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More than three decades have passed since a President nominated someone without judicial experience to serve on the US Supreme Court.
The last such nominations--those of William Rehnquist and Lewis Powell Jr.--were announced on the same day, October 20, 1971, by then President Richard Nixon. Nixon had run into problems getting sitting federal judges placed on the high court. His nomination of Clement F. Haynsworth Jr., chief judge of the Fourth US Circuit Court of Appeals, to fill the seat left vacant by the resignation of Abe Fortas, was rejected by the Senate in 1969. A year later, the Senate turned down Nixon's nomination of G. Harrold Carswell, a judge on the Fifth US Circuit Court of Appeals, to fill the same vacancy.
In the fall of 1971, with vacancies created by the resignations of Justices John Marshall Harlan II and Hugo Black, Nixon opted for Rehnquist, an Arizona lawyer with close ties to conservative icon Barry Goldwater, and Powell, a former president of the American Bar Association. And, while the Rehnquist nomination created a bit of a stir, both men were confirmed before the year was out--giving Nixon a pair of "wins" in his long wrestling match with an overwhelmingly Democratic and ideologically muscular Senate.
On the surface, it would not seem that George W. Bush would have any reason to imitate Nixon's approach. Bush's first pick for the high court, John Roberts, a member of the US Circuit Court of Appeals for the District of Columbia when he was selected, was easily confirmed to replace Rehnquist as Chief Justice--winning the support of every Republican and half the Democrats in the Senate. And the Senate that Bush is working with has a solid Republican majority and a soft Democratic opposition that is far more pliable than the one Nixon confronted.
Indeed, if Bush faced a challenge as he selected a replacement for retiring Justice Sandra Day O'Connor, it came from the Republican right. Supportive but unexcited by Roberts, social conservatives made it clear that they wanted to see an abortion-opposing, gay rights-rejecting judicial activist as the next nominee from the President who repeatedly told Republican rallies that his favorite members of the court were right-wing Justices Antonin Scalia and Clarence Thomas. Kansas Senator Sam Brownback, a conservative firebrand who entertains notions of seeking the Republican nomination for President in 2008, recently went so far as to suggest that he would vote against a Supreme Court nominee who lacked a "solid and known" record of opposition to reproductive rights, same-sex marriage and the wall of separation between church and state.
Brownback did not get his "solid and known" nominee. Bush just wasn't up for the fight.
Suffering from dismal approval ratings and unsettled by the burgeoning legal scandals involving the Republican leaders of the Congress, Bush went for the judicial-selection equivalent of a bunt. With his nomination of White House counsel Harriet Miers, the President has selected a non-judge so obscure--and so free of the burdens imposed by a judicial "paper trail"--that the Associated Press headlined a profile of her: "Bush's Court Pick Tends to Avoid Limelight."
In an interview earlier this year, Miers told the Dallas Morning News that it was her job to "stay out of the headlines."
She has done so with considerable success during a public career that, aside from brief tenure as president of the Texas State Bar Association, has pretty much been defined by her friendship with George W. Bush--who counted on her to help him sort out lingering controversies arising from his avoidance of the draft during the Vietnam War, and who then rewarded her with appointments to various positions during his gubernatorial and presidential terms. Now comes the ultimate appointment: nomination to a lifetime job on the nation's most powerful court.
That's quite a token of their friendship. But Miers has given Bush something, as well: a "stealth nominee" who ought to be able to sail through the toothless confirmation process with little trouble. Yes, of course, there will be grumbling from liberal interest groups--and even some conservative ones. But the precedent set by Roberts and other recent nominees--refusing to answer direct questions from members of the Senate Judiciary Committee and stonewalling requests for paperwork produced while serving in appointive positions--should serve her well.
The only hope that Americans will get a sense of where Miers is coming from before she puts on the judicial robes–-and it is a faint one indeed--is that members of the Senate will consult the Constitution and historical precedents before this confirmation process is done. They might look back to a page from the Nixon days.
The former President once complained that, by rejecting some of his nominees and subjecting the rest to tough scrutiny, the Senate was usurping his authority. Senate majority leader Mike Mansfield, a Western Democrat whose love of the Senate was exceeded only by his distrust of the executive branch, responded by explaining that the "advise and consent" clause in the Constitution meant that the Senate shared the president's powers when it came to filling court vacancies.
Nixon's slogan in his re-election campaign of 1972 was "Nixon--Now More Than Ever."
Faced with a stealth nominee for one of the most important positions in the land, and the rapid degeneration of Congressional checks and balances on the executive, we could use some Mike Mansfields in the Senate--now more than ever.
In Washington, where it is exceeding difficult to get the political players or the press corps to pay attention to more than one story at once, no0 one would suggest that it was "smart politics" to deliver a major address on the day that House Majority Leader Tom DeLay being forced to step aside after being indicted on criminal conspiracy charges.
But sometimes the work of Washington involves more than political games.
Sometimes it involves life and death questions of national policy. And it is particularly frustrating in such moments to see vital statements about the nation's future get lost in the rush to discuss the scandal du jour. To be sure, the well-deserved indictment of DeLay merited the attention it received. But the indictment of President Bush's "stay-the-course" approach with regard to the Iraq War, which was delivered on the same day by U.S. Sen. Russ Feingold, D-Wisconsin, should have gotten a lot more attention than it did.
At a time when too many members of Congress, in both parties, are afraid to address the crisis Bush's missteps, misdeeds, arrogance and intransigence have created, Feingold broke the silence in the Senate.
"I cannot support an Iraq policy that makes our enemies stronger and our own country weaker, and that is why I will not support staying the course the President has set," Feingold told the Senate on the same day official Washington was focusing all its attention on the trials of Tom DeLay
Feingold's declaration came as part of scathing assessment of the Bush administration's determination to continue pursuing failed strategies not just in the Middle East but internationally.
"If Iraq were truly the solution to our national security challenges, this gamble with the future of the military and with our own economy might make sense," explained the senator, who last month called for a timeline for the withdrawal of U.S. troops from that country. "If Iraq, rather than such strategically more significant countries as Saudi Arabia and Pakistan, were really at the heart of the global fight against violent Islamist terrorism, this might make some sense. If it were true that fighting insurgents in Baghdad meant that we would not have to fight them elsewhere, all of the costs of this policy might make some sense. But these things are not true. Iraq is not the silver bullet in the fight against global terrorist networks. As I have argued in some detail, it is quite possible that the Administration's policies in Iraq are actually strengthening the terrorists by helping them to recruit new fighters from around the world, giving those jihadists on-the-ground training in terrorism, and building new, transnational networks among our enemies. Meanwhile the costs of staying this course indefinitely, the consequences of weakening America's military and America's economy, loom more ominously before us with each passing week. There is no leadership in simply hoping for the best. We must insist on an Iraq policy that works."
Feingold detailed concerns about the damage done to the U.S. military by pursuit of the misguided mission in Iraq. "The Administration's policies in Iraq are breaking the United States Army," explained the Wisconsin Democrat, who reviewed concerns about the stress placed on soldiers and their families and about shortfalls in recruitment for the armed services.
"Make no mistake, our military readiness is already suffering," Feingold explained. "According to a recent RAND study, the Army has been stretched so thin that active-duty soldiers are now spending one of every two years abroad, leaving little of the Army left in any appropriate condition to respond to crises that may emerge elsewhere in the world. In an era in which we confront a globally networked enemy, and at a time when nuclear weapons proliferation is an urgent threat, continuing on our present course is irresponsible at best."
While the military is taking a hit, Feingold noted, so too is the economy. Noting that all of the cost of the war -- "every penny" -- "has been added to the already massive debt that will be paid by future generations of Americans," Feingold asked, "How much longer can the elected representatives of the American people in this Congress allow the President to rack up over a billion dollars a week in new debts? This war is draining, by one estimate, $5.6 billion every month from our economy, funds that might be used to help the victims of Hurricane Katrina recover, or to help address the skyrocketing health care costs facing businesses and families, or to help pay down the enormous debt this government has already piled up."
Feingold remarks were more than a critique of the administration. They were a call to action for the Congress.
"Bush Administration's policies in Iraq are making America weaker," he told the Senate. "And none of us should stand by and allow this to continue."
Truer words have rarely been spoken in the Capitol -- especially in recent years. Feingold's call deserves the attention, and the encouragement, not just of responsible members of the Congress but of the great mass of Americans who know that something has gone very wrong in Iraq -- and Washington.
The stampede to confirm Judge John Roberts as the 17th Chief Justice of the U.S. Supreme Court roared through the full Senate Thursday as the chamber voted 78-22 to give President Bush's 50-year-old nominee a lifetime sinecure at the head of the nation's highest and most powerful court.
Roberts's record of opposing expansion of the Voting Rights Act, unyielding allegiance to the corporate interests he served as an attorney in private practice and extreme deference to executive power he served as an aide to President's Ronald Reagan and George Herbert Walker Bush drew broad grassroots opposition.
People For the American Way, the National Organization for Women, the NAACP, the League of United Latin American Citizens, the Human Rights Campaign, Parents and Friends of Lesbians and Gays, the National Gay and Lesbian Task Force, Americans United for Separation of Church and State, Americans with Disabilities Watch, the National Council of Women's Organizations, the National Council of Jewish Women, Rainbow PUSH, the Fund for the Feminist Majority, Legal Momentum, the National Association of Social Workers, the National Abortion Federation, NARAL Pro-Choice America, the National Latina Institute for Reproductive Health, the National Asian Pacific American Women's Forum, the Religious Coalition for Reproductive Choice and MoveOn.org all expressed strong opposition to the Roberts nomination.
But most senators listened less to the grassroots than they did to Inside-the-Beltway chatter. And the easy confirmation of Roberts indicated that he met the exceptionally low standards that now represent the two-party consensus in Washington when it comes to judicial selection.
Every member of the Senate Republican Caucus voted for Roberts, including Rhode Island Senator Lincoln Chafee, a frequent dissenter from the party's conservative doctrines who is running for reelection in 2006 with the endorsement of NARAL Pro-Choice America, the reproductive rights advocacy group that strongly opposed the nomination because of Roberts's repeated refusal to answer questions about whether the Constitution's privacy protections extend to a woman's right to choose. (Notably, one Republican who is facing the voters this year, New York Mayor Michael Bloomberg, was an outspoken opponent of confirming Roberts because, Bloomberg indicated, he feared that the nominee could turn out to be a judicial activist who would use his position and attack precedents that guarantee reproductive rights.)
The lockstep Republican support would have been enough to confirm Roberts with relative ease. But the nominee also fully half the votes cast by Democrats. Twenty two Democrats voted in favor of confirmation -- including frequent critics of the administration's judicial picks, such as Vermont's Patrick Leahy and Wisconsin Russ Feingold. So too did Vermont Independent Jim Jeffords, who left the GOP caucus in 2001 to work with the Democrats. In addition to Byrd, Leahy and Feingold, Democrats who voted to confirm Roberts included Montana's Max Baucus, West Virginia's Robert Byrd and Jay Rockefeller, New Mexico's Jeff Bingaman, Delaware's Tom Carper, North Dakota's Kent Conrad and Kent Conrad, Connecticut's Chris Dodd, South Dakota's Tim Johnson, Wisconsin's Herb Kohl, Louisiana's Mary Landrieu, Michigan's Carl Levin, Arkansas's Blanche Lincoln and Mark Pryor, Washington's Patty Murray, Florida's Bill Nelson, Nebraska's Ben Nelson, Arkansas's Mark Pryor, Colorado's Ken Salazar and Oregon's Ron Wyden.
All 22 votes against Roberts came from Democrats -- including a number of moderates who are either strong supporters of reproductive rights (such as California's Dianne Feinstein and Washington's Maria Cantwell) or have presidential ambitions that cause them to be particularly sensitive to the concerns of grassroots Democrats (count New York's Hillary Clinton, Indiana's Evan Bayh and Delaware's Joe Biden in this camp).
Ultimately, however, most of the Democratic votes in opposition to confirmation came from the chamber's more reliably progressive members, including: Hawaii's Daniel Akaka and Daniel Inouye, California's Barbara Boxer, New Jersey's John Corzine, Minnesota's Mark Dayton, Illinois's Richard Durbin and Barack Obama, Iowa's Tom Harkin, Massachusetts's Edward Kennedy and John Kerry, Maryland's Barbara Mikulski and Paul Sarbanes, Rhode Island's Jack Reed, Nevada's Harry Reid, New York's Charles Schumer and Michigan's Debbie Stabenow.
The most interesting "no" vote came from Obama. The Illinois senator, who delivered the keynote address at last summer's Democratic National Convention and arrived in Washington and arrived in Washington amid high expectations on the part of liberals, has tended to be a cautious player. The anti-Roberts vote represents one of his first big breaks with the two-party consensus and could indicate that he will be an important player in what is expected to be an at least somewhat more engaged debate over President Bush's nominee to replace retiring Justice Sandra Day O'Connor.
Local lawmen don't usually involve themselves in the affairs of state. It is their job to indict crooks and put them behind bars.
But when the affairs of state are corrupted by crooks, sometimes only a local prosecutor has the skills -- and the sense of duty -- that are required to address the crisis.
That explains why Wednesday's criminal conspiracy indictment of House Majority Leader Tom DeLay, the Texas Republican who essentially runs the Congress, came not from Washington but from Austin.
The trail of sleaze left behind as DeLay has traversed the American political landscape over the past two decades grew so long and so foul that it begged questions about whether any legal action would be sufficient to clean up the mess made by the toxic Texan. Unfortunately, the Environmental Protection Agency has no program for cleaning up political Superfund sites like the one created by DeLay and his associates, so the nation's only hope rested with a courageous Texas district attorney and a grand jury that had until this week to decide whether to indict the man who has done far more than George W. Bush or even Dick Cheney to turn Washington into a cesspool and the promise of American democracy into an ugly lie.
DeLay, who had a history of being disarmingly blunt about the pay-to-play commitments he expected from campaign contributors, and who secured the Congressional majorities needed to deliver for his corporate "partners" by warping the redistricting and electoral processes of his home state and others around the country, turned the Republican Party into what it is today: The most thoroughly corrupted political entity this side of the Standing Committee of the Chinese Communist Party's Politburo. (So complete is DeLay's control of the GOP that only a renegade Republican bsuch as Connecticut Representative Chris Shays was willing to admit the obvious: that the Texan's ethical lapses have begun "hurting this Republican majority.")
The Texas congressman, who after the indictment was forced to step down at least temporarily as Majority Leader, was so powerful that even Democrats in Washington treated him with kid gloves. Members of the opposition party might squawk when DeLay oversaw the redistricting of a half dozen Congressional colleagues out of their jobs, or when he warped the rules of the House to hold a trade vote open long enough to "break the arms" that were necessary to "win" it. They might even toss an ethics complaint his way. But, for the most part, top Democrats let the Republican representative known as "The Hammer" pound the political process into a shape that served his sordid ambitions. Though he was not actually the Speaker of the House, everyone knew that DeLay -- who admitted he was "too nuclear" to hold the high-profile Speaker's position when he gave it to his hapless sidekick, Denny Hastert, in 1998 -- ran things.
So it fell to Travis County District Attorney Ronnie Earle to press the case that DeLay and two of his longtime associates -- John Colyandro, the former executive director of a Texas political action committee formed by DeLay, and Jim Ellis, who heads DeLay's national political action committee -- had engaged in a criminal conspiracy to violate Texas campaign finance rules outlawing corporate contributions. Earle was the right man to make the case. With almost three decades of experience as the elected district attorney for a county that is the seat of state government in Texas, he has more experience prosecuting political corruption than just about any lawyer in the country.
Under Texas law, it is the Travis County District Attorney (who serves the capital city of Austin), not the state attorney general as in most other states, who is responsible for prosecuting criminal acts at the state level. Earle has taken that responsibility seriously, setting up a public-integrity unit that has a number of prominent politicians -- 12 Democrats and 3 Republicans -- with a record of success so impressive that the district attorney has been able to avert moves by angry legislators in both parties to cut the funding for the public-integrity unit or transfer its authority to the attorney general's office.
Earle, a Democrat, has survived the assaults on his power to prosecute political wrongdoers because of his willingness to indict members of his own party and because of his own political purity --- he once filed charges against himself for submitting a campaign finance report one day late.
Now that Earle has secured indictments of DeLay and his associates, however, he will be the target of one of the crudest smear campaigns in American political history -- indeed, it has already begun. Republican operatives and their media allies claim the prosecutor is targeting DeLay for partisan reasons, while DeLay claims that "Ronnie Earle is trying to criminalize politics."
Don't believe it. Ronnie Earle is trying to get the criminals out of politics.
"Our energy problems have the same cause as our environmental problems -- wasteful use of resources. Conservation helps us solve both at once." -- Jimmy Carter, 1977
Despite the quagmire in Iraq, his bumbling response to Hurricane Katrina and mounting concerns about the U.S. economy, President Bush has not yet delivered his "malaise" speech.
But as times get tough, Bush is borrowing a page from former President Jimmy Carter and becoming the nation's top pitchman for conservation. That's a bold move for a conservative Republican, as Bush's ideological compatriots have spent the better part of three decades dissing Carter for urging Americans to sacrifice rather than put the pedal to the medal.
Ever since a weary and frustrated Carter tried to get the country to think about the need for an energy policy by referring to a national "crisis of confidence" during a speech to the nation on June 15, 1979 -- Carter didn't actually use the term "malaise" in that speech, but he uttered the "m" word in reference to it several days later and the term stuck -- conservatives have ridiculed the nation's 39th president for his supposed weakness and willingness to surrender to circumstance.
Above all, the attacks have focused in on the fact that the former president, who during the 1979 energy crisis appeared on television wearing a sweater to urge that Americans turn down thermostats, responded to the great challenges facing the nation by preaching the dreaded ethic of conservation.
Carter has taken a lot of hits over the years. Former Senate Majority Leader Bob Dole dismissed him as a "southern-fried McGovern," while author Steven F. Hayward (The Real Jimmy Carter: How Our Worst Ex-President Undermines American Foreign Policy, Coddles Dictators, and Created the Party of Clinton and Kerry) says the big problem of the Democratic Party is that it has been "Carterized." For the uninitiated, that translates as wimped out. Former Reagan administration aide Mona Charen has described Carter as "sniveling." Fox blowhard Sean Hannity delights in characterizing the ex-president as "weak." And historian David Oshinsky -- a far more thoughtful and moderate commentator than Charen or Hannity -- probably captured the conservative critique best when, in a New York Times book review a few years back, he mocked the image of "Jimmy Carter battling the energy crisis in his cardigan sweater" and declared that Carter's talk of conservation and sacrifice "made a gloomy decade seem positively morose. His motto could have read: 'The fun stops here.'"
But now, almost a quarter century after he left the White House, Carter has found a Republican ally.
Responding to rising concern about shortages of gasoline and spikes in energy prices caused by the havoc Hurricanes Katrina and Rita have wrecked in the refining regions of the Gulf Coast, President Bush has delivered a distinctly-Carteresque call for conservation.
Bush is urging people to avoid unnecessary car trips and preaching that, "We can all pitch in by being better conservers of energy."
Bush even promised, in another echo of Carter, that the federal government will take the lead. "If it makes sense for the citizen out there to curtail nonessential travel, it darn sure makes sense for federal employees," the president said this week. "We can encourage employees to car-pool or use mass transit, and we can shift peak electricity use to off-peak hours. There's ways for the federal government to lead when it comes to conservation."
The president is right about the wisdom of conservation, and the need for the government to lead -- even if his own administration's energy policies make a mockery of Carter's wise conservation proposals of the 1970s. Sure some will dismiss Bush's conservation call as just the latest act of post-Katrina political theater scripted by Karl Rove. But who knows? Perhaps Bush, who has staked his presidency on a global crusade to defend energy supplies from threats to "the American way of life," may yet come to recognize that Carter was right when he said of the need to commit to conservation: "If we fail to act soon, we will face an economic, social and political crisis that will threaten our free institutions."
So let's not dismiss Bush as a hypocrite just yet. Give the guy a chance to find the right cardigan. Maybe he'll even bring back the wood stove that Carter used in the White House living quarters -- and that Ronald Reagan ordered removed, along with the the solar panels that Carter had installed. Then its probably only a matter of time before a sweater-sporting Sean Hannity praises his president for launching a new front in the war on terror: Conservation.
Either that, or the conservatives will go back to their tried-and-true practice of responding to energy issues by ridiculing the first and only president to take conservation seriously for the sin of "battling the energy crisis in his cardigan sweater."
Amid chants of "Arrest Bush," hundreds of antiwar activists participated in a peaceful but boisterous sit-in outside the White House Monday, as part of a day of protests that saw Cindy Sheehan and others taken into custody.
Sheehan, the California woman whose 24-year-old son Casey was killed in the Iraq War, drew international attention in August when she camped out near George Bush's ranchette in Crawford, Texas, as part of an effort to secure a face-to-face meeting with the President. Over the weekend, the woman whom Congressional Progressive Caucus co-chair Lynn Woolsey, D-California, praised for "waking up America" brought her demand to Washington, where she participated in the mass demonstration against the war on Saturday.
On Monday, more than 1,000 people gathered in Lafayette Park across from the White House. Code Pink activists stretched a huge "Mothers Say No to War" banner across Pennsylvania Avenue, and early in the afternoon several hundred members of the crowd, including Sheehan, approached the northwest entrance of the executive residence. Holding a picture of her son in his US Army uniform, Sheehan again requested an opportunity to talk with the President about the Iraq War.
After about ten minutes, Sheehan joined a large sit-in along the fence outside the White House. As the group chanted "Stop the War!" and "The whole world is watching!" she was the first arrested by US Park Police. Like the others who were taken into custody, she was charged with demonstrating without a permit, a misdemeanor that carries a $50 fine. (In addition to the 370 people who joined the sit-in near the White House, another forty-one--including a number of members of the group Veterans for Peace--were arrested earlier in the day near the Pentagon.)
Though Bush did not meet with Sheehan on Monday, his spokesman Scott McClellan was forced to acknowledge that the President is "very much aware of the people here who have come to Washington."
McClellan, whose statements often display all the authenticity of pronouncements from the Politburo, made a hamhanded attempt to compare the weekend's mass anti-war protests with the tiny counter-protests by groups that are supportive of the war--suggesting that the crowds that poured into Washington included "some [who had come] to express support for the steps that we're taking and a number of others that have expressed a different view."
McClellan did allow as how the antiwar activists were "well-intentioned." But he added, "The President strongly believes that withdrawing [US troops from Iraq] would make us less safe and make the world more dangerous."
Sheehan took a different view, suggesting that the real danger comes from those in Congress who gave the Bush Administration permission to launch its war, and who have failed to demand an end to the misguided mission.
"We need a people's movement to end this war," Sheehan told Saturday's rally, during which she urged activists to increase the pressure on members of Congress to break with Bush and support the withdrawal of US forces from Iraq. "We're going to ask them: How many more of other people's children are you willing to sacrifice for the lies?"
The White House may not be taking Sheehan or the broader antiwar movement seriously, but some members of the House of Representative seem to be getting the message. Woolsey, who has sponsored a resolution calling for an exit strategy, told Saturday's rally of antiwar activists: "You are far ahead of the Congress and the policy-makers on this war."
It's anti-war quiz time.
Who made the following statement:
"I cannot support a failed foreign policy. History teaches us that it is often easier to make war than peace. This administration is just learning that lesson right now."
A.) Cindy Sheehan?
B.) Phil Donahue?
C.) Michael Moore?
D.) A prominent politician who was not afraid to dissent in a time of war.
Answer: D.) A prominent politician who was not afraid to dissent in a time of war.
Defenders of the occupation of Iraq will, before the weekend is done, have some choice words for the hundreds of thousands of Americans who are marching and rallying for the withdrawal of U.S. forces from that Middle Eastern nation.
They will pull out all the deliberate misreads of intelligence and paranoid fantasies that were employed by George Bush in his relentless campaign to win support for the invasion of Iraq. But, above all, they will peddle the lie that since the beginning of this misguided war has been their favorite: The suggestion that those who oppose the war are somehow harming the troops.
A marketing campaign, launched shortly after the war began and continued to this day, has sought to link support for the men and women serving in this country's military forces with support for even the most foolhardy and dangerous of the president's policies. There are even bumper stickers that declare: "Support President Bush and the Troops."
But this is just political gamesmanship, nothing more.
How do we know?
Because House Majority Leader Tom DeLay tells us so.
Back in 1999, after then-President Bill Clinton had ordered U.S. forces to begin a massive bombing campaign and missile strikes against Yugoslavia, the House of Representatives considered a resolution supporting the mission. The leading opponent of the resolution was DeLay, who dismissed the notion that opposing the war was in any way an affront to the troops. In a visceral floor statement delivered in March of that year, DeLay declared, "Bombing a sovereign nation for ill-defined reasons with vague objectives undermines the American stature in the world. The international respect and trust for America has diminished every time we casually let the bombs fly. We must stop giving the appearance that our foreign policy is formulated by the Unabomber." As the war progressed, DeLay condemned "(President Clinton's) war," and grumbled in April, 1999, that, "There are no clarified rules of engagement. There is no timetable. There is no legitimate definition of victory. There is no contingency plan for mission creep. There is no clear funding program. There is no agenda to bolster our overextended military. There is no explanation defining what vital national interests are at stake. There was no strategic plan for war when the President started this thing, and there still is no plan today."
To those who dared suggest that such aggressive language might be dispiriting to the troops who were engaged in the mission, DeLay told USA Today, "It's very simple. The president is not supported by the House, and the military is supported by the House."
DeLay's sentiments were echoed in the Senate by Majority Leader Trent Lott, R-Mississippi, who explained that, "My job as majority leader is be supportive of our troops, try to have input as decisions are made and to look at those decisions after they're made ... not to march in lock step with everything the president decides to do."
DeLay and Lott has allies in the media who were, if anything, even more passionate in their criticism of the war. Anticipating the current comments of Cindy Sheehan and other family members who have lost loved ones in Iraq, they framed their anti-war arguments as a plea to save the lives of U.S. troops who had been put in harm's way as part of a fool's mission. Sean Hannity growled into his Fox New microphone about how supporters of the war should be forced to: "Explain to the mothers and fathers of American servicemen that may come home in body bags why their son or daughter have to give up their life." Hannity was an "out now" man: "No goal, no objective, not until we have those things and a compelling case is made, then I say, back out of it, because innocent people are going to die for nothing. That's why I'm against it," he argued. Hannity's fellow peacenik, conservative commentator Tony Snow, even went so far as to make quagmire comparisons, suggesting on a March 24, 1999, Fox program: "You think Vietnam was bad? Vietnam is nothing next to Kosovo."
The commander-in-chief's critics found an ally in a candidate in the 2000 contest to replace Clinton. Sounding an awfully lot like U.S. Sen Russ Feingold, D-Wisconsin, who in August suggested that it was time to set a timetable for withdrawal of U.S. troops from Iraq, Texas Governor George W. Bush told the Seattle Post-Intelligencer on June 5, 1999: "I think it's also important for the president to lay out a timetable as to how long (U.S. troops) will be involved and when they will be withdrawn."
What about "stay the course"?
No way, said Bush the candidate. "Victory means exit strategy," he told the Houston Chronicle on April 9, 1999, "and it's important for the president to explain to us what the exit strategy is."
Critics of this weekend's anti-war marchers will surely dust off the claim that the protesters are merely recycling the slogans of the 1960s. Fair enough. No more: "Make Love, Not War." Instead, why not recycle an anti-war slogan from the 1990s? Something catchy, like: "Victory means exit strategy." And while they're at it, foes of the Iraq occupation might want to recycle some of the better rhetoric of that decade, like the line: "I cannot support a failed foreign policy." Just be sure to credit the prominent politician who was not afraid to dissent in a time of war -- even if it meant criticizing the commander-in-chief: Tom DeLay.
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.