Monday, July 04, 2005

A Requiem for Justice

A Requiem for Justice

Justice O'Connor's decision in Bush v. Gore led to the current Bush administration's execution of war crimes and atrocities in Iraq, Afghanistan, and other places in the Middle East that are as egregious as those committed by the Third Reich and other evil governments in human history.

Supreme Court Justice O'Connor:
'She Never Knew it Would Come to This'
Sheldon Drobny

Monday, July 4, 2005

Justice O'Connor's retirement reminds me of her decision in Bush v. Gore and the last dialogue in the 1961 movie Judgment At Nuremberg, directed by Stanley Kramer.

Ernst Janning: Judge Haywood... the reason I asked you to come. Those people, those millions of people... I never knew it would come to that.

YOU must believe it, YOU MUST believe it.

Judge Dan Haywood: Herr Janning, it came to that the first time you sentenced a man to death you knew to be innocent.

Ernst Janning, a fictional character played by Burt Lancaster, was the head of The Ministry of Justice during The Third Reich. He was put on trial for war crimes in 1948 and he was deeply conflicted by his participation with the evil of his government in the hopes that the greater good of Germany would be served.

Judge Dan Haywood, played by Spencer Tracy, speaks to that kind of conflict in his decision: Memorable Quotes from Judgment at Nuremberg (1961)

Judge Dan Haywood:
Janning, to be sure, is a tragic figure. We believe he loathed the evil he did. But compassion for the present torture of his soul must not beget forgetfulness of the torture and death of millions by the government of which he was a part.

Janning's record and his fate illuminate the most shattering truth that has emerged from this trial. If he and the other defendants were all depraved perverts - if the leaders of the Third Reich were sadistic monsters and maniacs - these events would have no more moral significance than an earthquake or other natural catastrophes.

But this trial has shown that under the stress of a national crisis, men - even able and extraordinary men - can delude themselves into the commission of crimes and atrocities so vast and heinous as to stagger the imagination.

No one who has sat through this trial can ever forget.

The sterilization of men because of their political beliefs... The murder of children... How easily that can happen. There are those in our country today, too, who speak of the protection of the country. Of survival.

The answer to that is: survival as what?

A country isn't a rock. And it isn't an extension of one's self. It's what it stands for, when standing for something is the most difficult. Before the people of the world - let it now be noted in our decision here that this is what we stand for: justice, truth... and the value of a single human being.


The lesson is clear.

Those people who may be honorable and distinguished in their chosen profession should always make decisions based upon good rather than evil no matter where their nominal allegiances may rest.

Justice O'Connor was quoted to have said something to the affect that she abhorred the thought of Bush losing the 2000 election to Gore. She was known to have wanted to retire after the 2000 election for same reason she is now retiring. She wanted to spend more time with her sick husband.

Unfortunately, she tarnished her distinguished career with the deciding vote in Bush v. Gore by going along with the partisan majority of the Court to interfere with a democratic election that she and the majority feared would be lost in an honest recount. She dishonored herself and the Supreme Court by succumbing to party allegiances and not The Constitution to which she swore to uphold.

And the constitutional argument she and the majority used to justify their decision was the Equal Protection Clause.

The Equal Protection Clause was the ultimate basis for the decision, but the majority essentially admitted (what was obvious in any event) that it was not basing its conclusion on any general view of what equal protection requires.

The decision in Bush v Gore was not dictated by the law in any sense—either the law found through research, or the law as reflected in the kind of intuitive sense that comes from immersion in the legal culture. The Equal Protection clause is generally used in matters concerning civil rights.

The majority ignored their basic conservative views supporting federalism and states' rights in order to justify their decision. History will haunt these justices down for their utter lack of Justice and the hypocrisy associated with this decision

Sheldon Drobny is Co-founder of Air America Radio.

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