Federal Politics

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Oiling the wheels of justice, US-style

The ritual of the American party conventions is fascinating for foreigners - especially for some who, from time to time, observe events here from the perspective of those across the globe who got their democracy trainer-wheels from Washington and its allies.

There's a bit of seasonal cross-party madness. Two weeks ago the Republicans took themselves off to Tampa, at the height of the hurricane season in Florida, and were shocked to find Hurricane Isaac hurtling down on them.

The Democrats made for Charlotte last week, with grand plans for Barack Obama to front a crowd of 75,000 in an open stadium. But this is the worst time of year for storms in North Carolina and the Democrats were stunned by a forecast for thunder and lightning - forcing the President indoors, with just a fraction of his anticipated crowd.

"Bah, just weather," an Arab Spring observer might exclaim. But what is he to make of the policy platform circus at both conventions?

The Republicans voted for a no-exemptions prohibition on abortion, but candidate Mitt Romney was having none of that. He argued that rape victims and women at risk of dying should be excluded - at the same time as he was demanding the resignation of a Republican Senate candidate who used the dreadful term ''legitimate rape'' even as he insisted on the letter of the abortion cause which Romney had rejected.

Believing he was making perfect sense, a party official tells reporters: "This is the platform of the Republican Party; it's not the platform of Mitt Romney."


The Democrats' embarrassment was over God and Israel. In redrafting their platform, they dropped the only reference to God, along with a demand that Jerusalem be recognised as the capital of Israel - an insistence ignored by successive administrations in DC.

Desperate to head off the wrath of Benjamin Netanyahu and the entire Israel lobby, Obama demanded that the clause be reinstated - despite the carriage of a formal vote the previous evening, to accept the platform.

Jerusalem and the God-mention were cobbled into a single motion and on the voices, the ''ayes'' seemed as loud as the ''nays'' and when the chairman, the Los Angeles mayor, Antonio Villaraigosa, called for the voices again, he still could not decide.

At this stage, a cautious chairman might then have opted for a show of hands or a card vote. But the mayor was having none of that - he called for the voices a third time and still those for and against the motion seemed in equal voice. Undaunted, Villaraigosa insisted that a two-thirds majority had voted ''aye'' and the motion had been carried. But even if it has been carried, it was impossible to tell whether delegates had been voting for God or for Jerusalem, both of which wield inordinate power in American politics.

The Arab Spring observer would be shocked too by the rivers of money millions washing through the campaigns and no doubt he would be briefed on how the US Supreme Court's Citizens United decision had opened the floodgates for corporate spending on the presidential and congressional races.

But a ''stop before I prang the car'' panel discussion on National Public Radio this week, would have let him in on another insidious application of Citizens United and the corporate free-for-all - election campaigns in more than 20 states to appoint the judges who preside over as many as 95 per cent of all disputed court cases in those states.

Ian Millhiser, of the Centre for American Progress, made the obvious analogy - if you are going to elect judges, why not hospital doctors, whose campaigns could be funded by drug companies; or army generals who could get a leg-up from weapons manufacturers?

He said: "[Even] before Citizens United … there was a steady stream of people wanting to influence judges, who were spending money to try to buy up seats on state Supreme Courts and lower courts - that stream has now turned into a flood."

This discussion was more about judicial self-interest than about the politicisation of the bench, a distinction that might have to be explained with care to the Arab Spring observer - because while the former is tolerated, the latter is not.

Millhiser again: "… you have corporations who have a case pending in front of the court, giving money to the judges on the court when they have an election coming."

These judges might be expected to recuse themselves. But the Wisconsin Supreme Court - on which one of the judges last year accused a male colleague of attempting to - recently agreed a new ethics rule that allows judges to sit on cases to which their electoral donors are party.

Millhiser detailed a Texas scandal ''six or seven years ago'', in which a woman judge elevated to a higher court by then president George W Bush had been funded to the tune of tens of thousands of dollars by the Enron Corporation, which collapsed amidst a $US11 billion scandal in 2001, who made a decision worth $US15 million to Enron.

Charles Hall, who campaigns for judicial fairness, told the show of an explosion of special interest funding which began in 2000. "Not only [from] corporations, but also trial lawyers," he said. "There was really a national battle to gain control of these courts because they decide cases worth billions of dollars and it really has raised a new spectre of, can you be fair with that much money on the table?"

In a 2004 case in West Virginia, one of two coal industry executives who were in dispute was appealing a decision that had cost him $US50 million. He spent $US3 million to fund the campaign of a judicial candidate who was standing against one of the judges hearing the appeal and on winning the election the new judge twice refused to recuse himself - before casting the deciding vote that overturned the $US50 million decision.

State authorities responded to the case by instituting a system of public funding that might limit the intrusion of donor funding. "But," Hall says, "There's been a lot of litigation to, in effect, really cut the guts out of public funding laws to allow special interest to spend without limit …"

Our notional Arab Spring observer was last seen heading for the airport - it was not clear if he was laughing or crying.