Two excerpts from a discussion of the dangers presented by the Bush presidency. The discussion included three Republicans, two with serious doubts about the Bush presidency, several callers, and Nina Totenberg who earlier reported for NPR on the speech given by Justice Sandra Day O'Connor to an audience at Georgetown Law about her fears that the Administration is putting the country in jeopardy.
Totenberg: ... She was warning that if we don't take steps now, we could move towards a dictatorship. She said, very specifically -- she took on Congressman DeLay not by name, and Senator Cornyn not by name, quoting some of the things they had said about the judiciary. She talked about some of the proposals, proposals from some conservative critics of the Court, to strip the Court of jurisdiction, to cut the Court's budget, mass impeachments, and she said that those are the kinds of proposals, when taken to punish the Court for actions that the Congress disagrees with, those are the kinds of actions that threaten the independence of the judiciary and that are reminiscent of the kinds of actions taken in dictatorships or in the spiral towards dictatorship in other countries. She pointed to one in particular -- Zimbabwe. She called it a "nightmarish dictatorship." Then she said, It takes a lot of degeneration before a country becomes another Zimbabwe, but we should "avoid these ends by avoiding these beginnings."
Rehm: What kind of steps was she talking about specifically that the country should be taking now?
Totenberg: Basically she was saying, Don't tolerate the kinds of rhetoric that leads to increased death threats; don't accept the proposals to essentially gut the power of the judiciary as punishment for decisions that some people disagree with.
Rehm: Nina, she has made similar comments in the past -- maybe as long as a year ago. Why do you think that this time it was so important?
Totenberg: Well, my suspicion is that she's made some of these comments before, maybe not in such a cohesive way. As it happens, I was the only daily journalist who was there and I wrote a story about it. Justices give hundreds and hundreds of speeches and we who cover them do not go to all of them! Because frankly most of them are pretty boring and we've heard them before! But this was a pretty cohesive defense of judicial independence and an attack on the attackers. ... She has not released a text. There is no tape available. And therefore my story became... the record in this case. I did call Georgetown and asked them to check my quotes against their tape before I wrote it the story, so I am quite confident that the quotes are accurate. She said things like... talking about some of the proposals to strip the Court's jurisdiction and cutting the budget, she said, "I'm against judicial reforms driven by nakedly partisan reasoning." That's the kind of language she used. It was pretty tough language.
Bruce Fein, a participant in the discussion, is a dyed-in-the-wool conservative, lawyer and Constitutional -scholar, who has been an influential and outspoken critic of the Administration for several months.
Fein: I think if you look through the historical sweep of the US Supreme Court over two centuries, it has never veered very strongly away from mainstream orthdox thinking, whether it's called legal thinking or philosophical thinking. We have the problem of judicial excesses from time to time, but they're vastly overstated. In terms of destroying the Constitution, the executive branch is far more menacing than the judicial branch will or ever would be.
Rehm: And you consider that to be happening as we speak?
Fein: I think we're at least a step down that road and that's one step too far.