New York Times reporter Linda Greenhouse's strange rehab job on the Supreme Court's reputation--portraying Bush v.Gore as "an appropriately judicial act rather than an illegitimately political one"--had the opposite of its intended effect, at least on me. Trying to explain the justices' actions, Greenhouse clearly describes how the public constitutional reasoning of both the majority and the minority had very little to do with the actual basis of their decisions. The majority justices, in reality, wondered "whether the Florida Supreme Court could be trusted to supervise a recount." To the dissenters "the question was whether there was any strategy by which they could split the majority and get the recount going again." None of the justices seemed to think much of the equal protection reasoning that allegedly decided the case. "The majority had a conclusion in search of a rationale," Greenhouse says.
Of course, that's not the way the court is supposed to work--not "an appropriately judicial act"--and Greenhouse knows it. Yet she seems oddly unperturbed by what she's reporting. Didn't she have a somewhat more agitated view just a few weeks ago, when the decision came down? Yes, here it is--in a hostile front-page piece on Dec. 14, she called it a "baffling" decision that was "jarring even for people who pride themselves on being realists rather than romantics about how the court works."
All of which suggests to me ... well, yet another possible explanation of the Marc Rich pardon. It's true that practically everything suggests to me another possible explanation of the Marc Rich pardon. And this one's a bit of a stretch. But we need all the explanations we can get. Here goes:
We know Clinton was outraged by the Supreme Court's decision in Bush v. Gore, believing it to be an illegitimate use of the court's power. I personally learned of social occasions at which Clinton vented these views. (I also saw this pointed out on the authoritative Web site kausfiles.com. Now it's been published two places, so it must be true.) But Clinton had to repress his criticism, because there was nothing he could do about it. The Supreme Court's power was, under the Constitution, final and unreviewable. Perhaps Clinton sat back and waited for the public to echo his anger and rise up against the court. But then ... nothing happened. The electorate meekly accepted the outrage. Which may not have made Clinton any less angry.
Isn't it possible that Clinton's anger at the court reinforced his determination to use his unreviewable power under the Constitution, the pardon power, vigorously in his final days in office, taking actions no justices could overturn--actions they'd have to eat, the way he'd had to eat Bush v. Gore. At the same time, he may have believed he could get away with it because the court had gotten away with something (in his eyes) far worse without triggering a public outcry.
Newsweek reported that, in fact, during Clinton's final weeks he "became obsessed with the idea of granting a slew of pardons before his time was up." I'm not saying that there's a blazing arrow from Bush v. Gore to this obsession. I'm suggesting that along with the other obvious reasons--the desire to leave a legacy, the quasi-idealistic "looking for justice," the self-pity and aggravation from negotiating with a prosecutor in his own case, the crass maximizing of future contributions, plus Clinton's psychological need to exercise power as a way to put off confronting its loss--we might add another, somewhat more arcane motive: the desire to give a big institutional finger to the other branch of government that had conspicuously taken advantage of its own unchecked, kinglike constitutional prerogatives.
Introduction to A Contribution to the Critique of Britney's Philosophy of Right
If kausfiles had the equivalent of Private Eye magazine's "Pseuds Corner," it would feature Ann Powers' recent New York Times disquisition on the meaning of current pop hitmakers:
The hard-headed self-objectification of Ms. Spears and her peers, like the bitter songs that have brought success to Destiny's Child, capture a truth largely dodged during the rock 'n' roll-fed sexual revolution. Erotic freedom means little unless it is joined to other fundamental liberties--women's economic independence, for example, or the rights of gay people to create safe families and homes.
And here I thought Britney Spears was singing about national health insurance!