Thursday, June 15, 2006

The Anti-Filibuster Chickens Come Home to Roost

About 6 months ago, Maryscott O'Connor of My Left Wing fame wrote a brilliant analysis of the potential for a United States slide into fascism in an essay entitled Slouching Towards Kristallnacht. Her essay focused on the quiet frightening power of our national transformation by degrees, rather than in the "Big Bang" everyone just assumes will mark a sea change in our country and in our culture, much the way that the German nation and its peoples were drawn by Hitler's machinations, slowly by degrees towards the "moment of clarity" that Kristallnacht represents.

Many many bloggers, myself included, warned with a passion that we'd never really felt before about America and our love for it that our country and the principles of freedom it stood for was up for grabs during the Senate's evaluation of Justice Samuel J. Alito and his suitability (not fitness) for a Supreme Court appointment. We argued that with the other two branches of government, the Legislature and the Executive, having already been captured by fascists-in-training, all that remained to structurally stand between us and the US version of the Reich -- a country in which there was no longer the very freedoms that define us -- was the High Court itself. We warned that the process was, in effect, a last stand for America, and that all of us -- the Democratic Party at the top of the list -- had a duty to stand and fight against his elevation. By any means necessary, including the use of the filibuster.

Both types of arguments -- made with passionate, yet deadly seriousness -- have been largely ignored by the darlings of the left at the same level of commitment as they have been dogged by the right.

Yet today, with the High Court's approval of no-knock police entry into private homes (the last bastion of the privacy we say we revere as a nation), the chickens of the Democratic Party's failure to stop by any means necessary the elevation of Samuel J. Alito to the High Court have come home to roost. We are no longer slouching towards fascism, towards a night of broken glass that becomes the clear demarcator between a free nation and the ascention of the Reich.

We are here, having slouched here by small degrees. All in the name of politics.

People will spend much time today parsing the court's literal language, Justice Scalia's predictable majority opinion and even Justice Kennedy's concurring betrayal of the Fourth Amendment, couched in tempered language that means absolutely nothing, when it comes to what this decision will mean to law enforcement terrorism on the ground. I will too; that's both my job and my joy, as an attorney who genuinely loves the law. But no matter what people parse, conclude, analyze and rationalize, the inevitable truth that must be taken out of this decision is this:

It was Justice Alito's vote in a 5-4 decision, that most clearly turned the rule of law in America for the past 40 years away from the rule that the Fourth Amendment guarantees us a right to be free from unreasonable searches and seizures, particularly by law enforcement in one's own home, and towards the frightening constitutional principle that "law enforcement ends always justify the means".

I hope that those who voted for cloture against Justice Alito, starting from Robert Byrd own down, choke on the reality that their selfish and short-sighted fears about how they would be perceived in the political arena has wrought on us all this morning. I hope they choke on it.

God help us. God help us all.

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