The Justice We Choose

I don't know what to write about Justice Ruth Bader Ginsburg passing. I only know enough to be dangerous about her tenure on Supreme Court, the significance of her service, or what this will mean for the nation.

I think I know what will happen next in the Senate. Republicans will prove once again that they stand for nothing besides power, and they will give a new justice the hearing and confirmation they would not grant to Merrick Garland. 

These GOP senators listened to Dr. Christine Blasey Ford's testimony, and then listened to Kavanaugh's unhinged response, and decided to confirm him anyway. It seems naive to pretend these same Republican senators are going to suddenly find a conscience, or be shamed into decent behavior by pundits pointing out their hypocrisy by reading their own quotes on Merrick Garland.

Senate Republicans will confirm the justices they want and will refuse to consider justices they don't. It's as simple as that. 

And it's their choice to do so. That's what the power of the majority affords them: the ability to simply act on their choices.

So much of our legal system hinges on the choices of just a few people. Whether a handful of senators will break with their party and honor recent precedent. Whether the Supreme Court chooses to accept a case in an election year. Whether a district attorney decides to press charges or not.

This whole thing reminds me of a riveting episode of Marketplace, where Kai Rysdall examines one of the curious decisions from the last financial crisis. Why weren't criminal charges brought against any executives?

Unlike in past financial crises that resulted in criminal convictions against fraudulent corporate actors, why didn't anyone go to jail? 

Why did our legal system choose not to bring charges against those who'd caused so much harm to the economy, to housing in particular, when so many millions lost their jobs and their homes?

Rysdall's interviewee, Paul Pelletier, who served in the Justice Department for 25 years as a federal prosecutor, had an answer. 

From 4:44 in the interview: "People didn't get prosecuted during the financial crisis...simply because of a lack of commitment, competence, and courage by the political leaders in the Department of Justice. That's what I observed. That's what I saw. That's what I felt. And that's why I left the Department of Justice."

Ryssdal notes that James Comey, with an irony that can now barely be described, called these sort of prosecutors, "The Chicken Shit Club."

From 5:36, Pelletier again: "The SEC brought a case against Countrywide's Angelo Mozilo for Securities Fraud. And that complaint, if you read it, sets forth some pretty heinous activity by Mozilo and by Countrywide, in the falsity of their representations with respect to their mortgage portfolios. Within twelve months of Mozilo settling that case with the SEC, the Department of Justice declined criminal prosecution. That's impossible if you're competent. That's impossible if, in fact, you have commitment. And that's impossible if you have courage. Because if you read the complaint, [it] read criminal all through it. Criminal fraud: all through it."

From 6:29: "Look, I was a hockey player growing up. I learned very early that in order to enforce fair play on the hockey rink, sometimes you just got to punch the cheater or the bully in the nose. Whether you're going to win the ultimate fight or whether you're going to lose. But sometimes that's right, and that's just what you have to do to enforce fair play. And that's what people expected of the Department of Justice as well. You're not going to win every case. But you have to show the American public that there's a cop on the beat. And that people who have wealth, who have money, who take advantage of the criminal laws, and violate those criminal laws, need to be prosecuted. That didn't happen in this crisis."

As Kai Rysdall notes, in the Enron scandal, the Justice Department indicted nearly every top executive. There were over 5,500 investigations, and over a thousand prosecutions occurred after the savings and loans crisis. 

In the financial crisis from the past decade, the Justice Department made the choice to not prosecute...anyone. And that approach, it needs to be stated, was a choice.

Our government, with evidence of criminal misconduct in hand, and with millions of its citizens out of work and millions of others out of their own homes, chose not to even try to convict a single person responsible. 

Another way of putting that was that our government chose to simply let those responsible to just get away with it.

It's fairly infuriating to me that the corporations who wreaked such havoc on the economy and the nation would not even have their day in court. It makes me question our system of justice in a way that I can't adequately express. I just feel angry. 

I know something is not right but I don't know what to do about it. I especially don't know what to do about it since this all happened during the Obama administration: we apparently cannot even count on our own party's representatives.

I don't like the feeling of powerlessness. That so much of what we think of as justice is determined by the decisions of just a few people. That so much damage can be done and that the consequences never come. That we don't have a true system of justice: we have a system that dispenses criminal justice to everyday people, but not to wealthy elites.

Maybe we have some degree of influence over the decisions that will occur in the next few weeks. Maybe four of these senators can be swayed: maybe they have not have made their choice yet. I don't know.

But I'm sick of the fact that political and economic elites can seemingly do whatever they want, and just keep getting away with it. That Dr. Blasey Ford can come forward about Kavanaugh, and he just gets away with it. He can rack up six figures of debt for baseball games, of all things, and the debt mysteriously is paid off within a single year, and we are all supposed to accept that as normal. That this is a typical thing that is expected to happen with a candidate for justice in the highest court of the land.

Whatever happens in the Senate the next couple weeks, if these powerful Republicans decide to do what we all know they're going to do, there need to be consequences. If the senators who denied Garland even a hearing in 2016 confirm a lifetime justice in 2020, we need to ensure there are consequences at the ballot box.

If Democrats take back the Senate, there need to be consequences for broken agreements and precedents that only apparently apply when it's convenient. We need our party's representatives to stop bringing a smile and a handshake to a gunfight.

Even if we lose the ultimate fight, I'm sick of the other side thinking, of knowing, they can do whatever they want and they'll just always be able to get away with it. 

Someone has to punch the bully in the nose.

*Photo is from beltz6 at Flickr Creative Commons.

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