The “Rule of Law”

(9 am. – promoted by ek hornbeck)

I must start this essay with a flashback to another another essay of mine, “Our Government is No Longer Viable“:

So, yes, if you are like me, then you see that our government is no longer viable.  That our Two-Party system has now utterly failed.  Our founding fathers feared this day and warned us of it — the day when two or more of the branches of government band together against the third.  To be fair, that day arrived long ago, but, our government still seemed to function somehow.  Today, it isn’t even functioning.

So, what happens when even the Judicial Branch of our government is totally co-opted against the citizen?  We got a hint of it from the Supreme Court:

WASHINGTON (AP) – The Supreme Court ruled Monday that elected judges must step aside from cases when large campaign contributions from interested parties create the appearance of bias.

By a 5-4 vote in a case from West Virginia, the court said that a judge who remained involved in a lawsuit filed against the company of the most generous supporter of his election deprived the other side of the constitutional right to a fair trial.

It is in times like this that we must see the end-game that is being played out before our very eyes…

The four Supreme Court Justices who dissented, who thought that it was perfectly fine for a judge to refuse to recuse himself when there was a clear cut case of bias, were Thomas, Alito, Scalia, and Roberts.  In case you didn’t get to read the background to this story here:

The top U.S. court determined that the West Virginia Supreme Court revisit its 2008 ruling that reversed a 2002 verdict by the Boone County circuit court to award $50 million to Harman Mining Corp and its president, Hugh Caperton.

Massey’s stock was down 6 percent at $22.40 in afternoon trading on the New York Stock Exchange on a day when other coal company stocks were down between 2 and 4 percent.

But the company, one of the “Big Four” U.S. coal producers, said it was confident a different judge would also rule in the company’s favor.

“While we are disappointed in the outcome of the Court’s close vote, our outlook about the ultimate resolution of this legal matter remains positive,” Shane Harvey, Massey’s General Counsel, said in a statement.

“We are confident that the Harman case was properly decided by the West Virginia Supreme Court initially and believe that any new examination of the same facts and same laws by new justices should yield the same result as before.”

Benjamin twice was in the majority in 3-2 decisions that overturned the $50 million jury verdict against Massey in a coal contract dispute with Harman Mining.

Blankenship had earlier spent $3 million supporting Benjamin’s campaign for a seat on the court while opposing the incumbent. As a judge, Benjamin refused to recuse himself from the case, saying he could be fair and impartial.

That isn’t the details, just the background.  To summarize;  Massey Coal lost a case and appealed it.  Before the appeal was heard, Massey Coal funded the campaign of a lawyer named Benjamin to be elected to the Appeal Court.  Benjamin won the election, then refused to recuse himself twice, voting each time in favor of Massey Coal.  The case was then appealed to the Supreme Court, who then ruled by 5-4 that Benjamin had acted wrongly.

5-4 that it is wrong for a corporation to buy itself a judge.

And, who is buying off the judges?  Corporations.  To stunning effect!

CSX vs Henley

Hensley sought pain-and-suffering damages from CSX based on, among other things, his fear of developing lung cancer in the future. The Court addressed this subject in Norfolk & Western R. Co. v. Ayers, 538 U. S. 135 (2003) , and held that those types of damages are available in certain FELA cases. The Court stated:

“Norfolk presented the question whether a plaintiff who has asbestosis but not cancer can recover damages for fear of cancer under the FELA without proof of physical manifestations of the claimed emotional distress. Our answer is yes, with an important reservation. We affirm only the qualification of an asbestosis sufferer to seek compensation for fear of cancer as an element of his asbestosis-related pain and suffering damages. It is incumbent upon such a complainant, however, to prove that his alleged fear is genuine and serious.” Id., at 157 (internal quotation marks, citation, and alteration omitted).

   At the close of a 3-week trial, Hensley and CSX submitted proposed jury instructions to the trial court. CSX proposed two instructions-requests 30 and 33-related to Hensley’s claim for fear-of-cancer damages. Request 30 stated the basic requirements to obtain those damages under Ayers. Supp. Tech. Record, Exh. A, p. 4 (“Plaintiff is also alleging that he suffers from a compensable fear of cancer. In order to recover, Plaintiff must demonstrate … that the … fear is genuine and serious”). Request 33 stated certain factors the jury could consider in applying the Ayers standard. Id., at 5-6. The trial court denied both requests over CSX’s objections, and the jury was not instructed as to the legal standard for fear-of-cancer damages. 17 Tr. 2410-2415; 20 id., at 2903-2904. After two hours of deliberations, the jury found for Hensley and awarded him $5 million in damages.

The John Roberts Supreme Court?

The petition for certiorari is granted. The motions for leave to file briefs amici curiae of American Tort Reform Association, et al.; Association of American Railroads; and Washington Legal Foundation are granted. The judgment of the Tennessee Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

So, the plaintiff had asbestosis, a cause of cancer, but, the Supreme Court under Roberts overturned the judgment because the plaintiff didn’t show that the fear of cancer was real — ruling instead for the corporation?

This is how our government has failed.  This is why it is no longer a viable government for the people.  

I won’t even post the thoughts and fears of founding fathers.  If you care to read them, read the Federalist Papers.  I have.  In the discussion presented in them, you can read the angst our forefathers had in trying to construct a government that could survive an unknown future.

The Legislative Branch is gone to us.

Former GOP Representative Richard Baker says he spent about 17 of his 21 years in Congress talking about the need to better regulate Fannie Mae and Freddie Mac. Today, the erstwhile Louisiana congressman doesn’t seem to know how he should feel about that distinction–validated in showing such prescience, or perhaps embarrassed at having been ignored for so long. Because as Baker can attest, until the mortgage giants were put on a joint deathwatch earlier this year and speaking scornfully of them became a matter of political survival, legislators could hardly feel any more impotent as when they squared off with the Fannie and Freddie lobbying teams.

Fannie’s crew was particularly effective at keeping regulators at bay. “The best in Washington by a wide margin,” says the 60-year-old Baker, who left Congress earlier this year to become a lobbyist himself, working as president of the Managed Funds Association, a lead trade group for the hedge fund industry.

Having been a homebuilder and broker before going into national politics, Baker witnessed the financial ruin of good friends due to the 1980s savings and loan crisis. So in the late ’90s and early 2000s, he repeatedly sponsored a bill aimed at creating a well-funded, bank-like regulator to assess the amount of risk taken on by the government-sponsored enterprises (GSEs). As a member of the House Financial Services Committee, he says he would sometimes have a co-sponsor come on board Friday afternoon, only to jump ship by Monday morning. His oversight hearings on Fannie and Freddie, in which he hoped to make their vulnerabilities (and executive pay) a matter of public record, proved to be an exercise in legislative futility: The GSEs would write speeches for friendly committee members on both sides of the aisle, spoon-feed talking points, pre-leak information, and generally discredit watchdog groups and committee members that posed a threat to their unique financial freedoms. Baker didn’t have to look far to see the root of his failure. In the front row at such meetings, there would often be a dozen or more Fannie lobbyists sitting shoulder-to-shoulder, about as persuasive as New England’s offensive line.

Today, they don’t even make a show about who writes the legislation they bring to a vote; the corporation does.

The Executive Branch?  Bought.

April 17 (Bloomberg) — The Obama administration’s bank- rescue efforts will probably fail because the programs have been designed to help Wall Street rather than create a viable financial system, Nobel Prize-winning economist Joseph Stiglitz said.

“All the ingredients they have so far are weak, and there are several missing ingredients,” Stiglitz said in an interview yesterday. The people who designed the plans are “either in the pocket of the banks or they’re incompetent.”

That is two out of the three branches of our government, and, as our founding fathers warned us over 200 years ago, once that occurs, our government is over.  But, the Judiciary has held out.  No more.  It is the Executive Branch that puts into place Judges at the highest level.  If the Executive is bought, so too will be the nominees to the Supreme Court.

Thus, let’s review another essay of mine, “So Many Issues, So Little Space“:

This is a Judge who was first nominated by George H.W. Bush.  She has sided with conservative opinions the majority of the time in her decisions.  She is a moderate Judge that leans to the right.  The consideration for her nomination by Bush 41 was the same as President Obama’s; the Left would never be able to block her nomination without digging a hole with the hispanic and women voting blocks.  

Now, it is true that once a Judge reaches the pinnacle of the Supreme Court, they are then free to rule as they see fit.  Judge Souter proves this.  He, too, was a moderate conservative Judge, nominated by a Republican to the Supreme Court, who once he got there issued opinions that were more liberal.  But, this misses the point; why even appoint a moderate who leans to the right in the first place?  

Correct me if I am wrong, but, didn’t President Obama win the Presidency under the Democratic Party?  Didn’t the Democratic Party win even more seats in both the Senate and House?  Did not we just get two young stalwart republican Judge’s appointed to the bench?

If Judge Sotomayor turns out not to be another Justice Souter, President Obama has just cemented the conservative tenor of the Supreme Court for decades to come.

We don’t know yet just how Judge Sotomayor will rule as a Supreme Court Justice.  She will be confirmed, however.  By her record, we can hope that she will continue to rule against the corporation.  

What is not debatable is the final attack on the Judicial Branch by the corporation.  

This is also why I get so peeved at the right-wing idiots; they can’t see the big picture.  If abortion, ie, Roe v Wade, was going to be repealed, it would have happened between 2001 and 2006.  It wasn’t.  Even one of the Right’s own stated that they were being used for votes.  But, are we not being used, as well, by the Democratic Party?  DADT?  DOMA?  No prosecution for Bush-era abuses?

Who profited from both administrations?  The corporations.