Andy Thomas' Judicial Tyranny Conspiracy Theories

By Michael Bryan

Disgraced and disbarred, almost-Arizona-Attorney-General Andy Thomas published a conspiracy-theory laced diatribe on 'judicial tyranny'. It is an impressively reality-challenged piece of political propaganda. The defining feature of propaganda is hyperbolic and unsupported assertions lacking any sort of proof or factual basis: Andy's rant has this feature in spades.

Let's take a look at what Andy has to say, and point out it's many, many problems. Andy is in bold and I'm in italics...

[hat tip to Sonoran Alliance for publishing this oozing sore on the face of our public life...]

Read the oozing sore, and my attempt to apply antibiotic, after the click...

by Andrew Thomas

We must be honest about the nature and scope of the problem we face in our court system.  The first rule you learn about liars is that they almost always start speaking with "I'll tell you the truth," or the equivalent. Considering how Andy starts his rant, be prepared for some bald-faced lies... The recent U.S. Supreme Court rulings in the SB 1070 and Obamacare cases were a stunning reminder of how badly things have gone. Of course, Andy considers any judicial ruling against his political agenda illegitimate. That sentiment pretty much defined his short and ignominious career, and was the basis of his downfall. For the Court to have upheld SB1070 would have required a stunning act of judicial activism, overturning nearly the whole of jurisprudence on the Supremacy Clause and the exclusive Immigration and Naturalization Power. Given that the entire legal community fully expected SB1070 to be overturned by the Court, despite public opinion favoring the law, that ruling confirms that the rule of law continues to be upheld against popular passions. I won't even bother talking about Obamacare yet, except to note that prior to oral argument, expert legal scholars overwhelmingly predicted the ACA would be upheld. The fact that it was upheld was completely unsurprising. How it was upheld was, indeed, rather surprising - but for the narrowness of the decision, not it's result. I helped write SB 1070. Thanks for reminding us that we have you, in part, to thank for embarrassing our State, Andy...  We lost this case, period. As proof, consider the fact that since this decision was handed down, nothing has changed in Arizona.  As proof, why not just look at the Court's opinion? As to nothing changing, except that, completely independent of your hate-mongering politics and unconstitutional laws, illegal immigration has nosedived due to the recession. Oh, I see it now. The GOP wrecked the economy to stop illegal immigration! Brilliant! A GOP policy that worked! Call the press! Nothing has changed, that is, except for new lawsuits being filed to block the one provision the Supreme Court did uphold (the “papers” provision) and which is not being enforced. The Court did not "uphold" the papers please provision, Andy. They left it in place for lack of a record on the manner of its enforcement. They left it to lower courts to develop such a record to see if it could be implemented constitutionally. So far the answer to the Court's question is, "It can't."

Decades of trying to reform the courts by picking good judges is now a clearly failed strategy. Umm... Don't you mean 236 years, not decades? That's simply how we do it in America, Andy. Simply appointing “strict constructionist” judges to the federal courts will not work. The whole concept of "strict constructionist" is newspeak for "people who agree with us." It has noting to do with jurisprudence, and everything to do with right-wing partisanship and judicial activism. At a critical time, the other side always finds a way to pick off a Republican-appointed justice or judge to win the day. "Pick off?" What the hell does that even mean in this context? Does Andy imply that Roberts was influenced by something other than the right-wing's immediate political interests? Fat chance. Roberts knew exactly what he was doing.  Whether it’s John Roberts or some other justice, the other side always manages to pull this off and prevail on the decisions that matter most. Would that we did always manage to pull 'this' off (whatever 'this' might be in Andy's twisted little mind - he's not telling us beyond vaguely "picking off" judges...). There is simply too much institutional, professional and cultural pressure pulling judges to the left. Huh? Andy, has the left put something in the water to pollute the judges' precious bodily fluids? That will not change. No, it won't. It is true that judges tend to move left the longer they are on the bench. There are two reasons for this. First, the movement is relative: the right wing keeps going further right in the country, leaving formerly hard right judges appearing more moderate in comparison to the nuts in the political scrum. Second, the longer a judge spends on the bench, and the more experience she gets in interpreting the Constitution, the more likely she is to take people's rights seriously. Thus, Judges appear to move left because they begin to respect the Constitution more than their marching orders from the fascists on the right, who could care less about democratic governance or individual rights.

For that matter, the modest notion that judges should follow the original intent of the Framers in interpreting the Constitution has become a quaint aspiration from a by-gone era. Andy, this was always a bullshit excuse for the right-wing to do what they wanted. The simple fact is that "original intent" is, and always was a chimerical notion. There was no single, determinable, intent in creating the great compromise that is our Constitution. The idea certainly has popular appeal, which is why the radical right chose it as a cover for their agenda to remake America into a fascist corporate oligarchy.

It’s now clear that the system itself must be reformed. In other words, our former tactics are no longer working as consistently as I would like to assist the right-wing to destroy civil rights and democratic governance. Otherwise, we must be honest enough to admit we really don’t care if we win or lose on the key issues.  The other side will just file lawsuits or otherwise misuse the legal system to overturn our victories at the critical juncture. In other words, we can pass whatever unconstitutional laws we like using our control over popular assemblies, but we can't make them stick unless we control the judiciary, as well. The essential problem is the power which judges have gained over time. Um, you mean that whole Marbury v. Madison thing? "Over time" being since 1803? Yeah, real inconvenient that, when you are trying to undermine the Constitution by appealing to people's hate and fear. Unelected judges have amassed absolute power over our government and society. OK. Now we really are finally getting down to brass tacks. Andy has a problem with judges having the power to declare the acts of elected officials (like him and his sagebrush fascist friends) unconstitutional. That's what we're really talking about here. Andy objects to nothing less that the judiciary acting as the final check on popular governance going beyond the bounds of our constitutional framework. They decide every government policy. They throw out our laws and invalidate our elections and initiatives if they don’t like them. Yep. That's what he on about. He doesn't like the judiciary acting as guarantor of our constitutional rights. By "if they don't like them," he means "if they decide that those laws violate the Constitution." Consider, for example, the recent U.S. Supreme Court decision not to overturn the lower court ruling that tossed our voter ID requirements, approved by Arizonans in 2004. Yes, consider that the courts had the temerity to say that a law that restricted citizens' right to vote could not stand if it had no rational basis... other than stopping citizens who might vote 'wrong' from voting, of course. This sort of bullshit is exactly why we need a judiciary, in my view.

They can invalidate all of your hard work with a single court decision gutting a new law or initiative.  That’s why the other side files a lawsuit right after we win something. Right after we succeed in our campaigns to make some people second class citizens, the courts step in a tell us the Constitution forbids that. How dare they?

In Arizona, the situation is even worse.  We’ve seen unelected judges create special rights for themselves.  These are rights that no other American citizens enjoy.  This is in keeping with the line from George Orwell’s Animal Farm, “Some are more equal than others.” OK. Now we are fully into propaganda mode. What special rights, Andy? Any facts behind those weighty words?

Judges in Arizona have acted to shut down criminal investigations and block prosecutions of themselves or fellow judges, retaliate against whistleblowers who expose judicial wrongdoing, target critics of the judiciary and confiscate their property, and set up large payouts of taxpayer money to judges and friends of the judiciary. Nope. Didn't think so. They shut down politically-motivated criminal investigations and throw out completely unsupported indictments? Check. File bar complaints against scumbags like you who abuse their power? Check. Make victims of such abuse whole? Check. My, Andy, this is starting to sound a little whiny...

To accomplish these ends, they have been willing to destroy our system of justice.  For example, they have chilled Arizona prosecutors from enforcing our corruption and immigration laws. I see absolutely no evidence of this. Walk down to the Federal Court in Tucson. They are jamming through so many immigration cases it will make your head spin. The Obama Administration is deporting and prosecuting at a record pace. As for corruption... well, we caught you, didn't we, Andy? The lack of corruption and immigration cases shows that prosecutors simply are not willing to risk show trials and disbarment by trying to enforce these laws. There is no lack of cases, Andy. You are a liar and buffoon. There is not a single prosecutor who fears bringing a case to bar. Why not? Because they are not corrupt, power-mad, unethical people who abuse their power to punish their political punching-bags and critics. In short, they fear nothing because they are not like you, Andy.

Unelected judges are no longer just deciding every government policy regardless of the will of the people.  They have emerged as a ruling class. A ruling class making civil service salaries. Good try, Andy, But you are an idiot. They are acting as a bloc to assert and protect their own interests and rights above those of everyone else. They are acting as a bloc to stop power-mad pols from abusing the power of a public prosecutor to intimidate and baselessly accuse members of the judicial system of wrongdoing in order to coerce them into allowing that prosecutor to continue abusing his power. Too bad for you, Andy. Our government's immune system finally killed the infection that is you.

We fought the American Revolution to prevent such abuses of power. Yep. There are no kings or queens in this country. Thankfully, no one is able to hold themselves above the law. Including you, Andy. There are no special classes of people with greater rights than others-or so our Constitution says. That includes prosecutors, Andy. You are not above the law and your ruin proved the system works. Thomas Jefferson warned us to be vigilant against judges trying to accumulate such absolute power.  He feared unelected judges would become “oligarchs” ruling over us.  This now has happened. Nice. Always put your words in the mouths of revered Founding Fathers. Lesson one that any propagandist should learn. Jefferson had good reason for concern. The Federalists had just appointed the entire federal judiciary when his party took power. Such a situation no longer exists. If anything, Republicans, by blocking Democratic judicial nominations without cause, have stacked the deck against Democratic appointments to the judiciary. If anyone should fear judicial tyranny, it is liberals, not conservatives.

Because of these trends, it is not an overstatement, but a basic political fact, that our right to self-government is in great jeopardy. Nice categorical assertion with no foundation whatever, Andy. Your continuing political and legal career is in great jeopardy, it's true. And our right to self-government is in danger of being bought our from under us by the oligarchic fascists you toady to, but that has little to do with your particular complaints. We do face a crisis in our democracy due to overreach by the courts, but I doubt you would raise any objection to the travesty of Citizens United. Why don't you just go slink off and become a paralegal or something? Stop wasting our time and embarrassing yourself, Andy.

The Solution:  Make Them Accountable

I’ve urged voters in the past to support Proposition 115.  This measure is on the November ballot.  I still recommend this as a small step in the right direction. A truly terrible idea. Read my recommendation to vote NO on Prop 115, which would give the fascist political hacks in the Governor's Office and State Legislature undue influence over the Arizona judiciary.

However, to remedy fully this situation, the following are the steps I’ve been urging-steps which, I’m gratified to say, citizens and audiences have been embracing:

1.     Elect all state judges. So that corporations can buy the judiciary they want? So that political hacks like you can intimidate them with political retaliation for their decisions? So that our judiciary will begin to act like political hacks like you, and Sheriff Arpaio, and Attorney General Horne? No thanks.

2.     Impeach the bad ones.  The legislature needs to do its job here. I actually agree with Andy here. We should impeach judges who are corrupt. Like Scalia and Thomas. This is how the system is supposed to work to prevent judges abusing their position, and too frequently, it fails us.

3.     Disband the state bar.  Replace it with a neutral regulatory agency similar to those that regulate doctors, cosmetologists, and other professions. Andy is just having a hissy fit, now. He is infuriated that the Bar purged him from the profession for being such an utterly unethical cad. Self-regulation of the profession is the foundation of professional conduct. Without the institution of self-regulation, the profession would be immeasurably harmed. Andy is exhibit one for the fact that it works. It could be better. It took far too long, and far too much harm to the rule of law, and far too much denigration of public respect for the legal profession and criminal justice system before Andy was stopped. But it did work. By the way, isn't it ironic in the extreme that a so-called conservative like Andy wants a profession to be regulated by the State, rather than by its own members. What happened to your love of the free-market and self-determination, Andy?

4.     Impose term limits for federal judges. Couldn't agree more, actually. Federal judges should serve a single, non-renewable term of 15 to 20 years. Retaining fossils on the bench until their brains rot or they die is just bad government.

5.     Urge Congress to use its authority under Article III, Section 2 of the Constitution to withdraw jurisdiction from the federal courts over select matters.  This should be done in those areas where judges have repeatedly abused their powers and ignored the Constitution and will of the people. This guy went to law school? Well, I guess it didn't stick to well given the trajectory of his career. Throwing jurisdiction stripping out there with as little context as this makes it sound pretty easy and uncontroversial. It's not (courtesy of Professor Volokh, who though a right-winger is at least not an intellectual midget, like Andy).

This Year’s Elections and the Future

What can be done immediately?  We have, of course, the looming 2012 elections, with their obvious enormous consequences.  This year’s races are particularly historic given all that’s at stake.  I believe the presidential contest will be close.

Many good local candidates are on the ballot as well.  I would ask you to reward, with your votes, those candidates who have shown the courage to advocate and push through tough reforms of the sort I’ve mentioned.  Just voicing the same old conservative clichés is no longer good enough.  The crisis is too great, the threat to our liberty too severe.  True courage is extremely rare in politics.  We should reward those candidates who demonstrate it. Like you, Andy? When are you going to announce your bid for Governor? That such a farce should occur is, I feel, certain. That a failed, corrupt, unethical, public travesty such as yourself should think there is any possibility of your being elected says a lot about the state of our politics. That you continue to speak of public matters, having so thoroughly demonstrated your unfitness to play any part in public life, shames us all.

I will continue to stay in touch and spread the word about the need for reform in speeches, media appearances, etc. Oh, thank you, Andy! Please guide us in our time of need, oh wise one! Have some natural shame and just go away, Andy. Haven't you done enough? At long last, sir, have you no shame? Thanks for all the other suggestions about what must be done; I am considering what else requires action and will get back on this.  We must stand up for the rights that so many fought and died to preserve.  The Republican district chairman who urged me to try to organize this “resistance” to judicial tyranny was wise and his suggestion is well taken.  Thank you for it-you know who you are. Whoever 'you are', can't you please suggest Andy just shut up and go away? I suppose I should be pleased that Andy is still out there, stirring up shit, and embarrassing his party. But I'm not. That a man like Andy Thomas can have any role in public life, can be listened to as a serious commentator on public morals and governance, makes me sick. It make me sad. It makes me angry. And it makes me disgusted.

I want to thank you for your interest in what I’ve come to believe is the central fight of our time.  If we cannot rein in unelected judges, we will cease to be a free nation.  In many ways, we already have.  We cannot let this stand. Oh, just shut up, Andy. Go away.