The Fundamentalist Take Over of America, Now Underway.

America: The Fundamentalist Invasion
By Philippe Boulet-Gercourt
Le Nouvel Observateur

Thursday 17 November 2005 edition

These reactionaries who judge in God's name.
They're in the White House, already control the Senate, the House of Representatives, and the Supreme Court. Today, the ultras of the extreme religious right also want to stuff their own men into the whole judicial apparatus.

Are you a Minimalist? A Strict Constructionist? Or an Evolutionist then, a partisan of a "living Constitution?" If you find yourself scratching your head with perplexity, welcome to the club of 99.9% of Americans who understand none of these questions. If not, perhaps you were present at the annual Federalist Society dinner last Thursday in Washington. In which case, you will surely have heard Karl Rove's speech. After weeks of silence, all devoted to avoiding an indictment in "Plamegate," the White House guru chose this association to make a much-noted reappearance. The Federalist Society? A select and powerful club of jurists among whom a few leftists are numbered for appearances' sake, but which, in fact, finds itself at the heart of the most important conservative crusade of the Bush presidency: a complete takeover of the judicial system.

The choice of Karl Rove was no accident. He came to dinner with Leonard Leo, the association's vice president, who has just taken a seven month leave to help confirm conservatives to the Supreme Court. Leo is part of a group nicknamed "the four horsemen" that organizes a telephone conference every Monday with the White House. Karl Rove often participates in it. There, the latest news about the campaign to stuff the federal bench with reactionaries is exchanged. It's a longterm campaign, begun in the 1980s by Edwin Meese, Ronald Reagan's Attorney General and one of the "four horsemen."

Now, today, these men are close to achieving their objective: Republican appointees control ten of the thirteen federal courts, a number that should increase to 12 in 2008. As of today, according to the "National Law Journal," close to 85% of Appeals Court judges will have been chosen by Republicans. The jackpot is obviously the Supreme Court, where, after John Roberts's confirmation as Chief Justice, hard-line Republicans are about to obtain a solid majority with the nomination of Samuel Alito, an eminent member ... of the Federalist Society.

Why this obsession on the right? After all, the Republicans already control the Presidency, the Senate, and the House of Representatives and they've named six of the nine judges on the Supreme Court. To justify their relentlessness, the conservatives advance a convenient explanation which they've polished to a fine luster over the years. America is victim to "judicial imperialism" on the part of judges transformed into "robed legislators," as Rove repeated last Thursday. Bush, for his part, does not miss any opportunity to denounce those magistrates who "legislate from the bench" instead of "strictly" applying the Constitution, all the Constitution, nothing but the Constitution.

In its unrefined populist version, this criticism denounces unelected leftist judges who dare to contradict the vox populi. For example, the decision by the Ninth Court of Appeal to prohibit the recitation of the Pledge of Allegiance in public schools because it contained the words "under God." This decision could have provoked a legal debate worthy of the name. Not only because these two words "under God" were added in 1954 - right in the middle of the McCarthyite hysteria - to counter Communism, but also because the Constitution explicitly interdicts "the establishment of a religion." The actual debate over this judgment - later invalidated - provoked a torrent of criticism, some even suggesting the Ninth Court of Appeals be castrated by limiting its authority to California only.

A second, more recent example: the courts' decision with regard to Terry Schiavo, the Florida women living in a vegetative state whose husband wanted to "unplug" her. The law was so clear that "when Terry Schiavo finally died March 31, the Appeals Courts had decided more than twenty times against the Schindlers [Terry's parents, who wanted to keep her alive]," writes Catherine Crier, author of a virulent book about the right's offensive against the courts. [1] "During this whole affair, the courts resisted the efforts of the Florida legislature, Congress, Governor Bush and President Bush to violate the Constitution." In other words: the conservative right respects the letter of the law ... except when judges' decisions go against what it demands or it decrees to be the desire of the majority.

More subtlely, the fundamentalists' theoretical justification is defended at the Supreme Court by Judge Scalia, Judge Thomas, and, if he is confirmed by the Senate, Judge Alito. Their philosophy: in its interpretation by judges, the Constitution must mean exactly what it meant at the moment of its ratification. No more, no less. At first blush, the idea of ridding this admirable text of all posthumous political interpretation can only seduce, and one understands why Bush placed his judicial offensive under the sign of "objectivity." But in reality, the rigidity of the fundamentalists is a decoy - or rather, a convenient fig leaf for these ultra-reactionaries. In their style, fundamentalists such as Scalia are models of intolerance. They reduce their critics to the ranks of "cretins" and their hatred for evolutionists - those who think that the Constitution is a living organ the interpretation of which must necessarily evolve over the centuries - is equal only to "Creationists'" hostility to Darwin. Their stict reading of the Constitution "finds a parallel in the literal interpretation of the Koran or the Bible," remarks Cass Sunstein, author of the best book on this radical crusade. [2] And the consequences of their philosophy are potentially terrifying.

In his book, Professor Sunstein imagines some of them: holding to the letter of the Constitution, states can prohibit the sale of contraceptives; key elements in the laws against pollution or work accidents would be unconstitutional; the federal government could discriminate on the basis of race or gender; the individual states in the union could establish official churches; the president could dispose of enlarged powers to detain persons suspected of terrorism or suspected of having helped them; significant dispositions of laws like the Clean Water or Endangered Species Acts, and maybe even civil rights, would no longer be within the purview of the Federal government; even the most modest laws controlling firearms would no longer be valid. Add to this list the right to abortion which, according to Scalia & Co., has no basis in the Constitution.

Fundamentally, this literal reading is as abusive as a myopic reading of sacred texts. One more example: Antonin Scalia - like Karl Rove last Thursday - has declared himself to be scandalized by a recent Supreme Court decision prohibiting the execution of convicts who were minors at the time they committed their crime. According to Scalia, the only real question is whether the execution of a minor was considered "cruel and unusual" - therefore prohibited - at the time when the Bill of Rights was ratified. The idea that judges should take into consideration the fact that such execution is today prohibited or fallen into disuse in practically all the states of the union or that the United States remains one of the only countries in the world to execute minors is, in his eyes, an error - worse, a heresy!

Another example: the separation of Church and State. The Constitution is unclear on this issue, as Judge Sandra O'Connor acknowledged when she exclaimed: "It's hard to draw the line!" Precisely, Scalia objects, "why should the Supreme Court purport to draw a line that is impossible to define if the Constitution doesn't demand it? Why not authorize religious manifestations in any public place?" In reality, the Constitution never purported to compete with the Ten Commandments. It's not a timeless law engraved in marble. A number of its formulations - like the prohibition on "cruel and unusual" punishments - are deliberately hazy, susceptible to interpretation by the following generations, and, moreover, it's this flexibility, this simplicity that provides its genius. During the lifetime of the Founding Fathers, Constitutional interpretational was already a rich and intense activity. In 1802, for example, Thomas Jefferson insisted on the fact that the Constitution established a "wall of separation between Churh and State ..."

The supposed objectivity of the fundamentalists and the ideologues of the right, in fact, covers up a much more sinister ambition. It's a question of imposing reforms that the majority of Americans don't want through the judiciary. Catherine Crier revisits recent polls and shows that two thirds of citizens do not want to see "Roe versus Wade" (the famous decision on abortion) annulled. On euthanasia, gun control, or stem cell research, Americans profess to equally moderate positions. Therefore, for the religious right, the only way to impose its views remains the judicial route. Hence its monomaniacal, obsessive relentlessness, up until now crowned with success.

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