For the past dozen years, the United States has been beset by a lawless conservative majority on the US Supreme Court: One that has on two separate occasions issued flagrantly partisan, arbitrary fiats out of thin air directly assaulting the right of the American people to a representative government - Bush v. Gore, and Citizens United v. Federal Election Commission. As a result of Bush v. Gore, the man they put in power was able to maintain the conservative majority on the Court by replacing two of its members who subsequently retired, and this second majority issued the 5-4 ruling in Citizens United legalizing bribery and granting the wealthy double rights through ownership of corporations.
This second case was only taken up after the GOP's crushing 2008 electoral defeat via small-donor fundraising, and the ruling unsurprisingly led directly to the Republican Party retaking the US House of Representatives in 2010. Now, after the 2012 election where minority turnout was key in securing a Democratic victory, the infamous Five have decided out of the blue to review key portions of the Voting Rights Act of 1965 that have stood for two generations - the landmark civil rights law that, among other things, grants the federal government approval of state election procedures in places with a long (and ongoing) history of attempts to suppress minority voting rights. Remarks by the Five in the course of hearing the case have indicated a likelihood that they intend to strike down key enforcement mechanisms.
If this ruling occurs as expected, it would be the final straw in a pattern of nakedly partisan rulings transparently designed to undermine and destroy rather then enforce the Constitution, and almost certain to directly compromise the voting rights of millions. If it happens, impeach them. Three strikes and you're out. As rare as impeachment of any kind is, especially against the deserving, such a ruling would be the definition of abuse of power, and only the latest in an organized and clearly premeditated program of lawlessness in America's highest court.
Unlike earlier calls for prosecution of Bush's war crimes, which failed due to the complicity of the entire State and both parties, striking down VRA would be a brazenly partisan act that directly attacks the rights of racial minorities: An area in which elected Democrats today are uniquely suited, if not politically required to intervene to defend their oaths of office. In other words, this is not some quixotic demand: We can, and must impeach these corrupt judges if they gut VRA, and primary any Democrat in Washington who stands in the way. It would be a rare instance where patriotic duty and partisan political necessity were identical, and neglecting both would be inexcusable even to the most cynical. Details after the fold.
I. The legal case for impeachment.
Abuse of power is one of the most fundamental and indispensable grounds for impeaching a public official, and one that does not require proof of specific crimes being committed. For instance, Richard Nixon's firing of a succession of legal officials who refused to stop investigating him (known as the Saturday Night Massacre) was technically within his legal authority as President, but presented an acute case of abusing power that would have justified impeachment even if he had not been involved in the Watergate burglary. Without the ability to impeach for abuses of power, all other possible charges would be far less likely to ever be brought, let alone succeed.
Frankly, the Five already act more like a Spartan oligarchy imposing their arbitrary will on the republic than judicial experts rationally reconciling and interpreting its laws within the Constitution, and at least a theoretical case that they should be impeached for abuse of power already exists for acts previously committed. But if they undertake this final outrage, and seek to undo key achievements of the Civil Rights movement from federal law in a naked bid to preclude a repeat of the 2012 election, that not only seals the deal in terms of justifying impeachment, but also brings it within the realm of both Constitutional necessity and political practicality, as I discuss below.
Now, our system of government is designed so that the Judicial Branch is the most independent and least accountable to political tides, which is as it should be: Law is an expert profession that, somewhat like science, depends on a consensus of people with highly detailed knowledge peering into minutiae in order to tease out the practical implications of often confusing, disordered, or even conflicting laws. By necessity, this requires a level of insularity from public opinion, which is why high judges are appointed for life. However, this does not mean there are no limits on the arbitrary discretion of a judge in the performance of their office.
For instance, although judges have broad discretion to hold people in contempt, if they used this authority in a brazenly lawless way - e.g., holding a woman in contempt for spurning sexual advances, holding black people in contempt for refusing to call them "Massa," etc. - not only would their citations be overturned, but the judges themselves would be investigated for disciplinary action including possible removal from the bench if the offending acts were part of a pattern. The same standard applies to all authorities of the bench, and must apply even more greatly to the Supreme Court that is given veto power over the laws of elected authority.
Revoking key protections of the Voting Rights Act after an election where minority voting defeated the GOP would establish an ongoing pattern of lawless, partisan judicial decision-making on the part of the majority in direct opposition to both the letter and spirit of the Constitution, and require their removal from the bench. Failure to impeach in that scenario would in essence nullify the Constitution and reduce our republic to an oligarchy of five. To do anything they damn well pleased, all they would need is a single lawyer to file a case on the subject, arbitrarily put the case at the top of the pile, and then issue their "opinion" that up is down and slavery is freedom, regardless of what the Constitution says.
This is exactly how Citizens United played out following the 2008 election, and how it looks like the destruction of VRA will play out following the 2012 election. In other words, impeachment would not merely be "on the table," but an imminent necessity for Constitutional government to exist at all, let alone a society where racial minorities have a right to participate in elections.
An impeachment investigation would have to begin in the House of Representatives, which is currently controlled by Republicans thanks to Citizens United and the flagrant gerrymandering subsequently enabled: The majority of votes for House went to Democrats in 2012, so the Republican "majority" is not representative of anyone but their campaign contributors and the Five judges responsible for legalizing the purchase of public office. However, don't take it for granted that an impeachment investigation could not be forced by Democrats: The Republican Party already looks (in fact, is) flagrantly racist, and standing in the way of a united Democratic "minority" demanding investigation with an overwhelmingly vocal role played by the Congressional Black Caucus and its Latino counterpart, would look very bad and only get worse the longer the confrontation continues while they obstruct.
Do not underestimate the optics involved: Regardless of what technical fig leafs the actual decision involves to cloak its intent and practical significance, what the American people will hear overwhelmingly from us across the board is the basic truth that the GOP struck down the Voting Rights Act after losing an election due to minority voting and is obstructing attempts to investigate the fact. In other words, that they are trying to undo the Civil Rights movement, reinstitute Jim Crow, and rig elections for their Party by stopping racial minorities from voting - which, in fact, would be the case. And, we would hasten to add, that the "majority" through which they are undertaking this obstruction was never elected by the American people, but orchestrated through manipulation of the system in direct conflict with how most people voted.
Republicans with any remote sense of political competence would want to appear cooperative with the focused outrage of minority political leaders and citizens, and those in vulnerable seats with significant minority populations could be brought along at least on a superficial level. Coupled with investigations in the Democratic Senate - which wouldn't yet have impeachment powers unless/until the House passed articles of impeachment, but would still be very potent at discovering facts and shining a spotlight on the Five's actions and ethics - I think it is entirely within the realm of possibility that at least one of the Five (Scalia) would end up becoming a liability to his own allies and be forced to resign. But none of these outcomes are necessary - in fact, no cooperation from the GOP whatsoever is necessary - to move forward with substantive action, such as the following:
1. The President should ignore any lawless ruling striking down enforcement provisions of VRA, and continue to enforce the rights of minority Americans against racist state governments that would otherwise deprive minorities of the right to vote. The Constitution says what it says, and up does not become down just because five people say so. Presidents swear to uphold and defend the Constitution, and sometimes the Supreme Court is the one attacking it. This would create a Constitutional crisis with the state governments thus overseen, but in fact such a crisis would already exist due to the ruling, and continuing to enforce VRA as long-sustained by the courts would merely acknowledge an imminent fact: That the Constitution is under assault by the Supreme Court.
It must be acknowledged that attempting to enforce VRA against a lawless SCOTUS ruling could lead to terrorism by white supremacist Republicans and their allies in various fields of government, but failing to enforce it would not mean that a crisis wasn't taking place - it would simply mean that we surrender to the other side. I don't know what the prospects are for the President standing firm in such a confrontation or even standing at all, but he has surprised before - and not for nothing the man is such a student of Lincoln. Moreover, it would be politically suicidal for Democrats to NOT act strongly against such a ruling, both because it effectively eliminates their 2012 coalition by judicial fiat, and because the racial minority alliance that underlies our party would no longer regard it as an effective vehicle for upholding their rights and interests. But again, even POTUS is not necessary to make things happen, because...
2. Governors of states that attempt to use the ruling to block minority voting can be recalled or impeached, and the same with legislators who enable or defend them. Boycotts of those states can be undertaken, as well as of their electoral process until people are convinced they will be allowed to vote and their votes counted. Moreover...
3. Senators and Congressmen "elected" by those states in processes that disenfranchise minorities can be expelled from either body, or at very least unified attempts to expel them undertaken and their careers forever tarnished as unelected crooks put in office by apartheid systems.
4. The professional lives of the Five can be directly impacted by the fact that all minorities with cases before the Court would now be able to demand their recusal on the basis of that ruling - especially Antonin Scalia, with his bald-faced dismissal of voting rights as a "racial entitlement." Whether or not any of them agree to be recused, the demand can be plausibly issued on the record, tarnishing them and the legitimacy of their subsequent decisions, and making it more likely that lower courts will ignore them rather than legitimizing them as precedent.
As this process unfolds, Antonin Scalia should be the poster-child for the Five, as he is in fact the epitome of the naked partisanship, lawlessness, and corruption at the heart of their majority. Everything he touches becomes infected with his Pig Pen-like cloud of sleaze, racist arrogance, criminality, and disrepute, and he of the Five is by far the most likely to be impeached or forced to resign by his own allies in a protracted firestorm.
So, in conclusion, this is where I draw the line and hope you will draw it with me. If the Five strike down the ability of the government to enforce the voting rights of millions of Americans, I will be exercising my mind and effort to see that they are impeached; that Democrats in office who fail to recognize the seriousness of the situation get an education fast; that Democrats in office who stand in the way of holding criminal tyrants on the bench accountable are expelled from the Party; and that Republicans either hop on board with investigations into these crooks or be labeled within the halls of power and mainstream discourse as segregationists and election thieves.
Of course, it's possible that no part of the VRA will be struck down, so we'll just have to wait and see whether conservative domination of the Court has its own best interests in mind or if they've decided to self-destruct in an act of reckless arrogance.
2:59 AM PT: I should have anticipated from previous experience that advocating holding anyone in the legal profession accountable for anything would bring out the John Yoo-school authoritarian loons to attack the idea. A while back I advocated a "lawyer draft" similar to jury selection to guarantee that people have equal access to quality representation, and it brought all sorts of freaks out of the woodwork calling me a "Communist" and shrieking hate at me personally. Some of the (chuckle) "criticism" this diary is getting reminds me of that.