It is an old story. To progressives and genuine conservatives, it confirms the viability of the American system of government, but among denizens of the far right, it causes heartburn and worse.
That is the tendency of federal judges, once appointed, to move away from the extremes of their prior political conviction toward some constitutional center where true consensus — and, more often than not, real justice — has a chance of emerging. The clearest case in point was that of Chief Justice Earl Warren, appointed in the mid-1950s by President Eisenhower after having served as a conservative Republican governor of California. The term “Warren Court” has long since become a synonym for an activist judiciary determined to extend constitutional guarantees to wider and wider circles of the population.
Even after two appointments by George W. Bush, the current court has proved able to achieve a consensus in favor of constitutional guarantees, as manifested in a number of recent decisions against presidential over-reaching in matters of privacy. Justice Anthony Kennedy, a legacy from the Reagan era, has become the moderate swing force in such cases, succeeding the recently departed Sandra Day O’Connor.
Sooner or later, the court will be asked to decide on two issues of high constitutional importance. One will be the government’s appeal of District Judge Anna Diggs Taylor’s recent judgment striking down the administration’s wiretapping abuses. Another issue concerns the question of whether and to what extent the erstwhile Coalition Provisional Authority (CPA) in Iraq might be regarded as having been an arm of the U.S. government for purposes of litigation.
This week, District Judge T.S. Ellis III overturned a $10 million jury verdict against a Rhode Island military contractor accused of defrauding the U.S. government in the initial months of the Iraq war. Back in March, a jury had found the company guilty of cooking its books to cheat the fledgling Iraqi authority, which was then under the direct guidance of an indisputably American civilian/military mission.
Judge Ellis decided that the CPA was governed by “multinational consent” and therefore beyond the jurisdiction of U.S. courts, thereby disallowing the verdict. In effect, his ruling left intact the very thing that made the CPA such a ripe target for war profiteers and simultaneously girded potential criminals against legal action.
It is true enough that the CPA was presented to the public as a multinational endeavor, but in fact it was both American-controlled and almost exclusively underwritten by billions of American dollars. Any money bilked from the CPA was ponied up by U.S. taxpayers — yet another cost of President Bush’s misbegotten Iraqi venture.
Beyond the question of properly penalizing the commercial malefactors in this affair, a restoration of the original judgment against them by higher judicial authority would continue the recent tendency of the federal courts to rein in the rogue activities of the current administration and make it responsible once again to We the People.
We’ve got our fingers crossed that the Supreme Court, if things get that far, still has a potential majority to render the justice required by these new situations.
