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October 14, 2005
The Bramble Bush
by Kevin Morford

The Power of Balance

     In recent comments regarding Supreme Court nominee Harriet Miers, President Bush has stated that she will not “legislate from the bench.” On other occasions, he has said that he likes judges who will “strictly construe the Constitution.” These comments are carefully worded, based on focus group studies, to send different messages to different parts of the electorate. A little analysis provides some important insight into current Bush administration political strategies.

     At one level, these comments are part of a Republican strategy to convince American voters that the existing mainstream of the U.S. Judiciary consists of radical judges who are usurping power which is not rightfully theirs, and that appointment of the president’s nominees will provide a fundamental change of judicial philosophy which will restore the balance of power in government. I have already written about right wing attacks on the independence of the judiciary, so I will try to minimize my repetition of those comments here. See my Insurgent49 article “Judicial Independence.”

     At another level, Bush’s comments are part of a well understood code which the President uses to send signals to his reactionary political base. Through the use of extensive conservative media outlets, Bush’s political base has been educated to recognize these carefully constructed phrases as code words that are not to be taken literally. Deciphered, these phrases are intended to tell that base that Harriet Miers will oppose human rights on issues such as abortion, gay marriage and health care, that she will support government funding of religion, and that she will uphold Republican Party policies when they are challenged in court.

     Bush’s reactionary base has received the coded message, but there are signs that at least some of them do not believe Bush on this issue. Perhaps they are finally starting to realize that the man is intellectually challenged (to use a little political correctness which
he does not deserve) and that his judgment is suspect. They were drooling over the prospect of having a clear majority of reactionaries on the Supreme Court, and now they are not certain that Miers will give them what they want, which is clear control over all three branches of government.

     The founders of the United States deliberately divided the powers of government into three branches, precisely so that there would be checks and balances on the exercise of government power. That was an exceedingly profound innovation that has served this country well in many situations through the years. The times when those checks and
balances are most needed are the times when government is attempting to use its power to the maximum extent. This is one of those times.

     There has been a power grab by one branch of government, but it is not by the judiciary. The executive branch of government has usurped many powers that do not belong to it. It has grabbed the power to wage war without a declaration of war by Congress. It has arrogated to itself the power to detain, torture and kill prisoners without any judicial review. It has seized the power to spy on U.S. citizens without any reasonable suspicion that they are involved in any criminal activity. It has exercised the power to violently attack citizens who are peaceably assembled to petition for redress of grievances. In these and many other ways, the executive branch of government is trying to reacquire all of the powers of a king, which our founders so carefully split up in the first place. Appointing a compliant judiciary is just one more step in this process.

     I do not have any special insight into the judicial philosophy of Harriet Miers, although I do have serious doubts about her qualifications. I do know that we need an independent judiciary that will operate as an effective check on the unconstitutional exercise of power by the other branches of government. If all three branches of government end up controlled by reactionaries, we can expect a time of political repression that will make the McCarthy era look like a civil libertarian’s utopia by contrast.






Kevin Morford is a political activist and an attorney in private practice in the Anchorage area.  He can be reached at kmorford@insurgent49.com.
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The
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in-sur-gent (in sur'jent), n. 1. a member of a group which revolts against the policies of its leadership.