Many in the Washington Establishment – including key parts of the press – fancy themselves doing what’s “good for the country” by shielding Americans from painful realities, like the emerging crisis over a partisan-driven Supreme Court. But the hard truth, not easy lies, is what’s best for the nation, says Robert Parry.
By Robert Parry: Official Washington’s polite society – led by the neocon Washington Post – is chastising President Barack Obama for his faux pas in defending the constitutionality of the Affordable Care Act and in urging the Republican-controlled Supreme Court to show due deference to a law approved by the elected branches of government.
Since Monday when Obama uttered his statement, the Post’s editors have been suffering from the vapors – publishing two breathless editorials and various columns – and sputtering about Obama’s “jarring” comment.
While rapidly fanning themselves and trying to control their heart flutters, the Post’s editors lamented again on Wednesday that Obama’s “comments strayed perilously close to a preemptive strike on the court’s legitimacy if it were to declare the individual mandate unconstitutional.”
The Post’s editors were apoplectic, too, “that some liberal supporters of the law are preemptively trying to delegitimize a potential defeat, as if no honest justice could possibly disagree with the mandate’s constitutionality. The president’s initial remarks added unnecessary fuel to this contention.”
The Post then lectured Obama about maintaining his proper posture while in the Establishment salons of Washington. “Given the power of the bully pulpit, presidents are wise to be, well, more judicious in commenting about the high court,” the Post said.
What you’re seeing in the Post’s overwrought reaction is its protection of a favored fiction of Official Washington, that the deeply partisan GOP Five, who now run the High Court on behalf of the Republican Party, are not really partisans at all, just responsible jurists fairly applying constitutional principles.
You are not supposed to notice the ugly truth that the GOP Five (like an earlier incarnation of the group in the Bush v. Gore case in December 2000) has set itself up as the rear guard of the Republican army.
Thus, if somehow democracy breaks through the Republican lines – whether a state-court-ordered presidential recount in Florida or a new federal program pushed by a Democratic president – the GOP Five are there to mount a last-ditch counterattack, charging down the hill while shouting incoherent constitutional “principles.”
At other times – when the battle is less pitched – the GOP Five provide logistical support for the frontline political warriors, either opening supply lines for the delivery of massive campaign money from billionaires (via Citizens United) or empowering police to strip search (and thus terrorize) anti-corporate protesters.
That’s the troubling reality: the Supreme Court’s majority has become a reserve battalion of the GOP army. But the Post’s editors and other protectors of the hollowed-out pillars of the Republic can’t acknowledge this fact because it would threaten to crumble the thin layers of marble that remain of the pleasing façades of the capital.
Flipping Over Principle
So, you’re supposed to ignore that the five Republican justices constantly flip their constitutional principles depending on their partisan needs. For instance, regarding the health-reform law, these “strict constructionists” were suddenly demanding that some “limiting principle” be inserted into the unlimited power that the Constitution gave Congress over interstate commerce.
The fact that the Framers included no “limiting principle” should have been especially determinative for justices like Antonin Scalia who embrace the concept of “originalism” as well as a literal reading of the Constitution. If the Framers chose not to insert restrictions in the Commerce Clause, well, that should do it.
And, that was the conclusion of serious conservative jurists, such as senior Appeals Court Judge Laurence Silberman, an appointee of Ronald Reagan, and Reagan’s Solicitor General Charles Fried. Both measured the new law against the Constitution and concluded, without hesitation, that it passed constitutional muster.
When asked why the GOP Five nevertheless appeared headed toward striking down the Affordable Care Act as unconstitutional, Fried answered, “politics, politics, politics.” [See Consortiumnews.com’s “When Is a Hack a Hack?”]
Similarly, Scalia did head stands and back flips in December 2000 when he joined with four other Republican partisans in using the 14th Amendment’s “equal protection of the law” principle to block the counting of votes in Florida and thus hand the White House (and judicial appointment power) to George W. Bush.
Though that Bush v. Gore decision stands as possibly the most shameful abuse of constitutional principles for partisan ends in American history, it was particularly dishonest for Scalia who has insisted that the 14th Amendment’s protections should only apply to black males who were its original beneficiaries in 1868.
Based on his “originalism,” Scalia declared that the 14th Amendment should not guarantee equal rights for women and gays. But he’s okay with using it to bail out a white plutocrat like George W. Bush, whose fears about losing an election in 2000 were surely not on the minds of the U.S. Congress in 1868.
But the Post’s editorial outrage is not directed at Scalia or the GOP Five’s other hypocrites, rather the Post wags its finger at “liberals” and President Obama for daring to even suggest what former Solicitor General Fried bluntly observed that “politics, politics, politics” is driving the Supreme Court’s majority’s decision-making.
‘Good for the Country’
The Post’s turning away from such unpleasant facts has grown typical of Washington insiders who have convinced themselves that maintaining pleasing fictions and pushing protective falsehoods are somehow “good for the country.” Mustn’t let those little people in on the dirty secrets.
After all, it would be very unsettling for the nation to recognize that the U.S. Supreme Court, with its special place in the constitutional checks and balances, has fallen under the control of a partisan majority that doesn’t give a fig about the actual Constitution.
What if the broader public knew that these five justices are driven by a fierce desire to serve the Republican Party by shaping the political battlefield to give decisive advantages to Republican presidential nominees, who after the “election” get to appoint more GOP judges and justices?
No, the Post is happier when the little people of America view the Supreme Court like the common folks in ancient Greece were supposed to see the oracles of the gods, a source of wisdom disconnected from the shabby world of earthly politics.
In line with Official Washington’s myth portraying the Supreme Court as Mount Olympus, you shouldn’t even note that the GOP Five are “Republican.” Preferably, you don’t mention a party affiliation at all, but – if you insist on being boorish – you should simply note that they are “Republican-appointed,” but not “Republican.”
Then you should join in the Post’s sputtering outrage against anyone who would dare “delegitimize” the Supreme Court for its politicization, as if the delegitimizing was coming from the critics, not from the justices themselves.
A similar concern over “legitimacy” followed the Bush v. Gore case, which put George W. Bush in the White House though he lost the national popular vote and apparently would have lost the key state of Florida if all the state’s legally cast votes were counted. However, instead of focusing on this undemocratic reality, the major U.S. news outlets circled the wagons around Bush’s “legitimacy.”
That defensive circle grew tighter after the 9/11 attacks eight months into Bush’s presidency, creating a dilemma in fall 2001 for a group of major U.S. news organizations that had just completed the Florida recount that the five GOP justices had stopped in December 2000.
The news outlets had discovered that Gore defeated Bush if all ballots legal under Florida law were counted. But some editors fretted that to report that reality just weeks after the 9/11 attacks might weaken Bush. And there was no way to reverse the outcome of Bush’s tainted “victory” anyway.
So, these editors essentially hid their own findings by focusing their stories on various hypothetical partial recounts that would still have left Bush slightly ahead.
An Angry Interview
On the day those stories were published – as the New York Times, the Washington Post, CNN and other outlets touted Bush’s supposed victory in Florida – I took the trouble to actually read the statistics of the study. The numbers made clear that Gore was the real winner if all legal ballots were counted.
I then wrote a story entitled “Gore’s Victory” and posted it at Consortiumnews.com. In the story, I suggested that some U.S. news outlets were letting their “patriotism” win out over their journalistic duty to give the American people the facts. That was clearly the case, with the editors fearing the consequences of undercutting Bush’s “legitimacy” at a moment of crisis.
But I soon received an irate phone call from the New York Times’ media writer Felicity Barringer whose “interview” with me amounted to her accusing me of unfairly questioning the integrity of the Times’ then-executive editor Howell Raines. I was to blame for noticing the truth, while “responsible” people looked away.
Yet, by shirking their journalistic duty to tell the American people the truth – that the wrong guy was in the White House – the news organizations contributed to a false notion that Bush was the properly elected president. The news outlets also ignored or played down later revelations that further exposed the “Bush Won” stories as false. [See Consortiumnews.com’s “So Bush Did Steal the White House” or Neck Deep.]
This journalistic malfeasance by the New York Times, the Washington Post, CNN and others also may have contributed to Bush’s subsequent hubris in rolling over the major news outlets in 2002 and 2003 with his false WMD case for war with Iraq.
In other historical cases, I have encountered this same benighted notion among Washington insiders that they are somehow doing what’s “good for the country” by hiding important facts from the American people.
For instance, in early November 1968, after President Lyndon Johnson discovered that Republican presidential nominee Richard Nixon was sabotaging the Vietnam War peace talks as a way to assure his electoral victory, Johnson consulted his top aides on whether he should go public with what Johnson called Nixon’s “treason.”
Johnson’s national security adviser Walt Rostow, Secretary of State Dean Rusk and Defense Secretary Clark Clifford all counseled Johnson to stay silent out of concern that Nixon might win anyway and that the disclosure would undermine his legitimacy.
“Some elements of the story are so shocking in their nature that I’m wondering whether it would be good for the country to disclose the story and then possibly have a certain individual [Nixon] elected,” Clifford said in a Nov. 4 conference call. “It could cast his whole administration under such doubt that I think it would be inimical to our country’s interests.”
So, Johnson kept quiet; Nixon eked out a narrow victory; Johnson’s last-minute peace talks collapsed; Nixon continued the war for another four years at the cost of more than 20,000 American lives and possibly a million more Vietnamese dead, not to mention the deep animosities that divided the United States then and have never entirely left.
In May 1973, after Johnson’s death and as the Watergate scandal was unfolding, Walt Rostow wrote a personal memo wondering if the failure to expose Nixon’s peace-talk sabotage had contributed to the arrogance behind his political espionage operations that had surfaced in Watergate.
“I am inclined to believe the Republican operation in 1968 relates in two ways to the Watergate affair of 1972,” Rostow wrote. He noted, first, that Nixon’s operatives may have judged that their “enterprise with the South Vietnamese” – in frustrating Johnson’s peace talks – had secured Nixon his narrow margin of victory over Democratic Vice President Hubert Humphrey in 1968.
“Second, they got away with it,” Rostow wrote. “Despite considerable press commentary after the election, the matter was never investigated fully. Thus, as the same men faced the election in 1972, there was nothing in their previous experience with an operation of doubtful propriety (or, even, legality) to warn them off, and there were memories of how close an election could get and the possible utility of pressing to the limit – and beyond.” [To read Rostow’s memo, click here, here and here.]
Nevertheless, Rostow decided – a month later – to continue keeping the documents about Nixon’s peace-talk sabotage secret. He put them in what he labeled “The ‘X’ Envelope” and suggested that they be kept hidden for at least 50 years. (The envelope, however, was opened by officials of the LBJ Library two decades later.) [For the full story, see Consortiumnews.com’s “LBJ’s ‘X’ File on Nixon’s ‘Treason.’”]
Since then, this pattern has repeated in other national security scandals. In the Iran-Contra Affair of the 1980s, Democrats shied away from a thorough investigation of the scandal’s origins and the full scope of the corruption out of concern that it might lead to “another Watergate” and an impeachment fight over another Republican president, Ronald Reagan.
Such a confrontation was again deemed “not good for the country,” so the American people were left in the dark on details like whether Reagan’s contacts with Iran dated back to 1980 when he – like Nixon before him – may have sabotaged a sitting president by exploiting back-channel foreign contacts, this time with Iranian leaders holding 52 Americans hostage. [For details, see Consortiumnews.com’s “The New October Surprise Series” or Secrecy & Privilege.]
While these and other truncated investigations might have protected the fragile comity of Official Washington, they have done more harm to the country than good.
Not only have Republicans come to think they can get away with almost anything, but millions of Americans have grown cynical and suspicious of whatever the government tells them. And, when the credibility of the government is hollowed out, legitimate skepticism and unfounded conspiracy theories compete to fill the vacuum.
That can prove fatal for a Republic that relies on the informed consent of the electorate for its legitimate authority.
It’s not enough for the likes of the Washington Post’s editors to insist that everyone sit down, fold their hands and accept whatever they’re told. Even if the American people follow those instructions, the endless manipulation of citizens who are kept in ignorance about what the government is doing will inevitably lead to some new-age Orwellian dictatorship, not a democracy worth the name.
Today, the ugly truth is that the Supreme Court’s GOP Five are using their black judicial robes to conceal their uniforms as Republican partisans. The Washington Post’s editors can instruct us not to notice, but that will not change this dangerous reality.
This article was originally published on ConsortiumNews.com