Of course, you can trivialize this argument to dismiss it. But try to bear with me for a while to see what I am actually arguing....
What I had in mind is that obviously not all judicial decisions are political - most cases coming before courts are apolitical in the sense that they do not threaten the interest of key power brokers. In such majority of cases, the judiciary can indeed have the luxury of thinkinng indepenently, doing judicial analyses, and following legal principles. But when to comes to making strategic decisions, all the intellectual pretenses count for nothing - the decision is based on whose political interests are to prevail. Appointind Geoerge Bush president is a case in point.
Unlike most US-born members of this list, I spent my 'formative years' in Eastern Europe and Asia which gave me an opportunity to see the raw operation of the so-called 'nomenklatura system.' "Nomenklatura' is basically a term denoting the ruling elite collectively. The principle on which the system operates is very simple - the trusted members of the 'inner circle' must occupy key decision making position, regardless of political circumstances. That does not mean that they control all aspects of social and political life - as naive US-ers often claimed. It means that they can throw their weight in at strategically important momenets, whenever the situation requires it. To use an example, most trials of common criminals were unbiased and fair, only the trails of the 'dissidents' had a politically predetermined outcome.
By contrast, most US-esers I met have been fed idelistic bullshit about 'democratic principles' etc. supposedly governing this country, but they did not have much opportunity to experience reality contradicting this bullshit (Charles B. is probably one of the few exceptions). Hence, they tend to crirticize the system because it fails to meet their high idealistic standards, not because they had the first-hand experience of its fundamental injustice. In that respect, the positon you take reminds me of my father and his 'nomenklatura' colleagues who did not belive me that my dissident friends were persecuted by the police - they were convinced that we must have done something illegal, because the police did not pick up people at random, just for the heck of it. They could not understand that it would be indeed pointless for the police to arbitrarily arrest anyone, all they needed was the power to intervene strategically -and pick only those whom they saw as the threat to the status quo.
One of my biggest eye-opening discoveries after "getting of the boat" was that the US was just like the x-USSR - the same nomenklatura system, the same police state practices, the same claims to ideological superiority, and above all, the same ideology-driven zeal to destroy teh real and perceived opponents of the system - the only difference was money. The US has mucho mucho more of it, therefore it is in a better position to buy social peace. And most importantly, when you talked to the "progressive" members of the nomenklatura, you heard the same song that you can hear from the assorted mebers of 'progresive' establishment here - the members of the opposing camp ('the old guard,' the Repugs) have to go, but the system as a whole is based on sound principles. Well, dream on.
So when you try to convince me that the US legal system is more than just elite politics in disguise, you have to do more than provide some corroborating stories, even if such stories might me numerous, for even the most unfair system operate fairly most of the time. It is only at the strategic junctions when they are unfair because they succumb to political expediency. Therefore, you need to show me that at such strategic junctions, the US system was above political expediency - and that I am afraid would rather difficult to do.
wojtek