January 29, 2001
Rehnquist -- Political Puppeteer
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For the past decade, Rehnquist and other conservative jurists on the federal bench have been venturing into partisan terrain. In key political case after key political case, they have protected and advanced the interests of the Republican hierarchy, first defensively and then offensively.
A pivotal moment came with the Iran-contra scandal which exploded in November 1986, amid disclosures that Ronald Reagan’s White House had been running a secret war in Nicaragua funded, in part, by illegal weapons sales to the radical Islamic government of Iran. White House officials were caught lying about both Nicaragua and Iran.
The Reagan-Bush administration’s response was to sacrifice a few low-level officials, such as Lt. Col. Oliver North, and insist that senior officials had been kept in the dark.
To avert a constitutional crisis, congressional Democrats went along, concentrating their criticism on North and letting Ronald Reagan and then-Vice President George H.W. Bush off the hook. [Democrats, with the exception of Sen. John Kerry of Massachusetts, adopted a similar see-no-evil approach to evidence that the U.S.-backed Nicaraguan contra rebels were deeply implicated in the cocaine trade. See Robert Parry’s Lost History for more details.]
The Walsh Factor
The Iran-contra cover-up ran into trouble, however, when special prosecutor Lawrence Walsh conducted a methodical investigation that stripped away one layer of lies after another.
Walsh was a former Republican judge who was appointed by a three-judge panel in 1986. That panel was headed by another Republican, senior U.S. Appeals Court Judge George MacKinnon. Both Walsh and MacKinnon were old-school Republican conservatives from the Eisenhower era who saw their duty as pursuing justice and the truth, regardless of political concerns.
Early in the first Bush administration, Walsh won convictions against North and Reagan’s national security adviser John Poindexter. Conservatives grew angry. Republicans desperately battled to keep the scandal from spreading to Reagan and then-President Bush, the current president’s father.
Some of that fury played out within conservative judicial circles. In Firewall, Walsh’s book about the Iran-contra scandal, the special prosecutor described how the black-robed Republican appointees to the U.S. Appeals Court in Washington “waited like the strategic reserves of an embattled army.”
A leader of this partisan faction was Judge Laurence H. Silberman, an obstreperous conservative who had served as a foreign policy adviser to Ronald Reagan’s 1980 campaign. At one point during the Iran-contra scandal, Silberman berated MacKinnon over his support for the special-prosecutor law.
“At a D.C. circuit conference, he [Silberman] had gotten into a shouting match about independent counsel with Judge George MacKinnon,” Walsh wrote. “Silberman not only had hostile views but seemed to hold them in anger.”
On the North appeal in 1990, Silberman teamed up with a younger conservative, Judge David Sentelle, to overturn the three felony counts against North. The vote was 2-1.
Ironically, in ruling for North, the two law-and-order judges chose to expand the rights of defendants in cases involving limited immunity, such as that which Congress had granted to North.
Sentelle, a protégé of conservative Sen. Jesse Helms, R-N.C., also served on a second appeals panel that overturned the conviction of Poindexter on similar grounds.
Despite the reversals, Walsh continued to make progress. In early 1992, he was bringing obstruction-of-justice cases against former Defense Secretary Caspar Weinberger and several senior officials at the Central Intelligence Agency. The case was moving dangerously close to then-President George H.W. Bush.
At that point, Walsh received a call from MacKinnon with some troubling news. U.S. Supreme Court Chief Justice Rehnquist, who controlled appointments to the three-judge special-prosecutor panel, had decided to oust MacKinnon, Walsh’s old ally. Rehnquist was pushing MacKinnon out and replacing him with Sentelle.
Rehnquist made this move although it defied the legal language of the 1978 Ethics in Government Act, the law that created the special prosecutor post. As a safeguard against partisanship on the three-judge panel assigned to pick the special prosecutors, the law stipulated that in appointments to the panel, “priority shall be given to senior circuit judges and retired judges.”
That provision had always been followed – until 1992 when Rehnquist waived its provisions and reached down for an active junior judge, Sentelle.
Beyond Sentelle’s lacking “senior” status, he was known as one of the most conservative partisans on the federal bench. A Reagan appointee, Sentelle had named his daughter, Reagan, after the president.
Sentelle also continued denouncing liberals even after his appointment to the federal bench. In one article published in the Harvard Journal of Law and Public Policy in winter 1991, Sentelle accused “leftist heretics” of wishing to turn the United States into “a collectivist, egalitarian, materialistic, race-conscious, hyper-secular, and socially permissive state.”
By picking Sentelle, Rehnquist assured that future special prosecutors would be more politically attuned to Republican political needs. Rehnquist decision and his continuation of Sentelle in that position through the 1990s led to a string of conservative special prosecutors who pulled their punches on Republicans and flailed away at Democrats.
Sentelle’s first special prosecutor was named when a scandal arose in fall 1992 over the Bush administration’s illegal searches of Bill Clinton’s passport records – seeking derogatory material that could be used to insure George H.W. Bush’s reelection.
Sentelle's panel handed this politically sensitive probe off to Republican stalwart Joseph diGenova, who ran an investigation that turned up many facts pointing to Republican guilt but still concluded that the Bush operatives were innocent.
Once the Clinton administration began, Sentelle’s panel picked hard-line conservatives to investigate the Democrats. Republican Donald Smaltz was named to investigate Agriculture Secretary Mike Espy. David Barrett, who had headed Lawyers for Reagan, was picked to investigate Housing Secretary Henry Cisneros.
And most notably, Bush’s Solicitor General Kenneth Starr was chosen to investigate President Clinton, first over the Whitewater case and later over other allegations.
In Senate testimony in 1999, Sentelle explained that he consciously selected political adversaries to conduct these investigations. Sentelle said he looked for Republicans “who had been active on the other side of the political fence” to investigate Clinton and his administration.
Beyond the view of many legal experts that prosecutors should be as impartial as possible – neither friends nor foes of the person under investigation – Sentelle also had applied his selection strategy differently in 1992 when the subject was a Republican administration. Then, he picked a fellow Republican to handle the investigation.
Though Sentelle testified otherwise, it seemed clear that his real criterion for selecting a special prosecutor in sensitive cases was to pick a Republican.
Hunting the President
Some critics of the Starr investigation concluded that his long-running inquiries – into relatively trivial matters such as the Clintons’ Whitewater business deals, the Travel Office firings, the mistaken delivery of FBI files to the White House, Clinton’s fibbing about his sex life – amounted to a “hunting of the president.”
But whether Clinton opened himself up to the suspicions or not, there is little doubt that these time-consuming investigations took their toll.
Often coordinating with conservative political groups and right-wing media, the Clinton investigations weakened the president politically and created the climate for his impeachment in 1998 over his misleading testimony about a sexual affair with White House employee Monica Lewinsky.
Arguably, the hidden hand behind this anti-Clinton strategy was the U.S. Supreme Court chief justice, who had picked Sentelle who, in turn, picked the special prosecutors.
Before his death in 1995, MacKinnon told his family that if he had remained in charge of the special prosecutor panel he would not have appointed Starr. A son, James D. MacKinnon, said Judge MacKinnon objected to Starr’s appointment in 1994 because of the appearance of partisanship arising from Starr’s senior position in the prior administration.
Judge MacKinnon also expressed concern about Starr’s frequent public appearances, which the judge felt “were wholly inappropriate for an independent counsel,” James MacKinnon stated. “My father always felt that independent counsels and judges should be extraordinarily discreet with any public comments, and be as anonymous as possible and simply do their work.”
The impression left with many Americans – that Clinton was responsible for a wide variety of ethics scandals – was thus partly created by Rehnquist through his choice of a junior judge with strong ideological motives to oversee the investigations against Clinton.
Crossover to Gore
The eight-year assault on Clinton carried over into campaign 2000 as the Republican National Committee and George W. Bush’s campaign worked hard to link Vice President Al Gore to the supposed “Clinton sleaze.”
Bush promised to restore “honor and dignity” to the White House and the GOP exaggerated allegations about Gore’s honesty in a not-so-subtle strategy to tie Gore to Clinton’s deceptions about Lewinsky. According to polls, the Republicans achieved some success in this effort to taint Gore.
Still, on Nov. 7, the American voters cast more than a half million more ballots for Al Gore than for George W. Bush. Gore also led in the Electoral College.
Bush only could win by claiming the 25 electoral votes of Florida, where he was clinging to an official lead of only a few hundred. Limited recounts, however, were eating into that margin.
The situation looked grim for Bush on Dec. 8 when the Florida Supreme Court ordered a statewide review of ballots that had been rejected by counting machines.
The recounting began on the morning of Dec. 9. Immediately, the canvassers began finding scores of legitimate votes that the machines had missed. Bush operatives lodged objections to delay the inclusion of these as Gore votes.
Meanwhile, Bush’s lawyers raced to the U.S. Appeals Court in Atlanta to stop the count. Though dominated by conservatives, that court found no grounds to intervene.
A frantic Bush then turned to the U.S. Supreme Court in Washington. There, in the late afternoon, the court took the unprecedented step of stopping the counting of votes cast by American citizens.
Justice Scalia made clear that the purpose of the court’s action was to prevent Bush from falling behind in the tally and thus raising questions about his legitimacy should the Supreme Court effectively declare him the winner. [See Dark Cloud, Dec. 10, 2000]
That outcome would “cast a cloud” over the “legitimacy” of an eventual Bush presidency, explained Scalia. "Count first, and rule upon the legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires,” Scalia wrote.
Trusting the Law
Nevertheless, on Dec. 11, Gore and his lawyers voiced confidence that the rule of law would prevail, that the U.S. Supreme Court would rise above any partisan concerns and insist that the votes be counted and that the will of the voters be respected.
The Gore team went before Rehnquist’s court apparently still not cognizant of the reality that whatever they argued, the five conservative justices were determined to make Bush the next president.
All that was left to do was to come up with a reason. The first one – that the Florida Supreme Court had made “new law” – fell by the wayside when the state court sent to Washington a modified ruling on the evening of Dec. 11.
That forced the five conservatives to fall back to Plan B – have O’Connor and Kennedy devise another argument, the “equal protection” rationale. With that in place, on the night of Dec. 12, the five conservatives made George W. Bush the first popular-vote loser in more than a century to take the White House.
When Rehnquist swore George W. Bush in as the 43rd president on Jan. 20, the deed was done.
A Step Toward Dictatorship
Wishful thinking in Washington clearly hopes that the Rehnquist court’s intervention in the political process was just an anomaly – something the conservative majority did reluctantly for the good of the country.
But that doesn’t square with the last decade of an increasingly partisan Republican judiciary intervening again and again to hurt its ideological foes and help its political friends.
That reality of a deeply politicized judiciary – willing to manipulate court cases for partisan purposes – also means that the nature of American democracy has changed.
With its unique position as the final arbiter of American law, the U.S. Supreme Court, controlled by five conservatives, now has appropriated the power to use blatantly specious logic to overturn the will of the American people.
The court’s action in anointing George W. Bush as president has moved the United States in a troubling direction, toward a hollowed-out democracy, indeed toward the framework of dictatorship.
In the 1980s and early 1990s, Robert Parry broke many of the Iran-contra stories for The Associated Press and Newsweek.