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Judge Cornyn's War on the Rule of Law

May 5, 2010

That Texas Senator John Cornyn joined John McCain in the Republican chorus denouncing the Obama administration for reading Times Square bomb suspect Faisal Shahzad his Miranda rights is unsurprising. Unsurprising and sadly ironic. After all, from detainee torture and illicit domestic surveillance to judicial intimidation and defendant's rights, Cornyn isn't just a ring leader of the GOP war on the Constitution and the rule of law. Before coming to the Senate, Judge Cornyn served as his state's attorney general and on the Texas Supreme Court.
Cornyn's disregard for the Constitution was once again on display on Tuesday. Three months after slamming the Justice Department's "hasty decision to pursue criminal charges" against Detroit underwear bomber Umar Farouk Abdulmutallab, Senator Cornyn claimed President Obama got lucky when authorities followed the law with Shahzad:

"That is a stroke of good luck," Sen. John Cornyn (R-Tex.) said of the news that Shahzad was cooperating even after getting his Miranda rights read to him. "What if he had not waived them and just quit talking, said 'I want my lawyer'?"

Of course, when it comes to terrorism, Judge Cornyn has been more than willing to jettison the Constitution.
Cornyn's sneering disregard for the rule of law became clear in December 2005 during his knee-jerk defense of President Bush's regime of illegal domestic surveillance of Americans by the National Security Agency (NSA). Along with Jeff Sessions (R-AL) and Pat Roberts (R-KS), John Cornyn was among the first Republicans to mouth the GOP's "give me death" defense:

"None of your civil liberties matter much after you're dead."

That disdain extends to the United States Supreme Court as well. When the Roberts' Court in the 2006 Boumediene case ruled that Guantanamo detainees have habeas corpus rights, Cornyn blasted the decision as "both troubling and disappointing."

"Today the Supreme Court ignored this law and the informed expertise of the President and Congress in matters of national security - and gave itself a blank check to assume control of wartime detainee policy. This is unacceptable and unprecedented."

But what acceptable to John Cornyn was detainee torture. During the confirmation hearings for Attorney General Eric Holder, Cornyn demand the nominee answer a hypothetical question about a ticking time bombs and torture. Cornyn's enthusiasm for the waterboarding was clear throughout:

CORNYN: You would still refuse to condone aggressive interrogation techniques like waterboarding to get that information, which would, under my hypothetical, save perhaps tens of thousands of lives...
HOLDER: ...I think your hypothetical assumes a premise that I'm not willing to concede.
CORNYN: I know you don't like my hypothetical.
HOLDER: No, the hypothetical's fine; the premise that underlies it I'm not willing to accept, and that is that waterboarding is the only way that I could get that information from those people.
CORNYN: Assume that it was.
HOLDER: [Laughs] Given the knowledge that I have about other techniques and what I've heard from retired admirals and generals and FBI agents, there are other ways in a timely fashion that you can get information out of people that is accurate and will produce useable intelligence. And so it's hard for me to accept or to answer your hypothetical without accepting your premise. And in fact, I don't think I can do that.

Saddest of all, as the record shows, John Cornyn is an aggressive advocate of illicit violence not just against terrorism suspects, but towards American judges as well.
Of course, many of the leading lights in the Republican Party have it made clear that judicial intimidation is now an acceptable part of conservative discourse and political strategy. And Cornyn has been at the forefront of GOP advocacy of violence towards members of the bench whose rulings part ways with conservative orthodoxy.
Back in 2005, Cornyn was one of the GOP standard bearers in the conservative fight against so-called "judicial activism" in the wake of the Republicans' disastrous intervention in the Terri Schiavo affair. On April 4th, Cornyn took to the Senate floor to issue a not-too-thinly veiled threat to judges opposing his reactionary agenda. Just days after the murders of a judge in Atlanta and the family members of another in Chicago, Cornyn offered his endorsement of judicial intimidation:

"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country...And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence."

(As it turns out, Cornyn was merely echoing the words of the indicted former House Majority Leader and fellow Texan Tom Delay. On March 31st, 2005 Delay thundered in response to the consistent rulings in favor of Michael Schiavo by all federal and state court judges involved, "The time will come for the men responsible for this to answer for their behavior, but not today.")
Facing criticism for his remarks seemingly endorsing right-wing retribution against judges, Cornyn held his ground. "I didn't make the link," he said on Fox News Sunday. "It was taken out of context," adding sarcastically, "I regret it was taken out of context and misinterpreted."
Not by former Supreme Court Justice Sandra Day O'Connor. O'Connor, who along with Justice Ruth Bader Ginsburg had been the target of right-wing death threats, expressed her contempt for lawmakers who were "creating a culture" that threatens the credibility of the rule of law:

"It gets worse. It doesn't help when a high-profile senator suggests a 'cause-and-effect connection' [between controversial rulings and subsequent acts of violence.]"

As his easy 2008 reelection showed, back home in Texas "Big Bad John" Cornyn's tough talk and flouting of the Constitution remains popular. In another state, Judge Cornyn may not have been so fortunate. You might even say he got lucky.

One comment on “Judge Cornyn's War on the Rule of Law”

  1. "None of your civil liberties matter much after you're dead." ???
    Good argument not to serve in the military! No wonder so many Republicans were deferment specialists!


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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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