women for America; conservative activists Alan Keyes and Morton C. Blackwell; the lawyer for Terri Schiavo's parents; Alabama's "Ten Commandments" judge, Roy Moore; and DeLay, who canceled to attend the pope's funeral.

Milbank's story was also noteworthy for pointing out the viciousness of the rhetoric being deployed:
Not to be outdone, lawyer-author Edwin Vieira told the gathering that Kennedy should be impeached because his philosophy, evidenced in his opinion striking down an anti-sodomy statute, "upholds Marxist, Leninist, satanic principles drawn from foreign law."

Ominously, Vieira continued by saying his "bottom line" for dealing with the Supreme Court comes from Joseph Stalin. "He had a slogan, and it worked very well for him, whenever he ran into difficulty: 'no man, no problem,' " Vieira said.

The full Stalin quote, for those who don't recognize it, is "Death solves all problems: no man, no problem." Presumably, Vieira had in mind something less extreme than Stalin did and was not actually advocating violence. But then, these are scary times for the judiciary. An anti-judge furor may help confirm President Bush's judicial nominees, but it also has the potential to turn ugly.

Movement-conservative defenders of the rhetoric (notably Vieira himself) later tried to soft-pedal his remarks, claiming they were intended within the the context of impeachment only. Vieira's exchange with Eric Muller at Is That Legal, I think, laid bare the dishonesty of this defense. As Muller put it:
Mr. Vieira's questioned reference to Stalin in his speech was absolutely not "to the point" that many judges today are acting as communists. Mr. Vieira can call Justice Kennedy a commie all he wants, and nobody is going to care or take notice.

The questioned Stalin reference in Mr. Vieira's speech, which, incidentally, he repeated for added effect, was to Stalin's phrase "No man, no problem." "He [Stalin] had a slogan, and it worked very well for him, whenever he ran into difficulty: no man, no problem." That is what Mr. Vieira said, and that is what people have (rightly) been screaming about.

Max Blumenthal had even richer detail on this gathering, and the naked hatred it festered, in The Nation:
Michael Schwartz must have thought I was just another attendee of the "Confronting the Judicial War on Faith" conference. I approached the chief of staff of Oklahoma's GOP Senator Tom Coburn outside the conference in downtown Washington last Thursday afternoon after he spoke there. Before I could introduce myself, he turned to me and another observer with a crooked smile and exclaimed, "I'm a radical! I'm a real extremist. I don't want to impeach judges. I want to impale them!"

For two days, on April 7 and 8, conservative activists and top GOP staffers summoned the raw rage of the Christian right following the Terri Schiavo affair, and likened judges to communists, terrorists and murderers. The remedies they suggested for what they termed "judicial tyranny" ranged from the mass impeachment of judges to their physical elimination.

The threatening tenor of the conference speakers was a calculated tactic. As Gary Cass, the director of Rev. D. James Kennedy's lobbying front, the Center for Reclaiming America, explained, they are arousing the anger of their base in order to harness it politically. The rising tide of threats against judges "is understandable," Cass told me, "but we have to take the opportunity to channel that into a constitutional solution."

Cass's "solution" is the "Constitution Restoration Act," a bill relentlessly promoted during the conference that authorizes Congress to impeach judges who fail to abide by "the standard of good behavior" required by the Constitution. If they refuse to acknowledge "God as the sovereign source of law, liberty, or government," or rely in any way on international law in their rulings, judges also invite impeachment. In essence, the bill would turn judges' gavels into mere instruments of "The Hammer," Tom DeLay, and Christian-right cadres.

I've discussed the "Constitution Restoration Act" at length previously. As I said then:
Here's the core of the would-be law:

Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.

In other words, the law would forbid any court to review cases involving the invocation of God in the courtroom, or the placement therein of the Ten Commandments.

But, like a set of Ginsu knives, that's not all! As this piece from the Fort Worth Star-Telegram explains:

That's sweeping enough, but it doesn't stop there. The bill would declare that federal judges interpreting the Constitution may not rely on anything besides "English constitutional and common law."

Judges, even those on the Supreme Court, could not look to other court rulings, administrative rules, executive orders -- and no foreign law, dadgummit -- though the bill says nothing about reliance on divine inspiration.

Any judge who entertains a legal claim based on a public official's "acknowledgement of God" would be committing an impeachable offense.

... Bringing the courts to heel has long been a pipe dream of the religious right, ever since the days of Brown v. Board of Education and Roe v. Wade. For years, they have complained that "activist courts" have taken over the law of the land and become too involved in shaping public policy --something, they contend, that is strictly the purview of the Congress. At various times, proposals have been floated to pass laws limiting the courts' jurisdictions (one example that springs to mind was the plan by a right-wing Washington legislator in the early 1990s to give the state Legislature the power to overturn court rulings and place severe limits on the courts' purview). Now, it appears they're driving hard to make it a reality.

The forthcoming campaign is a noteworthy departure from many previous mainstream efforts in that it engages in vicious, demeaning rhetoric that demonizes the judiciary as a conspiratorial brotherhood of black-robed traitors. But in that regard, it has a great deal in common with the anti-judiciary rhetoric of the extremist right.

Talk about "black-robed traitors" or "tyrants" has been, as I mentioned, a staple of various gatherings of the far right for many years, ranging from Aryan Congresses and Posse Comitatus meetings to militia gatherings, common-law courts, and Freemen "training sessions."

A quick sampler of the far right's reading troves shows the theme's pervasiveness. Red Beckman -- a key figure in both the Posse Comitatus and Montana Freemen movements, as well as various "jury nullification" schemes -- once wrote a book titled "The IRS and the Black Robed Cover-Up" that was commonly offered on tables at "Patriot" gatherings.

So was Judicial Tyranny and Your Income Tax by Jeffrey A. Dickstein, Atty., as well as former Republican Rep. Robert Dornan's 1980 conspiracy screed, Judicial Supremacy: The Supreme Court on Trial.

The Freemen went so far as to utterly dismiss the legitimacy of the mainstream court system. As this Ablion Monitor piece on the Sonoma County Freemen explained:
This is the crux of their claims: there are really two judicial systems. Those courtrooms down at the county building are "Admiralty" courts -- or, as Cozio sneers, "monkey courts" presided over by "black-robed terrorists." On the other side are common-law courts, organized by everyday citizens.

The hatred of "men in black robes" likewise shows up among current white-supremacist hate groups. The National Vanguard's "Declaration of White Independence" includes the following observation:
The modern Federal Government has politicized the judicial system by allowing our People to become brainwashed by the Jewish media, and thereby the black-robed tyrants have obstructed the administration of justice; consequently, every Judge renders decisions that dovetail with the agenda of the inner party (i.e., the state within a state, the Jew), and every jury deliberates in sky castles created for them by the Jewish media system of control and indoctrination: this is our land of the free, this is our home of the brave.

Reliably enough, you can find the theme of "black robes" appearing in various "transmitter" media organizations, people who pose as mainstream observers but who take extremist ideas and massage them into presentable messages in the mainstream. A fine example of this was WorldNetDaily's Devy Kidd, who recently opined:
A nation divided will always be conquered which is why the attack on our Christian nation must stop and the only way that will happen is for the churches in this country to find their backbone and we get rid of these black robed judges who hallucinate decisions such as the 1947 Everson v Board of Education.

It is not such a far leap, then -- after numerous reinforcements from the likes of Randall Terry and Bo Gritz -- for the notions of "black robed tyrants" destroying the "culture of life" and "our Christian heritage" to ripple through the national airwaves as seemingly respectable opinion.

This is how the far-right echo chamber works: Ideas and policies bubble up all the time on the right, but those from the far right typically have a history of long-term traction in its meeting halls. Once they have that traction, it seems only a matter of time before a transmitter picks the idea up, massages it, and presents it as "conservative."

The phenomenon, as I've explained previously, has a dual effect: it draws the mainstream farther right steadily, and it legitimizes and empowers within the mainstream people who, not so long ago, were considered extremists.

The whole attack on the courts has a real screeching quality to it. If you filter out all the noise, though, two clear strategies for attacking the fundaments of the nation's judiciary emerge:

-- Eliminate the filibuster in the Senate (the so-called "nuclear option") in the name of forcing Bush's Federalist Society-anointed nominees upon the judiciary.

-- The "Constitution Restoration Act." This latter seems to have little chance of passage in a sane world, and thus should pose no serious threat.

However, I am not so sure we are living in a sane world anymore.

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