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Of all the votes by Democratic senators in favor of the nomination of John Roberts to serve as Chief Justice of the U.S. Supreme Court, none is likely to be more disappointing to progressives than that of Wisconsin Senator Russ Feingold.
Feingold, a maverick Democrat whose increasingly outspoken criticism of the war in Iraq has earned him frequent mentions as a potential candidate for his party's 2008 presidential nomination, was one of three Democratic members of the Senate Judiciary Committee to support the Roberts nomination on Thursday.
Along with Vermont Senator Patrick Leahy, the ranking Democrat on the committee, and fellow Wisconsinite Herb Kohl, Feingold joined all of the committee's Republicans in backing the Bush administration nominee. The three Democratic votes on the committee are likely to ease the way for as many as two dozen Senate Democrats to vote to confirm Roberts when the nomination goes to the full Senate.
Feingold's stance is especially significant, as his lonely opposition to the Patriot Act in 2001 and other bold challenges to the administration have marked him as one of the chamber's more courageous defenders of civil rights and civil liberties. As such, his support of Roberts provides other Democrats and moderate Republicans who choose to back the nominee with a measure of cover.
But why would Feingold want to provide that cover?
The senator, who has a record of showing great deference to presidents when it comes to confirming nominees (including that of former Attorney General John Ashcroft), had his excuses. He told the committee, "Judge Roberts's impeccable legal credentials, his reputation and record as a fair-minded person, and his commitment to modesty and respect for precedent have persuaded me that he will not bring an ideological agenda to the position of Chief Justice of the United States and that he should be confirmed."
But, then, in the same statement to the committee, Feingold admitted, "I do not want to minimize the concerns that have been expressed by those who oppose the nomination. I share some of them. Many of my misgivings about this nomination stem from Judge Roberts's refusal to answer many of our reasonable questions. Not only that, he refused to acknowledge that many of the positions he took as a member of the Reagan Administration team were misguided or in some cases even flat-out wrong."
The fact is that Feingold asked some of the best questions of Roberts on those very issues, and he got some of the worst answers.
Unfortunately, Feingold does not appear to have taken those exchanges seriously enough to decide that Roberts failed the test.
One senator who did listen to Feingold's exchanges with the nominee was Massachusetts Democrat Edward Kennedy.
In explaining his decision to vote against Roberts, Kennedy specifically mentioned Feingold's pointed questioning of Roberts.
Recalling the discussion of the Roberts's efforts to block the strengthening of the Voting Rights Act when the nominee served in Ronald Reagan's administration, the Massachusetts senator noted that, "Both Senator Feingold and I tried to find out whether he came to agree with the strengthened Voting Rights Act after President Reagan signed it into law. Even when Senator Feingold asked whether Judge Roberts would acknowledge today that he had been wrong to oppose (limits on the ability of minorities to seek protection under the Voting Rights Act), he refused to give a yes-or-no answer."
Kennedy went on to point out that: "Senator Feingold asked: 'What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about… whether the department was right in seeking to keep the (narrow) intent test (that Roberts lobbied for) or whether time has shown that the (broader) effects test (that was supported by civil rights groups and much of Congress) is really the more appropriate test.'
"Judge Roberts responded, 'I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.
"So we still don't know whether he supports the basic law against voting practices that result in denying voting rights because of race, national origin, or language minority status."
Feingold's questioning helped Kennedy form his conclusion that, "Based on the record available, there is clear and convincing evidence that Judge Roberts' view of the rule of law would narrow the protection of basic voting rights. The values and perspectives displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress to pass laws to protect citizens in matters they care about."
Kennedy concluded, appropriately, that it would be irresponsible on any senator -- particularly any progressive senator -- to vote for the Roberts nomination.
Feingold did not choose to embrace the responsibility that Kennedy recognized. Though he asked the right questions, Feingold cast the wrong vote.
Any doubts about whether the Bush administration's nominee to become the 17th chief justice of the U.S. Supreme Court will win the endorsement of the Senate Judiciary Committee came were removed when the ranking Democrat on the committee, Vermont Senator Patrick Leahy, said he would join Republicans in supporting the confirmation of John Roberts. Though Leahy asked some of the toughest questions of Roberts during the Judiciary Committee hearing on the nomination, and received some of the least-satisfying answers, the senator has now decided to suspend disbelief.
``John Roberts is a man of integrity," Leahy announced, adding that, "I can only take him at his word that he does not have an ideological agenda.''
Leahy, a former prosecuting attorney, would never have convinced a jury with so lame an expression of confidence in a star witness. But his decision could convince a number of Democrats on the committee -- including cautious moderates such as California's Dianne Feinstein and Wisconsin's Herb Kohl -- to back Roberts. And as many as half of the Senate's 44 Democratic members may do the same when the full chamber considers the nomination. Certainly, the announcement by so-called Senate Democratic "Leader" Harry Reid, D-Nevada, that he will oppose Roberts's confirmation will not have much impact.
Indeed, there is some serious speculation that the Reid-Leahy split -- coming with a 24-hour period -- is meant to comfort the Democratic party's anti-Roberts base while at the same time signaling to wavering Senate Democrats that they are essentially free to back Roberts. Within the Democratic Caucus, there is some sentiment for the view that members should vote to confirm Roberts in order to appear cooperative with the Bush administration when it comes to high court nominations. That, the theory goes, will make Democratic opposition to a conservative replacement for retiring Justice Sandra Day O'Connor more credible.
The awareness that such calculations are in play led to a good deal of snickering when Leahy, who is nothing if he is not an able politicial player, claimed to be "voting my conscience" with his endorsement of Roberts. Even Leahy seemed to be dubious about his stance, as the senator admitted to lingering concerns that Roberts will, as chief justice, be too deferential to presidential authority. (Leahy's suggestion that his concerns were somewhat alleviated by the fact that Roberts is an admirer of the late Supreme Court Justice Robert Jackson was comic. It is true that Jackson was involved in a high-profile challenge to presidential authority in 1952, when he backed a Supreme Court ruling to block an attempt by then-President Harry Truman to seize and operate U.S. steel mills for the supposed purpose of maintaining production of needed munitions during the Korean War. But the fact that Roberts, perhaps the most pro-corporate nominee in the history of the court, respects a jurist who chose to prevent the government from meddling in the affairs of major corporations can hardly be called "reassuring.")
For evidence of where people of conscience are lining up, consider the statement by the senior Democrat on the Judiciary Committee, Massachusetts Senator Ted Kennedy, who on Wednesday advanced the most convincing case for rejecting Roberts. While conservatives will dismiss Kennedy as a liberal partisan who would never back a Republican nominee, the truth is the opposite. As the veteran senator noted Wednesday, "In my 43 years in the United States Senate, I have supported more nominees for the Supreme Court by Republican presidents than by Democratic presidents." Kennedy backed the nominations of Antonin Scalia, Sandra Day O'Connor, Anthony Kennedy and other members of the court who were nominated by Republican presidents. (Significantly, Kennedy was one of nine senators who voted against former President George H.W. Bush's 1990 nomination of Justice David Souter, who has turned out to be one of the court's most liberal members. As with the Roberts nomination, Kennedy was concerned that Souter had not been frank enough in his testimony before the Judiciary Committee.)
It is notable that even if Leahy was not sufficiently concerned by Roberts's responses to his questions, the statement from senator from Massachusetts indicates that he was influenced by the issues the senator from Vermont raised.
Here is what Senator Kennedy had to say in announcing his opposition to the Roberts nomination:
Our Founders proclaimed the bedrock principle that we are all created equal. But everyone knows that when we started, the reality was far different. For more than two centuries, we have struggled, sometimes spilling precious blood, to fulfill that unique American promise. The goals, the principles, and the sacrifices of millions of Americans breathed an ever-fuller life into our constitutional ideals.
The Constitution itself has been the inspiration for this march of progress. The open-ended principles that our Founders had the wisdom to bequeath us have acquired ever-deeper meaning over the years – a remarkably steady movement toward greater protection for individual rights and liberties, and an increasing assurance that governments at all levels have the authority to defend ordinary Americans from overreaching by those who would discriminate against them or exploit them.
We have made much progress. But our work is not finished, and we still look to our elected representatives and our independent courts to uphold those founding principles in each new generation, to continue the great march of progress, to never turn back and never give up our hard-won gains.
This was the basic issue in our hearings on the nomination of John Roberts to become our next Chief Justice. Would he bring to that high office the values and ideals that would enable our struggle for equality and opportunities for all to continue, or would he stand in the way?
The only records made available to us were those of John Roberts as an aggressive activist in the Reagan Administration, eager to limit basic values we have achieved at great cost and sacrifice over the years, especially in basic areas such as voting rights, women's rights, civil rights, and disability rights. He's an outstanding lawyer who says he could represent clients on any side of a question. As Congressman John Lewis eloquently stated in our hearings, 25 years ago, John Roberts was on the wrong side of the nation's struggle to achieve genuine equality of opportunity for all Americans. Now, we need to know whose side he is on today. We need to know that as Chief Justice of the United States, his sole client would be all the American people. John Roberts is a highly intelligent nominee. He has argued 39 cases before the Supreme Court, and won more than half of them. He is adept at turning questions on their head while giving seemingly appropriate answers. These skills served him well as a Supreme Court advocate. These same skills, however, made a mockery of the confirmation process. At the end of the four days of hearings, we still know very little more than we knew when we started.
He proclaimed repeatedly in the hearings that he would uphold the rule of law.
In answer to a question about his views, he said, "If I am confirmed, on the Supreme Court, I need to decide those questions with an open mind on the basis of the arguments presented, on the basis of the record presented in the case, and on the basis of the rule of law."
In answer to another question about his views, he stated again, "I will confront issues in this area as I would confront issues in any area, . . . and that would be to fully and fairly consider the arguments presented and decide them according to the rule of law."
In yet another instance, he proclaimed, "The responsibility of the judicial branch is to decide particular cases that are presented to them in this area according to the rule of law." And again, "I became a lawyer or at least developed as lawyer because I believe in the rule of law."
The rule of law. Everyone in the Senate agrees with that. In fact, we have each taken an oath of office to protect and defend the Constitution, and we take that oath seriously. But it reveals little about how we will vote on the important questions of the day, and what values and ideals we bring to our decisions.
Judge Roberts said that a judge should be like an umpire, calling the balls and strikes, but not making the rules. But we all know that with any umpire, the call may depend on your point of view. An instant replay from another angle can show a very different result. Umpires follow the rules of the game. But in critical cases, it may well depend on where they are standing when they make the call.
The same holds true of judges.
As Justice Oliver Wendell Holmes famously stated, "The life of the law has not been logic; it has been experience."
As Justice Stephen Breyer offered in his confirmation hearing, "I always think law requires both a heart and a head. If you do not have a heart, it becomes a sterile set of rules, removed from human problems, and it will not help. If you do not have a head, there is the risk that in trying to decide a particular person's problem in a case that may look fine for that person, you cause trouble for a lot of other people, making their lives yet worse."
The rule of law is not some mathematical formula for meting out justice. It is our values and ideals that give it real meaning – in the case of the Constitution, not our personal values and ideals, but our values and ideals derived from the meaning of the constitutional text.
We all believe in the rule of law. But that is just the beginning of the conversation when it comes to the meaning of the Constitution. The Constitution of Justice Scalia and Justice Thomas is a very different document from the Constitution of Justice Stevens and Justice Souter. Everyone follows the same text. That is the rule of law. But the meaning of the text is often imprecise. You must examine the intent of the Framers, the history, and the current reality. And this examination will lead to very different outcomes depending on each Justice's constitutional world view. Is it a full and generous view of our rights and liberties and of government power to protect the people, or a narrow and cramped view of those rights and liberties and the government's power to protect ordinary Americans?
Based on the record available, there is clear and convincing evidence that Judge Roberts' view of the rule of law would narrow the protection of basic voting rights. The values and perspectives displayed over and over again in his record cast large doubts on his view of the validity of laws that remove barriers to equal opportunity for women, minorities, and the disabled. His record raises serious questions about the power of Congress to pass laws to protect citizens in matters they care about.
In fact, there is nothing in the record to indicate otherwise. For all the hoopla and all the razzle-dazzle, the record is no different in its bedrock substance than it was the day the hearings started.
When Senator Kohl and others asked Judge Roberts whether he would disavow any of the positions he took over the years, he refused to do so. On the first day of the hearing, Senator Kohl asked, "Which of those positions were you supportive of, or are you still supportive of, and which would you disavow?" Judge Roberts never provided a clear response.
1.) Voting Rights Act
In the area of voting rights, he has a record of strong opposition to Section 2 of the Voting Rights Act, which is widely acknowledged by scholars and civil rights experts to be one of the most powerful and effective civil rights laws ever enacted. It outlaws voting practices that deny or dilute the right to vote based on race, national origin, or language minority status – and is largely uncontroversial today. Before it was passed, there had not been a single African-American elected since Reconstruction from seven of the southern states with the greatest of African American populations.
But in 1981 and 1982, Judge Roberts was one of a small group of attorneys in the Justice Department urging the Administration to oppose a strong Section 2, which allowed discrimination to be proved by demonstrating its result, not just its intent.
Although Judge Roberts sought to characterize his opposition to this critical amendment as simply following the policy of the Reagan Administration, the dozens of memos he wrote on this subject show that he personally believed the Administration was right to oppose the "results test."
In fact, he pressed to keep others from changing their minds about opposing the law. When Assistant Attorney General for Civil Rights Brad Reynolds raised concerns about sending the Senate a letter on this issue, John Roberts urged the Attorney General to send it, stating that "my own view is that something must be done to educate the Senators on the seriousness of this problem . . . ." Of course, the problem he saw was the amendment, not the discrimination it was designed to end.
He also urged the Attorney General to assert his leadership against the amendment to Section 2. He wrote that the Attorney General should "head off any retrenchment efforts" by White House staff who were inclined to support the amendment. He consistently urged the Administration to require voters to bear the heavy burden of proving discriminatory intent in order to overturn practices that locked them out of the electoral process.
Judge Roberts clearly knew that his position would make it harder for voters to overturn restrictive voting laws. As he wrote at the time, "violations of section 2 should not be made too easy to prove . . . ." Remember, when he wrote this there were no African Americans elected to Congress from the states with the largest black populations, and only 18 in Congress overall. And there were only 6 Latinos in Congress. There is no indication in any of his writings on the Voting Rights Act that he was the least bit troubled by this obvious discrimination.
The year after section 2 was signed into law, Judge Roberts wrote in a memo to the White House Counsel that "we were burned" by the Voting Rights Act legislation.
Given his clear record of hostility to this key voting rights protection, the public has a right to know if he still holds these views. But Judge Roberts gave us hardly a clue.
When I asked him if he holds these views today, he refused to answer. He repeatedly tried to characterize his views as the views of the Administration. He declined to say whether he agreed with them – then or now. That answer strains credibility, when the memos themselves declare: "my own view is that something must be done…."
In fairness, he did concede that he no longer believes that Section 2 is, to use his words from the 1980s, "constitutionally suspect." But the fact that it took almost 20 minutes for him to provide this obvious answer to a straightforward yes-or-no question is not reassuring.
Both Senator Feingold and I tried to find out whether he came to agree with the strengthened Voting Rights Act after President Reagan signed it into law.
Even when Senator Feingold asked whether Judge Roberts would acknowledge today that he had been wrong to oppose the effects test, he refused to give a yes-or-no answer.
Senator Feingold asked: "What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about…whether the department was right in seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test."
Judge Roberts responded, "I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982."
So we still don't know whether he supports the basic law against voting practices that result in denying voting rights because of race, national origin, or language minority status.
You don't need to be a voting rights expert to say we're better off today in an America where persons of color can be elected to Congress from any state in the country, as opposed to the America of 1982, in which no African American had been elected to Congress since Reconstruction from Mississippi, Florida, Alabama, North Carolina, South Carolina, Virginia, or Louisiana, because restrictive election systems effectively denied African Americans and other minorities the equal chance to elect representatives of their choice. In these states, African Americans were a third or more of the population, but they were effectively blocked from electing any candidate of their choice decade after decade throughout the twentieth century.
Yet Judge Roberts repeatedly refused to give even this simple reassurance about the Act. Is that what he means by the rule of law?
2.) Civil Rights Restoration Act
Another very important area in which Judge Roberts refused to disavow his long history of opposition to civil rights is in the prevention of discrimination by recipients of federal funds. These laws were adopted because, Congress believed, as President Kennedy said in 1963, that "[s]imple justice requires that public funds, to which all taxpayers . . . contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in . . . discrimination." As an assistant to Attorney General William French Smith, John Roberts argued that these important laws should be narrowed.
In fact, his position was even more extreme than the Reagan Administration's. In 1981, he supported a recommendation to exempt institutions from civil rights laws if the only federal financial assistance they received was in the form of loans to their students. Under this view, the enormous subsidies the federal government gives colleges and universities in the form of federal financial aid would not have been enough to require them to obey the laws against discrimination.
At many private institutions, financial assistance to students was the only form of federal aid, so Judge Roberts' suggestion would have left those institutions largely free to discriminate against women, the disabled, and minorities in both education and hiring.
In fact, Judge Roberts's position was so extreme that it was rejected by the Reagan Administration and later by the Supreme Court. But in his testimony, Judge Roberts ignored this aspect of his record. He refused even to acknowledge that his past positions had gone beyond the Administration's. Instead, he stated repeatedly that he was just doing his job.
He said, "I was articulating and defending the administration's position. . . . The position that the administration advanced was the one I just described. The universities were covered due to federal financial assistance to their students. It extended to the admissions office." That's an accurate statement of the Administration's position, but the view Judge Roberts advanced in his December 8, 1981 memo was quite different.
I also asked whether he still agreed with the statement he made in 1985, that "[t]riggering coverage of an institution on the basis of its accepting students who receive Federal aid is not too onerous if only the admissions office is covered. If the entire institution is to be covered, however, it should be on the basis of something more solid than Federal aid to the students."
Again and again, Judge Roberts refused to say whether he still agrees with those words. He said only "Well, Senator, the administration policy was as I articulated it. And it was my job to articulate the administration policy."
That's no answer at all. I never asked about the policy of the Reagan Administration. I asked only whether today, he still believed, or would disavow, his earlier position. Given his repeated refusal to answer, I can only conclude that he still holds those views today.
In addition, in response to questions from Senator Biden, Judge Roberts refused to say he no longer agrees with his former position that laws against discrimination should be narrowly interpreted to apply only in the parts of the institution that directly receive federal funds. Under this view, a college that received federal financial assistance through its admissions office could not discriminate in admissions, but it could discriminate in every other aspect of its operations – in hiring teachers, in instructing students, and in athletics. When Senator Biden reminded Judge Roberts that he'd written in 1982 that he "strongly agreed" with this view, Judge Roberts never said he no longer holds that position. Instead he testified under oath, "So if the view was strongly held, it was because I thought that was a correct reading of the law." Is that his view of the rule of law?
3.) Title IX
Another very important area in which Judge Roberts failed to give any reassurance was his position protecting women and girls against discrimination in educational programs under Title IX.
In the case of Franklin v. Gwinnett County, in 1991, Judge Roberts argued that Title IX did not allow a high school girl who had been sexually abused by her teacher to recover damages. Judge Roberts' argument would have left the victim with no remedy at all.
Senator Leahy asked him, "Do you now personally agree with and accept as binding law the reasoning of Justice White's opinion in Franklin v. Gwinnett?" Judge Roberts replied that, "It certainly was a precedent of the court that I would apply under principles of stare decisis."
That answer sounds reassuring, until you realize that Judge Roberts never answered whether he personally agreed with this unanimous decision of the Court.
Senator Leahy offered Judge Roberts several chances to disavow his position in the Franklin case. He asked, "Do you now accept that Justice White's position [in Franklin v. Gwinnett County] was right and the government's position was wrong?" Just Roberts replied again, "I certainly accept the decision of the court--the 9-0 decision, as you say – as a binding precedent of the court. Again, I have no cause or agenda to revisit it or any quarrel with it."
That sounded reassuring, until I recalled that Justice Thomas repeatedly used the same words – "I have no quarrel with it" – to evade answers during his nomination hearing. Justice Thomas testified, for instance that he had "no quarrel" with the test established by the Supreme Court in Lemon v. Kurzman for analyzing claims under the First Amendment's prohibition on the establishment of religion. But just two years later, Justice Thomas joined a dissent ridiculing the test and saying it should not be applied, and Justice Thomas has consistently opposed the Lemon test ever since.
I have to wonder why it was so difficult for Judge Roberts simply to say, "Yes, in hindsight, I personally believe that Franklin v. Gwinnett was correctly decided, and that victims of intentional sex discrimination in educational programs do have a right to relief under Title IX." Why was that so difficult an answer for Judge Roberts to give? Could it be that it was contrary to his view of the rule of law?
4.) Affirmative Action
Judge Roberts's record is also one of consistent and long-standing opposition to affirmative action. In the 1980s, he urged the Reagan Administration to oppose affirmative action. In the 1990s, in the administration of the first President Bush, he urged the Supreme Court to overturn a federal affirmative action program. In private practice in the late 1990s and as recently as 2001, he litigated cases challenging affirmative action. That includes his repeated challenges to the Department of Transportation's disadvantaged business enterprise program, which has been upheld by every court that has reviewed it.
On affirmative action, his view of the rule of law seems to be that established court precedents have little meaning, even though they have been found again and again to advance our progress on civil rights.
In 1981, he advocated abolishing race- and gender-conscious remedies for discrimination, although he admitted this position was in "tension" with the Supreme Court's opinion in United Steelworkers of America v. Weber, upholding affirmative action in employment – a case that had been decided only two years earlier. He wrote that the Administration did not see that opinion as a "guiding principle."
In the same memos dealing with the Weber decision, Judge Roberts even suggested that the opinion might be overturned because of changes in the Court's composition.
Given his long and consistent opposition to affirmative action, Senators were entitled to seek some reassurance from the nominee that he would not use the power of the Chief Justice to continue his past efforts to end affirmative action.
I asked Judge Roberts, "Do you agree then with Justice O'Connor, writing for the majority, that gave great weight to the real-world impact of affirmative policies in universities?" He stated, "I can certainly say that I do think that that is the appropriate approach, without commenting on the outcome or the judgment in a particular case. But you do need to look at the real-world impact in this area and I think in other areas as well." So he thinks that we should consider real world impact, but he never stated whether he agreed with Justice O'Connor that the University of Michigan case was correctly decided. On that issue, we don't know any more than we did before the hearing.
Senator Feinstein also asked Judge Roberts his view of affirmative action, but he avoided her question as well. She asked, "Do you personally subscribe, not to quotas, but to measured efforts that can withstand strict scrutiny?" Judge Roberts replied, "A measured effort that can withstand strict scrutiny is…a very positive approach." Well, that sounds as though he agrees, but then he also said, "And I think people will disagree about exactly what the details should be."
When Senator Feinstein stated she specifically wanted to know his view of Grutter v. Bollinger, the University of Michigan case upholding affirmative action, Judge Roberts gave a long answer that was no answer at all. "In the Michigan case, obviously, you have – I always forget whether it's the law school --- but I think the law school program was upheld and the university program was struck down because of the differences in the program. But efforts to ensure the full participation in all aspects of our society by people, without regard to their race, ethnicity, gender, religious beliefs, all those are efforts that I think are appropriate."
But of course, Senator Feinstein had not asked about efforts to ensure participation without regard to race. She'd asked his view on a particular affirmative action program at the University of Michigan Law School that took race into account. We still don't know whether he agrees with that important Supreme Court decision, and his refusal to tell us is very troubling.
5.) The Right of All Children to Share in Public Education
I'm also troubled by Judge Roberts' refusal to distance himself from his past criticism of the very important Supreme Court decision in Plyler v. Doe, which held that the basic principle of equal protection requires all school age children to have the same access to public education – including the children of undocumented immigrants. In a very real sense, the Plyler decision is as important to the children of undocumented workers as the Brown decision is to African American children. Yet Judge Roberts strongly criticized the decision. On the day the case was decided, he co-authored a memo criticizing the Solicitor General's Office for failing to file a brief arguing that these children could be denied public education.
Senator Durbin asked Judge Roberts, "Did you agree with the decision . . . then? Or do you agree with it now?" Judge Roberts avoided the question, saying "I haven't looked at the decision in Plyler v. Doe in 23 years. . . ."
Senator Durbin asked, "Is this settled law, as far as you are concerned, about our commitment in education. . . ?" Judge Roberts again avoided the question, stating that he had not looked at the case recently and that when he wrote the memo, he was just doing his job.
So we are left with nothing to reassure us that he has changed his mind from his harsh criticism of that opinion in the past. His many statements of support for the rule of law yield no clue about his true convictions on this important question today.
6.) Women's Rights
Finally, a number of my colleagues on the Committee asked Judge Roberts about issues related to women's rights and a woman's right to privacy. On these important matters, too, he never gave answers that shed light on his current views.
No one is entitled to become Chief Justice of the United States. The confirmation of nominees to our courts – by and with the advice and consent of the Senate – should not require a leap of faith. Nominees must earn their confirmation by providing us with full knowledge of the values and convictions they will bring to decisions that may profoundly affect our progress as a nation toward the ideal of equality.
Judge Roberts has not done so. His repeated allegiance to the rule of law reveals little about the values he would bring to the job of Chief Justice of the United States. The record we have shows a clear hostility to our progress toward our common American vision of equal opportunity for all of our citizens.
Supporting or opposing nominees to the Supreme Court should not be a partisan question. In my 43 years in the United States Senate, I have supported more nominees for the Supreme Court by Republican presidents than by Democratic presidents.
But, there is clear and convincing evidence that John Roberts is the wrong choice for Chief Justice. I oppose the nomination, and I urge my colleagues to do the same.
John Roberts, the President's nominee to become the seventeenth Chief Justice of the US Supreme Court, says that the 1973 high court ruling that guaranteed a woman's right to choose is "settled as a precedent."
Roberts told the Senate Judiciary Committee hearing on his nomination that the Supreme Court decision that legalized abortion is "entitled to respect under principles of stare decisis," the legal standard that long-established court rulings should not be casually challenged.
When pressed, Roberts suggested that only in extraordinary circumstances--when the precedent has proved to be "unworkable" or "difficult to apply"--should the Court even consider overturning settled law.
Since the Roe v. Wade precedent has survived basically intact through three decades of legal and legislative assaults, and since it has not proved to be unworkable or difficult to apply, Roberts has effectively promised the Senate--under oath--that he will not seek as the Chief Justice to outlaw abortion or other reproductive rights.
There can be no question that Roberts, who every observer agrees has an impressive awareness of the law and of politics, knows that this was the impression that he sought to convey with his comments.
Did Roberts seek to deceive the committee? Certainly, many Americans--and at least some senators--remain skeptical regarding this nominee. And, considering the sorry track record of the presidential Administration that has advanced his nomination, that skepticism ought not be dismissed casually.
But Roberts has clearly indicated a position with regard to Roe v. Wade. And that position is that, no matter what his personal opinions, he would not serve on the nation's highest court as the sort of conservative judicial activist who sets out to overturn established law.
It appears at this point that a number of senators who support a woman's right to choose will vote to confirm Roberts's nomination, which in all likelihood will gain the approval of the full Senate. It also appears, from the comments of these senators, that many of them were impressed with Roberts's performance before the Judiciary Committee--even if they would have preferred that the nominee be more forthcoming in response to questioning from Democratic and Republican senators.
While your correspondent continues to hold to the view that there are more than enough reasons to reject Roberts--beginning with his record on voting rights issues and certainly including his radical pro-business track record--he also recognizes political reality. In recognizing reality, however, it is important to set basic standards.
If and when senators who are supportive of reproductive rights cast their votes for Roberts, they ought make note of the nominee's statements to the committee with regard to this issue. Get it in the record again. And then add to the record a notation that a nominee who intentionally lies to the Senate must necessarily be subject to impeachment and removal from office.
These senators should also make it clear that, if John Roberts turns out to be the judicial activist that some fear, and if that activism takes the form of an attack on what he has described as "settled" law, then they will support a move to impeach the man and remove him from office.
Horrified by the realization that a great many Americans see him as an uncaring Herbert Hoover, the president who forgot New Orleans attempted with his address to the nation on Thursday night to remake himself as a Franklin Delano Roosevelt for the 21st century.
The president's speech from New Orleans was full of proposals, promises and pledges. But Americans will be excused if they wait for proof of this conservative's newfound compassion.
After all, the president was not just talking about rebuilding the Gulf Coast. He was talking about rebuilding his own reputation.
Nothing gets the Bush White House's damage control operation moving like declining poll numbers. And so it should come as no surprise that the president is suddenly "Georgie on the spot" in New Orleans.
After days of initially neglecting the humanitarian crisis that followed Hurricane Katrina, and then seeking to assign to others blame for the death and chaos caused by that neglect, the Bush team has suddenly noticed that the American people are upset. The president's approval ratings have dipped below 40 percent -- into what pollsters refer to as the "Nixon during Watergate" range.
So Bush is now positioning himself as the savior of the Gulf Coast. He has even taken what for him is the unprecedented step of accepting a small measure of accountability for his actions -- or, in this case, inactions. "To the extent the federal government didn't fully do its job right, I take responsibility," the president grumbled earlier this week. In his speech on Thursday night, Bush admitted that, "Americans have every right to expect a more effective response in times of emergency."
He'll get no debate there. Nor will he hear many objections to his opening of the federal-aid spiggots to help rebuild New Orleans and other communities along the Gulf Coast.
But there will be some lingering skepticism about whether George W. Bush really understands what it means to take responsibility.
In fairness, while Bush does not have a track record that inspires confidence in his ability to hold himself or his aides to account, his Thursday night address from New Orleans represented progress for an administration that has had a problem with accountability. At least Karl Rove did not dress the boy president up in a search-and-rescue team uniform and pose him in front of a banner, declaring "Mission Accomplished."
But if Bush really wants to be taken seriously when he says that he is willing to accept responsibility for federal failures, he needs to do more than simply tour New Orleans in an open truck, preach to the television cameras from that city's Jackson Square and promise to deliver the aid that any president -- Republican or Democrat, conservative or liberal -- would offer in such a circumstance.
If the president is serious, he should:
1.) Make it clear that administration aides who engage in cynical and divisive efforts to discredit state and local officials will be removed immediately from their positions. In a time of national emergency, the White House should not be playing politics in order to shift the blame for the missteps and misdeeds of the president and his appointees.
2.) Support the immediate creation of an independent blue ribbon commission to investigate why the initial response to the crisis was so miserable. The president should recognize that if there are fundamental flaws in the nation's emergency management systems, they must be corrected now -- before the next disaster hits.
3.) Take steps to ensure that the federal response to the crisis and its aftermath will be fiscally responsible and ethical. At a time when massive new expenditures are being made, the administration should abandon its proposal to rob the treasury by cutting estate taxes for the wealthy. Additionally, while federal funding of relief and rebuilding initiatives should be generous, it should also be audited and appropriate.
Major contracts with private corporations should never be awarded without proper bidding, and strict limits should be set on the profits that firms are allowed to take away from those contracts.
One of Bush's predecessors, Woodrow Wilson, put it well when he said, "Big business is not dangerous because it is big, but because its bigness is an unwholesome inflation created by privileges and exemptions which it ought not to enjoy."
If George Bush is really going to take responsibility for the renewal of New Orleans and the Gulf Coast, his most serious responsibility in the months and years to come will be to ensure that the hundreds of billions of federal tax dollars that are assigned to that endeavor do not merely enrich corporations that have contributed to his campaign and employed his vice president.
The president broke faith with the American people when, after Hurricane Katrina hit, he lost sight of his responsibility to provide immediate and sufficient aid to those most in need. If he now seeks to redeem himself, he must take personal responsibility for making sure that the promise of renewal is not squandered on profiteering.
Last spring, in an attempt to make President Bush appear to be more of a regular guy, the White House released a list of the tunes the commander-in-chief was listening to on his iPod. The list featured mostly country, alt-country and blues artists, including John Fogerty, John Hiatt, Alan Jackson, George Jones and Stevie Ray Vaughan. Perhaps the most interesting name on Bush's listening list was that of James McMurtry, the brilliant Austin-based songwriter who used his 2004 live CD to poke fun at the president's attempts to fake a Texaser-than-thou accent.
McMurtry responded to the news that Bush's playlist included his song "Valley Road" by politely suggesting that the president might not be the most serious listener of his songs, which frequently detail the damage done to Americans by rampaging corporatists and an uncaring government.
In case there was any doubt about the differences between George W. Bush's worldview and James McMurtry's, the musician posted a savage critique of the president and his pals, "We Can't Make It Here," on his Web site shortly before last year's election. That song, a haunting reflection on corporate globalization and wars of whim, was the highlight of McMurtry's set last month when he played at Camp Casey, the protest vigil organized outside the president's Crawford, Texas, ranch by Cindy Sheehan, whose son Casey was killed in Iraq.
McMurtry did not write the song to cheer on Sheehan's demand that the president meet with her. Nor did he write it in response to White House neglect of the suffering along the Gulf Coast in the aftermath of Hurricane Katrina. But "We Can't Make It Here" captured the mood of the moment in Crawford, just as parts of this epic song touch on sentiments that run deep among the evacuees from New Orleans, Biloxi, Mobile and all the other battered communities of the southeast.
Ultimately, however, "We Can't Make It Here" is about more than the White House's failures with regard to one mother or one crisis. It is about the dismissal of thousands of neglected communities and millions of neglected Americans who -- without the benefit of media attention -- regularly echo the the blunt closing cry of McMurtry's song for attention to the working poor who have lost their jobs to "free trade" and federal neglect and their children to a war founded on lies.
Written in the voice of a textile worker whose job was lost when a factory was shuttered and the production sent overseas, McMurtry closes his opus by asking:
Should I hate a people for the shade of their skin
Or the shape of their eyes or the shape I'm in
Should I hate 'em for having our jobs today
No I hate the men sent the jobs away
I can see them all now, they haunt my dreams
All lily white and squeaky clean
They've never known want, they'll never know need
Their sh- - don't stink and their kids won't bleed
Their kids won't bleed in the damn little war
And we can't make it here anymore
Will work for food
Will die for oil
Will kill for power and to us the spoils
The billionaires get to pay less tax
The working poor get to fall through the cracks
Let 'em eat jellybeans let 'em eat cake
Let 'em eat sh- -, whatever it takes
They can join the Air Force, or join the Corps
If they can't make it here anymore
And that's how it is
That's what we got
If the president wants to admit it or not
You can read it in the paper
Read it on the wall
Hear it on the wind
If you're listening at all
Get out of that limo
Look us in the eye
Call us on the cell phone
Tell us all why
George Bush refused to look Cindy Sheehan in the eye. He won't do any better by the workers who share the experience James McMurtry portrays. And, while this particular singer may have a place on the presidential iPod, he won't be singing at the White House anytime soon. But he will be singing to America. McMurtry begins touring this week in support of a great new album, Childish Things, which includes the track "We Can't Make It Here." (Readers can find the schedule at www.jamesmcmurtry.com) Don't make the mistake of missing the man whose songs speak more truth about America in five minutes than George W. Bush has in five years.
The Senate Judiciary Committee hearing on the nomination of John Roberts to serve as Chief Justice of the U.S. Supreme Court began with an appropriate message from Wisconsin Senator Russ Feingold.
A maverick within his own Democratic party and the Senate as a whole, Feingold called upon the committee, the full Senate and all of official Washington -- a city that frequently is more concerned about images than Constitutional duties -- to get serious about the monumental task that lies ahead.
"Some have called for a 'dignified process,'" Feingold said of the confirmation process. "So have I. But at times it sounds like what some really want for the nominee is an easy process. That is not what the Constitution or the traditions of the Senate call for. If by "dignified" they mean that tough and probing questions are out of bounds, I must strongly disagree. It is not undignified to ask questions that press the nominee for his views on the important areas of the law that the Supreme Court confronts. It is not undignified to review and explore the nominee's writings, his past statements, the briefs he has filed, the memos he has written. It is not undignified to ask the nominee questions he would rather not answer should he prefer to remain inscrutable, or, worse yet, all things to all people."
Feingold continued, "This process is not a game. It is not a political contest. It is one of the most important things that the Senate does – confirm or reject nominees to the highest court in the land. And we as Senators must take that responsibility very seriously."
The unfortunate reality is that Roberts is unlikely to face an appropriate level of scrutiny. That's because, in many senses, the process is a game. Most members of the Judiciary Committee wear their responsibilities lightly. They want to appeal to the interest groups that they need to advance their political ambitions, so they will ask some tough questions. But they do not want to appear so "ideological" or "passionate" that the greater mass of voters in their home states might be offended, so they will not push as aggressively -- or vote as courageously -- as they should.
This political calculus has played out for a number of years. For the most part, nominees for lifetime sinecures on the highest and most definitional court in the land are given a free pass. That was certainly the case the last time that the Senate weighed a Supreme Court nomination.
In 1994, a less-than-appealing nominee of then President Bill Clinton, Stephen Breyer, swept through the confirmation process and was approved by an overwhelming Senate vote of 87-9.
Breyer, whose record as a U.S. Circuit Court of Appeals judge displayed an overwhelming bias in favor of corporate interests over those of consumers and workers, should have had a hard time getting on the court. He didn't. Though consumer activists warned that Breyer's confirmation would move the court in "an anticonsumer, antiworker, antienvironmental" direction, only one senator, Ohio's Howard Metzenbaum, challenged Breyer on his pro-corporate proclivities. In the end, even Metzenbaum (and, it should be noted, Feingold) voted for the nominee. Only a handful of conservative Republicans, who were mainly interested in poking at Clinton, rejected Breyer.
That was not as it should have been.
In its failure to scrutinize and effectively challenge Breyer's biases, the Senate let the country down.
Breyer certainly enjoyed a "dignified" confirmation process. But that dignity came as the expense of the Senate's Constitutional mandate to provide not merely "advice and consent" but to serve as a check and a balance upon the executive and his nominees.
Now, for the first time since Breyer was approved more than a decade ago, the Senate is called upon to accept or reject a new nominee to the high court. Again, the nominee has a record of extreme pro-corporate bias -- a record that has received scant notice as the debate over Roberts, such as it is, has tended to focus on so-called "hot-button" issues, such as reproductive rights.
Feingold set the proper standard when he suggested that Roberts must be subjected to the sort of broad, unapologetic scrutiny that Breyer so unfortunately avoided.
"It goes without saying that the Supreme Court is one of the most important institutions in our constitutional system and that the position of Chief Justice of the United States is one of the most important positions in our government," the Wisconsin senator explained. "The impact of this nominee on our country, should he be confirmed, will be enormous. That means our scrutiny of this nominee must be intense and thorough. In my view, we must evaluate not only his qualifications, but also his ability to keep an open mind, his sensitivity to the concerns of all Americans and their right to equal protection under the laws; not only his intellectual capacity, but his judgment and wisdom; not only his achievements, but his fairness, and his courage to stand up to the other branches of government when they infringe on the rights and liberties of our citizens."
This confirmation process will be a test for Roberts. But it will also test the Senate. Hopefully, the chamber's members -- including Feingold, himself -- will challenge John Roberts as aggressively as they should have Stephen Breyer.
Having finished the search for a luxury vacation home on the eastern shore of Maryland – which preoccupied him during the critical initial days of what is being called the worst natural disaster in American history – Vice President Dick Cheney jetted south late last week to inspect the damage.
With the wheels rolling for the purchase of his own $2.9 million home on the east coast, the Cheney was more or less ready to commiserate with the folks who had lost their homes on the Gulf Coast. Unfortunately, not all of the locals were prepared to thank the vice president for finally showing up.
Cheney was greeted in Gulfport, Mississippi, by a survivor of the disaster who – recalling the veep's blunt salutation for Vermont Senator Patrick Leahy during a visit to Capitol Hill last year – repeatedly shouted: "Go f--- yourself, Mr Cheney."
After Secret Service agents dragged the local man away, Cheney was asked by a reporter: "Are you getting a lot of that Mr. Vice President?"
Cheney answered: "First time I've heard it."
If Cheney had actually interacted with anyone on the ground, however, he would have heard a lot more. But the vice presidential visit was merely the latest in a series of photo opportunities by administration aides who are scrambling to undo the damage done by their plodding and disengaged responseto a catastrophe that was made much worse by initial federal neglect and incompetence.
Gulf Coast coast residents may be in shock. But they haven't lost their sense of outrage. As Cheney posed for the cameras, Gulfport resident Lynn Lofton approached reporters and told them: "I think the media opportunity right here is a complete waste of time and taxpayer money. They should have been here last week."
In fact, Cheney arrived just in time to, as he put it, "make certain that we're doing everything that needs to be done."
The former CEO of Halliburton needn't have worried. As has been the case since the Bush-Cheney administration took office: When trouble hits, Halliburton hits it big.
The firm that has collectedjbv more than $10 billion in Iraq-war related revenues is just
One of the first corporations to be awarded a reconstruction assignment after the hurricane hit was Halliburton's KBR (Kellogg Brown & Root) subsidiary, which has been tapped to repair damaged naval facilities in Louisiana and Mississippi.
KBR, which according to the able watchdogs at HalliburtonWatch.org has an ongoing $500 million contract with the Navy, will be in thick of the reconstruction process. And don't doubt that there may be more work coming KBR's way.
Joe Allbaugh, the former director of the Federal Emergency Management Agency, has a new job. He's lobbying for the Halliburton subsidiary in Washington and elsewhere. Conveniently, Allbaugh showed up in Louisiana on the day before Cheney's visit with the purpose, in the words of a Washington Post report, of "helping his clients get business."
Even if Allbaugh drops the ball, Halliburton is well covered.
The vice president can always be counted on to "make certain that we're doing everything that needs to be done."
John Nichols' book on Cheney, Dick: The Man Who Is President, was published by The New Press. Former White House counsel John Dean, the author of Worse Than Watergate, says, "This page-turner closes the case: Cheney is our de facto president." Arianna Huffington, the author of Fanatics and Fools, calls Dick, "The first full portrait of The Most Powerful Number Two in History, a scary and appalling picture. Cheney is revealed as the poster child for crony capitalism (think Halliburton's no bid, cost-plus Iraq contracts) and crony democracy (think Scalia and duck-hunting)."
Dick: The Man Who Is President is available from independent bookstores nationwide and at www.amazon.com*****************************************************************
Finally, we have discovered the roots of George W. Bush's "compassionate conservatism."
On the heels of the president's "What, me worry?" response to the death, destruction and dislocation that followed upon Hurricane Katrina comes the news of his mother's Labor Day visit with hurricane evacuees at the Astrodome in Houston.
Commenting on the facilities that have been set up for the evacuees -- cots crammed side-by-side in a huge stadium where the lights never go out and the sound of sobbing children never completely ceases -- former First Lady Barbara Bush concluded that the poor people of New Orleans had lucked out.
"Everyone is so overwhelmed by the hospitality. And so many of the people in the arena here, you know, were underprivileged anyway, so this, this is working very well for them," Mrs. Bush told American Public Media's "Marketplace" program, before returning to her multi-million dollar Houston home.
On the tape of the interview, Mrs. Bush chuckles audibly as she observes just how great things are going for families that are separated from loved ones, people who have been forced to abandon their homes and the only community where they have ever lived, and parents who are explaining to children that their pets, their toys and in some cases their friends may be lost forever. Perhaps the former first lady was amusing herself with the notion that evacuees without bread could eat cake.
At the very least, she was expressing a measure of empathy commensurate with that evidenced by her son during his fly-ins for disaster-zone photo opportunities.
On Friday, when even Republican lawmakers were giving the federal government an "F" for its response to the crisis, President Bush heaped praise on embattled Federal Emergency Management Agency chief Michael Brown. As thousands of victims of the hurricane continued to plead for food, water, shelter, medical care and a way out of the nightmare to which federal neglect had consigned them, Brown cheerily announced that "people are getting the help they need."
Barbara Bush's son put his arm around the addled FEMA functionary and declared, "Brownie, you're doing a heck of a job."
Like mother, like son.
Even when a hurricane hits, the apple does not fall far from the tree.
In 1975, when New York City teetered on the brink of financial default, the refusal of then-President Gerald Ford to back an aid package inspired the famous New York Daily News headline: "Ford to City: Drop Dead."
There was a measure of hyperbole in that headline, and it was at least a little unfair to Ford.
But in light of House Speaker Dennis Hastert's suggestion that rebuilding hurricane-ravaged New Orleans "doesn't make sense to me," it would not be a stretch to headline a report: "Hastert to City: Drop Dead."
Before the bodies had been pulled from the flood waters that have filled the streets of the Crescent City -- at least in part because of the failure of a Hastert-led Congress to allocate the funding needed to modernize the city's levees -- the Illinois Republican was displaying his brand of compassionate conservatism by saying of New Orleans: "It looks like a lot of that place could be bulldozed."
Most significantly, Hastert said that Congress ought to ask "some real tough questions" about whether to allocate federal funding for the job of restoring one of America's most beloved cities. The House Speaker's suggestion that "it makes no sense" for Congress to rebuild a city that is seven feet below sea level might sound like a warped version of conservative "tough love" if the man who is is second in the line of succession to the presidency after Vice President Dick Cheney had been similarly dismissive of plans to rebuild coastal areas of Mississippi and Alabama.
Unlike New Orleans, a 300-year-old city with a rich history but not a particularly rich populace, some of the hardest-hit areas of Mississippi and Alabama were upscale waterfront communities that have been built up in recent years, as real-estate developers have claimed more and more coastal wetlands for their oceanview projects.
But those Republican-leaning areas, which are home to people like former Senate Majority Leader Trent Lott, R-Mississippi, were spared Hastert's talk of "tough questions."
Could the calculus really be this dark? Could the Speaker of the House really justify dismissing one community while caring for another for purely parisan purposes? Anyone who has watched this Speaker in action knows the answer to that question.
Hastert is about as crass a political player as you will find in Washington. Along with his political godfather, House Minority Leader Tom DeLay, R-Texas, the Speaker has made the House more partisan, and crude, than at any time in its history.
Hastert and DeLay keep vulture eyes on the political map. To the them, New Orleans is little more than a Democratic town full of African Americans, Latino immigrants, gays and lesbians and a few remaining pockets of southern white liberalism. Republican strategists have long been frustrated by New Orleans, a city so blue that it has often tipped the political balance in an otherwise red state. It was New Orleans that gave Democratic U.S. Senator Mary Landrieu her narrow first win in 1996 and her only slightly more comfortable reelection victory in 2002. Votes from New Orleans helped make Louisiana one of the few southern states to back Democrat Bill Clinton's 1996 reelection, and they kept Democrat Al Gore competitive with George W. Bush in 2000. In 2003, overwhelming support from New Orleans gave Democrat Kathleen Babineaux Blanco a come-from-behind win in the state's 2003 gubernatorial contest.
Notably, both Mississippi and Alabama have Republican governors and senators and have voted solidly Republican in presidential contests for decades. While Bush lost New Orleans by a 3-1 margin in his two presidential runs, he carried the Congressional districts that make up southern Alabama and Mississippi by margins of almost 2-1.
Hastert's honest initial statement of his views regarding New Orleans was an embarrassment to Republican Congressional leaders, but who didn't want to be seen as insensitive when they were busy pulling together votes for a face-saving aid package. So Hastert issued a backtracking press release, while his allies circled the wagons and began peddling the line that, "Hey, Denny's just a gruff old wrestling coach with a tendency to be blunt" -- much as they did in 2004 when Hastert announced shortly before the presidential vote that Osama bin Laden's al-Qaida terrorist network was pulling for the election of Democrat John Kerry.
Don't believe it. Hastert and DeLay see everything in political terms. And in the political calculus of the House Republican Leadership, New Orleans and cities like it have for a long time been written off as expendable. That's why New Orleans didn't get the infrastructure assistance it needed when the city's aging levies could have been strengthened to withstand a storm even as powerful as Hurricane Katrina. And that's why, in the immediate aftermath of Katrina, it made no sense to Denny Hastert to give any hope at all to the people of New Orleans.
Don't doubt for a second that, in his heart of hearts, Hastert believes New Orleans and other big cities are expendable, just as he believes that federal dollars should be poured without limit into the reconstruction of the coast-hugging upscale developments of conservative southern Mississippi and Alabama.
In the months and years to come, as questions arise about whether the federal government is caring equitably for all of Hurricane Katrina's victims, people of good will should never forget Denny Hastert's first reaction. If the Speaker is not held to account at every turn, there is every reason to fear that he will return to it -- and that New Orleans and its citizens will be victimized once more.
How convenient for the oil industry that Hurricane Katrina hit just before the traditional Labor Day-weekend hike in gas prices. Now, instead of having to fake up some absolutely absurd excuse for jacking up gas prices, the industry can try and dupe Americans into thinking that they are suddenly paying $3.25 a gallon because of a storm.
The oil industry's response to Katrina has provided a reminder of why it is so exceptionally profitable.
Even before a start had been made on assessing the damage caused by the tropical storm, energy corporations were cashing in. And every indication is that they plan to continue doing so--perhaps taking prices over the $4-a-gallon mark, according to James DiGeorgia, editor and publisher of the Gold & Energy Advisor and author of The Global War for Oil.
No one debates the fact that the hurricane has done significant damage to oil rigs, refineries and delivery systems along the Gulf Coast, a region that accounts for roughly 10 percent of US refining capacity. But roughly 90 percent of US refining capacity remains fully functional and, it should not be forgotten, the US has not stopped importing oil.
Additionally, the Bush Administration jumped to the aid of the oil companies long before the relief effort was in full swing.
The Environmental Protection Agency suspended summertime antipollution measures, lifting the requirement that refiners lower fuel volatility and cut sulphur levels. At the same time, the Administration moved to release oil from the nation's Strategic Petroleum Reserve, which was created more than three decades ago with the precise purpose of boosting fuel supplies in order to keep a lid on rising wholesale gasoline prices in a circumstance such as the one that has now developed.
Despite all the aid they are getting, however, the oil companies are not giving anything back. There is no evidence of a willingness on the part of these highly profitable corporations to sacrifice in a time of national emergency.
Make no mistake: These corporations should be able to absorb a hit. Over the past year and a half, the four largest oil companies--ExxonMobil, ChevronTexaco, Royal Dutch/Shell Group and BP Group PLC--have pocketed close to $100 billion in profits. During the first quarter of 2005 alone, those firms pulled in a cool $23 billion.
But instead of sharing the pain, they appear to be moving to squeeze every cent they can out of the crisis.
With oil-industry friends in charge of the White House and the Congress, don't expect much of a response from the federal level.
But this is one case where states have an ability to intervene.
Three years ago, in a move to protect against gouging, Hawaiian officials enacted legislation that allows state officials to set price caps on gasoline.
Now, as gas prices are skyrocketing in the aftermath of Katrina, a California legislator wants to give a state agency broad authority to regulate the cost of fuel.
State Senator Joe Dunn, a Democrat, has introduced a constitutional amendment that would allow the state Public Utilities Commission to require mandatory fuel reserves, set profit margins for oil and gas companies and order the construction of new pipelines. The measure would also bar agreements between energy corporations to reduce competition.
Dunn's amendment would allow the California Public Utilities Commission to cap prices, although the senator told reporters that step would only be taken as a last resort.
Dunn brings a refreshing bluntness to the discourse. Speaking to the Associated Press, he accused the oil industry of creating a dysfunctional market in California, in which competition is essentially eliminated. That, he explained, is why states need to step up their use of regulatory powers.
"Two years ago, when gasoline cost $2 a gallon, the industry said to give it time and prices would settle down. Now, we're seeing $3 a gallon," Dunn said. "People in California are no longer believing the excuses of the industry. If they can't fix their market behavior, we'll fix it for them."
It is certainly true that consumers should take steps to reduce their use of petroleum products--not just because of a storm in the Gulf of Mexico but because of the human, economic and environmental tolls this country's reliance on imported petroleum products has imposed. But petroleum companies should sacrifice as well. And if they are not willing to do so, states should remind them of their patriotic duty.