Carlyle Fielding Stewart III

Writings on Democracy, Social Justice, and Religion

” The Problem of Procedural Injustice.”

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The crises now facing American Liberal Democracy may have as much to do with the denial of procedural justice by politicians as it does the aversion of distributive justice for everyday Americans through failed political processes, corrupt political leaders and a broken political system.

Such grievous injustices have been evidenced most recently by the refusal of Republicans to conduct confirmation hearings for Supreme Court Nominee Merrick Garland, the ignominious shutdown of Congressional hearings investigating President Trump’s possible collusion with the Russians in the last presidential elections, and now the present posthaste dumping of thousands of documents by the Senate Judicial Committee the night before the confirmation hearings of Supreme Court Nominee Brett Kavanaugh, just in time for Democrats to not have time to read them.

When a citizen of this country is denied due processes of law involving the procedures by which such laws are justly evaluated, substantiated, corroborated and adjudicated in order to provide and receive fair treatment and equal protection under the law; and when a political party or its members in the transactions of government are denied the right to have fair access to  procedures and information which allow them to perform their constitutional duties and responsibilities in an honest, dutiful and responsible manner, and when those representatives are prevented from fairly accessing the processes and procedures which enable them to execute forthrightly those laws, procedural injustices grievously occur which often erode the moral foundations of any political system, society, government or organization.

Procedural injustice is one of the most insidious forms of all human injustices. It is slick, stealth political stratagems, previously and meticulously planned, quietly proposed and executed and deviously prosecuted. It can be politics of the worst kind, often creating cultures of legitimacy for such actions while thwarting justice for those decrying its adverse impact and effects.

The Kavanaugh confirmation hearings yesterday is a case in point. Senator Corey Booker who felt frustration with the entire process of not having all the Kavanaugh documents approved and disclosed in enough time for Democrats to read in advance, called the process “a bit of a sham….and a mockery of Senate precedent and our constitutional duty of advice and consent,”  and insisted on knowing Kavanaugh’s stance on racial profiling. While some of the documents had been tightly but sparingly approved for analysis and review the night before the hearings, the Senator from New Jersey expressed righteous indignation and stood ready to incur expulsion from the Senate for breaking information disclosure laws by sharing emails revealing Kavanaugh’s positions on a variety of important subjects.

Senator John Cornyn. R-Texas, rebuffed Booker calling it “irresponsible and dangerous”for a senator to decide to release classified information.”

Senator Booker and other Democrat Senators were essentially appalled at the unjust nature of the process from the start. Why would Republicans dump such a large corpus of documents-forty-two thousand in all–at the “last minute” knowing that Democrats would not have time to read and vet them?

The issue here relates to procedural justice which would allow Democrats sufficient time to meticulously scour the documents. Was the information dump because Republicans wanted to hide information about Kavanaugh?

Couple this procedural misstep with the fact that insult had already been added to injury for Democrats with the Republican “confiscation”of the Merrick Garland Supreme Court nomination. Democrats were already perturbed by such Republican draconian tactics and politics.

Now with one of the most important judicial decisions in the history of our nation hanging in the balance with Kavanaugh’s possible selection, and with so many Democrats already reeling from the sting of the Merrick Garland smack down and other political maneuvers by Mitch McConnell and company, and with President Trump vowing to put on the court someone who would overturn Roe v Wade, and given the vociferous and mercurial rise of egregious attacks on the rights of citizens ranging from health care to religion to labor unions, to racial and gender attacks, to the assault on women’s body rights, to other forms of beat down of everyday Americans, civil disobedience became the tactic of choice in response to existing inequitable and lop-sided processes employed by Republicans in these and other hearings and at other times and places.

But the protests did not stop with Senator Booker.

Senator Mazie Hirono (D-HI) followed suit in supporting a fair process by revealing emails showing Kavanaugh’s view on “whether Native Hawaiians should have the same protections as Native American tribes.”

“Dianne Feinstein (D-Calif.) read an email uncovering Kavanaugh’s views on Roe v Wade which he deemed as “unsettled law,” contradicting previous statements made to Senator Susan Collins of Maine that it was “settled law.”

Senators Chuck Shumer and Dick Durbin also echoed and tweeted their support.

It is one thing to be denied justice in the transactions of legal proceedings and another thing when the procedures by which justice can be fairly reviewed and properly attained and executed are summarily denied, stubbornly “refuted,” obnoxiously subverted and surreptitiously aborted.

Such procedural injustice of the type expressed recently by Republicans since taking over both chambers of the House and the Oval office, and the recent deluge of judicial appointees is neither good or fair.

The rule of law governs both the content and processes of decisions by which justice is evaluated, deployed and realized in the establishment of just laws. We forget that a fundamental objective of government and politics is justice. But when those entrusted to govern our constitutional representative democracy manifest unfairness and irrational judgment by manipulating rules and obviating and discarding the rules of civility and fairness, it opens the door for abuses of power which inevitably corrupt and corrode the highest values and practices of American Liberal Democracy, and when left unquestioned, unchecked, uncorrected and undone, can threaten the stability, integrity and continuity of our current institutional and governmental forms of democracy.

The Senate hearings on Supreme Court Nominee Brett Kavanaugh not only appear to be a miscarriage and misappropriation of procedural justice by refusing to completely divulge the history of Kavanaugh’s judicial opinions, positions and decisions, but may also do a disservice to Kavanaugh himself because of the inequities and disparities of the process itself which always have political fall out and casualties.

“Injustice anywhere is still a threat to justice everywhere.”

Senators Booker, Hirono, Feinstein, Durban, Shumer, and others have boldly responded to Republicans misconduct again in the political process.

Such procedural injustice is just as important the attainment of justice itself, for when the proper processes and procedures by which justice are obtained are withheld and then ultimately discarded, those most adversely and wrongfully affected by such actions have the right to civilly redress, petition, and protest such actions.

A hallmark of the Senate is civility, honesty, and integrity. Neil McNeil and Richard Baker remind us in their book, The American Senate An Insider’s History, that “Today, the U.S Senate continues as the most powerful upper house of any legislative body in the world….it has stayed true to its intention that it stand as a “necessary fence” against the fickleness and passion” that drives popular pressure for hasty and ill-considered law making.”

“The words “hasty” and “ill-considered” suggest acting on the moral imperatives of observing the rules of the legislative process which involves deliberation and substantiation of those processes and procedures leading to integral and above-board decision-making not only in Congress but in all three branches of government. The idea of popular pressure includes intra-political party pressure as well pressure from outside which are the “we the people, or the larger vox populi.

Those who change the rules of the game unjustly and repudiate those who wish to correct the process by promoting fairness and justice as a countervailing strategy to such injustice must take responsibility for helping to create the conditions in which such conflicts surreptitiously emerge and arise.

Refusing to be fair and equitable in the attainment and distribution of justice at all levels of society can have insidious long term consequences.  Such actions will inevitably have a lasting and indelible impact on many people in our nation and our living democracy for many years to come.

In the words of the late great Elie Wiesel, “We may never be able to prevent every injustice, but we should never fail to protest it.”

The Senators stood up in protest against unfair processes because righteousness and truth which we need more than ever today at all levels of society in our country were thwarted and denied.

If the process of by which justice is obtained is unfair how can true justice be realized in the transactions of government?


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