We are in a constitutional free fall in Washington. Many commentators understand what
is the current consequence but it seems Nancy Pelosi is not willing to allow for the
rule of law to actually do what it is designed to do and that is execute a self-correcting
The implications are substantive and perhaps we'll see in another generation what the
consequences of doing nothing to an out of control executive branch and former legislative branch of government at the national level is capable of producing.
In the midwest, after the last midterm elections and some statewide offices results,
we have been fortunate to see some change occur at least in tone and party politics.
However, certain powerful special interests have actually consolidated their stranglehold
on the people's third branch of government in Ohio; the judiciary. Its been in process since at least 2000 and perhaps much longer but finally big money and special interests and large corporate law firms and the insurance industry campaign fundings has reached its zenith of its intended outcome; the Ohio Supreme Court, even in the middle of lopsided, landslide gubentorial election favoring the democratic ticket nonetheless swung hard right and right into a
unanimous sweep of all seven of the Ohio Supreme Court seats.
This is so unusual that it is indicateive of the power of major donor law insurance and corporate firms and lobbyists who put their money where their mouth is and obtained
what they sought; a judiciary in Ohio which is certain to favor a particular "philosophy" of the law and its interpretation that will protect special interests for at least a generation to come.
What is the significance of this seven year, multimillon dollar well orchestrated major donor republican effort in Ohio?
The first causualty will be obvious but not to all; These will include terminating any outspoken critics of the current judiciary and/or the "philosophy" of those who placed them in power, from within the profession itself.
We are going to see a purging of the profession of the undesirables and the unpopular lawyers [and maybe a few judges] who dare to be different and who dare to stand up strongly for the notion that criminal defendant's rights and individual rights are to be maintained as a priority in the law, because this is the built-in portion of the Constituitonal protections that create something we often refer to as the Due Process of law which made our nation unique among all.
Protecting the basic freedoms of the individual as contained and enshrined in the Bill of Rights is something that major donor interests do not rank very high on their wish list of items that such major corporate donors want to include in their particular candidates for statewide judicial offices "philosophy".
While it remains to be seen in part what their actual "applied philosophy" does to the law of criminal procedure and significant Fourth, Fifth and Sixth Amendment protections, their power to take the licenses of lawyers who dare to strongly defend the same is becoming something of note these days, in the midst of their growing monopoly on the power which controls the conduct and thus, the ability of all lawyers, to practice stand up, even radical advocacy, anywhere in Ohio.
There is not a lawyer in Ohio [and in many states], that isn't today, looking over his shoulder both at his former client, his opposing counsel and at the same time, has to maintain a vigilient eye on the ever exponentially growing precence of a ubiquitous state bar disciplinary counsel's reach into the very most minute details of a solo and small firm lawyers practice and ability to maintain a viable legal advocacy and a strong dissenting voice based on what was always formerly regarded as the most sacrosanct aspect of the practice of law; the lawyers ability to speak out against wrongful treatment of his clients by any interest in society, but particularly those within the profession and the law enforcement and legal institutions themselves, within of any given region.
Today, to truly advocate against the perceived "third rail" politics and to simply speak out strongly even inside a court of law, is something that can put one's law license, if not his livelihood on the line inside this new era of ethics enforcement in Ohio, especially now that there is but "One" judicial "philosophy" thanks to major corporate and insurance and major law firm interests, and that which now dominates the State of Ohio's Supreme Court.
This trend is also growing across the country and some legal non- profit organizations and observers who are following the major corporate donor funding of state judiciary races [like Justice At Stake] and they are trying to sound the alarm of major donor corporate spending on statewide judiciary races in the past three election cycles since 2002 and how this has produced a very one sided, singular judicary in many key midwestern states, including Ohio.
Their publications are very well documented, precise and well presented and available on line in part. [See Justice at Stake and the Brennen Center of Law study on statewide judicial campaign funding and the New York Times Oct, 1, 2006 Front Page Article regarding Ohio'slast Supreme Court donor interests in the State judicial races and the relationship to pending cases before the present Ohio Supreme Court, even before the election wherein the republicans INCREASED their stronghold on the current Court here.]
Along with this, comes the silencing of the lambs, so to speak and with that silence comes a less stable open society, one that is not merely indifferent to the individual's need for protection from government actors and their out of control often instrusive approach to "law enforcement" but actually one in which to be perceived by members of the highest members of this profession as one who dares to advocate for a constitutional framework openly and strongly is to risk the ire of such powerful overseers of the modern legal profession.
This in turn creates a very powerful chilling effect on the individual lawyer and how he practices law and what he or she will do to protect their individual client's constitutional rights.
If strong individual advocacy and risk taking by solo and small firm lawyers means risking the law license of such a solo lawyer who is predisposed to strongly defend the vulnerable individual against the police powers of the state, fewer and fewer lawyers will chose to speak out openly against such common abuses in many areas of the state, particularly the less visible places.
When such a thing occurs, the ability of the constitutional protections to perform its self correcting task as envisioned by the framers and those who framed the 14th Amendment from serious governmental abuses of power against the people, is seriously weakened.
If those who have their rights fundamentally violated can not find a lawyer to advocate openly and strongly for them, in many regions of this state, then the idea of freedom and the Bill of Rights becomes merely a dead letter to many local populations who have few rights left which truly independent lawyers wish to defend, without fear of a visit or letter of inquiry coming to their law officers from those this third branch of government operates as their own combined lawyer 'police' and 'FBI like' office itself in the name of 'ethics enforcement.
When such powerful judicial officers set the tone, fresh from major corporate donor funded victories, that "independent" lawyers who dare to advocate strongly for civil rights of their clients on unpopular issues within controversial settings or court cases, are fair game for their all -powerful eyes and reach of the Supreme Court's gestapo- like overseeing "disciplinary counsel"
office prosecutors, more than the individual solo or small firm advocate legal counsel is affected.
The entire process of the admininstration of law is then held intellecutally if not actually hostage
to such a single 'party line' and as a result, the entire enforcement amidst our society of our sacred "self-evident rights" can be said to made to suffer as a practical result of such selective enforcement of civil rights lawyers and dissenting lawyers [or judges] who tend to want to call out their local powers that be.
Among the most lethal of this new power arrangement inside the Third Branch of state goernments, are those which can find the most minute infraction of the so called code of professional conduct and turn it into a major article [weapon?] of supension, and in turn, thru their less than due process oriented proceedings, create a legal fiction around the same and then publish their 'findings of fact' across the entire state and in the mainstream media by their superiors on the Supreme Court in a way that is both as infirm as it is broadly damaging, if not intimidating, to most lawyers who would dare to stand up for what they perceive to be serious lapses of the rule of law in various places in their experience as lawyers.
It was formerly called political assasination and/or in a truly liberal day and time, simply
Today we call it the state supreme court's "professional office of disciplinary counsel's Code enforcement."
When you couple such a process with a virtual political monopoly on the profession, its no longer a simple matter of a particular judicial leaning on a given state supreme court;
This creates an very intense environment of intimidation and unwarranted chilling effect on the entire legal profession's ability to operate in an independent and open manner; in effect, what the large donors and this new found political muscle has created within this present system is an entirely new form of thought police among lawyers in Ohio and elsewhere where this process is also underway.
The German socialist party era has indeed arrived in America, in spirit and tone, from safeguarding the executive branch in D.C. from expulsion even when millions of citizens telephone calls have been illegally monitored by the white house and the same have created torture as a legal basis for interrogating prisoners of war.... not to mention the unpatriot act.
But I believe the most invidious form of corruption of the framer's ideals and the most invisible danger to basic citizen's fundamental civil and human rights, is not going to come in
the obvious ways and in major office missteps and national limelight; its happening instead, inside the most unique institutions of law across major bell weather states like Ohio, right from within the ranks of the very profession which is dedicated to the very principle of maintaining at law, an open and transparent society and one which has been historically charged to be the 'first responders' of such a lawful vigilence of people's right to redress their fundamental constitutional rights and ideals; the same is the lifeblood of any democracy, as constitutional and criminal defense lawyers and plaintiff oriented judges are in any open society understand.
If such advocates are to become the targets of major donor interests and subject to seriously damaging, if not career ending pograms orchestrated by those who have gained such control over this ancient profession inside one of the most important state's of this nation, in the midwest, the the question arises who and what is in place to provide any check and balance to such significant curtailment of the lawyers' ability to practice truly independent and oftentimes controversial but necessary aspects of constitutional and criminal defense law?
An all republican anything in our recent political era has proven extremely toxic to the national standards of civil rights enforcement and understanding of the same as an applied science and safeguard to our modern American experience.
When it comes in the silent form of a state supreme court all seat monopoly of controlling interests and powers, the door is wide open for an extremely negative if otherwise hidden abuse of constitutional power as it only can be practiced by the most extreme and powerful rich interests thru their "judges of a particular philosophy" as they at the national chamber of commerce have said in defending the same when questioned about their overwhelming infusion of multimillon dollar purchases of this nation's and this region's most powerful courts.
This trend must be revealed and many in D.C. and national and state democratic party politics, and independent politics and human rights groups from around the nation ought to be concerned about this very same small but extremely significant serious departure from the Due Process of law, happening inside the State of Ohio, all well funded by some of the top insurance companies and special interest groups who do not care for mouthy lawyers who stand tall for civil rights and others in the profession who still believe the Bill of Rights is not a dead letter, nor something to be relegated to a historical archive and forgotten.
These same judiciary interested outcomes and their special interested corporate lawyers coupled w/t some well placed over zealous 'ethics' prosecutors today, are well on their way to political dominance of every major state supreme court in the country for the forseeable future, starting here, in Ohio, indeed, the heart of it all.
If the people of the united states press the democratic congress enough, perhaps nancy pelosi will change her mind and allow for the self correcting mechanism that the framer's envisioned to
do the only thing available to check raw abuse of executive powers.
At least, however, the possibility of such a corrective move exists, even if it is not part of the political logic of leaders in Congress at the moment.
AS for the third branch of our democratic system, there is nothing at law available for the people of the State of Ohio, much less the lawyers of Ohio to do the same where in concerns the out of control state judiciary of our present highly politicized Supreme Court.
For this and the reasons inferenced above, the same ought to be sufficient to serve for more than an adequate reason for a significant public debate to take place in Ohio, in light of the issues in play regarding this present special interest purchase of the Ohio Supreme Court since
2002 and its approach to silencing the more ardent of constitutional and solo independent lawyers arcoss Ohio.
[This is just a first comment; more will follow on this theme and soon we hope to generate a true forum to discuss this disturbing trend in light of the money trial which has literally swamped [and trumped] the statewide judiciary of the highest and most influential and most controlling court in the State of Ohio.]