Democratic Underground - Senator Feingold Suggests Impeachment of Corrupt Supreme Court Justices

U.S. Politicians must often result to indirect means for expressing their ideas – less they be pilloried by the corporate media for expressing views that are beyond the pale of (corporate defined) acceptable discourse. Such was the case when Senator Russ Feingold recently suggested that corrupt U.S. Supreme Court justices be impeached for, among other things, their transparently corrupt decision in Citizens United v. Federal Election Commission, in which they asserted in a 5-4 decision that “No sufficient governmental interest justifies limits on the political speech (including bribery of public officials) of corporations”.

As quoted in an article by Matthew Rothschild titled “Corporations Aren’t Persons”, Senator Feingold called the decision “one of the most lawless in the history of the Supreme Court”. Yet, unlike some other progressives, whose reaction to the decision was to call for a Constitutional amendment, Feingold had a better idea. He said about the Constitutional amendment idea:

I think that’s unwise, but I certainly understand the sentiment… The best thing to do is to get new justices, different justices, who will do the right thing.

He didn’t specifically use the word “impeach” – But what else could he have meant when he said that “the best thing to do is get new justices”? One possibility is that he meant that we should wait for the current justices to retire or die of natural causes and then “get new justices”. As John Bonifaz said in criticizing Feingold’s statement, “Based on the age of some of the justices in the majority, that’s suggesting that we wait a very long time”. A very long time, indeed! I’ll be long dead by that time, and so will many tens of millions of other Americans, as well as what’s left of our democracy. That would be a very passive way to address “one of the most lawless (decisions) in the history of the Supreme Court”, as Feingold described it. Feingold could not have meant that.

Another unlikely possibility is that Feingold meant to wait for the justices in question to die quicker deaths – along the lines of John F. Kennedy, his brother Bobby, or Martin Luther King. But Feingold isn’t that type of guy, so I doubt that that’s what he had in mind.

There is only one other possible way that we could “get new justices”, as Feingold suggested: Impeachment. Before discussing the pros and cons of a Constitutional amendment vs. impeachment for dealing with the corrupt Citizens United decision, let’s consider why this USSC decision should rightly be considered, as Feingold said, “one of the most lawless in the history of the Supreme Court”.

One of the most lawless decisions in the history of the Supreme Court

Matthews summarized the crux of the Citizens United vs. the Federal Elections Commission in his article:

To read the 5-4 majority decision in Citizens United is to look at a fun-house mirror…. The McCain-Feingold law prohibited corporate-funded independent ads during such a timeframe, and Citizens United challenged the constitutionality of the law as it applied to this particular instance….

Justice Anthony Kennedy, writing for the majority, threw out decades of Supreme Court precedents. Writing in the most sweeping way, he declared that “political speech of corporations or other associations” cannot “be treated differently under the First Amendment simply because such associations are not ‘natural persons.’ ”

The logic of the Court’s argument would throw out all restrictions on corporate expenditures. “Political speech must prevail against laws that would suppress it, whether by design or inadvertence,” it said. This seems to justify unlimited direct gifts to candidates, though the majority didn’t quite go there. But it went everywhere else.

Former U.S. Senator from Wisconsin and Progressive Party candidate for President Bob La Follette, warned of the threat of unlimited corporate power during his 1924 run for the Presidency:

Democracy cannot live side by side with the control of government by private monopoly. We must choose, on the one hand, between representative government, with its guarantee of peace, liberty, and economic freedom and prosperity for all the people, and on the other, war, tyranny, and the impoverishment of the many for the enrichment of the favored few.

Implications for our democracy – Justice John Paul Stevens in dissent

86 years later, Justice John Paul Stevens, in his dissent to the majority decision in Citizens United, explained what the majority decision means to the future of our democracy:

Justice John Paul Stevens… warned: “Starting today, corporations with large war chests to deploy on electioneering may find democratically elected bodies becoming much more attuned to their interests.” The Court’s decision, he added, undermines the integrity of our democratic institutions and “will undoubtedly cripple the ability of ordinary citizens, Congress, and the states to adopt even limited measures to protect against corporate domination of the electoral process.”

Stevens cut to the heart of the matter and laid out why corporations should not be treated as persons. “In the context of election to public office, the distinction between corporate and human speakers is significant,” he argued. “Although they make enormous contributions to our society, corporations are not actually members of it…. Their interests may conflict in fundamental respects with the interests of eligible voters. . .

Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.” …

Stevens also invoked our Founders. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind,” he wrote. “Thomas Jefferson famously fretted that corporations would subvert the Republic,” Stevens observed, and in a footnote, he provided the quotation from Jefferson from 1816: “I hope we shall… crush in its birth the aristocracy of our monied corporations.”

On the corrupt nature of the decision

Of course, impeachment of our public officials must not be taken lightly. Decisions to impeach should not be taken on the basis of mere differences of opinion or differences of ideology. But to understand the corrupt and lawless nature of the decision one need only look at the justifications put forth by Justice Kennedy, writing for the majority. Matthews summarized this in his article:

The decision asserted, astonishingly and without evidence, that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” It added: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

The first sentence noted above essentially asserts that the unlimited use of corporate wealth to influence our elections does “not give rise to corruption…”. Doesn’t give rise to corruption? Perhaps not. It IS corruption.

Maryland State Senator and law professor Jamie Raskin explained the consequences of removing all limitations on the use of corporate wealth to influence our elections:

In 2008, the Fortune 100 corporations had $600 billion in profits… Now imagine that those top 100 companies decided to spend a modest 1 percent of their profits to intervene in our politics and to get their way. That would mean $6 billion, or double what the Obama campaign spent, the McCain campaign spent, and every candidate for House and Senate.

And as for the idea that “the appearance of influence or access… will not cause the electorate to lose faith in our democracy”, my God, how could any reasonably intelligent person say such a thing?

Bush v. Gore set the stage for egregiously corrupt USSC decisions

The Bush v. Gore decision of December 2000, which mandated that the counting of votes for President cease, and thereby handed the 2000 Presidential election to George W. Bush by a 5-4 decision of the USSC, set the precedent for transparently corrupt USSC decisions to slide by without consequence. It is no coincidence that of the five justices who handed down this abomination, three of them (Scalia, Thomas and Kennedy) are the same ones who perpetrated the Citizens United decision on the American people; and the two others in the majority in Citizens United were then appointed to the Court by the “winner” of the 2000 sham Presidential election, George W. Bush.

The decision in Bush v. Gore preposterously concluded that the hand-counting of Florida votes was unconstitutional because it violated the equal protection clause of the 14th Amendment to our Constitution. That conclusion was said to be based on the fact that different jurisdictions in Florida used different standards to evaluate the intent of the voter, as recently mandated by the Florida Supreme Court.

But it made no sense to say that differences in standards for counting ballots meant unequal protection under the amendment. By that reasoning, the whole election, in all 50 states would have to be ruled unconstitutional, since there were myriad voting methods used in all states throughout the country. Furthermore, given the differences in voting methods in Florida itself, and that the purpose of hand counting the ballots was to remedy the unfairness that resulted from this, how could the U.S. Supreme Court decide that this was unconstitutional?

Vincent Bugliosi on the absurdity and lawlessness of the Bush v. Gore decision
Vincent Bugliosi put the matter in perspective in his article, “None Dare Call it Treason”:

And if the Court's five-member majority was concerned not about Bush but the voters themselves, as they fervently claimed to be, then under what conceivable theory would they, in effect, tell these voters, "We're so concerned that some of you undervoters may lose your vote under the different Florida county standards that we're going to solve the problem by making sure that none of you undervoters have your votes counted"? Isn't this exactly what the Court did? ….

If none of the undervotes were counted because of the various standards to count them, then to be completely consistent the Court would have had no choice but to invalidate the entire Florida election, since there is no question that votes lost in some counties because of the method of voting would have been recorded in others utilizing a different method….

Furthermore, the use of the equal protection clause, which was originally designed to protect minorities from the unequal application of laws designed to be used against them, was new for the Rehnquist Court. Bugliosi continued:

The Rehnquist Court almost never uses equal protection jurisprudence except in striking down affirmative action programs (designed to help blacks and minorities). I can't think of a single instance where Scalia or Thomas has found discrimination against a racial minority, or women, or the aged, or the disabled, to be unconstitutional.

Varying methods to cast and count votes have been going on in every state of the union for the past two centuries, and the Supreme Court has been as silent as a church mouse on the matter, never even hinting that there might be a right under the equal protection clause that was being violated….

And if all that isn’t enough, the Court said that its ruling was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." Bugliosi comments on the significance of that:

In other words, the Court, in effect, was saying its ruling "only applied to those future cases captioned Bush v. Gore. In all other equal protection voting cases, litigants should refer to prior decisions of this court."

This point… all alone and by itself, clearly and unequivocally shows that the Court knew its decision was not based on the merits or the law, and was solely a decision to appoint George Bush President.

Bugliosi on the meaning of Bush v. Gore
As with Citizens United, this isn’t just a matter of a difference of opinion. Bugliosi summed up the meaning of the decision:

The stark reality, and I say this with every fiber of my being, is that the institution Americans trust the most to protect its freedoms and principles committed one of the biggest and most serious crimes this nation has ever seen – pure and simple, the theft of the presidency. And by definition, the perpetrators of this crime have to be denominated criminals…. Make no mistake about it, I think my background in the criminal law is sufficient to inform you that Scalia, Thomas et al. are criminals in the very truest sense of the word…. In a fair and just world (they) belong behind prison bars as much as any American white-collar criminal who ever lived. Of course, the right-wing extremists who have saluted the Court for its theft of the election are the same type of people who feel it is perfectly all right to have a mandatory minimum sentence of ten years in a federal penitentiary for some poor black in the ghetto who is in possession of just fifty grams of crack cocaine, even if he was not selling it….

A proposed Constitutional amendment to reverse Citizens United V. Federal Elections Commission

Many progressives have suggested a Constitutional amendment to deal with this attack on our democracy. Congresswoman Donna Edwards, whom I admire as much as any Congressperson, proposed the following Constitutional amendment:

Section 1. The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity.

Section 2. Nothing contained in this Article shall be construed to abridge the freedom of the press.

Edwards had this to say about her reasons for her proposed amendment:

The Supreme Court has left us with no choice. I shouldn’t have to worry as a lawmaker that if I make these tough decisions for the American people that a corporation is going to… in effect run an election against me.

The American people already believe that corporate interests and their lobbyists run the show around here… Our elections are for sale. They became activist in a way that we haven’t seen in a long time… and they wiped away decades of precedent… I think that the American people will quickly realize that we would rather have our elections run by people… paid for by the American people and not by corporate special interests.

Why we need to impeach corrupt justices

I am not against a Constitutional amendment to reverse the corrupt Citizens United v. Federal Elections Commission decision. But I agree with Russ Feingold that it is not the best way to do it. Beyond the fact that Constitutional amendments are very difficult to pass and take so long, there is a more important why they are not the ideal process for dealing with corrupt and lawless judicial decisions.

Consider our 14th amendment. Its first sentence provides the basis for the rest of the amendment:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

A major reason for the amendment was to ensure that our recently freed slaves (as well as other minorities) could enjoy the equal protection of our laws as citizens of our country. But if there is virtually no limit set on how corrupt our judicial appointees can be without risking impeachment, what is to prevent some future court invalidating the spirit of our 14th amendment by ruling that black people (or some other minority) are not persons, and are therefore exempt from the protections of the 14th amendment? (That is not such a far-fetched idea, given that not so many years prior to the passage of the 14th amendment black people were considered property rather than persons.) Would the best way to deal with that be to pass a Constitutional amendment saying that black people are persons?

Bugliosi summed up the significance to our country of Bush v. Gore:

That an election for an American President can be stolen by the highest court in the land under the deliberate pretext of an inapplicable constitutional provision has got to be one of the most frightening and dangerous events ever to have occurred in this country. Until this act – which is treasonous, though again not technically, in its sweeping implications – is somehow rectified (and I do not know how this can be done), can we be serene about continuing to place the adjective "great" before the name of this country?

That assessment is right on target. And it applies as well to any corrupt and lawless decision by the highest court in our land.

Do we need to pass a constitutional amendment to deal with every blatantly corrupt, lawless and absurd decision of our Supreme Court? Or would it be a better idea to serve notice that such abominations will not be tolerated? Should our Supreme Court justices be made to understand that there is some limit to the absurdity and corruptness of their decisions that will be tolerated? Should we send a message that they will be held accountable for adhering to the rule of law? Should we take seriously their oath to defend and protect the Constitution of the United States? Or do we have to pass a Constitutional amendment every time they blatantly violate their oath and stray beyond the bounds of decency and faithfulness to the rule of law?

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