Michael Mukasey will be the next Attorney General of the United States. To successfully scuttle his nomination always required that all 10 Democrats on the Senate Judiciary Committee vote no, and Majority Leader Harry Reid then refuse to move the nomination to the Senate floor. With Friday’s announcement by "Democratic" Senators Dianne Feinstein and Chuck Schumer, both members of the Judiciary Committee, that they will support Mukasey’s nomination, the fight is over: Mukasey now has a lock on a majority in both the committee, and in the full Senate.
The Senate has acceded to Mukasey’s appointment despite the fact that Mukasey has refused to commit the United States to the Geneva Conventions, refused to adhere to the international legal consensus that waterboarding is torture, and refused to repudiate the dictatorial notion that the president is free to disregard any law so long as the sovereign feels he must do so "to defend the country." In approving Mukasey, the "Democratic" Senate can only be seen as implicitly endorsing all three positions.
This sends a very strong message to three groups of people--the United States Supreme Court, the peoples of the world, and the people of the United States. And, in each case, the message the same: anarchy uber alles.
anarchy: absence or denial of any authority or established order
None of the very most egregious acts of the Bush administration, justified by its War on Terra, have yet been condoned by the United States Supreme Court. The high court has not endorsed torture, has not permitted the Bush administration to disregard international law in the treatment of prisoners, has not given its blessing to the kangaroo courts of Guantanamo, has not ratified the suspension of habeas corpus, has not signed off on the preposterous pre-Magna Carta balderdash of the "unitary executive." Some of these issues have yet to reach the Supremes; on those that have, the Bush administration has everywhere been frustrated.
This has largely been due to belated guilt spasms in Justice O’Connor over her role in anointing George II emperor, coupled with an aristocratic distaste for the crudity of the Bush people; and to Justice Kennedy’s inflated view of himself as some sort of high potentate of international law.
Justice O’Connor is now gone; today there are four ready votes on the Supreme Court to rubber-stamp just about any outrageousness that flows out of the White House--just as there are four ready votes in opposition.
At the center is Justice Kennedy.
Every summer this man spends in Europe, lecturing on international law, hobnobbing with jurists from other nations. In his mind, he is the US representative of a global legal elite that is striving to bring order and symmetry to the laws governing nations.
As such, he has just not been ready, yet, to come back on a summer to his international brotherhood of robed companeros, with his hands dirtied by having voted to, oh, say, permit the zealous, half-cocked sovereign of the US to grab, without warrants, people off the streets; throw hoods over their heads while injecting drugs into their buttocks; fly them to secret sites where they are held without legal process and without notice to international monitoring agencies, there subjecting them to forms of torture perfected by precursors ranging from the Stalin-era Soviets to the Spanish Inquisition; then run them in front of half-baked military kangaroo courts, where they may not be informed of the witnesses, evidence, or sometimes even the charges against them, while their lawyers are meanwhile harrassed, wiretapped, threatened, and fired.
Neither does he want to have to fly to Europe, there to look those people in the face, and say, yes, I voted to allow the Congress and the Executive to suspend habeas corpus Just Because, and yes, I voted to recognize the hallucination of the "unitary executive," and thus, yes, I am complicit in having catapulted the United States back to the year 1214.
But. It is not only fact that "the Supreme Court follows the election returns" (when it is not deciding them), it is also fact that the Supreme Court follows conflicts between the legislative and the executive branches of government. And it is furthermore a fact that, as the lead lawyer in my firm--who was once a constitutional law student of Justice Kennedy’s--says, "Tony Kennedy is a weak reed." Meaning any wind can blow him.
If the Congress, in approving as Attorney General Michael Mukasey, is not going to buck George II’s decrees that waterboarding is not torture, that the US is not bound by the Geneva Conventions, that the president is free to act howsoever he wishes, Congressional enactments notwithstanding, so long as he acts "in defense of the country," then why should he, Tony Kennedy, any longer stick his neck out? Why not climb on aboard the bandwagon, there with the legislative and the executive, and ride with the winning team? He can always go lecture on international law in, say, Latin America, rather than (sigh) Europe.
The Congress wants anarchy of the sovereign? Tony Kennedy will give it to them.
The message sent by the confirmation of the Mukasey appointment to the peoples of the non-Euopean world is a simple one: not only the Bush administration, but the entire United States government, is my enemy.
These people have known for years that Bush and his people have no regard, no respect for them, that it will kill them, will torture them, will kidnap them off the streets, will threaten their families, will drop bombs on them, will threaten, will undermine, will invade their countries.
But they had heard that there was an opposition in the United States, some people known as "Democrats." They had believed that these Democrats were opposed to Bush, that these Democrats believed that the way that Bush behaved was not right.
But now they will learn--and oh yes, they will learn--that these Democrats, in approving of Mukasey, these Democrats too have come over to winking that torture is not torture; that international law does not apply to the the US, but only to weaker peoples and nations; that in the US, as in many of their own countries, "the ruler may do as he wilt, is the whole of the law."
In European and other industrialized nations, it will be understood that the Democratic Party, formerly "the opposition party," has chosen to "oppose" in a Potemkin way only. That it is becoming eerily similar to the "opposition" in the fictional African nation portrayed by Kenyan novelist Ngugi wa Thiong'o in Wizard of the Crow, an opposition born when an American emissary advises the nation’s potentate: "I have been sent to urge you to start thinking about turning your country into a democracy. Who knows? Maybe with your blessings, some of your ministers might even want to form opposition parties."
The US not bound by international law? The US sovereign free, blessed by his "opposition," to torture? The US sovereign not bound by any law, foreign or domestic? Then, neither shall we be bound by international law, neither shall we quail before torture, neither shall our sovereign, or even ourselves, be bound by any law.
We, too, want to be, anarchy.
The message sent to the American people by the confirmation of the Mukasey appointment is identical: the US government is your enemy.
Mr. Justice Brandeis would understand this. We are the poorer that no one in a position of authority has repeated his words during the Mukasay appointment process. In dissent in Olmstead v. United States (1928) 277 U.S. 438, at 485, in a case involving--surprise, surprise! eternal recurrence!--warrantless wiretapping by federal officials, Mr. Justice Brandeis wrote this:
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
I'm feeling sort of like anarchy this morning. I've long known my executive doesn't feel bound by any "law" except whatever wish tickles his will upon arising each morn. But now I learn my "Democratic" legislative branch feels the same. The sovereign wants to torture? A-OK. The sovereign wants to give the back of his hand to the Geneva Conventions? A-OK. The sovereign wants to turn his back on any law that does not suit his "protect-the-homeland" fancy? I vote for Mukasey: therefore I say A-OK.
Okay. I get the drift. But see: the drift here is towards me. Because what all these bloviators, executive and legislative, tend so always to forget (but which Brandeis never did), is that they are just representatives of me. So long as we have this democratic republic, I, a citizen, am in charge. These people, legislative and executive, work for me. They are therefore not permitted to assume any powers which they are unwilling to grant, twice over, to me.
So: this pain in my back is becoming a pain in the ass: I'm going to grow opium out there in my garden, and brew me up some opium tea. The neighbor's dog is bothering my cats: think I'll shoot it. So what if I'm speeding--no gendarme has a right to interfere with me unless I crash. I don't like that my taxes go to half-crazed snake-handlers who roar into the schools to tell my daughter not to have sex: that's it, no more taxes for you. That malpractitioner of a doctor gave my father-in-law indescribably painful third-degree burns on his groin: my, don't his house look pretty, there as it burns.
I'm just my sovereign, officer. I'm just exercising my "unitary executive" powers to disregard the law, when I feel my "personal security" is at risk. The Congress said, in voting for Mukasey, that my president could do it. And I, they said in my schoolbooks, am more important than the president. The president, after all, only works for me.
I am my President, blessed by my Congress: I am Anarchy.