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(DV) Zingh: Roberts' Rule of Order







Roberts' Rules of Order
Scratching Deeper than the Smile and the Judicial Veneer
by Zbignew Zingh
September 16, 2005

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For the most part, the Senate Judiciary Committee's inquiry into John Roberts' nomination to the Supreme Court is just window dressing. His nomination was assured in November 2004 -- as were the next three [1] nominations to the Supreme Court -- when the Republicans gained hegemony in the executive and legislative branches of the government. Notwithstanding all our angst about who we believe should and should not be appointed to the Supreme Court, the reality is that George Bush and his Republican majority in the Senate will appoint anyone they like for a lifetime tenure on the federal bench.

Unless photographs appear showing Mr. Roberts in bed with a live boy or a dead girl [2], or unless the Democrats are willing to finally play their filibuster card (and the odds are 10,000 to 1 that they will not), there is simply no way for the minority party to prevent these judicial appoints. If you think that John Roberts is bad, he will soon have more bad company. As the left exhausts itself in vetting and opposing his nomination, it will wear itself out for the time when Mr. Bush gets around to nominating the ultra extreme right-wing ogres to the judiciary. However, this next batch of judicial nominees also will take their cue from John Roberts. They will be ciphers about how they might rule and they will cloak themselves in ambiguous judicial platitudes.

The next round of conservative judicial nominees after John Roberts also may well satisfy the superficial faux-liberal demand that the Supreme Court represent a broad spectrum of race, religion, ethnicity and gender. Unfortunately, the conservatives have successfully outdone liberal identity politics and the Right will easily nominate judicial candidates of the likes of Clarence Thomas, Condoleezza Rice, Albert Gonzalez, or U.C. Berkley's John Yoo. Race, ethnicity, religion and gender are completely irrelevant if the judge has no heart, no empathy, no memory, no guts and no identity other than with the Power that appoints the office.

This, then, is the ultimate legacy of the Democratic Party's 2000 and 2004 loser's strategy of trying to be Bush-lite, the strategy of avoiding a clear distinction between themselves and the Republicans, the legacy of being anybody-but-Bush but nobody else worth voting for. The Supreme Court was the supreme political prize, and the Democrats lost it for lack of courage, principle and grit. To undo the damage in the future will require a massive political shift in the makeup of the Congress and the presidency and, perhaps, an FDR style plan to pack the Supreme Court.

Historically, the US Supreme Court has been a bulwark of conservatism. It is only in the recent memory of the affluent 1950s and 60s that the Supreme Court slightly opened its eyes and hearts to human rights rather than just property rights. Remember that, historically, the Supreme Court could not be counted on to overthrow slavery in this country or to give non-whites or women the vote. It took a hundred years, a civil war, and four hard-fought amendments -- the 13th, 14th, 15th and 19th -- to establish some of the basic concepts we take for granted. Previous Supreme Courts simply could not discern any prohibition against slavery or any women's franchise in the US Constitution. And, unfortunately, they were right: the Constitution itself literally does not espouse such basic human rights.

Thus, when John Roberts tells us not to worry because he means only to enforce the Constitution and “referee” the interpretation of the Law, we should be very, very worried indeed. We should be worried because the principles by which John Roberts will “referee” are atavistic.

On the other hand, John Roberts presents himself as a pragmatist who is not always bound by the literal words of the Constitution. He promises to accord the proper “respect” for judicial precedence. He has suggested that the law and the Constitution must evolve as society and its expectations evolve. None of these ambiguous comments provide solace for your greatest fears. A Supreme Court Justice may accord prior case law “respect” as he proceeds to gut it, just like a hunter might respect his quarry, then kill it and eat it for dinner.

The “pragmatist” who regards the Constitution as a mere tabula rasa will be prone to Korematsu-like decisions, by which Japanese-Americans (or Arab Americans or Chinese or Jews or Blacks or any other suspect-people-du-jour) could be put in concentration camps because of the perception of an imminent threat. Although Mr. Korematsu's WWII criminal conviction was overturned decades later, the “pragmatic” judicial approach to his case still accomplished its immediate goal: Japanese Americans remained interned until the end of the Second World War.

John Roberts' judicial philosophy, therefore, fits in better with those “pragmatic” judges who will serve the immediate crisis of the moment or the passion of the times and worry later about its ramifications. In short, John Roberts will think and act like a politician. An example of his political thinking is Roberts' recent appellate court opinion in Hamdan v. Rumsfeld upholding the use of military tribunals for so-called “enemy combatants” designated at will by the President.

Although the US Constitution contains some salutary provisions regarding governmental rules of order, it expresses very little concern for the rights or interests of people. Mostly, the US Constitution itself concerns the regulation of commerce, the stability of the currency, the sanctity of contract and property, the relationship between the states and the federal government, the creation of a governing infrastructure, and the maintenance of the military, which is what the original 18th Century Federalists had in mind. [3] By comparison, the Declaration of Independence is a truly radical, revolutionary manifesto that even Vietnam's Ho Chi Minh admired. The Declaration of Independence, however, is not a part of the Constitution. Together with the later adopted first ten amendments, the Declaration of Independence and the Bill of Rights form a humanist sandwich around the much more staid Constitution.

The core of the Republican Party is completely unconcerned with issues of morality or religion, except insofar as these moral/religious issues are the necessary pay-off to a constituency that facilitated Republicans' ascendancy The core of the Republican Party is concerned, as it always has been, with power, money and control. Although the Ayatollah Pat Robertson and his ilk seek to establish a pseudo-Christian theocracy, the power elite at the helm of the Republican Party really could care less about abortion rights, gun control, religious issues or criminal law for the masses. They, at the helm of power, know that they can always afford whatever they want or need, be it an abortion or pornography or access to arms, regardless what the Law holds. It has always been so in every land. They will yield to the Christian Right the petty moral ground that the moralizers crave, while the rich and powerful will take the commanding heights of wealth and power.

Thus, John Roberts is the favorite son of the Republican business interests, more so than the Religious Right. Although his sphinx-like approach to constitutional construction presents a danger to reproductive and civil rights, he represents an even more profound threat to the fundamentals of our society.

The Supreme Court is the final arbiter of American Law. In at least one major sense, John Roberts is completely wrong. A Supreme Court Justice does not “referee” the law. A Supreme Court Justice is the law, for there is no higher authority. The “rule of law” applies mostly to the lesser classes and especially in the lower courts of local jurisdiction. The higher one rises in the judicial system, however, the more the “rule of law” becomes a rule of policy until, at the level of the Supreme Court, it is all about policy, American mythology notwithstanding. Politics and personal relationships and experience and extra-legal policy concerns decide the issues, although the decisions will still be wrapped in the “rule of law”.

Throughout his vetting, John Roberts will duck and parry the hard questions about how he would decide particular questions that will come before the Supreme Court. He can do that because a judge literally cannot prejudge an issue before hearing the case. There are means, however, to scratch beneath this judicial veneer to expose the two centuries old thinking that rules him.

Therefore, let John Roberts and the next passel of Bush judicial nominees be asked questions, not about future cases that they cannot yet decide, but about how they would have decided past issues based on their particular constitutional dispositions.

Ask John Roberts (and all of the subsequent Bush nominees), if it were the United States just prior to the Civil War and prior to the 13th Amendment that abolished slavery, how would he rule in a case, like that of Dred Scott, whether a slave was a Man or Property? Are not John Roberts' referee-like views on interpreting the Constitution consistent with those expressed by Chief Justice Taney in 1857:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

In short, would the 21st Century Chief Justice of the Supreme Court have upheld slavery as surely as did the 19th Century Supreme Court, and based on the same legal reasoning? Would a 19th Century Chief Justice Roberts have “respected” the precedence of decisions upholding slavery? Would he have upheld slavery because that was the intention of the antebellum Constitution and the mood of the times? He would deny it, but John Roberts' legal logic says that he would.

Ask John Roberts (and all of the subsequent Bush nominees), if it were the United States prior to the adoption of the 19th Amendment, and the issue was Does A Woman Have the Right to Vote? Would Justice Roberts have searched in vain for women's rights in the Constitution and, finding none, have ruled that women have no franchise under the Law? Would he have “respected” legal precedence that barred women from the ballot box or would he have ruled according to the natural justice of gender equality? Would a 19th Century Justice Roberts have denied women the vote because this was the political reality of the times? By his judicial attitude, that would have been his ruling, which dreadfully informs you about the man's mindset.

Ask John Roberts (and all of the subsequent Bush nominees) whether the 14th Amendment, by which the guarantees of the Bill of Rights and the abolition of slavery were extended to all the states, was a bulwark of our human rights, or was it meant to apply to and protect corporations? Here John Roberts would get tongue-tied because there is no sensible nor historical nor literal interpretation of the 14th Amendment by which it should apply to corporations; and yet, over time, the overwhelming number of cases and judicial decisions relating to the 14th Amendment have been precipitated by immortal, artificial, profit-oriented corporations seeking -- and gradually winning -- more and more of our human rights accorded by the Bill of Rights.

Thus, ask the enigmatic John Roberts, would he defer to the clear intention of the 14th Amendment or “respect” the line of precedents that extend human rights to inanimate corporations? Would he rule, as he should, that Corporations are Not Real People and, therefore, they have no 1st Amendment, 4th Amendment or 5th Amendment rights; no corporate right, therefore, to make bazillions of dollars in political contributions, no corporate right to flood Washington with lobbyists, no corporate right to put their advertising on our roads or in the airwaves or in our schools, no right to mine or exploit our natural resources, no corporate right to federal subsidies paid out of the people's pockets, no right to prevent the organization of labor, no right to buy up the public bandwidth and monopolize the media? In short, would John Roberts, as a matter of constitutional law, agree that Human Rights always trump Corporate Rights [4], and that was clearly the intention of the 14th Amendment? Or, would the ever-pragmatic Justice Roberts accord greater respect to the creeping stare decisis that supports corporate civil rights rather than the common sense logic that corporations are not real people and, therefore do not have, and were never intended to have civil rights?

Ask John Roberts (and all of the subsequent Bush nominees) how, under Article I, Section 8 of the Constitution, it says that only the Congress can declare War, but somehow, since 1945, the United States has fought war after war after war without any such congressional declaration?

Ask John Roberts (and all of the subsequent Bush nominees) whether, under his construction of the literal words of the same Article I, Section 8 of the Constitution, copyrights and patents should be secured for only a limited time and to the actual authors and inventors, rather than be secured virtually forever by corporations and those who contractually acquire “intellectual property?”

We know, of course, how John Roberts would try to answer and to evade answering these questions. He will straddle the fences and, almost mockingly, confound the questions with ambiguity. Thus will he have the latitude to rule “pragmatically”, or, in other words, according to his own agenda and inclination. We also know that John Roberts would be confirmed as Chief Justice, the youngest ever in the last two centuries of the Supreme Court and one whose influence will outlast our lifetimes.

It is worthwhile posing these questions, nonetheless, because by vetting John Roberts and the subsequent Bush judicial nominees through these fundamental questions, we can warn and educate Americans about the profound dangers that confront them behind the amiable, slightly mocking smile and the veneer of judicial inscrutability.

Zbignew Zingh can be reached at This Article is CopyLeft, and free to distribute, reprint, repost, sing at a recital, spray paint, scribble in a toilet stall, etc. to your heart’s content, with proper author citation. Find out more about Copyleft and read other great articles at

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[1] Including the retirement of Sandra Day O'Connor, two more justices are of very advanced age or in questionable health.

[2] Former Louisiana Governor Edwin Edwards once boasted that, despite issues of graft and scandals that swirled around him, he would be reelected unless he was caught in bed with a live boy or a dead girl.

[3] Yes, the Federalists who championed the adoption of the US Constitution were the original gang after whom Mr. Roberts' favorite conservative fraternity, the Federalist Society, have styled themselves.

[4] Both Thomas Jefferson and James Madison tried, and failed to incorporate an 11th Amendment into the Bill of Rights. It would have prohibited monopolies in commerce, prohibited corporations from owning other corporations, outlawed corporate politicking, and mandated that corporate charters issue only for service of the common good.

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