Politicization of Federal Justice System Undermines Rule of Law

Bush 43 has exceeded all expectations. All presidents are expected to put their 'brand' on the agencies and operations of the federal government. However, 43's brand undermines the rule of law and threatens our constitution and its separation of powers. If the Congress passes a law he doesn't like, he simply issues a signing statement and does as he pleases. According to the 4/30/06 Boston Globe, while few were paying attention, 43 has stated his authority to disobey or ignore more than 750 laws passed since he took office. This is more than the last several presidents combined.

If he dislikes laws passed previously, his administration - specifically his politically hired or fired U. S. Attorneys - selectively enforce federal the laws. In 2004 an analysis of Justice Department data done by Syracuse University found that in the first years of 43's administration, prosecutions of civil rights violations fell by more than 33%, even though the number of complaints remained the same. The only other category of federal prosecutions to suffer a similar decline was environmental violations. No surprise from the president that refuses to accept the urgency of global warming.

If all else fails and a civil rights case does make it to the Federal Courts, the conservative judges are there to see to it that corporate interests prevail. Republican presidents have been appointing lower court federal judges for 18 of the past 26 years. In its two most recent civil rights cases, even the relatively conservative Supreme Court overruled the lower courts and did so unanimously. These lower courts had been requiring extremely strict thresholds of proof for plaintiffs and had failed to protect plaintiffs from retaliation.

The Bush Presidents 41 & 43 - No Friends of Civil Rights

In the spring of 1989, the conservative Rehnquist Supreme Court handed down 9 decisions that harshly interpreted Title VII of the Civil Rights Act of 1964 and set back civil rights by decades. Title VII deals with job discrimination and harassment. Two cases in particular, Wards Cove Packing Co. v. Atonio and Price Waterhouse v. Hopkins, made it difficult for workers to win discrimination or harassment cases. Congress immediately began working on amendments to strenthen Title VII of the Civil Rights Act. When their amendments were passed in 1990, President Bush 41 vetoed the bill. The Senate failed to override his veto by one vote.

So Congress went back at it the next year. In addition to long, tough negotiating with the White House, proponents of the amendments also benefitted from the Clarence Thomas/Anita Hill hearings which occurred at the same time. In late October 1991, both the House and Senate passed the Civil Rights Act of 1991 by veto-proof majorities. President Bush had to give in and sign the bill in November 1991.

In the 2003 Desert Palace v. Costa decision, a unanimous Supreme Court made it significantly easier for workers to win Title VII discrimination cases against their employers. Even though not required by the civil rights laws, the conservative lower courts had been requiring workers to have direct evidence to prove discrimination or harassment. This decision is particularly interesting for two reasons. First, it was unanimous, even though the Bush 43 administration urged the court to maintain the direct evidence requirement. Ironically, it was Bush 41's appointee Clarence Thomas who wrote for the majority, "Circumstantial evidence is not only sufficient, but may be more certain, satisfying and persuasive that direct evidence."

Title VII not only prohibits job discrimination and harassment, but protects anyone who complains about it from retaliation. However, the conservative lower courts have almost always required that the retaliation had to result in dismissal for a plaintiff to qualify for that protection. In the unanimous 2006 Burlington Northern Santa Fe v. White decision, the Supreme Court said retaliation does not have to be an adverse employment action to be unlawful. It could even be actions such as unfavorable evaluations or unwelcome schedule changes or transfers. And of course, the Bush 43 administration argued on behalf of the railroad, suggesting that only those actions that affect compensation, terms and conditions of employment whould count as retaliation.

What's with those Bushes anyway? In addition to their actions above, they've had a lot to do with creating the conservative bent of those lower courts as well!