The Bush administration is spectacularly good at sleight-of-hand tricks, directing public attention in one direction while they're working diligently in another. The latest trial balloon of "probable" Supreme Court nominees is no exception.
While everybody is worried about abortion rights and corporate power, a far more insidious agenda may be at play.
Anti-abortion forces and women's rights groups alike are up in arms about the possibility that the next nominee may or may not have an opinion about the Court's interpretation of the Fourth Amendment (and others) in Roe v. Wade. This battle is being loudly played out in the mainstream corporate media, with every analysis and question ultimately turning back to Roe.
Because Alberto Gonzales isn't on the record with regard to abortion rights, both sides are wary of him.
At the same time, corporatist "conservatives" are salivating at the opportunity to pack the Court with judges who will further erode the rights of communities and increase the power of multinational corporations and the super-rich in America. On June 28, 2005 The Wall Street Journal ran a major story ("For a High Court Nomination, Business Has Its Own Agenda") on how corporate Republicans may be at odds with "social" Republicans, because the latter generally endorse states' rights. Corporatists prefer a strong federal government where all politicians can be bought centrally in Washington, DC, and federal rules and agencies can be used to back down states that may want clean air or water.
Because Alberto Gonzales has a very limited record in ruling or writing on corporate rights and powers, the corporatists are not as enthusiastic about him as they are about others.
What nobody seems to be noticing, though, is what may well be the real agenda of George W. Bush and those around him - neo-fascism.
For this agenda, Alberto Gonzales is the perfect man.
Although he testified that "I don't recall today whether I was in agreement with the analysis" on the meeting that led to the infamous 2002 torture memo that said "injury such as death, organ failure, or serious impairment of body functions - [are necessary] in order to constitute torture," he actually chaired the committee that drafted it. As The Washington Post noted on January 5, 2003 ("Gonzales Helped Set Course On Detainees"), "White House counsel Alberto R. Gonzales chaired the meetings on this issue, which included detailed descriptions of interrogation techniques such as 'waterboarding,' a tactic intended to make detainees feel as if they are drowning."
Gonzales looked over death penalty cases in Texas as Governor Bush's counsel, and, according to an article in The Atlantic Monthly and others, contributed to an environment in which children, mentally retarded persons, and almost certainly innocent men were executed by Bush's order. In 2001, he helped draft Executive Order 13233, which began the shutdown of the transparency and accountability that have been hallmarks of American government since its inception. In 2002 he argued that the Geneva Conventions were "quaint" and that their language was sufficiently vague that the Bush administration could essentially ignore them.
He also wrote a Presidential Order saying that terror suspects could be tried by secret military tribunals and sentenced to death, and enthusiastically pushed for passage of the USA PATRIOT Act just as Democratic Senate Leader Tom Daschle and Democratic Senate Judiciary Committee Chairman Patrick Leahy - the two men in the Senate who could have shot down the PATRIOT Act - were receiving anthrax in the mail. Today, as Attorney General, the investigation of that terrorist incident is entirely in his hands.
There is no official count at the moment as to how many people have died at the hands of our interrogators since Gonzales authored his infamous memo, or how many people have been turned over to torturers in other nations by a process euphemistically called "extraordinary rendition." (Estimates run from a low of around 60 up into the thousands.) This is because Gonzales and others in the administration have led a process where, The New York Times notes, "government secrecy has reached a historic high by several measures, with federal departments classifying documents at the rate of 125 a minute..."
For that matter, we don't even know how many American citizens are, like Jose Padilla, currently "disappeared," being held incommunicado within or outside the United States, in clear violation of the Constitution but at the behest of the Bush administration. Such information is "classified."
Although the Supreme Court under Earl Warren declined to rule on the legality of LBJ's Vietnam War, a variety of anti-liberty dimensions of Bush's so-called "war on terror" are almost certain to end up before the Court. An administration that can use the final imprimatur of the Supreme Court to "disappear" dissidents, corral Democratic Party campaigners into "free speech zones" with guns and bayonets, and declare a perpetual "war on terror" to prevent any investigations of its failures and crimes doesn't need to worry about the politics of abortion. Or John Conyers snooping into voting machine irregularities in Ohio. Or any other political debate, for that matter.
The Framers of the Constitution didn't give to the Supreme Court the power to interpret the constitutionality of laws made by Congress. The Supreme Court itself did this, in an unanimous opinion written by the notorious Federalist Chief Justice John Marshall, in the case of Marbry v. Madison in 1803. This decision - handed down when Thomas Jefferson was president - so upset Jefferson that he suggested (in a letter to Abigail Adams on 9/11/1804) that if the Court were to fall into the wrong hands, it "would make the judiciary a despotic branch."
He noted in that letter that he tried to prevent this sort of danger within the courts in general by achieving balance between his own Democratic Republican Party (now called simply the Democratic Party) and the Federalists (who today are reincarnated as Republicans). "In making these appointments," he wrote, "I put in a proportion of federalists, equal, I believe, to the proportion they bear in numbers through the Union generally."
Jefferson added: "Both of our political parties, at least the honest part of them, agree conscientiously in the same object - the public good; but they differ essentially in what they deem the means of promoting that good. ... One [the Federalists] fears most the ignorance of the people; the other [the Democratic Republicans], the selfishness of rulers independent of them. Which is right, time and experience will prove."
The new Federalists - Bush's Republicans - clearly fear We The People, and cherish their own power to rule independent of us. And if they can seize control of the Supreme Court before the next elections, their power may become nearly absolute.
Historically, when fascists have come to power they have used either the threat of enemies or social issues to get the people to agree to give them control of all branches of government. When their true agenda - raw power - comes out, it's too late for the people to resist. As Francisco Franco famously said, "Our regime is [now] based on bayonets and blood, not on hypocritical elections."
Thus, the nomination of Gonzales, or another candidate with strong fascistic leanings but no clear abortion record, will probably be trumpeted in the mainstream corporate media as a triumph of "moderation" on the part of Bush (or a tribute to his "stubbornness" or his "loyalty").
In fact, it could mark the end of our 200+ year American experiment in democracy.
Thom Hartmann (thom at thomhartmann.com) is a Project Censored Award-winning best-selling author, and host of a nationally syndicated daily progressive talk show and a morning progressive talk show on KPOJ in Portland, Oregon. www.thomhartmann.com His most recent books are "The Last Hours of Ancient Sunlight," "Unequal Protection," "We The People," "The Edison Gene", and "What Would Jefferson Do?"