THE FIRST VICTIM OF TYRANNY:
A Tale of Five Headlines and the Rule of Law

On July 19, 2006, a news article written by Jim Abrams of the Associated Press appeared in several publications. The facts revealed are symptomatic of a cancerous growth enveloping the social and political strength of our nation. The words in the news article were identical, but the headlines differed depending on the publication and failed to alert the reader to the content of the article. I refer here to two of the headlines:

1. “House Protects God in Pledge of Allegiance,” from Fox News.com.
2. “House OKs Bill Guarding Pledge From Courts,” from Washington Post.com.

The most accurate headline would have been, “House Votes to Strip
Judicial Branch of its Constitutional Powers.”

Jim Abrams was reporting on a recent bill passed by the U.S. House of Representatives. The House Republicans called it the “Pledge Protection Act”, HR 2389. The only language of significance in the Bill reads as follows: “no court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, the Pledge of Allegiance….”

The Bill passed by a vote of 260 to 167. Two hundred and sixty grown men and women, elected by our citizens to govern our nation, voted for this Bill. Of those who voted for the Bill, thirty-nine were Democrats. Eight Republicans voted against it. There are 435 members of the U.S. House of Representatives.

The House proposal is one of several measures, called the “American Values Agenda,” that the House Republican leaders are pushing to appeal to the party’s supporters before the November elections. The very fact that this proposed legislation is designed to appeal to the Republican Party’s faithful, and that people would vote for candidates based on such legislation, indicates how much influence the right-wing has over significant members of the electorate, and demonstrates how dangerous this development has become.

The House “Pledge Protection Act” was designed to ensure that the words “under God” would remain in the Pledge of Allegiance, the recitation of which is required for school children in some jurisdictions. During arguments on the Bill, Shelly Moore Capito, a West Virginia Republican said, “We do not need the federal judges to dictate what our pledge says.” The words “under God” in the Pledge of Allegiance have little or nothing to do with the significance of the actions of the House and what they portend.

Other than this article, I saw little or no coverage of this event. The TV press, where most people get their information, was particularly silent. Another headline discussed below concerns Justice Sandra Day O’Connor, recently retired Justice of the United States Supreme Court, who used the word “dictatorship” during descriptions of the Bush administration. This headline came from a British newspaper. The only coverage in the United States of that event came from a single short report from National Public Radio.

We are talking here about the desire of the constitutionally created legislative branch to deprive the judicial branch of its powers granted by the same Constitution. I say “desire” because the Bill the House passed has yet to go to the Senate where it probably will not pass and may not even come up for a vote due to its absurdity. However, many Republican senators, as well as the offices of the President, have expressed the same views which, if effectuated, would result in a fundamental deterioration of essential safeguards to freedom provided for by our Constitution. These safeguards are the checks and balances created by the separation of powers of the three major branches of government, fundamental to which is the independence of the judicial branch. Our founding fathers went to great lengths to provide for these safeguards in our Constitution.

The first victim of tyranny is always the rule of law.

This concept is so well ingrained in our legal system, inherited from England and expanded upon by political philosophers, that Shakespeare himself alluded to it in one of his famous sentences containing a double meaning. In the second part of his historical play, Henry VI, Shakespeare has a rebel leader, Jack Cade, recruited by the Duke of York, conspire to overthrow the government by starting a revolution. From a crowd of citizens whipped into a frenzy by Cade, Dick the butcher shouts, “The first thing we do, let’s kill all the lawyers.” The quote is part humor designed for most of the theatre audience, and part serious commentary on the road to tyranny and anarchy if we eliminate the law.

John Adams, our second president, founding father, and often called the “father of American independence,” first pronounced the sentence that should have been taught to and memorized by every citizen of our nation. Adams summarized the very foundation of our freedom when he said that we must be a “government of laws, and not of men.” In 1779, during the Revolutionary War and before our nation wrote its national constitution, Adams, at the request of leaders in Massachusetts, drafted a constitution for their state. The result was remarkable. David McCullough, in his 2001 biography of John Adams, wrote that “[t]he constitution of the Commonwealth of Massachusetts is the oldest functioning written constitution in the world.” It was subsequently used as a model for the Constitution of the United States. In it, Adams called for a “government of laws, and not of men.” Adams believed passionately in the principle of the separation and balance of powers, and wrote in the Massachusetts constitution that “the legislative, executive and judicial power shall be placed in separate departments, to the end that it might be a government of laws, and not of men.” McCullough goes on to say, “[b]ut it was the establishment of an independent judiciary, with judges of the Supreme Court appointed, not elected, and for life, that Adams made one of his greatest contributions not only to Massachusetts but to the country, as time would tell.” In his essays and correspondence, Adams spoke often of the necessity for judicial independence.

Alexander Hamilton, another framer of our constitution, while quoting Montesquieu, wrote in the Federalist Papers, No. 78, that “…there is no liberty, if the power of judging be not separated from the legislative and executive powers…[L]iberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”

The same political movement that proposed “The Pledge Protection Act” is active in other efforts to challenge judicial independence. They are making strong efforts to control the outcome of elections of judges in those states where judges are elected rather than appointed. Only eleven states have an appointment procedure similar to the federal system. In Washington State, all judges are elected to courts of general jurisdiction. Here we have our third newspaper headline: “Big money threatens court.”

On April 26, 2006, the Seattle Post-Intelligencer placed the above headline before a guest column written by Robert Utter and Faith Ireland, retired Washington State Supreme Court justices. Judge Utter is a past national chairman of the American Judicature Society, which works to improve the administration of justice throughout the country. Judge Ireland is a past president of the Washington chapter of the American Judicature Society. I quote from this column:

"...[A] big money political action committee has been formed to elect to the Washington Supreme Court and state Court of Appeals judicial candidates seemingly committed to their political agenda.

"As former justices of the Washington Supreme Court, we are gravely concerned about this ominous development that threatens the independence of the judiciary, the cornerstone of our separation-of-powers doctrine… And it is here that this misguided effort by powerful interests is so dangerous....

"To extend the political lobbying culture, so prevalent in Washington, D.C., to our judicial elections is destructive of public faith in impartial justice. Those big-money interests with a decided political agenda must learn to respect the very institutions they seek to politicize.

"The recent creation of a state PAC, backed by powerful corporate and other special interests, is mirrored on the national level by the U.S. Chamber of Commerce’s Institute for Legal Reform. Since the 2000 elections, it has intervened with massive amounts of money to help elect its handpicked candidates for state Supreme Court races.

"The U.S. Chamber’s 'aggressive voters education campaign' was exposed in Washington state in 2004 when it surreptitiously supplied $1.5 million to a local front group to support a last-minute media buy attacking a statewide candidate. Opposition to this tactic was fierce and included the local chambers of commerce, which resented not being consulted about the expenditure. King County Superior Court Judge Richard Jones recently ruled that the ad was illegal under state laws, noting that the voter’s right to know who is funding campaign advertising is of fundamental importance.

"The independence of the judiciary is vital to our democracy....

"We are not alone in expressing this concern. The American Judicature Society, both on a local and national level, has come out strongly against the politicization of judicial elections. Consumer organizations such as Public Citizen and the Center for Justice and Democracy have exposed the way powerful interests have improperly sought to exert predominant influence in state judicial elections."

On August 22, 2006, the Seattle Post-Intelligencer ran another column on the same issue written by retired Chief Justice Richard P. Guy, who served on the Washington State Supreme Court from 1989 to 2001, and Charlie Wiggins, current president of the Washington chapter of the American Judicature Society. I quote from that column:

"Justice is traditionally portrayed blindfolded, not because justice is blind to the facts or the law, but because justice is impartial. From the earliest traditions of Western civilization, judges have been admonished not to show favoritism but to judge equally without preconception or bias. From the Magna Carta to the present day, judges have been charged not to sell justice but to judge fairly....

"But 2006 has brought a new threat to judicial impartiality in Washington. This year political action committees have stepped fully into the fray of judicial elections…[These PACs] are seeking candidates for judicial office who mirror their own views and who they believe will reshape the law of Washington into their own images….PACs now directly recruit candidates to run against sitting judges....

"A particularly troublesome problem is the appearance of unfairness when a judge rules on cases that affect the special interests that have heavily supported the judge. In Illinois and West Virginia, Supreme Court judges refused to recuse, or disqualify themselves, from sitting on cases involving corporations that had contributed hundreds of thousands of dollars, or even millions in West Virginia, to the election campaign of the judges. Such abuses erode confidence in our courts....

"Justice must not be for sale to the highest bidder."

Wealth, the industrial complex and the U.S. Congress are not the only ones involved in this concerted effort to discredit the independence of the American judiciary. The executive branch has been engaged in a relentless campaign against the law in general and our courts in particular since it took office in the year 2000. Just one example, almost insignificant in the grand scheme of the current executive branch, leads to the fourth headline: “Court’s Padilla ruling attacked by Justice Dept.”
This article, written by Eric Lichtblau of The New York Times, appeared in the Seattle Post-Intelligencer on December 29, 2005.

Jose Padilla, an American citizen, was arrested in Chicago on May 8, 2002 by the FBI and taken to New York where he was held under a “material witness” warrant within the jurisdiction of civilian courts where he had the usual rights granted by our Constitution to those arrested. He was therefore granted due process requiring that he be brought before the court on May 15th. The court assigned counsel, and Padilla was allowed unfettered access to his attorney who, after consultation, filed a writ in Federal District Court asking that Padilla be either released or charged. While this was pending, the Bush administrative caught up with what was happening and, on June 9, 2002, President Bush signed an order labeling Padilla an “enemy combatant” to be transferred immediately into the hands of the military to be detained indefinitely for interrogation. On that day, Padilla was taken from the civilian court jurisdiction by military authorities and placed in a navy brig in South Carolina. From that moment until March, 2004, Padilla was prohibited from having any contact with an attorney, and very little contact after that date. A writ for his release is still pending before the U.S. Supreme Court as of September, 2006. He has now been held in custody for nearly four and a half years. No charges were filed until an indictment was issued out of a Federal district civilian court last November, 2005.

It was a decision of the U.S. Court of Appeals for the 4th Circuit on December 21, 2005 that brought us to this discussion. The 4th Circuit sits in Richmond, Virginia and is one of the most conservative Federal courts in the nation, nearly always siding with the Bush Administration in its questionable assumptions of executive powers which appear to defy both the Constitution and laws passed by Congress. For this reason, the 4th Circuit has been the administration’s court of choice for high-profile terrorism cases since the Sept. 11, 2001 terrorist attacks. In a decision unusual for the 4th Circuit, it denied the Bush Administration’s request to move Padilla from a military brig to civilian custody in Florida to stand trial on charges different and less significant from the crimes the Justice Department had always alleged Padilla committed. The article above states that in its ruling last December, “The appeals court said the Bush administration, in charging Padilla in criminal court in November after jailing him for more than three years as an enemy combatant without charges, 'gave the appearance that it was trying to manipulate the court system to prevent the Supreme Court from hearing the case'" for Padilla’s release under the Constitution. [Emphasis added.]

I refer here to the remarks of Paul Clement, appointed by the President in June of 2005 to serve as Solicitor General of the United States. Mr. Clement represents the Bush administration’s position in court against Padilla. Paul Clement has acted as a point man for the administration’s agenda since he joined the offices of the Solicitor General in 2001. The Solicitor General works within the Department of Justice and represents the government in matters before the Supreme Court. It is often considered the highest office for a practicing attorney in the United States. The Attorney General (currently Roberto Gonzales) is the head of the Department of Justice and a member of the president’s cabinet. His appearance before the Supreme Court is less frequent. These two appointed lawyers are traditionally given considerable independence by our presidents who expect them to act consistent with their conscience to do justice for the people. Breaking with that tradition, in the current Bush administration, these two appointees represent the administration, its philosophy and its views. This has often involved both criticism of judges and denigration of the rule of law.

Mr. Clement engaged in “an unusually strong criticism” of the judges of the 4th Circuit when he immediately filed a request to the Supreme Court to reverse the 4th Circuit and allow custody of Padilla to be transferred. Mr. Clement said that the 4th Circuit’s decision “defies both law and reason.” The newspaper article states: “In unusually caustic language, the solicitor general said that the 4th Circuit did not have the authority to ‘disregard a presidential directive.’ And he said its decision blocking Padilla’s transfer ‘is based on a mischaracterization of events and an unwarranted attack on the exercise of Executive discretion, and, if given effect, would raise profound separation-of-powers concerns.’”

Following the 4th Circuit’s decision, Mr. Clement filed his application to the Supreme Court on December 28th. Seven days later, on January 4th, 2006, Chief Justice Roberts, acting unilaterally ( which is allowed), reversed without argument the decision of the 4th Circuit and allowed custody of Padilla to be transferred, stating that Padilla’s petition for release from detention will be considered by the Supreme Court “in due course.” My interpretation of “in due course” is that the Supreme Court will wait until the results of the trial in Florida are revealed, and make its decision on Padilla’s request based on the trial’s outcome. If he is convicted, then Padilla will have spent about 7 years in wrongful detention, only to end up in prison after finally being charged and convicted, because the Supreme Court may then refuse to hear his petition for release by labeling it as moot, or no longer relevant. If Padilla is found not guilty, then the Supreme Court would take up Padilla’s petition for release and proceed to decide whether the Bush administration can still hold Padilla indefinitely as an “enemy combatant.” The recent Supreme Court decision in Hamdan v. Rumsfeld, a loss for the Bush administration but a victory for our nation and the rule of law, suggests that Padilla may in that event be released. Mr. Clement was also counsel for the administration in the Hamdan case.

Mr. Clement’s criticism of the court comes close to a violation of ethics and amounts at least to unprofessional conduct both as a prosecutor and as an attorney practicing law. His remarks were contained in his written petition to the Supreme Court, but this petition is available to the public and was in fact picked up by the press. If an attorney in private practice were to use such an extraordinary remedy to reach any supreme court in such haste, and were to use the same language in his petition, he would be subject to severe rebuke by any justice of that supreme court, and this would be even more likely if such language received extensive coverage in the press. Mr. Clement was also making his severe criticism regarding a pending case not yet fully resolved. Of course Mr. Clement walks through the corridors of power and has apparently assumed the arrogance that sometimes accompanies that power. It is clear that he was assuming without question that he would obtain a favorable decision from Chief Justice Roberts.

Mr. Clement’s comments also contained a veiled threat. If Mr. Clement believed that the 4th Circuit “did not have the authority to disregard a presidential directive,” then why did he bother to go to the court for approval? And why did he bother to appeal that decision to the Supreme Court when presumably that court also lacks the authority? Was he just trying to be polite to the powerless judges? More disturbing, his remark that the 4th Circuit’s decision was “an unwarranted attack on the exercise of Executive discretion,” denies the very basis for the existence of the judiciary, which is to act as a check on the executive and legislative branches – to make sure that the other two branches of government do not violate the Constitution and therefore our freedoms. We reach the veiled threat when he said that the 4th Circuit’s decision, “if given effect, would raise profound separation-of-powers concerns.” What could he mean by that? When the judiciary decides that the executive branch has overstepped its constitutional powers – has abused its power - how is the judiciary thereby overstepping its own power? It is tempting to conclude that Mr. Clement is telling the court to be careful about what decisions it makes because the day may come when we – the executive branch – will simply refuse to obey your decisions; and if we do, who’s to stop us? Who will enforce your decision?

This brings us to the fifth and last headline: “Former Top Judge Says US Risks Edging Near to Dictatorship.”

On March 9th, 2006, Sandra Day O’Connor gave a speech at the Georgetown University Law School. She had only recently retired from the United States Supreme Court following a distinguished twenty-four year career on the bench as the first woman Supreme Court Justice. Justice O’Connor, who is considered a social conservative, was appointed to the Supreme Court by Ronald Reagan.

Only one reporter, who was from National Public Radio, was there to cover the speech. Keith Olbermann of MSNBC had apparently heard the NPR broadcast and discussed it briefly when I happened to be watching. I later could discover no coverage whatever in the national press after searching the internet. But the story was picked up by the British newspaper, The Guardian, from which I took the above headline. The Guardian wrote both a news piece and an editorial opinion which stated, “…these are spine-chilling opinions, and you might have thought they’d have been all over the papers the next day. Not so…there’s been a disquieting silence, as if the former justice had laid an unsavoury egg and had best be politely ignored.”

In its first sentence, the article stated that Justice O’Connor warned that “the US is in danger of edging towards dictatorship if the (Republican) party’s rightwingers continue to attack the judiciary.” The article went on: “Ms. O’Connor took aim at Republican leaders whose repeated denunciations of the courts for alleged liberal bias could be contributing to a climate of violence against judges....

"We must be ever-vigilant”, she said, “against those who would strong-arm the judiciary.”

The article continues, “She pointed to autocracies in the developing world and former Communist countries as lessons on where interference with the judiciary might lead.” She said, “It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.” Though not mentioned by name, she singled out Tom DeLay, former Republican House leader, over the court ruling in a “right-to-die” case. “After the decision last March that ordered a brain-dead woman in Florida, Terri Schiavo, removed from life support, Mr. DeLay said: ‘The time will come for the men responsible for this to answer for their behaviour.’” The article continued: “Mr. DeLay later called for the impeachment of judges involved in the Schiavo case, and called for more scrutiny of ‘an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president.’” Such threats, Ms. O’Connor said, “pose a direct threat to our constitutional freedom”, and she told the lawyers in her audience, “I want you to tune your ears to these attacks…You have an obligation to speak up. Statutes and constitutions do not protect judicial independence – people do....

“She noted that death threats against judges were on the rise and added that the situation was not helped by a senior senator’s suggestion that there might be a connection between the violence against judges and the decisions they make. The senator she was referring to was John Cornyn, a Bush loyalist from Texas, who made his remarks last April (2005), soon after a judge was shot dead in an Atlanta courtroom and the family of a federal judge was murdered in Illinois.”

“In her speech, Ms. O’Connor said that if the courts did not occasionally make politicians mad they would not be doing their jobs, and their effectiveness ‘is premised on the notion that we won’t be subject to retaliation for our judicial acts.’”

Justice O’Connor used the word “dictatorship” at least twice while referring to the Bush administration and the Republicans now in power.

Justice O’Connor had spoken of this problem earlier, in July of 2005, while her retirement was pending. She was at a panel gathering of the Federal 9th Circuit appellate judges. At that time she stated that it is “worrisome” that members of Congress are making efforts to “limit federal court jurisdiction to decide certain issues.” “I am pretty old, you know,” she stated, then age 75. “In all of the years of my life, I don’t think I have ever seen relations as strained as they are now between the judiciary and some members of Congress. It makes me very sad to see it.”

What would happen if the U.S. House’s effort to strip the judiciary of its constitutional power also passed the Senate and was signed into law by the president? The law would be challenged by some citizens of our country. It would reach the U.S. Supreme Court which, for the first time since the early days of our nation, would be faced with whether it should rule itself out of existence by eliminating the balance of power among the three independent branches of our government as it was created by our founding fathers. The only decision consistent with the rule of law would be to find the law unconstitutional. Then, depending on how strongly the current executive and legislative branches feel about the statute they just passed, we would be faced with the possibility that the executive branch would simply refuse to enforce the Supreme Court’s decision. We would then be under martial law, a nation of men and not of laws, and we would have tyranny.

If the Supreme Court were to uphold the statute as constitutional, thereby continuing its present inclination to permit the executive and legislative branches to augment their powers, the independence of the judiciary would cease to exist, and we would have tyranny and an end to the rule of law – a nation of men and not of laws. And recall that this statute is part of what the House Republicans are calling their “American Values Agenda.” These self-proclaimed patriots have made this a part of their agenda.

I have been actively engaged with the American legal system now for nearly fifty years. I have tried many cases, observed the decisions of hundreds of judges who have been conservatives, liberals and independents, some smarter than others, many of whom have been friends, and I have sat as a judge myself from time to time over the past twenty-five years. I have disagreed with some court decisions – even thought some of them outrageous. But I have not considered it appropriate to publicly condemn a decision of any court purely for the purpose of attempting to change the law consistent with my own political beliefs. Nor have I assumed that it was proper to threaten any particular judge. If mistakes are made by a trial judge, they are usually adequately handled by our appellate courts. My experience is that nearly all lawyers, both conservative and liberal, conduct themselves in the same manner. This is not out of personal respect for any particular judge, but is a respectful recognition that judicial independence is too important to be tampered with. Humanity is flawed by nature. The law was formed by these flawed members of humanity, and it has been improved over centuries by trial and error. The law itself is but an effort by flawed people to bring some semblance of order, equality and justice into our lives. And it is essential to freedom.

Since the formation of our nation respect for the law has been a morally binding custom among our citizens. That moral authority is being threatened. In my lifetime, until the year 2000, I have never seen evidence of any court consistently “legislating from the bench,” or performing as “activist judges.” It is not the judges of our nation who have suddenly become out of control. The same movement attacking the independence of the judges now has been actively engaged in this conduct since at least the time when Brown v. The Board of Education was decided while Earl Warren, a conservative, was Chief Justice of the U.S. Supreme Court. Protests of the people who did not like the decision integrating our schools were actively urging that Chief Justice Warren be impeached. The only difference is that the people holding those beliefs are now in power.

If I were asked to single out even one court that overstepped its boundaries, it would be the U.S. Supreme Court decision in Bush v. Gore, in which the court engaged in the exercise of plenary executive power to appoint a president of the United States. It is an irony now that Justice O’Connor voted in favor of that decision in a vote of five to four, thereby placing in power the very people she now complains about as taking us toward dictatorship. Thus the Supreme Court itself participated in an attack on the independence of the judiciary, thereby involving all three branches of government in denigration of the rule of law. The four dissenting judges were unusually harsh in their treatment of the majority. Justice Stevens’ remarks were scathing and hit the point:

"It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law."