VirusHead

So what does Sandra Day O’Connor say (in case you’ve forgotten, she is a Republican but not a neo-con) now that she has announced her retirement from the Supreme Court?

Speaking in Spokane WA to a group of lawyers and judges in late July, retiring U.S. Supreme Court Justice Sandra Day O’Connor said she is worried about the future of the federal judiciary because of a “climate of antipathy” in Congress. “I’m pretty old, you know. In all the years of my life, I don’t think I have ever seen relations as strained as they are now” between the judiciary and Congress, O’Connor said. “It makes me sad. … The present climate is such that I worry about the federal judiciary.”

There is sentiment that courts are overreaching,” and in our country today, “we’re seeing efforts to prevent that: a desire not to have an independent judiciary, and that worries me,” she said. “A key concept of the rule of law is the concept of an independent judiciary.”

Not surprisingly, John Roberts is expressing a firm view of an independent judiciary, but I’m not he means what she means by the phrase.

“Judicial activism” is another strangely loaded phrase, used primarily to accuse judges of “legislating from the bench” or being “out of (our) control” when they don’t get into lockstep with the President’s (or the religious right’s) agenda. It is used to generate antipathy toward the check and balance of the judicial branch as against the executive and legislative branches. Somehow, though, it’s never used to describe examples such as Justices Antonin Scalia and William Rehnquist, who have explicitly said they want to overturn the legal precedent of Roe v. Wade. Bush has loaded up as much as he can with right-wing judges – but even a couple of his appointments have this distressing tendency to look at the case at hand and to make a real judgment, not just move with the ideological wave.

Roberts writes on the Senate Judiciary Committee questionnaire:

“It is difficult to comment on either ‘judicial activism’ or ‘judicial restraint’ in the abstract, without reference to the particular facts and applicable law of a specific case. Precedent plays an important role in promoting the stability of the legal system. A sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.”

Roberts said that “judges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society’s problems, as they see them, but simply to decide cases before them according to the rule of law.”

I agree with what he says in a general way – it’s well-crafted, although I’m a little worried about the emphasis on the limited role of the judiciary. What he leaves out is that the cases often establish new precedents that further impact rulings in other cases, and that judges still interpret – that is, after all, their purpose. That is why the Supreme Court is a body of judges and not just one judge, or a computer, or the President.

Besides not “remembering” his involvement in the Federalists, Roberts spent some time assisting Florida Gov. Jeb Bush during the disputed presidential election count in 2000. He said he went to Florida at the request of GOP lawyers, assisting an attorney who was preparing arguments for the Florida Supreme Court and at one point meeting the governor, President Bush’s younger brother, to discuss the legal issues “in a general way.” Other political affiliations Roberts listed were the executive committee of the D.C. Lawyers for Bush-Quayle in 1988, Lawyers for Bush-Cheney and the Republican National Lawyers Association. Last month, a three-judge federal court ruled the Bush administration’s plan to convene military tribunals to try terrorist detainees at Guantanamo Bay was constitutional, overruling a lower court’s opinion that the tribunals violated the Geneva Convention. The opinion of the court in that decision was joined by none other than Judge John Roberts, who days later became President Bush’s nominee to the Supreme Court.

My only real hope, a long shot I know, is that once he is facing the actual position, a certain gravitas will let him use that great mind of his to good purpose, even occasionally against his entire history of contacts and networks. Who knows? Someone that smart might have hidden depths. What else can we hope for? It’s going to be difficult to challenge him. He’s got the credentials. Some of the papers that would show his lines of thought on different issues are not going to be released – for good reason, one has to think, or else they would be proud to do so.

Roberts wrote that he was interviewed by Attorney General Alberto Gonzales as early as April 1. Besides Bush, Roberts reported having discussions with Vice President Dick Cheney, Karl Rove, White House Counsel Harriet Miers and Chief of Staff Andrew Card. To the question whether if any of them asked about his specific legal views or positions on cases, Roberts gave a one-word reply: “No.”

Of course, they really didn’t have to ask, did they – he is well-vetted. I wonder why they keep repeating this refrain as though we would believe that they had absolutely no idea about his opinions and viewpoint. The far right is celebrating for a reason.

The funny thing is, I don’t actually think Roe v Wade will be overturned. If it’s not about money and power, I don’t think it really truly interests this administration all that much. I think they will make some noises in that direction to manipulate the pseudochristians – but they won’t deliver it.

Why? Abortion is a very controversial issue – and along with birth control allowed the liberation of women. Roe v Wade was the compromise that honored both positions. Right now, the majority of American women are somewhat depolicitized. Feminisms have, for a host of reasons, lost ground. Many women are somewhat disenchanted with their options and careers, and feeling as though they might have given up more than they got – after all, the childcare options and equal pay and respect from men never entirely came through. Feminists got painted as feminazis and a lot of women, including many of my friends and on certain days even myself, entered a sort of post-feminist phase.

I don’t think they can go that far all at once. So what they do instead is start working against birth control and sex education… and they’re getting pretty good at that. A lot can be done there against women that is less noticable than overturning Roe v Wade. They even used the case of that poor Lacey woman. Do a little research.

It’s all about controlling women – it’s about power, it’s not about spirituality.

Well – overturn Roe v Wade and you are going to see a lot of angry women. A lot of angry women – we just aren’t willing to go back to the days of my mother, the days when your husband or father had to sign off his permission for a woman to get a loan, the days of backalley wire hanger abortions when only certain wealthy women had control over their reproductive options – those little trips to Europe. Not all women are ready to go back that far, to lose their hard-won rights.

I honestly don’t think they’ll risk the consequences of a fully-politicized female population.