In my examination of the presidency of George W. Bush, I looked at his record on the Global War on Terror (GWOT) and the Iraq War; I compared the nation that he inherited in 2001 with the nation that he will deliver to his successor in 2009; and I explored his candor to the American public during his tenure. In my effort to render a verdict on his presidency, I have attempted to capture the essence of the last seven years, and sadly Bush fails miserably, with some historians wondering if he is the worst American President that this country has ever seen. There is no arguing that we have seen some of the most colossal blunders to ever come out of the White House during both Bush administrations: the lethargic response to Hurricane Katrina; the irresponsible venture in Iraq; Domestic Eavesdropping; torturing POWs; authorizing a mercenary army; the refusal to disclose the Energy Commission’s final report; the reckless spending binge that has increased the federal debt by nearly $3.5 trillion; the lack of fiscal policy leading to the current recession; and the list goes on.
Despite serving out the final 10 months of his administration with the prospect of unfavorable historical reviews on several fronts, Bush’s appointments to the Supreme Court have received mixed reviews. Conservatives see the appointments of Chief Justice John Roberts and Justice Samuel Alito as one of the bright spots of the Bush presidency, while liberals look upon Roberts and Alito with suspicion; and for good reason: Neither one of them were willing to give too much information on their legal theories during the confirmation hearings. Consequently, they were mostly judged on their affable demeanors.
Looking at how the President has added two more conservative justices to the Supreme Court, gives the country a reason to take a pause and consider what long term implications this presents. In June 2007 the Court restricted the ability of public schools to use race to determine which schools students can attend. This ruling did two things: It showed the aggressive nature of the court in usurping state’s rights, and it demonstrated the Court’s willingness to turn its back on previous Supreme Court rulings, known as precedent. In one of the most celebrated cases, the Supreme Court ruled in Brown v. Board of Education that state laws that established separate public schools for blacks and whites denied black children equal educational opportunities.
Chief Justice John Roberts wrote for the 5-4 majority which included Antonin Scalia, Clarence Thomas and Samuel Alito. Justice Anthony Kennedy cast the deciding vote, but only signed on about half of Roberts’s 41 page opinion.
Meredith v. Jefferson County Public Schools and Parents Involved in Community Schools v Seattle School District is one of a number of 5-4 court rulings that are slowly chipping away at a half century of social progress:
· In Ledbetter v. Goodyear, the Court severely limited the ability of victims of pay discrimination under Title VII to recover wages unfairly denied to them, leaving thousands of workers who have suffered pay discrimination on the basis of sex, race, religion or national origin with no legal recourse;
· In Bowles v. Russell, the Court ruled that a litigant who trusted an order from a federal judge giving him 17 days to file an appeal was prohibited from appealing because the judge had given him the wrong deadline (a statute allowed only 14 days), a blow to anyone who puts faith in the promises of the judicial system.
Despite what may be a trend on the court to restrict individual rights, what concerns me even more is that the addition of Roberts and Alito gives the Supreme Court four justices whose legal theories and rulings tend to be ultra-rightwing – Scalia, Thomas, Roberts and Alito. These justices consistently rule in favor of big business, expanded executive powers and restrictions on individual rights. This combination does not bode well for “little people” seeking redress at the top court in the land.
The notion of expanded executive power or the unitary executive doctrine is most troubling, because this legal theory holds that in the time of a national emergency, the President is not accountable to Congress or the courts. The idea of the unitary executive, which forms the core dogma of the ultra-right-wing Federalist Society, to which Judge Alito belongs, is more properly identified by its modern historical name—the Führerprinzip, authored by German jurist and political theorist, Carl Schmitt, who was also involved in the Nazi Party. Schmitt's doctrine, that the head of state is the law, and can assert absolute dictatorial authority during periods of emergency, has been used to legitimize every totalitarian regime in the West, from Hitler, through Gen. Francisco Franco in Spain, through Gen. Augusto Pinochet in Chile. *
George Bush has pushed the limits of his authority as President, seemingly disregarding Congress and the courts. I have addressed in previous articles how Bush has consistently operated off the grid in areas that have questionable constitutional implications: preemptive strikes; the One Percent Doctrine; violations of the Geneva Convention, including torturing prisoners of war; domestic spying; entering into International Treaties without Congressional approval; and the National Energy Policy Development Group, also known as the Cheney Energy Task Force, which the vice-president refuses to make public.
The Supreme Court’s shift to the right is alarming; however, the idea that Bush could stack the court with a fifth vote to uphold his furtive grab for power is even more troubling. Many Americans take their freedom for granted, despite the fact that a war was fought to attain it. If we are not vigilant, all it will take to lose it is one more right wing appointment to the Supreme Court.
Notwithstanding John McCain’s liberal tendencies, I do not believe that the Constitution can survive eight more years of compassionate conservatism.