April 2005 Archives

I'm sure my illustrious co-blogger (and rbc heavy lifter) Scott will be along shortly to discuss this story in more detail, but in the meantime, I thought we all deserve to enjoy a nervous, halting giggle over the latest round of covert theocratic hostility towards the idea of an unbiased judiciary, courtesy of the LA Times:

Evangelical Christian leaders, who have been working closely with senior Republican lawmakers to place conservative judges in the federal courts, have also been exploring ways to punish sitting jurists and even entire courts viewed as hostile to their cause.

An audio recording obtained by the Los Angeles Times features two of the nation's most influential evangelical leaders, at a private conference with supporters, laying out strategies to rein in judges, such as stripping funding from their courts in an effort to hinder their work.

The discussion took place during a Washington conference last month that included addresses by House Majority Leader Tom DeLay and Senate Majority Leader Bill Frist, who discussed efforts to bring a more conservative cast to the courts.

[...]

"There's more than one way to skin a cat, and there's more than one way to take a black robe off the bench," said Tony Perkins, president of the conservative Family Research Council, according to an audiotape of a March 17 session. The tape was provided to The Times by the advocacy group Americans United for Separation of Church and State.

[...]

Perkins said that he had attended a meeting with congressional leaders a week earlier where the strategy of stripping funding from certain courts was "prominently" discussed. "What they're thinking of is not only the fact of just making these courts go away and re-creating them the next day but also defunding them," Perkins said.

He said that instead of undertaking the long process of trying to impeach judges, Congress could use its appropriations authority to "just take away the bench, all of his staff, and he's just sitting out there with nothing to do."

These curbs on courts are "on the radar screen, especially of conservatives here in Congress," he said.

Dobson, who emerged last year as one of the evangelical movement's most important political leaders, named one potential target the California-based U.S. 9th Circuit Court of Appeals.

"Very few people know this, that the Congress can simply disenfranchise a court," Dobson said. "They don't have to fire anybody or impeach them or go through that battle. All they have to do is say the 9th Circuit doesn't exist anymore, and it's gone."

[...]

Perkins and Dobson laid out a history of court rulings they found offensive, singling out the recent finding by the Supreme Court that executing minors was unconstitutional. They criticized Justice Anthony M. Kennedy's majority opinion, noting that the Republican appointee had cited the laws of foreign nations that, Dobson said, applied the same standard as "the most liberal countries in Europe."

"What about Latin America, South America, Central America? What about China? What about Africa?" Dobson asked. "They pick and choose the international law that they want and then apply it here as though we're somehow accountable to Europe. I resent that greatly."

DeLay has also criticized Kennedy for citing foreign laws in that opinion, calling the practice "outrageous."

As part of the discussion, Perkins and Dobson referred to remarks by Dobson earlier this year at a congressional dinner in which he singled out the use by one group of the cartoon character SpongeBob SquarePants in a video that Dobson said promoted a homosexual agenda.

Dobson was ridiculed for his comments, which some critics interpreted to mean the evangelist had determined that the cartoon character was gay.

Dobson said the beating he took in the media, coming after his appearance on the cover of newsmagazines hailing his prominence in Bush's reelection, proved that the press will only seek to tear him down.

"This will not be the last thing that you read about that makes me look ridiculous," he said.

(Emphasis added to give us some much needed snarkbait to alleviate the creeping terror over what fresh hell these madmen could wreak upon the rule of law.)

Commenting on the must-read Max Blumenthal article in The Nation, in which Blumenthal recounts how his time as a sureptitious attendee to the "Confronting the Judicial War on Faith" conference, Billmon ponders the reasoning behind the "Constitution Restoration Act," which would

...make it an impeachable offense for a federal judge to hear any complaint that any government agency or official had violated the constitutional separation of church and state.

Now I had thought of this as essentially the "Ten Commandments" bill -- a political reponse to 2003's Christian cause celebre: the showdown over Judge Moore's 2 1/2 ton statement of courthouse faith. But I also thought it was obvious, even to the wing nuts, that filing the bill was a purely symbolic gesture -- a classic example of the kind of "prayer service" Christian conservatives typically get from their allies in Congress -- and that the bill itself was going absolutely nowhere, except maybe a file drawer in the Senate Clerk's office.

But now we're being told that this feeble excuse for a legislative protest (a kind of written raspberry blown at the Supreme Court) is the primary objective for the Great Conservative Cultural Revolution's grand offensive.

This seems unlikely. I'm no lawyer, and I've never even played one on TV, but it seems to me the chances of this bill passing are still about 1-in-100,000 -- even with the religious Red Guard baying down Congress's neck. And if by some miracle the bill did pass, and Rove swallowed hard and told Shrub to sign it, I suspect the Godless tyrannical judges would quickly find a way to stuff it right back in his face -- just as they did with the Schiavo special legislation.

So we're back to the question I raised in my last post: Are these people simply clueless -- a political Children's Crusade perpetually doomed to be swindled both by their money-grubbing fundraisers and by their "friends" in the GOP? Or is this another clever stratagem -- a way of firing up the troops for an assault that will actually be launched on a different objective?

The answer is the latter. Starting in the early 1980s, Jerry Fallwell's Moral Majority (and those connected) began filing scores of hopeless lawsuits. The idea wasn't to win - the goal was rather to grab headlines that would fire up the base. One of the key lawyers in this strategy was Michael Farris (a number of Farris' greatest hits at that URL), whose involvement continues to this day.

No one can claim proprietary ownership to the idea of using the courts to achieve long range constitutional goals. Brown v. Board of Education was basically the final straw in a long campaign by the NAACP to break the back of the federal court system. And it worked. The first suits in those campaigns were doomed to fail for a variety of reasons, but the end goal was finally met.

In 1954, Brown's essential argument was that the Constitution (with specific regard to the equal protection clause) was meant to be interpreted more broadly - equal protection meant equal protection under one tent, not the legally fictitious 'separate but equal' construction. And this interpretation, which C.J. Warren adopted, is entirely plausible - and it would not be questioned by a single Supreme Court jurist today. It's plausible because our conception of equality finally caught up with the actual meaning of the word as it appears in the Constitution.

But it is also generally understood that the drafters of the 14th Amendment would've laughed long and hard if one were to suggest that the 14th Amendment demanded integrated public schools (This is due to a number of factors, chief amongst them was that public schools were not mandatory much less even prevelant in 1868, especially in the south. Also recall that after the civil war, many southern states were bullied into passing the 14th Amendment as a precondition to regaining a congressional voice).

So it's more than somewhat ironic that the Dominionist Christians have essentially adopted a tactic of the Civil Rights era and perverted it to argue that the Constitution should be interpreted more strictly. Indeed, what they're actually arguing is that the Supreme Court should be precluded from hearing cases brought forward under the Establishment Clause. The line of cases involved with judicial stripping by Congress is admittedly muddy, but no one has ever had the gall to simply propose that substantive parts of the Constitution should be beyond judicial review. It's an insane position to take, with zero likelihood of success.

But that doesn't make it stupid. Because legislation is largely a matter of compromise, setting yourself so far outside the margin, while you have even a modicum of support, is a tactic that, geometrically speaking, pulls the center towards you.

And again, realize that we're dealing with some long-term thinkers here (even if, for some of them, the rapture is nigh). They've got patience and time. And they don't give a shit about anything else. But the vocal opinion leaders certainly know what they're doing, especially in calling for the heads of the judiciary (however, they may have finally bit off more than they can chew - the 'stop the activist judges' argument isn't quite as populist as they thought, and apparently still think).

The point is simply that the Jesublicans are more clever than clueless and have been using this tactic for years.

But both traits are necessary for the game to work. You need a liar and a believer. (Homer: "It takes two people to lie, Marge - one to lie and one to listen.")

The cleverness is rooted to the fact that, unlike civil rights litigation (where the goal was to win), this game relies, nay, depends on losses. Only with legal defeats can you appeal to the basest of Christian instincts - persecution (just ask Mel Gibson, who took this lesson to the bank).

And while it seems a difficult argument to make, that a group comprising 85% of the population is somehow a persecuted minority, it's one with great appeal and has been used to maximum effect for years, even though it has no basis in fact. Christians in this country have pretty much done whatever they want in the name of their religion provided they don't impose it on the rest of us, which is what the Establishment Clause is all about.

And so yes, their end goal is to remove judicial review as to all Establishment Clause cases by this Act and I don't doubt that it's not a sincere one. But you don't get there without lots of losses in court. Losses in court produce two things: headlines and judicial targets, and both feed on each other to produce devoted followers... with a hatred of judges and the entire judicial system.

The average evangelist who thinks it'd be a good idea if this country was run by God or those self-ordained by him probably don't have a clue how legally implausible this is under our Constitution. And that ignorance makes it that much easier to instill in them an antagonistic belief system that can germinate into something else over time. As I noted, they've nothing but time.

So on one hand, you really do have to be clueless to believe that this Act has any chance of passing, but you'd have to be pretty clever to snow people into thinking it does.

May we all live in interesting times. So interesting that I can barely keep up. Just so it's down for posterity in the spam-littered Movabletype database, I want to quickly note a few posts from other blogs that caught my eye.

Billmon, perhaps the best writer in all of blogospheria, touched on religion a few times this week, first as a reconsideration of the pope's tenure (he had earlier called it a 'wash'), and then in his hilarious Unitarian Jihadist parody.

James Wolcott warms my heart in dissecting CNN's pope coverage from last week:

Although Hunt joked about Bob not signing on to the "Blessed are the poor" part of the Bible and Dionne facetiously said he now was hoping for a political conversion as well, the truth as any CNN viewer knows is that Novak's Catholic conversion has made him no more compassionate to the poor, weak, and infirm, no less smarmy and reputation-slurring than he was as a young punk sneering at Commie-symps and rummaging Martin Luther King. Catholicism has just provided him with a church organ for his natural pomposity.

I wonder how much airtime CNN or any other cable outfit would give to one of its correspondents who converted to Islam or Buddhism, or, sacre bleu, renounced religion and declared him or herself an atheist. I have a feeling that in the latter case they wouldn't dispatch a camera crew to the New York Historical Society to film the correspondent studying reverently the texts of the Thomas Paine: Patriot and Provocateur exhibit currently on view. No, the personalization of on-air talent only goes so far.

There's also a really interesting article in Rolling Stone (!) of all places (via Gadflyer), which cautions us to distinguish between your garden variety Evangelical and the far more dangerous strain of Christianity - the Dominionist. The 'africanized' version of the Christian honeybee.

Meet the Dominionists -- biblical literalists who believe God has called them to take over the U.S. government. As the far-right wing of the evangelical movement, Dominionists are pressing an agenda that makes Newt Gingrich's Contract With America look like the Communist Manifesto. They want to rewrite schoolbooks to reflect a Christian version of American history, pack the nation's courts with judges who follow Old Testament law, post the Ten Commandments in every courthouse and make it a felony for gay men to have sex and women to have abortions. In Florida, when the courts ordered Terri Schiavo's feeding tube removed, it was the Dominionists who organized round-the-clock protests and issued a fiery call for Gov. Jeb Bush to defy the law and take Schiavo into state custody. Their ultimate goal is to plant the seeds of a "faith-based" government that will endure far longer than Bush's presidency -- all the way until Jesus comes back.

You'd be wrong in marginalizing them too - they have inordinate pull:

It helps that Dominionists have a direct line to the White House: The Rev. Richard Land, top lobbyist for the 16-million-member Southern Baptist Convention, enjoys a weekly conference call with top Bush advisers including Karl Rove. "We've got the Holy Spirit's wind at our backs!" Land declares in an arm-waving, red-faced speech. He takes particular aim at the threat posed by John Lennon, denouncing "Imagine" as a "secular anthem" that envisions a future of "clone plantations, child sacrifice, legalized polygamy and hard-core porn."

And onward they march with their pitchforks to the court house steps. From Congress Daily via Atrios:

Christian conservatives and a core group of congressional supporters are launching a significant new push to restructure the federal judicial system to reflect a more explicitly biblical world view, in the hopes that these changes will pave the way for broader social and political changes, leaders of the movement said.

Some of the most prominent conservative leaders in the country -- including Vision America's Rick Scarborough, Coral Ridge Ministry's James Kennedy and the Free Congress Foundation's Paul Weyrich -- launched the effort Thursday in Washington.
Members of the new coalition said they would immediately focus on bringing an end to Democratic filibusters of President Bush's judicial nominees before pushing Senate Majority Leader Frist to enact sweeping changes in the judiciary.

They also warned that Frist and other politicians who have thus far been reluctant to force a confrontation with Senate Minority Leader Reid over the nominations would be held accountable if Democrats continue to block conservative judges.

Participants at this week's Judeo-Christian Council for Constitutional Restoration meeting said the group also will focus on forcing Congress to begin impeachment proceedings against any judge who does not conform with their biblically based interpretation of the Constitution, as well as permanently curb judicial authority over matters of church and state, marriage and governmental acknowledgement of a Christian deity.

"What it is time to do is impeach justices," Texas Justice Foundation President Allan Parker extolled a crowd of a hundred or so conservative lobbyists, attorneys and activists. "The standard should be any judge who believes in the 'living constitution' should be impeached."

First of all, a quick word on the 'living constitution' - while the term wasn't coined until much later, the idea goes back much farther, and is a far more accepted mode of interpretation, with varying degrees, than the strict originalism espoused by Parker above. In 1819, Chief Justic John Marshall said in McCulloch v. Maryland:

'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs'

Now whether this judge impeachment talk has any chance in hell is a separate question that I've been pondering for the past week and I'll try to make my thoughts more clear on these pages as things heat up. And they will heat up. But I think that high tide may have come and gone for the Jesublicans on this issue, and they simply aren't politically subtle or attuned to admit it to themselves. Unfortunately for them, much of the rhetoric the public heard on 'judicial imperialism' came from the mouth of Tom DeLay in the context of Terri Schiavo. The judges who upset DeLay so much obviously didn't have the same effect on the people polled at that time, however, and there's no good reason to think that the the public will change its mind when the expected fillibuster debate comes up. Indeed, there's every reason to think that DeLay is simply digging a deeper hole.

And while I may be naive as to the capacity of the media to make intelligent observations on the matter, won't it be hard for the Republicans to get away from DeLay's remarks insofar as it was their own conservative judges in the 11th Circuit that crashed their party? Just what kind of judge are they imagining will do their bidding?

**shiver**

While I've spent a high percentage of this blog's space to the evolution/ID faultline, let's not forget that this administration's attack on science is fought on many fronts. And while sad tales from those battle lines appear each day in the emm ess emm, no one has pulled all the atrocities under one tent as well as Carolyn Abraham of the Globe and Mail in this piece today: American scientists say the Bush administration is interfering with research, especially on sexuality and the environment. Religion and ideology are involved -- but so is a public disenchantment with science itself. [reg. req'd - but so well worth it]

While the story is notable for its investigatory zeal, I take minor issue with her casual and disproportionate reference to "public disenchantment with science" in the headline - because: a) it comprises so little of her story; and, b) assuming there is indeed widespread disenchantment, Abraham fails to address possible reasons why that might be. Indeed, it's reasonable to connect the fact that this administration has spent so much energy attacking science to any disillusionment on the public's part.

The pope-to-pope media blanketing is disturbingly uncritical to the point where you'd soon forget that Pope John Paul II for 28 years headed the same organization that finds itself in caption boxes of sex abuse lawsuits too numerous to list. US Archdioceses are considering bankruptcy because the Vatican, in its infinite pipeline-from-God wisdom, deliberately ignored the ten thousand or so signs that those archdioceses were operating a dating service for NAMBLA members.

But that's all been said and by people a whole lot angrier than me. As for what's next, we can only look to PaddyPower.com and place our bets on the next pope [update: PaddyPower.com, the online Irish bookmaker, has pulled its Vatican odds. Googlecache here. My guess is that their market was prone to manipulation by bettors with access to better information than the book, so they froze it]. And be frightened. For all this pope did and was, the next pope will apparently make liberals wax nostolgiac for JPII in the same way US liberals came to realize that Ronald Reagan wasn't so bad when held next to a true wingnut like George W. Bush.

Because JPII held on for so long, nearly all the cardinals elected to the cardinal college were elected by JPII - and so share his ideology. And just to make sure, JPII expanded the college by some 30+ seats (and immediately filled them with ultra-conservative ringers) only a few years back, as a statistical assurance against any surprises; like the one that led to JPI's election after he split the frontrunners, who had both managed to disgust the voting cardinals with sleazy campaign tactics. JPI, you'll recall, promised to open the Vatican Bank books to clear up rumors of scandal. A picture of perfect health prior to popedom, he lasted 33 days.

But there will be no surprises this time. The next pope will be a true wingnut.

Let's briefly look at the top candidates.

Dionigi Tettamanzi (Italy) (5 - 2)

Tettamanmzi, the top Italian choice and odds-on favorite, is not only at odds with homosexuality but even civil unions ("The attempt by society and the civil law to give equal status to families and domestic partnerships must be considered false and falsifying"). In addition to these sentiments, sees "Excommunication for procured abortion constitutes" as a "gesture of maternal love."

What's scary is that Tettamanzi is by far the most moderate and pensive of the candidates.

Francis Arinze (Nigeria) (11 - 4)

Because Catholicism has demographically drifted below the equator over the past quarter century, there is reason to think that Nigeria's Francis Arinze will find himself as the next pope. Africa has become a modern day Crusades-arena, with constant and often deadly muslim-christian friction in nearly every country. Electing Arinze would send a message that the Catholic church takes the situation in Africa quite seriously. It would also send a message to the West of an unambiguous and unyielding stance on stem cell research and abortion.

ABCNews.Com reports that Cardinal Francis Arinze compared abortion and genetic research to the 9/11 terrorist attacks,

He appealed to Buddhists to work against "a culture of death, in which abortion, euthanasia and genetic experiments on human life itself have already obtained or are on the way to obtaining legal recognition."

Oscar Andrés Rodriguez Maradiaga (Latin America) (4 - 1)

Maradiaga is the leading candidate from Latin America, which, like Nigeria, has experienced exponential growth in recent years, as opposed to Europe, where Catholicism has flat-lined somewhat. Not to be outdone in the hyperbole department by his competitors, while attempting to explain the media coverage of the sex abuse scandals in America, Maradiaga said, "Only in this fashion can I explain the ferocity [in the press] that reminds me of the times of Nero and Diocletian, and more recently, of Stalin and Hitler."

Joseph Ratzinger (Germany) (7 - 1)

We all make mistakes when we're young, but you'd think that Joseph Ratzinger's brief fling as a Hitler Youth would come up a bit more often when the media discusses his overall qualifications. Not that there's anything wrong with a little youthful indiscretion, but perhaps the tolerance Ratzinger learned in 1930s Germany has carried over:

As if that weren’t enough, the ever-busy Cardinal has used his privileged take on the Truth to set back inter-faith tolerance and religious pluralism a few decades. In 1997 Ratzinger annoyed Buddhists by calling their religion an ‘autoerotic spirituality’ that offers ‘transcendence without imposing concrete religious obligations’. And Hinduism, he said, offers ‘false hope’; it guarantees ‘purification’ based on a ‘morally cruel’ concept of reincarnation resembling ‘a continuous circle of hell’. The Cardinal predicted Buddhism would replace Marxism as the Catholic Church’s main enemy this century.

The article is here but is registration only. I'll post the entire thing, as it's all relevant. Two impressions: 1) It's depressing that Newdow has to jump through so many hoops to protect his plaintiffs from the defenders of God. And 2) Lost in this story is a strong indication that Newdow has his ducks in a row this time. SCOTUS was able to breathe a sigh of relief when it booted Newdow on standing grounds last time around, but Newdow appears to have cured his Standing issue by assembling a boatload of plaintiffs with some compelling constitutional injuries. Underscoring those injuries is the very fact that Newdow was able to so easily procure this anon deal for his plaintiffs - and apparently without dispute from the opposing side. Anyway, salut to Newdow, who is performing a thankless task on behalf of all atheists and agnostics - the last remaning classes of law-abding persons who can be openly discriminated against.

Accord shields Newdow allies
New challenge to Pledge of Allegiance keeps names of eight co-plaintiffs secret.
By Denny Walsh -- Bee Staff Writer
Wednesday, March 30, 2005

To avoid "potential harm" to eight people who have joined avowed atheist Michael Newdow in a quest to strike "under God" from the Pledge of Allegiance, a federal judge agreed Tuesday to allow them to remain anonymous during what is sure to be a closely watched legal fight over the highly charged issue.

Newdow, who filed the lawsuit using pseudonyms for all the plaintiffs except himself, proposed in a motion to keep anonymous the names of the parents and students in Sacramento County and San Joaquin County school districts.

Attorneys for the defendants - Congress, the federal government, California, and five school districts in Sacramento and San Joaquin counties and a top official from each district - ratified the proposal in a written agreement.

"It is believed that disclosure of the actual and true names of either the children or their parents will subject the minor children (and their parents) to potential harm," Newdow wrote in his motion.

The written agreement, approved by U.S. District Judge Lawrence Karlton, decrees that the true identities of the four adults and four children "will be protected from disclosure" and "will be deemed 'confidential information.'"

Craig Blackwell, a senior trial counsel with the U.S. Department of Justice who represents the federal defendants, declined to oppose the motion because of the contents of a sworn statement by Newdow attached to the complaint and "certain allegations" in the complaint.

The identities of the plaintiffs will be available to defense attorneys "for the purpose of obtaining information necessary to defend the case," the agreement provides.

The names also will be available to Karlton "or any other officer who presides over any proceeding in the case, and to court reporters as necessary."

Papers that contain the true names may be used in court "if the documents are filed under seal."

Newdow initially submitted a motion to Karlton asking that his co-plaintiffs be allowed to proceed anonymously and never have to personally appear in court. The motion sought to have them testify through depositions under their pseudonyms should the need for their testimony arise.

The agreement approved Tuesday sidestepped the matter of testimony, saying only, "That issue will be discussed by the parties at a later date."

This is Newdow's second time around trying to get the phrase out of the pledge, and he says he wants his fellow plaintiffs spared the harassment and abuse he has already encountered.

In the earlier case, the 9th U.S. Circuit Court of Appeals touched off a national furor when it sided with Newdow, but his victory was short-lived. The U.S. Supreme Court found Newdow, the lone plaintiff, lacked standing to sue because he is not the primary custodian of his daughter.

Her daily exposure to the pledge in an Elk Grove public schoolroom was at the heart of that case.

To rid himself of that problem in the new case, filed in January, Newdow enlisted four custodial parents of students in Sacramento County and San Joaquin County school districts, as well as the students themselves, to serve as co-plaintiffs.

Newdow, an emergency room physician and nonpracticing lawyer, is acting as the only attorney for the plaintiffs.

Attached to the motion are the affidavits of a parent and three students, none of whom are involved in the litigation but who were either physically attacked or ostracized and ridiculed because of stands they took against religion in the classroom.

In the declaration attached to the complaint, Newdow describes the abusive reactions to his first lawsuit:

"I was repeatedly told that I should leave the country.

"Strangers left messages on my answering machine, calling me, among other things, ... a 'sick son of a bitch,' an 'imbecilic bastard,' a 'traitor,' a 'stupid whore,' ...

"Strangers also at times identified me in public. I was referred to as 'the freak' in public, when I was with my child."

He also recounted in the declaration that on March 26, 2004 - two days after oral arguments before the Supreme Court in the first case - a talk he was invited to make at the University of Toledo was delayed by a bomb threat.

In the second complaint, Newdow alleges one of the unnamed plaintiffs "has suffered harassment by other students" because of the child's refusal to recite the pledge.

Another of the plaintiffs "has been singled out and castigated" by a teacher for not reciting the pledge, "and has even been forced into a different seat because of (an) unwillingness to compromise religious principles."

A third unnamed plaintiff "recites the pledge, but leaves out the words 'under God.'" Because of that, the child "has been singled out and ostracized by other students" and "now attends school fearful of ridicule and other social consequences."

Blackwell wrote in his brief that the allegations, "if true, could support a need for anonymity. Defendants assume the good faith of these allegations, and that plaintiffs could, if necessary, support these allegations with declarations."