May 29, 2010 12:53 AM UTC

A.G. Suthers -- What goes around, comes around

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• by: Voyageur

( – promoted by Colorado Pols)

Poor John Suthers.  Colorado’s Republican Attorney General started out trying to emulate South Carolina’s secessionist firebrand John C. Calhoun.  But he ended up being linked in the public mind to an even more notorious scofflaw – Willie Horton.

Suthers was appointed attorney general in 2004 after the elected incumbent, Democrat Ken Salazar, was elected to the U.S. Senate.  Suthers promptly demonstrated his skills as a career politician by assuring that his appointment wouldn’t officially take effect until he was confirmed by the Colorado Senate in early 2005.   That meant he would be officially in office less than two years of Salazar’s term, meaning he would be eligible for two full four-year terms in his own right under Colorado’s term limit law.

Suthers won the state’s second most powerful office in 2006 in what proved to be a surprisingly close race against a woefully underfinanced challenger, Fern O’Brien.  Despite that modest electoral showing, he was generally assumed to be headed to a second term in spring 2010 – aided by the fact that he had no announced challenger.  He also benefitted from having, on the whole, a reasonably credible record  generally in line with the nonpartisan stance Coloradans have expected from their top state law enforcement officer going back to the legendary Duke Wellington Dunbar, who held the office from 1951 through 1973.

Then Suthers suffered two misfortunes – one of his own making and one reflecting the axiom that whom the gods would destroy, they first cozen into signing off on plea bargains.  As a result, Suthers not only aces a formidable Democratic opponent – Boulder District Attorney Stan Garnett – but is rated as an underdog by such political observers as Coloradopols.com, a blog where I often hang out with other ne’er- do-wells when not musing here at the Blackacre Journal.

Moving to the self-inflicted wound first, on March 23, Suthers joined a partisan blatherskite festival by joining Republican attorneys general from 12 others states in suing to block the health care reform law passed by Congress.  The other states  are Florida, Alabama, , Idaho, Louisiana, Michigan, Pennsylvania, Nebraska, South Carolina, South Dakota, Texas, Utah and Washington. All but one of the 13 attorneys general in the action – Lousiana’s Buddy Caldwell – are Republicans.

Why is this stupid?  Oh, let us count the ways.  Constitutional scholars are all but unanimous in noting that states don’t automatically have standing to sue the federal government just because some state politicians may seek a quick headline.  

To quote Jon Siegel, professor of law at George Washington University, “There is some real doubt as to whether the states have standing to challenge the health insurance mandate. The mandate applies to individuals, not to states. According to the state’s complaint, many other parts of the act affect states directly, but it’s not clear how the mandate does. So the direct injury could well be lacking. And that’s not to mention that the mandate doesn’t even kick in until 2014, making the suit somewhat premature.

“States might try to assert standing under the parens patriae doctrine, under which governments can assert the rights of their citizens. But the Supreme Court long ago in Machusetts v. Mellon that the states cannot use this doctrine to sue the United States. The Court said, ‘It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof.’ That’s exactly what the states are trying to do with the present lawsuit, so it seems to be forbidden.”

Suther’s tantrum is an obvious exercise in political bombast, aimed at appeasing the far-right “Tea Party” faction of the Grand Old Palins, as the GOP is now known.  But while he claims it will “only” cost $5,000 of taxpayers money for this partisan foray, Suthers can’t escape the fact that if the courts were to disregard all legal precedent and rule in his favor, the only result would be to deny 500,000 Colorado citizens basic health care!  That works out to a devil’s bargain of sorts: one penny of taxpayer dollars for each Colorado citizen denied of health care.

Finally, of course, Suther’s contemptuous action shredded his moderate image and put in in John C. Calhoun’s corner.   It was Calhoun – then vice president under President Andrew Jackson – and his fellow South Carolinians who responded to the “tariff of abominations” in 1928 and the somewhat milder tariff of 1932 by passing an ordinance of nullification in 1932 declaring the tariffs null and void in South Carolina.   Jackson threatened to use force to uphold the Supremacy Clause of the U.S. Constitution and South Carolina backed down – postponing the Civil War for another 28 years.

Suther’s profile in bombast is likely to end no better than Calhoun’s much grander snit did.   And the Colorado AG’s contempt for the Constitution he is sworn to uphold helped draw an eloquent challenger, Garnet, into his race.   Then, as if the fates were punishing Suthers for his misuse of Colorado’s taxpayers hard-earned money for partisan purposes, Suthers found himself ensnared in his own “Willie Horton” crisis.

This quagmire dates back to Suther’s former job as United States Attorney for Colorado, a job to which he was appointed by George W. Bush.

If you Google “Suthers” and “Kimball,” as I did, you will find 11,700 hits.  Friend, if you are an undistinguished attorney general hoping to win re-election as an acolyte of John C. Calhoun, you don’t really want to find yourself linked 11,700 times with a serial killer.

As Fox 31 news reported, Suthers, as U.S. Attorney General, approved an order releasing Kimball from prison in December, 2002.  Kimball was supposed to work as an FBI informant.  Instead, he went on a killing spree, murdering, his own uncle, Terry Kimball, Jennifer Marcum, Kaysi McLeod, and LeAnne Emery.  

Opps.

Garnett was quick to nail Suthers for his Willie Horton moment, saying, “If the U.S. Attorney’s office under John Suthers done their due diligence, he would not have been released.”

Suthers harrumphed back, claiming: “Stan Garnett’s comments on this issue reek of political opportunism. Playing politics and sensationalizing a complicated legal matter in order to score political points is not the kind of behavior the people of Colorado are looking for in their Attorney General.”

That’s exactly right.  “Playing politics and sensationalizing a complicated legal matter in order to score political points” is a bad thing.  

It was bad when Calhoun did it during the nullification crisis and it was just as bad when Suthers played politics and sensationalized a complicated legal matter in order to score political point by trying to deny health care to 500,000 Coloradans.

By comparison, Garnett’s exploitation of Suther’s Willie Horton moment may not qualify for inclusion in Profiles in Courage.  But it certainly demonstrates for our self-aggrandizing attorney general the rule that, “What goes around, comes around.”

Reprinted with permission from Bob Ewegen’s column at the Blackacre Journal, published by mile high law office.

 http://www.milehighlawoffice.c…