Wednesday, July 20, 2005

Supreme Insult

"Presidents come and go, but the Supreme Court goes on forever." William Howard Taft

Is America a great country or what? Only in the Land of the Free and the Home of the Can-Be-Bought would a President choose a Supreme Court nominee based on a campaign pledge.

In the 2004 election George W. Bush promised Republican voters in Ohio and Michigan that as President he would give them a right wing conservative Supreme Court nominee. They voted for him -- gave him the election in fact. (And let's not forget the Supreme Court gave him the first election, a Supreme Irony.) So he kept his promise: John G. Roberts.

Oh sure, Roberts has credentials. Harvard this and Harvard that. Big deal, Bush went to Yale and look what we got from him. Roberts has some other, more interesting credentials: Reagan and Bush administration lawyer, National Mining Association, Toyota and Fox News lawyer. Hmm, there's a trend here. is all over Roberts, and with excellent arguments about his lack of suitability as a reasonable replacement for Justice O'Connor.

He opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion.

As a partisan lawyer for the Bush Sr. and Reagan administrations, Roberts threatened:

Civil rights by asking the Supreme Court to severely limit the ability of district courts to desegregate public schools, and working to ensure the Voting Rights Act could not be used to remedy many cases of actual discrimination against minority votes.

Women's rights by fighting for a law barring doctors from even discussing reproductive options in many cases, and arguing that Roe. vs. Wade should be "overruled."

Free speech by arguing to the Supreme Court that political speech that some considered offensive did not deserve First Amendment protections. The Court rejected his claim.

Religious liberty by arguing to the Supreme Court that public schools could force religious speech on students. Again, the Court rejected the argument.

As a corporate lawyer, Roberts threatened:

Community and environmental rights by working to strike down new clean-air rules and filing a brief for the National Mining Association, arguing that federal courts could not stop mountaintop-removal mining in West Virginia, even as it devastated local communities.

Workers' rights by helping Toyota to successfully evade the Americans with Disabilities Act and fire workers for disabilities they suffered over time because of the requirements of their jobs.

Public interest regulations by helping Fox News challenge FCC rules that prevented the creation of news media monopolies.

In his short two years as a judge, Roberts has threatened:

Individual rights by rejecting the civil rights claims brought on behalf of a 12-year-old girl who had been handcuffed, arrested and taken away by the police for eating a single french fry in the D.C. Metro.

Environmental protections when the dissent he wrote on an Endangered Species Act case, had it been in the majority, would have struck the Act down as unconstitutional in many cases, and would have threatened a wide swath of workplace, public safety and civil rights protections.

Human Rights by voting to strike down the Geneva Conventions as applied to prisoners that the Bush administration chose to exempt from international law.

And let's add another concern: Roberts has been a Judge for a mere two years. His experience as a lawyer is comprehensive, if arguably reprehensible. What kind of judicial knowledge does he bring to this most crucial of appointments?

Apparently the right kind -- the kind that's most important to the President and the radical right of his party: Roberts is a Corporate Conservative Right Wing Male. A member of the Club. Another White Guy.

That's where my blood pressure goes through the roof. Justice Sandra Day O'Connor toed the party line in giving him her approval, but said, "I am disappointed, in a sense, to see the percentage of women on our court drop by 50 percent."

Talk about understatement. So what's the composition of the Court now? One woman, one black man, one ... wait ... that's it. All the rest are WHITE GUYS.

Americans--all Americans--must depend on the United States Supreme Court to interpret and uphold the US Constitution, and to create the Laws of the Land for all of us. All of us. Women, African Americans, Hispanics, Gays, people of all colors, creeds, cultures, religions, beliefs. Our lives, our liberties, our futures, our children's futures have been too long in the hands of a bunch of White Guys with White Guy ideologies and attitudes. Their interpretations of the Law cannot possibly reflect or protect the needs and lifestyles and thoughts and expectations of all Americans, without reasonable representation among them of all Americans on the Court.

This isn't just about Roe V. Wade, people. It's not even about Conservatives Vs. Liberal ideologies. This is about civil liberties and human rights, personal and religious freedoms, public and environmental protections, community and individual prerogatives -- objective and responsible justice for ALL.

Yet with the kind of stunning mediocrity of vision we have come to loathe so well, George W. Bush, White Guy, has nominated yet another one-dimentional white Guy to the Bench.

Frankly, I hope both Laura and his mother Barbara slap him silly.

About the Supreme Court



Blogger Carl said...


Perhaps you've been away, but Supreme Court confirmations became "political" long ago. As I've observed, "Since the 1960s, the judiciary, and the nomination process, have become notoriously politicized, abandoning "neutral principles" for forced paternalism." Indeed:

"The pacific process of the past wasn't a product of "parties working it out." No such practice existed. Instead, judicial appointments were far less contentious because judges were understood to adhere to "neutral principles" rather than adding Constitutional text according to the vogue de jour. Once that genie escaped, all law -- and judicial appointments -- became wholly political."

Pledges are nothing new. President Clinton made a campaign pledge about nominees--and fulfilled it. So did Candidate Kerry--who, thankfully, couldn't. Had Kerry won, leftists would be celebrating the results of the pledge; many on the left vote Democrat precisely because of the candidate's presumed nominations. Why the surprise in discovering the same on the right?

When Roberts was deputy SG, I hope he was "partisan" and that his briefs and arguments reflected the Administrations' view. Or are you arguing the President isn't the boss? Is it so you can assert -- without evidence -- that the positions taken were Roberts', and not the President? That's neither fair nor true. The same is true of his years in the private bar: lawyers are advocates for their clients. And the cases don't say what you think: most of your citations were cases turning on the meaning of the relevant statutes; with approval of the President, Congress can revise the language after any decision.

When you turn to his Court opinions, your analysis turns laughable, in part because you confuse "foolish" or "things you oppose" with "unconstitutional." The "individual rights" case concerned "not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution." Roberts' opinion, written for a unanimous court, began, "No one is very happy about the events that led to this litigation."

Roberts' dissent in the Endangered Species Act case would not have "struck the Act down as unconstitutional in many cases." He merely favored further review and comparison with the statutory language.

You're entitled to question his lack of judicial experience, but this isn't black and white: Justice Douglas had never been a judge; Justice O'Connor had been an appellate Judge, in state court, only two years.

Turning the Court into a "Bantu-stan" of seats slotted for particular "groups" is both unconstitutional and noxious. Individuals can't be simplified as representatives of larger sets sharing some characteristics. The seat should go to the best qualified. And, contrary to your claim, judges weren't supposed to make law; they interpret it. Seek policy changes in the branch of government responsible: Congress.

One needn't be any particular gender, color, faith, etc, to uphold the Bill of Rights. The Constitutional rule of law establishes a process; it does not enshrine any particular politics--that's the role of elections. But, by inventing rights not in the Constitutional text, the left put politics into the Court. By insisting on a "living Constitution," liberals themselves accept change--so can't bar change just because it's Conservative.

Judge Roberts is anything but reprehensible, radical or one-dimensional. He's smart, funny and affable. President Clinton nominated a board member and General Counsel of the ACLU; that's about as far left as possible. Yet Justice Ginsburg was confirmed 97-3--properly so; she's a good judge. Why should Roberts receive fewer votes?

12:57 AM  
Blogger Sally Swift said...

Well. Carl sure told me a thing or two. Let's forget that he's got me confused with in part of his argument -- I don't mind, I support their efforts and their facts.

But when I question--reasonably--if there isn't a woman or minority out there somewhere who's at least as qualified as Roberts to better serve our Entire citizenry (which, by the way, Justice O'Connor also finds disappointing), Carl goes a bit over the top, accusing me of an opinion "both unconstitutional and noxious."

We all know by now that "All Men Are Created Equal" doesn't apply simply to White Men any more. And the highest Court in the land should reflect that.

Frankly, I find Carl's attack, while articulate, impassioned and filled with "facts" -- more than a little noxious. And far behind the reality of our times.

6:58 PM  
Blogger Carl said...


I've replied (to your arguments and others) here.

11:17 PM  

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