The Continued Stealth Takeover of the Courts

In case you’ve managed not to notice, the old saw, “the best government money can buy” increasingly applies to our legal system. In ECONNED, I describe briefly how a well funded “law and economics” movement which had corporate backing, including from the extreme right wing that was systematically trying to move America to the right, sought to incorporate ideas from neoclassical economics into the practice of law. It was seen as “off the wall” at the time, but has proven depressingly effective.

A more obvious effort is simply to get judges in place that will deliver the verdicts you want. A Mother Jones article, “Permission to Encroach the Bench,” (hat tip reader Francois T) discusses how already big ticket battles over state supreme court seats are likely to rocket to a new level of priciness:

For a down-ballot category that even well-intentioned voters pay little attention to, judicial races are astonishingly expensive. In 2004, $9.3 million was spent in the race for a single seat (pdf) on the Illinois Supreme Court. That’s higher than the price tag of more than half the US Senate races in the nation that year. In 2006, three candidates for chief justice in Alabama raised $8.2 million combined.

But those sums could look paltry compared to the spending likely to be unleashed in the wake of the Supreme Court’s Citizens United ruling. In all, 39 states elect judges—and with the stakes including everything from major class actions to zoning and contract cases to consumer protection, workplace, and environmental issues, corporations have always taken a major interest in those races. The US Chamber of Commerce, Forbes reported in 2003, has devoted at least $100 million to electing judges sympathetic to its agenda. “No organization has had more success in the past 10 years of judicial elections,” says James Sample, a professor at Hofstra University who studies judicial reform issues. “Its winning percentage would be the envy of any sports franchise.” Citizens United has essentially wiped out not just federal restrictions on campaign spending, but many state-level regulations as well, Sample notes, and that’s “going to increase the ability of corporations, and to a much lesser extent unions, to engage in electioneering that is basically aimed at winning particular cases.” And given the low profile of these races, it may not take that much to sway that outcome, notes Bert Brandenburg, executive director of the advocacy group Justice at Stake. “A judicial election is a better investment for anyone spending money” than, say, a congressional campaign.

Note the reference to Alabama, a state I know a wee bit about, and my local sources say the Mother Jones figures are greatly understated, and attorneys in the state who’ve turned over a few rocks put the price tag for a state supreme court seat at $12 million. I’ve had a quick look at a Supreme Court justice’s house. It is in an implausibly costly district for his income (and no, there’s no heiress wife to explain the discrepancy).

Why is Alabama such a valuable state to control? It used to be a favorite venue for class action lawyers, since juries often handed out multi-million-dollar awards. Getting business-friendly jurists in place at the highest court has meant that any verdict, no matter how egregious and damaging the violations, is cut to $1 million.

And the degree of banana republic behavior is reaching new levels. Consider: a once prominent corporate firm has been reduced to becoming primarily a foreclosure mill. However, because longevity counts in the South, and many of the firm’s senior partners still dine with judges, it has clout well in excess of its fallen standing.

On a case which is now being tried, this fading firm (we’ll call it Billem) has managed to get the case (which is being heard only by a judge) moved from the court before a decision has been rendered to a sympathetic appeal court judge. In addition, Billem is appending four other cases which that have already been decided and are past the time frame for appeal (in Alabama, you have 43 days in which to file an appeal). The rationale is that these cases present similar issues, but that still has the effect of reopening cases which under existing law are settled. For lay reader, if you miss the deadline for appeal, you can’t appeal…..except in when the right people in Alabama want it to occur.

So this isn’t merely having judges who will provide the opinions big business wants. We now have a court running roughshod over basic elements of procedure. The last bastion of defense of the individual is being gutted, to the point where even the forms of the law will be ignored if that’s what it takes to produce the outcome the big money interests need.

And to remind us why that puts us all at risk, consider this defense of the reason of the law from Roger Bolt’s screenplay about Thomas More, A Man for All Seasons:

More: Yes. What would you do? Cut a great road through the law to get at the Devil?

Roper: I`d cut down every law in England to do that.

More: Oh! (advances on Roper) And when the last law was down, and the Devil turned round on you –where would you hide, Roper, the laws all being flat? (He leaves him) This country’s planted thick with laws –man’s laws, not God’s –and if you cut them down –and you’re just the man to do it –d`you really think you could stand upright in the winds that would blow then? (Quietly) Yes, I`d give the Devil benefit of law, for my own safety`s sake.

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  1. john

    Thanks for staying on top of this Yves.

    About five years ago I was going through a series of sales meetings with a Columbian liquor importer. In passing he mentioned that his biggest surprise doing business in the US, which was new to him at the time, was how cheap our officials are. He was particularly fond of Florida.

    As best as I can tell, the price point of corruption here is still driven by the fact that the retail market for corruption, small and independent operators, has not yet been totally destroyed. Unlike Columbia, our corporate monoculture still has some weeds in it. Justice by the buck should be just the herbicide to cleanse the fields.

    If the corporatists could see beyond the end of the quarter it would be obvious that success in this particular venture will get exponentially more expensive as it advances: in the US the voice of “More” is cash which hardly has any argument with “Roper”.

  2. psychohistorian

    I agree that loss of rule of law will take down the road to ruin faster than many other methods. What other country in the world will want to do business with a rogue nation that selectively applies some measure of rule of law?

    If this social direction produces similar results to the economic repercussions of the US getting a cold then the rest of the world in relation to rule of law will return 900+ years to pre-Magna Carta Dark Ages.

    Is this where we really want to go? Could our evolving banana republic with nukes really take the world there? Do we have a choice? How do we exercise that choice?

    Thanks for the posting Yves. As you know I have railed about this before. How can mankind give up rule of law? It really is pathetic to think about.

  3. attempter

    If we recognize these as facts, under the current system:

    1. The rule of law has systemically abdicated.

    2. Corporate and other authoritarian aggressors will consistently be favored and empowered by the courts, regardless of the law. (Not to mention how the legislature continues to systematically legalize crimes.)

    3. Court rulings which uphold law and justice will be increasingly rare, and will result from the accident of the few judges who still do their jobs, i.e. who are conscientious from the public interest point of view but rogues from the point of view of the system. To the extent that still occurs it’ll be fortuitous, nothing we can rely on.

    Then it follows that public interest action will increasingly have to involve civil disobedience, and will not be able to work to the extent police forces are able and willing to carry out the dictates of the criminal system. (I think all honest, reasonable people agree by now that the old “if you don’t like the law, get the law changed” is just a version of “let them eat cake”.)

    So then the questions are:

    1. How to organize this disobedience? (Including the educational campaign about the destruction of the rule of law and corruption of the courts.)

    2. What can/will police forces do?

    3. How, if at all, can (2) be mitigated by citizen action?

    It looks like a tough row to hoe, but it has to be done. The only alternative is slavery.

  4. Bill G

    To the extent Yves paints this as a right wing plot she is off base. Packing the courts with judges favorable to your position is as old as our country and practiced by the left as much as by the right. Our language is as open to interpretation as we want it to be and so as long as people want/need to avoid unpleasant precedent or unfortunate language they can. Our recent economic and social ills are as much a product of left wing activism as right wing activism. Our political/governmental/regulatory system encourages and rewards deception, obfuscation, and half truths and disregards truth (unless it’s convenient). Politics and legal systems are imperfect substitutes for morality.

    1. DownSouth

      Packing the courts with judges favorable to your position may be as old as our country, and it may indeed be practiced by the left as much as by the right.

      But when money becomes the only determinant in deciding how the courts will be “packed,” and because money above all else has a tangible and expedient quality, any appearance of an impartial judiciary will have become a thing of the past.

      1. jdd

        You do realize that being friends with money raisers is how people get appointed to the bench, right? Doing so in an election context seems a little more democratic to me, not less. I suppose there could be a little less balance with judicial elections. Appointments with term limits would probably be optimal.

        But the judiciary is completely overrated as some sort of disinterested, honest, and apolitical group of people. At the state court level here in CA, there are just waves of hacks. I don’t think it can get too much worse.

        1. Anonymous Jones

          “I don’t think it can get too much worse.”

          The most famous of all “famous last words.”

          [In all seriousness, and I say this in response to all comments like this one, read a frickin’ history book. If you think the current California judiciary ranks even in the top *half* of all terrible judiciaries throughout time, you are completely and totally without any facts, knowledge or perspective. It’s not good, and as a CA resident, I wish it were a lot better, but it is nowhere near, and I mean *nowhere* near the point that it couldn’t get much worse.]

    2. Francois T

      “To the extent Yves paints this as a right wing plot she is off base.”

      Note that Yves merely stated a fact of recent history; big corporate money has been much more aggressive and successful than anything trial lawyers and lefties have tried (pun intended) in the last 30 years or so.

      Nothing off base here. Move on folks.

      That said, the stark reality is that we, the people, bear a big part of the blame for this situation.

      We have this pretty silly idea that it is a good thing to be able to elect our justices. It provides a false sense of control over the process. The thing is, it would be a good idea in a country where citizens are very involved in the electoral process, and a press that does the basic job expected from a free press.

      Well, guess what? We’re the ones with the LEAST level of participation. As for the state of the press/media in the US, do not get me started.

      Furthermore, how about asking ourselves a basic question: What do we want from a judge? Good looks? Nice speeches? Political connections?

      I’d rather have a judge who is competent and not beholden to anyone. But how can a judge NOT be beholden to anyone if he/she has to raise money to get on the bench? This should be simple and elementary logic, yet, people blissfully shrug their shoulders with a “Oh well! that’s the way it is” look, when confronted with this contradiction. There is, somewhere in the psyche, a Blue Pill (sold by The Matrix Inc?) that induce magical thinking: Don’t worry, this contradiction does not matter, it will resolve by itself deus ex-machina, without real world consequences.

      As recent events have made abundantly clear, there are consequences, and they are not pretty. The Benjamin case is just a sample of what we know. Another truly vile example is the Sandy Blunt case in the SC of North Dakota, who upheld a felony conviction despite solid proof that the prosecutor (Cynthia Feland) in the case engaged in criminal behavior related to the case. Of course, said prosecutor has political connections and ambitions, so…

      By the way, it’s not only the money that is the problem here. Rabid ideology do not yield to anything when comes the time to defy common sense and elementary decency.

      Take for example the way the SCOTUS decided Caperton’s appeal. As per MoJo:

      Caperton appealed the decision on the grounds that Benjamin should have recused himself, and four years later, the US Supreme Court agreed…

      Agreed…yeah right! Now, pray tell how did the SCOTUS agreed? Anyone familiar with the case will tell you: In the affair of judge Benjamin, in a 50 million dollars case decided by him, the defendant provided more than 60% of all his campaign money for his election. The mere appearance of impropriety should compel a judge to recuse him/herself. That is how decent and professional judges behave. There is no need to look for the precise text for that in the Constitution now, is there??

      Therefore, the SCOTUS decision should have been a 9-0 slam dunk, Wham-Bam-Thank-You-Mam, no contest vote…right?

      It was a 5-4 decision. Four justices on the highest court of the land couldn’t be bothered to see any problem with the conduct of a judge who collected that much electoral money from one individual who, oh surprise! would be n front of him as a defendant in a case with 50 millions on the line.

      Let that sink in for a minute.

      Still want to invoke the left v right puerile kindergarten wet noodle fight? We got much bigger problems to solve ASAP…or else.

    3. liberal

      “Packing the courts with judges favorable to your position is as old as our country and practiced by the left as much as by the right.”

      LOL! The left? In the US?

      I suppose you could argue that the Warren Court is “the left,” but if you think Brown v. Board, Gideon v. Wainwright, and Baker v. Carr are “the left,” then you’re a feudalist.

    4. Justicia

      “Politics and legal systems are imperfect substitutes for morality.”

      In a pluralistic society, individual morality cannot serve as the basis of governmental action. I’m as entitled to my belief as you are to yours. So how are we to chose.

      The neo-liberal agenda (of the bipartisan Washington Consensus) pretends that the law is value-neutral, which it decidedly is not. The corporatist values are hidden under the supposed neutrality of economic analysis.

      Progressives must unmask this fraud and make explicit the values underlying neoclassical economics — particularly in regard to environmental and social externality costs. These damages are socialized while companies make off with the profits.

    5. KFritz

      If you mean that there’s no coherent, regimented right wing cabal of the sort dreamed up in “The Protocols of the Elders of Zion,”that’s correct. But it has been right wing courts and legislatures that have given big money unfettered access to influence our elections. While in theory we the electorate ought to be proof against the psychological manipulation that money can buy, in practice we haven’t been, recalling Franklin’s, “A Republic, if you can keep it.” So our Republic/Democracy is foundering on the theory that money advertising really shouldn’t be able to buy votes.

      Your last sentence is hoot juxtaposed against the “Man for All Seasons” quote. Institutions and laws administered by moral people protect us. ‘Morality’ is an abstract concept without this framework. Practice is what counts.

  5. Doug Terpstra

    The return on investment (ROI) for buying state judges is apparently higher and more immediate than owning a congressman or president.

    The head-shaking reality never stops; Obama’s change is acceleration.

  6. Tom Crowl

    From the Brennan Center for Justice at NYU:

    “The New Politics of Judicial Elections 2000-2009”

    The problems in politics and governance are ‘meta-political’…

    And mega-Corporations are fundamentally neither Right nor Left… they are Tribal.

    Ultimately these problems of influence cannot be solved without addressing the systems and mechanisms of political interaction. And I’m happy to say I believe I have a few friends at Brennan Center who are coming to understand how facilitating citizen lobbying via a neutral network… especially allowing a viable micro-transaction… is a fundamental requirement in response to the Citizens United decision.

    Further, by enhancing geographically-based political networking (in addition to other methods)
    via systems of graduated anonymity (somewhat similar to systems used on dating websites)…

    the emergent network is attached to tools for local community building in the political field… but also for issues, causes and projects of special interest to that community… and which they can self-organize to advance and implement.

    Our networks are less and less connected to geography… however our politics IS geographically based. This is an additional advantage for large corporations… and an additional handicap for fragmented communities…

    The duopoly DOES NOT want better methods of interaction.

    In truth…

    Democracy has very little representation…

    On Creating Communities (Part 1)

    Quantum Politics: Crazy Speculations on the Physics of Decision

    Frankly, I’m appalled at how little attention or value is placed on addressing meta-political issues.

    And how great the rewards are for designing instruments to ‘game’ the Enlightenment-based culture that took so long to build.

  7. Ina Deaver

    I’ve been waiting for someone to point out that the “law and economics” movement is nothing but code for some very ugly (thoroughly discredited) ideas, including a type of social Darwinism. I studied economics, I went to law school — I took a look at this and was appalled.

    Rooting out corruption is one thing, rooting out true belief in something corrosive, on the order of a religion, is another. I’m not sure that some of these ideas will ever finally be discredited for good.

    1. jdd

      Huh? Law and econ is the application of laws of economics to determine how to make laws that achieve what the purported desire of the law.

      How is determining which party is the cheaper bearer of risk and creating a default rule to put that risk on that party ‘social darwinism?’ Or to argue that liquidated damages clauses should be enforceable? Or that say, specific performance might be preferable to a damages remedy for breach of contract? It is darwinistic because it seeks to reduce costs that the parties would most likely agree to if they had to sit down and think about it?

      And btw, what’s the opposite of social darwinism? social anti-darwinism? the survival of the unfittest? That’s pretty much the status quo – companies that lose money get more money from the government. People are induced to not work or generate skills – get welfare or stay in school for 10 years. At least people should know the potential effects of creating a subsidized housing market. They can choose to assume the risks but knowing them, I think, is beneficial.

      Or do you prefer a zero correlation with fitness? social randomness? is that desireable? Is it Constitutional?

      Would people now living in the U.S. choose a system of anti-darwinism or zero-darwinism? Doubtful. Maybe the faculties at Yale and Cal would. Of course, they only survive because productive people exist.

      We’re talking about a way of analyzing. How that is used depends on the values of the people making the laws. The quality of the analysis will depend on the quality of the assumptions — which is the problem with any type of economics.

      1. liberal

        The quality of the analysis will depend on the quality of the assumptions — which is the problem with any type of economics.

        But the problem is that law and economics is built on a house of cards. One of its major underpinnings, the Coase Theorem, is flat-out wrong.

        I don’t mean wrong because it abstracts away transaction costs. I mean wrong, because due to wealth effects, the idea promulgated by Coase that there’s a single equilibrium in the situations he studied is completely false.

        1. anon

          I think that maybe people here are using economics and law to mean very different things. I think that JDD is using it to mean any economic analysis of legal problems (and that was how it was generally used when I was in law school eons ago), whereas Yves and probably others here are using it to mean the particular ideas of Posner, Calabrasi, Coase, etc.

          (BTW, all I remember about the Coase Therom was that the law, contracts, etc. should seek to minimize transactions costs, all other things being equal, and that the legal system, and in particular taxes, is not the only or necessisarily the best way to internalize externalities. I’m not an economist so I may have misunderstood the comment that the Coase Theorum has been discredited but if you are referring to the part of the Coase Theorum that states that initial allocation of resouces is irrelevant, Coase himself said that wasn’t true back in the 1960s and that was never a part of what was taught to me as economic analysis of the law. Initial allocations and transactions costs might be ignored in some stages of analysis – as might incentives, wealth transers, and other important factors during other stages – but those factors were always considered important aspects that must be addressed in any sensible evaluation.)

      2. liberal

        It is darwinistic because it seeks to reduce costs that the parties would most likely agree to if they had to sit down and think about it?

        Except that the theory underlying that claim is false.

      3. ted

        “laws of economics”

        I can only think of one law of economics — he who has the gold, makes the rules

        I suppose you think there is a free market too?

      4. Yves Smith Post author

        I hate to sound like I’m plugging my book, but you need to read chapters 2-5 of ECONNED. Frankly, you should be embarrassed to be defending the law and econ movement. It was and is a blatant effort to bring ideas into the legal process (and worse, ones based on neoclassical economics, which favors business interests over traditional notions of jurisprudence, the MOST important being equity and due process) that are pure and simply extralegal.

        1. anon

          Yves, as noted above, I think that you and JDD are probably talking about very different things when you discuss economic analysis and the law. I don’t think that JDD is necessarily endorsing Manne or Posner when s/he talks about economics and the law. I’ve read your book and you seem to be focused on the University of Chicago and Manne, whereas when I went to law school, economic analysis of the law was more about enterprise liablity, efficient breach of contract (which says that most underwater homeowners should walk away from their mortgages; this not only benefits them, it benefits society), and other ideas than it was about the ideas espoused by Posner et. al. It was not inherently laisse faire and often the ideas were designed to avoid allowing large companies to push their losses on to the average person. Matthew Tobriner, Traynor, and Learned were more important influences on economic analysis and the law than Richard Posner, at least as taught by my profs. (For Tobriner see, e.g., Dillion v. Legg which allowed tort recovery for emotional distress – which had not been allowe in CA, his decisions re: enterprise liability which expanded tort recovery and helped internalize some externalities, and his famous footnote that it might be proper for knife manufacturers to be responsible for all injuries that ever occurred from improperly using a properly manufactured knife; for Traynor : “I believe the
          manufacturer’s negligence should no longer be singled
          out as the basis of a plaintiff’s right to recover in cases
          like the present one. In my opinion it should now be
          recognized that a manufacturer incurs an absolute
          liability when an article that he has placed on the
          market, knowing that it is to be used without inspection,
          proves to have a defect that causes injury to human
          beings. . . . Even if there is no negligence [by the manufacturer of a product], however, public policy demands that
          responsibility be fixed wherever it will most effectively
          reduce the hazards to life and health inherent in
          defective products that reach the market. It is evident
          that the manufacturer can anticipate some
          hazards and guard against the recurrence of others, as
          the public cannot. Those who suffer injury from
          defective products are unprepared to meet its
          consequences. The cost of an injury and the loss of time
          or health may be an overwhelming misfortune to the
          person injured, and a needless one, for the risk of injury
          can be insured by the manufacturer and distributed
          among the public as a cost of doing business. It is to the
          public interest to discourage the marketing of products
          having defects that are a menace to the public. If such
          products nevertheless find their way into the market it is
          to the public interest to place the responsibility for
          whatever injury they may cause upon the manufacturer,
          who, even if he is not negligent in the manufacture of
          the product, is responsible for its reaching the market.
          However intermittently such injuries may occur and
          however haphazardly they may strike, the risk of their
          occurrence is a constant risk and a general one. Against
          such a risk there should be general and constant
          protection and the manufacturer is best situated to
          afford such protection.
          The injury from a defective product does not become a
          matter of indifference because the defect arises from
          causes other than the negligence of the manufacturer – GREENMAN, v.YUBA POWER PRODUCTS, which is one of the many cases explaining the legal principle of enterprise liablity; Re: Learned Hand: I know he proposed the Hand Rule, which you may not like but the effect of US v. Carroll was to hold the US government liable to the boat owners who were injured. He often sided with the little gal/gy e.g., he lambasted the US Supreme Court for striking down several worker protection laws: “For the state to intervene to make more just and equal the relative strategic advantages of the two parties to the contract, of whom one is under the pressure of absolute want, while the other is not, is as proper a legislative function as that it should neutralize the relative advantages arising from fraudulent cunning or from superior force.”)

          As noted above by another poster, the ideas of Calabrasi (who, e.g., talked about property rights vs liability right vs inalienable rights and the rules that flowed therefrom – and in analysis, which would be the most appropriate in a given situation) is very important in economic analyis and the law.

          We did discuss trying to ensure that the party who could best avoid/minimize/insure against a particular loss was the party who would bear the burden of the loss (with appropriate compensation therefor if possible), which IIRC is one of Posner’s ideas or popularizations (and which IIRC falls under Calabrasi’s liability schema) but neither the students not the profs blindly accepted that this was always the preferable way to structure a contract or law. It was a factor that one needed to consider in allocating responsibility, awarding damages, etc. but only one factor. Part of that economic analysis was trying to maximize efficiency but looking at incentives, wealth-transfer effects, externalities, was just as important and those factors often favor J6P. Further, economic analysis was seen as one method of analyzing laws, not the only method or necessarily the most important method.

          I don’t like the U of Chi school of economics and its influence on the law, either. (In fact, I was seen as a nut job by many of my friends when I warned them to be wary of Obama because of his ties there.) But when I hear the term “economic analysis of the law”, I don’t think of Richard Posner and I certainly don’t think of Henry Manne. To me, and I think to most lawyers, it is much broader than that.

  8. LeeAnne

    “And how great the rewards are for designing instruments to ÔgameÕ the Enlightenment-based culture that took so long to build.”

    Ignoring Sherman Anti-trust laws, the government capitulated to the will of Wall Street to enable decades of consolidation of corporate economic and government power, implementing and supervising that power quarter-by-quarter while extracting rents from every transaction in the universe and creating unimaginably more in the $600 Trillion and some odd dollars derivatives universe.

    But first the FREE PRESS had to go out of business as it naturally did ; daily news is not a money making enterprise nor is health care, unless they are driven by gangsters who are not meant to serve anyone but themselves and the bottom line, and where everyone gets hit up to stay in business (see physicians for this one). How much does it cost, how many student slots are available and controlled by the American Medical Association (AMA) for an MD license, how many years slaving as students and interns?

    Without the FREE PRESS and institutions of journalism trained to represent, investigate and remember the history of the people’s business with a passion sufficient to demand the respect and fear of the powers that be, the people have no representation in the decision making process, implementation and evolution of anything under the law in spite of the heroic journalists still on the job and risking their lives for the cause every day. They are a shrinking breed and have too little support.

    On consolidation of mainstream media, for example; a snippet from Wikipedia:

    “In 1986, control of NBC passed to General Electric (GE), with GE’s $6.4 billion purchase of RCA. GE had previously owned RCA and NBC until 1930, when it had been forced to sell the company as a result of antitrust charges. After the acquisition, the chief executive of NBC was Bob Wright, until he retired, giving his job to Jeff Zucker. The network is currently part of the media company NBC Universal, a unit of General Electric, which, on December 1, 2009, purchased the remaining 20% stake of NBC Universal which it did not already own from Vivendi. On December 3, 2009, Comcast announced it will purchase a 51% stake of NBC Universal.”

    Drug money and big banks: Wachovia Bank is accused of laundering $380 billion in Mexican drug cartel money to the tune of $380 Billion ..

    Tells you who’s in charge here. Banks financing Mexico drug cartels. US Military protects poppy fields in Afghanistan. Mexico President Felipe Calderón addresses a joint session of the Congress; not unique for heads of state, but uniquely admonishing THE PEOPLE of the United States that he

    ‘… strongly disagrees with the Arizona law that requires police to question people about their immigration status if there’s reason to suspect they are in the country illegally. “It is a law that not only ignores a reality that cannot be erased by decree but also introduces a terrible idea using racial profiling as a basis for law enforcement,” he said to cheers, mainly from the Democratic side of the chamber.’

    Now I see McCain’s worth. I never thought I’d see the day when he would look good and wondered when I spied on the Internet the political contributions to McCain of an OLD Wall Street colleague; brilliant, retired at 38 and liberal:

    McCain skipped that session, meeting with Calderon privately, and issued a statement “McCain issued a statement that it was “unfortunate and disappointing the president of Mexico chose to criticize the state of Arizona by weighing in on a U.S. domestic policy issue during a trip that was meant to reaffirm the unique relationship between our two countries.”‘

    We are all in denial. As the struggle to name our new form of government continues, because it is unique in history; it is not so unique. The numbers may are unique, but there is nothing unique about TYRANNY. What we have here is an out of control, tyrannical form of government.

    The warning of Justice Sandra Day O’Connor is as close as you can get to the truth of the matter. Published on Monday, March 13, 2006 by the Guardian / UK Former Top Judge Says US Risks Edging Near to Dictatorship Sandra Day O’Connor warns of rightwing attacks Lawyers ‘must speak up’ to protect judiciary by Julian Borger

    Sandra Day O’Connor, a Republican-appointed judge who retired last month after 24 years on the supreme court, has said the US is in danger of edging towards dictatorship if the party’s rightwingers continue to attack the judiciary.

    In a strongly worded speech at Georgetown University, reported by National Public Radio and the Chicago Daily Law Bulletin, Ms O’Connor took aim at Republican leaders whose repeated denunciations of the courts for alleged liberal bias could, she said, be contributing to a climate of violence against judges. We must be ever-vigilant against those who would strong-arm the judiciary. Sandra Day O’Connor Ms O’Connor, nominated by Ronald Reagan as the first woman supreme court justice, declared: “We must be ever-vigilant against those who would strong-arm the judiciary.” She pointed to autocracies in the developing world and former Communist countries as lessons on where interference with the judiciary might lead. “It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings.”

    In her address to an audience of corporate lawyers on Thursday, Ms O’Connor singled out a warning to the judiciary issued last year by Tom DeLay, the former Republican leader in the House of Representatives, over a court ruling in a controversial “right to die” case.

    After the decision last March that ordered a brain-dead woman in Florida, Terri Schiavo, removed from life support, Mr DeLay said: “The time will come for the men responsible for this to answer for their behaviour.” Mr DeLay later called for the impeachment of judges involved in the Schiavo case, and called for more scrutiny of “an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president”.

    Such threats, Ms O’Connor said, “pose a direct threat to our constitutional freedom”, and she told the lawyers in her audience: “I want you to tune your ears to these attacks … You have an obligation to speak up. “Statutes and constitutions do not protect judicial independence – people do,” the retired supreme court justice said. She noted death threats against judges were on the rise and added that the situation was not helped by a senior senator’s suggestion that there might be a connection between the violence against judges and the decisions they make.

    The senator she was referring to was John Cornyn, a Bush loyalist from Texas, who made his remarks last April, soon after a judge was shot dead in an Atlanta courtroom and the family of a federal judge was murdered in Illinois.

    Can Mexico-style justice be far behind?

  9. Paul Tioxon

    What we are facing is a political movement of anarchy, rebranded as libertarianism. If you follow the narrative of the Koch brothers, as reported by Jane Mayer in the New Yorker this week, you can see what the end game is of the get the government off my back crowd. We are witnessing it in the financial crisis. There was a time, when the cry of tyranny meant something specific. It was against an irrational faith based social order of divine right kings. Our democratically controlled republic is a far cry from tyranny, just because we have to pay taxes, to support the highest standard of living achieved by almost 90% of the populace. The pathetic demonization of Obam

      1. Progressive Ed

        “a well funded “law and economics” movement which had corporate backing, including from the extreme right wing that was systematically trying to move America to the right”.
        Not any more. Please be patient. With President O’Bama and a Progressive administration the USA will be shifted to the opposite direction. After all, we already have 2 new justices on the Supreme Court, both Progressives (i.e. The personal is the political). Progressives know that the middle class with its latent demand for “liberty” is the underlying problem. Our Progressive plan, using the public employees unions (love those pensions, bennies, etc.) as the hammer and the 10’s of millions of illegals as the anvil, the middle class (bourgeoisie) will he relegated to the dustbin of history. But please have patience and give us time. Thanks.

  10. LeeAnne

    Families living in cars (nothing new, BTW) is good enough for the other 10% –until they come and take away the cars.?

  11. El Snarko

    What I really want to know is since y’all are working on what’s his names chicken farm (metaphorically) without gloves….how to youholdyour noses and deal with these &#^*& in your business? Honestly, how DO you do your professional best for people who consider you food?

    Like an incandescent burst of true America, Econned illuminated a very dark place. By its light the Koch brothers are traitors and by their light it is sedition. It is impossible to bridge that gap to Obama’s “United states of America”. A de facto aristocracy cannot be allowed to function in a democracy. The issues are mostly meta political AND meta economic. Unenlightened self interest has become academically supported and taught as a methodology. Huge rewards for limited participants and reduction of the options for the majority is the rule of the game. Most do not do this well simply because they do not think along thses lines or wish to live like this.Connections trupm competence.Psychohistorianl is right.Adolescent “Duke of Earl” fantasies are ascendant and the minimization of one man one vote is critical to this process.

  12. Paul Tioxon

    (my apologies) The pathetic demonization of Obama as Hitler or Stalin shows the ignorance of the horror of dictatorship, and that it has not reached out to strangle the throats of any opposition in the USA, as China has in Tiananmen Square or as in Iran, in shooting and beating thousands of its own citizens and disappearing the rest to silence any and all dissent. The biggest intrusions into our lives absent government oversight and regulation is from corporate America. FICO scores are the new caste system. Innumerable background checks, drug testing, questionable gaps in how and where you spent your time if not as a W-2 employee making profits for someone else, what could you possibly be doing with your time, if not as a wage slave? These are the mundane tyrannies that are piling up as quickly as tooth decay in candy eating soda drinking population. Not the Federal government’s insistence on minimum wages, public education, good health care, the almost certainty of home ownership. The deregulation movement coupled with libertarianism is anarchy, by elimination of The Leviathan’s capacity to be the final arbiter of the structure of the social order.

  13. ep3

    Come on Yves. Corporations are the new citizens that were talked about in the Constitution and human beings are now those “other” citizens that only count as 2/3 people. The rights of the citizens must not be abridged above all else. And the citizens are corporations. People are just bantha fodder.

  14. Arthur Wilke


    RE: Your comment:

    Note the reference to Alabama, a state I know a wee
    bit about, and my local sources say the Mother Jones
    figures are greatly understated, and attorneys in the
    state who’ve turned over a few rocks put the price tag
    for a state supreme court seat at $12 million. I’ve
    had a quick look at the Chief Justice’s house. It is
    in an implausibly costly district for his income (and
    no, there’s no heiress wife to explain the

    The Chief Justice of the Alabama Supreme Court is Sue Bell Cobb who is married to a male.

    With regards to her 2006 campaign for Chief Justice, Money in State Politics reports contributions of
    $2,621,838. Many state Supreme Court races, however, do involve, as you report, much larger political contributions.

    Alabama was long viewed as “tort hell” by those in the “tort reform” mobilization. Plaintiffs against large corporations, especially, out of state ones, could find more favorable venues in the state court system. It became a target those seeking to reduce legal liabilities.

    In addition, until 1987 with the passage of the Medical Liability Reform: Sound Science Act, Alabama was the only state in which the scintilla rule of evidence was used. A complainant had legal standing in court if there was the smallest indication of harm. With the 1987 medical liability “reform,” a “substantial” evidence rule was put in place.

    Arthur Wilke

    1. Yves Smith Post author

      The house I was shown was another justice’s house in the one of the best parts of Mountain Brook. I did seek clarification on this point and put the post up before getting confirmation, which was my mistake. You are correct on the Sue Bell matter, and I am correcting the post on that, but I stand behind the rest of the post.

      As to donations, there are official channels v. informal means of support (the biggest being broader messaging that supports a candidate’s position, parties and other forms of getting the word out that are not done through the campaign apparatus and therefore don’t count as donations. Once in a great while candidates are unhappy about this because the message, particularly when it is in TV or print ads, can’t be approved or reviewed by the campaign and sometimes can be too, ahem, crude on some hot button issues). It is true that this operates at every level of politics and it’s harder to put a firm number on it. So Alabama is probably still not the worst when you factor that in too.

      “Tort hell” is the sort of view that corporations like to tout when they occasionally get raked over the coals. One man’s terrorist is another man’s freedom fighter. And in this case, the odds are SO badly stacked against ordinary people that the occasional excess to keep overweening corporate power in line is a far smaller problem than having overly weak checks on corporate abuses.

      Yes, justice is imperfect, some settlements are out of line, but for every one settlement that is arguably 2 to 3 times too high, you have 50, maybe even 100, where the plaintiffs get NO redress. The cost of litigation and of attorneys needing to limit cases to ones that are “clean” and comparatively easy to prove (I say comparatively, nothing is easy).

  15. RTR


    Really, Alabama, is a state I know a wee bit about? Let’s review your post. “I’ve had a quick look at the Chief Justice’s house. It is in an implausibly costly district for his income.” Chief Justice Sue Bell Cobb is a he? And btw, she’s a Dem. If you are referring to Drayton Nabers, the previous CJ, he held the position as GC at a large insurance company prior to his appointment as CJ (he was appointed after Roy Moore’s removal).

    Alabama’s move away from being a plaintiff’s tort haven had more to do with corporate recruitment than some nefarious scheme to undermine the judicial system. State leaders realized that in order to bring jobs to Alabama, the easy tort reputation had to go. After the BMW v. Gore decision, in which the liberal/moderate branch of Supreme Court of the United States (funny how that works on your Republican conspiracy theories) struck down a punative damages award made by an Alabama jury, state leaders began making a concerted effort to change the state’s reputation. And it has helped – Governor Riley and the Alabama Economic Development Office have been very successful at bringing jobs to Alabama. Honda, Hundai, and EADS have all located plants in Alabama (of course the liberals posturing for Boeing/Obama/Patty Murray have cost the Gulf Coast thousands of jobs in the tanker bid fiasco). As for the case you reference, the Alabama Civil Court of Appeals gets reversed on procedural issues regularly. You should probably wait until there’s a final order from the state supreme court before you push the panic/conspiracy button.

    There is enough blame to go around on corporatism in both parties, but you seem fixiated on Republicans. You seem willingly blind when it comes to the rampant corporatism that pervades the Democrat’s agenda.

    1. Yves Smith Post author

      A fascinating bit of projection in your post, and dead wrong too. Looks like you don’t read this blog much.

      Did I say a single WORD about Democrats or Republicans in this post? No. You bring up a completely unrelated issue and attribute it to me.

      This is about big corporations, and about a concerted effort to move the country to the right, which has been enormously successful. The Democrats (with a few exceptions of Congressmen who have raised their funding on the Web rather than from big corp backers) are every bit as bought and paid for as the Republicans. The Democrats are now to the right of Ronald Reagan Republicans. I often describe myself as an Eisenhower Republican.

      Funny how you accuse me of being obsessed with Republicans. I’ve bashed Obama’s economics policies, regularly, in posts, long form, along with Nancy Pelosi, Barney Frank and Chris Dodd as key Congressional leaders, vastly more than, say, Richard Shelby, while pretty much the only bad stuff I put up about Republicans is in Links, meaning it is FAR less prominent. And I’ve savaged Melissa Bean and her cohort precisely on the matter of their big corporate support and corporate-favoring positions.

      You seem rather fond of revisionist history.

  16. rtr

    Oh, and as for the law and economics movement, one of its three grandfathers is the very liberal Guido Calabresi.

  17. Progressive Ed

    “a well funded “law and economics” movement which had corporate backing, including from the extreme right wing that was systematically trying to move America to the right”.
    Not any more. Please be patient. With President O’Bama and a Progressive administration the USA will be shifted to the opposite direction. After all, we already have 2 new justices on the Supreme Court, both Progressives (i.e. The personal is the political). Progressives know that the middle class with its latent demand for “liberty” is the underlying problem. Our Progressive plan, using the public employees unions (love those pensions, bennies, etc.) as the hammer and the 10’s of millions of illegals as the anvil, the middle class (bourgeoisie) will he relegated to the dustbin of history. But please have patience and give us time. Thanks.

    1. liberal

      …the 10’s of millions of illegals as the anvil…


      Who do you think _wants_ those illegals? “Progressives”? LOL!

      Ask yourself, “Who benefits from cheap labor?”

      1. Progressive Ed

        Thanks for your comment. Of course cheap labor is an issue. But the votes of the lumpenprols…is what really counts to we Progressives. And as the present group is given amnesty and eventually becomes infected with the bourgeois delusion of “liberty”, we can bleed in as many illegals over the southern border as we need. Remember that America’s culture deifies “the vote”, so we can’t do away with it completely in the foreseeable future. Nothing can stop the collectivist hegemony. Have patience!

  18. Justicia

    Let us not forget that one of the biggest proponents of the ‘law and economics’ school of thought is Cass Sunstein who now heads the Office of Information and Regulatory Affairs (OIRA) in the Obama White House (housed in OMB).

    OIRA was established under Reagan in 1980 as part of the Republican agenda to gut federal regulation, particularly environmental regulation, by imposing cost-benefit analysis on any proposed regulatory action.

    Cost-benefit analysis has it’s place. However, the fact that neoclassical economics fails to properly value eco-system services or intact eco-systems means that the costs of regulations to protect the environment are always overstated and the benefits understated.

    Obama’s choice of Sunstein (on top of Bernanke, Summers, Rubin and Geithner) convinced me that he wasn’t about progressive change — or any real change for that matter.

    1. Psychoanalystus

      “One in every 100 adults is in jail. If those on parole or on probation are included, one adult in 31 is under correctional supervision.”

      Only 1 in 100? I say that’s not enough. Let’s aim for 10 in 100. We need to provide private prisons like Corrections Corp (NYSE:CXW), Geo (NYSE:GEO) and Cornell (NYSE:CRN) a solid path to unlimited growth. One in 100 just won’t cut it, sorry.

      So here, I have a two-prong plan:

      1.) Let’s get serving white judges on the boards of our private prisons. That way we’re assured a steady flow of “clients”, and we’re assured they’d get long sentences.

      2.) Let’s target minorities. You know, blacks, Latinos, Native Americans, you name it. And illegal immigrants too. And, let’s not forget kids. Yeah, let’s throw kids in prison too. Kids from minority groups, of course.

      What? This has been going on for years? I see. Okay, forget what I wrote then.

      Have a nice day, everyone… and just make sure you’re not black, Latino, Indian, or a kid in America…


  19. John


    Thanks for the informative site.

    Your post on 8/26, “Fear of Regime Change in New York” sounds like it is making people look for the down side or
    the worst case scenario so they can be on the right side should it happen.

    The following three articles do offer a look at the dark side.

    Do not get locked inside the casino.

    This 2005 article is fiction turning into fact.

    Where is the leadership? A must read.

  20. papicek

    Ha! I know those lines by heart. Extraordinarily difficult to deliver, too. Surprised to see no mention of Henry Manne or the center for economic liberties at George Mason here though.

    I read Siegan. I’ve read those who cite the fight for freedom to trade debated when the constitution was being drawn up. It’s not all that easy to find much mention of it on the web.

    You must search for references to it by looking for references to the SLAVERY debate.

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