News and Features
When the history of this year's presidential campaign is written, the addiction of both Bush and Gore to the obsolete politics of capital punishment will rank high in the annals of moral insensibility and cowardice. In the final debate they fell all over each other agreeing that the death penalty serves as a deterrent to murder. Never mind the polls showing a steadily eroding public support for it and growing alarm about tainted convictions. Even Janet Reno admitted a few months ago that "I have inquired for most of my adult life about studies that might show the death penalty is a deterrent, and I have not seen any research that would substantiate that point."
Just how remote the capital-punishment rhetoric of this campaign is from reality is suggested by a ruling from the Court of Appeals for the Fifth Circuit in the case of Calvin Burdine, who sits on death row in Huntsville, Texas. Burdine's court-appointed lawyer, Joe Cannon, slept through long stretches of his trial, a practice frequently ratified by Texas courts [see Bruce Shapiro, "Sleeping Lawyer Syndrome," April 7, 1997]. Federal District Judge David Hittner threw out Burdine's conviction, but on October 27 a Fifth Circuit appellate panel reinstated it. The two-judge majority--including Judge Edith Jones, a favorite Republican prospect for the Supreme Court--claimed that the record failed to show whether the lawyer's naps came during "critical" phases of the life-or-death proceeding. The panel's lone dissenter, Judge Fortunato Benavides, wrote that the circumstance of Burdine's trial "shocks the conscience."
What is conscience-shocking is not just Sleeping Joe Cannon but the entire capital-justice apparatus. Recently the Quixote Center of Maryland released a dramatic study documenting sixteen people executed in six states, despite late-appearing evidence questioning their guilt or the exposure of massively unfair proceedings. A typical case in the report is that of Brian Baldwin, executed in Alabama in June 1999, even though his confession was coerced, his court-appointed lawyer never conducted an investigation, a co-defendant later confessed and exonerated Baldwin, and an Alabama court found that the prosecutor routinely practiced "deliberate racial discrimination."
Clearly, we need a national timeout on executions. Thirty-five cities nationwide--most recently Greensboro and five other municipalities in conservative North Carolina--have endorsed such a moratorium. As legal scholar Anthony Amsterdam said in October in his keynote address to the American Bar Association's annual convention, the system is "fatally unjust and prone to error." And that also applies to the federal court system, in which a recent study showed widespread racial bias in death sentences. The first federal execution since the Kennedy years is set for December unless President Clinton intervenes, as he certainly should. Senators Carl Levin and Russ Feingold and Representative Jesse Jackson Jr. have introduced legislation that, in varying ways, would put executions on hold. Their bills deserve vigorous support.
A postscript to the Bush-Gore deterrence theory: According to the FBI's Uniform Crime Reports, released in October, while violent crime is declining nationwide, it is up in the execution capital of the country, Texas.
I want to vote for Bill Clinton for President again, but that not
being possible I had resigned myself to Al Gore. Surely, I thought, he
would defend the Clinton Administration's record of the past eight years,
and voters would recognize it as obviously preferable to the debt and
divisiveness the Republicans had wrought.
Indeed, the only reason to favor Gore over Bill Bradley in the
primaries, which I regrettably did, was that Gore had on-the-job training
in the most productive administration in decades. That's what the vice
President brought to the table, certainly not his deer-in-the headlights
stage presence, and yet he sits dumbfounded for lack of a ready reply
when George W. Bush rails on about the failed opportunities of the
"Hey, buddy," I keep waiting for Gore to say, "I wasn't going to bring
up your daddy's wreckage of the economy but you leave me no choice. Are
Americans better off now than they were eight years ago? You bet they
are. Crime, unemployment and poverty are all down, and the economy is
still on an unprecedented roll. Under Bush senior, the Japanese were
thought to be entrepreneurally invincible, and now it is US know-how
the world seeks to emulate."
Instead of a celebration of what he and the President accomplished
despite reactionary Republican control of the Congress, Gore offers only
the most mealy-mouthed rejoinders when Bush slanders the record of the
Unfortunately, Al Gore has spent most of the election trying to prove
that he is not Bill Clinton. He needn't have bothered. No one could ever
confuse the two. Gore is by temperament, and apparently conviction, the
un-Clinton--it's like comparing a fresh out-of-the-bottle swig of Coke
with a 7-Up gone flat.
The President is a compelling advocate for his vision of progressive
government, so much so that even his lousy ideas, like welfare reform,
have a sizzle of optimism. But in the main, Clinton deserves a great deal
of credit for demonstrating that a concerned activist government also can
balance the books while lifting the US economy from the doldrums.
Whether it is a matter of personal chemistry or absence of genuine
commitment, Gore lacks Clinton's ability to convince us that deep down
he's on our side--whoever we are. Gore has made doing even the obviously
right thing, like saving Social Security and Medicare, seem partisan and
His best moment was that acceptance speech at the Democratic
convention when he sounded the alarm that George W. Bush could actually
do serious harm to this country. But since then his campaign has become
nothing more than an awkward attempt to keep up with Bush at Texas
line-dancing as a form of governance. They move together in a dreary
drumbeat of support for the death penalty and huge military expenditures,
and Gore has even muffled his criticism of Bush on guns and abortion.
Gore has come out of that contest so disoriented that he has even managed
to make Ralph Nader seem like a sexy dancer.
Which is why what could prove to be a critical 4 percent of the electorate,
composed of largely thoughtful and well-intentioned people, are willing
to risk Republican control of the White House. No small risk, given that
right-wing Republicans likely will continue to run Congress, and with
Bush as President, the third branch of government--the federal judiciary
from the Supreme Court on down--will be shaped in the image of Jesse
Helms. There is no reason to expect otherwise from a Bush presidency,
since he has warned us that Clarence Thomas and Anthony Scalia, two of
the most reactionary judges in the history of the Court, are his judicial
Nader has been less than honest in tarring the major parties with the
same brush. He surely must know that the Democrats are better, far
better, at protecting consumers and the environment, supporting labor,
including raising the minimum wage, and advancing the rights of women,
minorities and gays.
However, there is an argument for having Nader in the race and even
for telling pollsters that you intend to vote for the man. It's to force
Gore to distinguish himself from the Bush campaign in order to win back
those Nader votes.
Yet, on Election Day, Gore, for all his faults, still deserves the
votes of those who care about the frightening damage that a Republican
sweep of the White House and Congress portends for this country.
Behind that smug Bush smile lies the calculations of Trent Lott and
the heart of Jesse Helms. There even might be room for the ghost of Newt
Gingrich in a Bush Cabinet. It's Halloween time.
Show-off argumentation or dime-store vision? It's too close to call.
Gore says he prays when crises loom.
He asks just what would Jesus do.
And then he does that very thing
(If focus groups would do it too).
So whose side's Jesus on, folks? Whose side's Jesus on?
Who's got the Savior's brawn, folks? Yes, whose side's Jesus on?
And Bush says faith-based treatment's best
For those adrift or drug-addicted.
Salvation's just for Christians, though.
No Jews. Yes, heaven's still restricted.
So whose side's Jesus on, folks? Yes, whose side's Jesus on?
Who's got the Savior's brawn, folks? Yes, whose side's Jesus on?
The other side, warns either side,
Would of the Savior's blessings rob us.
And Lieberman? Well, he can say
That Jesus wouldn't work on Shabbes.
So whose side's Jesus on, folks? Yes, whose side's Jesus on?
The battle lines are drawn, folks. Yes, whose side's Jesus on?
This presidential race leaves an odd sensation among those of us not having a television. Like the much-cited Kennedy-Nixon race, in which the camera was generally thought to have given Kennedy the visual edge, the Gore-Bush debates played very differently with the visuals suppressed. Listening to them, Gore sounded stilted, yes, and Bush sounded unbelievably evasive, no surprises there.
What's more interesting, however, is that the day after the first debate, I found myself unable to understand any of the follow-up commentary in the rest of the media. Matching suits? Jerking? Smirking? Orange lighting? Had Al Gore really been made up to look like Ronald Reagan? Even the now-famous sigh was mostly a visual event--a camera angle, a gesture of exasperation; it hadn't come across at all on radio.
I felt as though I'd missed out on some weird national Halloween party. Who had the best costume? Who won the monster mash dance contest? And who in the world was all this playing to?
I suppose that's why the candidates ended their campaign playing to undecided Missourians. You can't get more middle than that. No one in Harlem, where Gore started his campaign, is undecided. No one at Bob Jones University, where Bush began his, is undecided. And so the race ended with the contestants sashaying down the runway in a mock Mr. America contest, attired like the Blues Brothers in identical suits and ties, each spouting platitudes about education and the moral fortress that is marriage, each playing down differences so as to appeal to the kind of centrist whose taste runs no further to the right or left than boiled as opposed to mashed potatoes.
But as someone who listened rather than watched, I am really shaken by how little attention has been paid to what substantive disagreements there are between Gore and Bush. There was, for example, that revealing moment when Bush was pushed about affirmative action--not the right-wing version that equates affirmative action with quotas, but the actual, conservative version permitted by the Supreme Court. Bush responded with some nonsense about what he called "affirmative access," which as Gore pointed out, has no legal or political meaning. When Bush was asked directly whether he would support affirmative action without quotas, he retorted, "If affirmative action means what I just described, what I'm for, then I'm for it." This was the kind of repeated evasion at which Bush is very practiced, but the kind of evasion that in fact speaks volumes. There are, I repeat, big differences between Bush and Gore when it comes to the issues about which most people are rarely undecided: race, gender, labor and environmental issues.
I suppose that most everyone except undecided Missourians understood that such games were being played in the debates. What worries me is the degree to which the recognition of this as masquerade has made some forget that it is also a game with high stakes. Impatience with the game-playing leads some to want to opt for someone who speaks passionately. But let's face it: Neither Nader nor Buchanan nor any other third party candidate has a prayer of winning this election. That's a mathematical certainty, folks. It's not the world I like--I wanted Bradley. But for now there are two choices given, and one will rule our lives.
We are choosing the world's most powerful leader. It is not an opinion poll, it is not a popularity contest and it is unlikely ever to be the vehicle for launching a progressive revolution. I find it distressing to see polls predicting that Nader voters will help Bush take Washington and Oregon. And I think voters in New York and Massachusetts are naïtve when they say they will vote for Nader because they feel their states are overwhelmingly Democratic anyway, so nothing will be lost if they register a protest vote for Nader. This is an election, not a market survey.
I get alarmed when I hear people say that maybe it will be better for progressives if Bush is elected. What kind of progressive wants a Bush appointee heading up the Office of Civil Rights? A Bush appointee deciding the fate of habeas corpus? A Bush appointee delivering the FDA to biotech companies? And will the progressive revolution occur before or after Bush hands over the last American wilderness to loggers and oil companies?
None of this means that I don't wish we had a wider range of pragmatic options. But I'll express that dissatisfaction by working for campaign finance reform. I'll work to see the infamous case of Buckley v. Valeo reversed (that's the decision that equated speech with money, thus making campaign spending a form of expression protected by the First Amendment). I'll work to see the inclusion of third party candidates in future debates. (And speaking of barring third party candidates from the debates, wouldn't it have been more interesting to have given Missourians who support Nader and Buchanan the chance to grill Gore and Bush?)
I wish all kinds of things were different--that we had more cumulative voting in the United States, that we entertained adopting certain features of parliamentary systems. I too find this offend-no-one, appeal-to-the-middle of a race infuriating. But it's also true that this campaign has been waged like the Gulf War. We the citizenry watch a big screen filled with talking heads holed up in the Baghdad Hilton--or a school auditorium in Iowa--but we must know that real missiles are exploding on the Rush Limbaugh Show or in Rupert Murdoch's New York Post or through the Christian Coalition's televangelized appeals. Within those forums, Republicans are not at all evasive, but mounting a frontal assault that equates public service with corruption, diversity with lowered standards, public schools with race wars, private schools with free enterprise, free enterprise with civil liberty, choice with self-segregation and the segregation of whites from blacks with opportunity. In the end, Pat Buchanan represents very little threat to George Bush because the right is smart enough to know which side its bread is buttered on. This is one heck of a moment for what's left of the left to allow itself to be divided and conquered by wasting a vote.
What a deal! Elect George W. Bush President and you get government
lite--eat all you want without gaining a pound. Bush promises to cut
taxes for all, dramatically increase military spending, finance a
trillion-dollar private Social Security system and eliminate the national
debt. And Bush claims he will put you, not some Washington bureaucrat, in
charge of your life (unless, of course, it concerns your right to
Just to state the main themes of Bush's campaign is to demonstrate
their inherent absurdity. But there's method to the madness. Make no
mistake: A Bush presidency, abetted by a Republican sweep of Congress and
increasing right-wing control of the courts, portends frightening
consequences for our lives.
Anyone who's been awake these past eight years should know that it's
the Republicans, dominated by their right wing, who tried to block every
measure to make government more responsive to the health, environmental
and educational interests of ordinary Americans. At the same time, these
false prophets of smaller government were pawns of the Christian right's
crusade to intrude the federal government into our most personal
decisions, beginning with a woman's control of her body. At no point has
Bush disowned that Republican agenda.
So why are so many otherwise reasonable people planning to vote for a
candidate selling them this ludicrous bill of goods? It's because the guy
comes on as a moderate with a disarming smile that could make him the
impish star of a sitcom. Just when you realize he's conning you and the
bleary face of Newt Gingrich hyping his "contract with America" starts to
come into focus, reminding us that we've been through this destructive
drill, Bush turns on the all-inclusive charm.
The great deceit of the Bush campaign, beginning with the GOP
convention last summer, has been to get voters to forget that it's been
the Republican Congress that has threatened America with gridlock and
political chaos unless we bend federal government to its skewed
agenda--an agenda that Bush has assured the right wing he endorses. The
religious right has gone along with the charade, muting its criticisms
while Bush plays to the center. Let him fake the moderate for now, they
say, knowing that is what it takes to win. For example, Pat Robertson
told reporters that he refrained from criticizing the Federal Drug
Administration's approval of the abortion pill RU-486 for fear of costing
Bush the election. Bush also avoided the issue. The payoff for the
right's reserve in the campaign, as Bush has made amply clear, is that he
will deliver to them on the judiciary. If the Republicans maintain
control of the Senate, which now seems highly likely, a Bush victory
would guarantee judicial appointees from the Supreme Court on down who
are drawn from Jesse Helms's wish list.
For all of his talk of bipartisanship, Bush, in citing Antonin Scalia
and Clarence Thomas as his ideal models for future Supreme Court picks,
has promised to mold what should be the most independent branch of
government in the ideological image of the far right. Indeed, the
oft-repeated promise of the Bush campaign to the religious right is that
Bush would never repeat the "disaster" that his father made in appointing
moderate David Souter to the court.
With the court divided by one vote on most environmental and consumer
regulatory matters as well as affirmative action, with only two votes
needed to overturn Roe v. Wade and with at least three or four of its
members likely to leave the court, the next President will have enormous
power through his judicial appointments to shape the future of our
government as we know it.
The "strict constructionists" Bush prefers are people who believe the
federal government should be crippled as a regulator of big business, as
an advocate for racial and economic justice and as a protector of the
environment. On the other hand, they would weaken constitutional
protection of individual rights and blur the separation of church and
The Republican right wing is concerned about personal freedom only
when it comes to indulging the National Rifle Association or corporate greed by
savaging government regulation. But in matters of individual freedom, be
it reproductive rights, protection from job discrimination or hate crimes
because of sexual orientation or racism, the Republican leadership,
including George W. Bush, is eager to intrude a narrow religious and
ideological bias into the most important decisions of our lives.
That's why this election is of crucial importance. What we're facing
is the possibility of right-wing control of the presidency, Congress and
the courts. And with that will go the saving grace of our system of
checks and balances.
We dare to be optimistic. Presidential elections are mile markers on a very long road. Our side does not expect to win according to conventional measures; it could hardly be otherwise, since our political objective is the radical reconstruction of US society. This election may shift governing power to new hands, though within a narrowing band of the possible. The returns may reveal something about the nation, though that information is unreliable when half the electorate has opted out of voting. Meanwhile, we seek to rehabilitate America's collapsing democracy, to mobilize systematic confrontation with the harsh economic inequalities, to construct a movement that is both powerful and attentive to human concerns and suffering, the suppression of liberties, the destruction of nature. These matters and others are not going to be resolved by one election or several of them. Yet Election 2000, despite its sorry qualities, turns out to be important--perhaps even pivotal for us.
We hold out the proposition that something promising and positive is under way in the dispirited political landscape, and we should determine to make the most of it. After the past two decades of loss and retreat, it takes nerve to sound so hopeful. Ralph Nader, much as many of us might wish for it, is not going to become the next President. If Al Gore does, the radical vision still remains far distant from the levers of power. On the morning after, if George W. Bush has won, we will be gearing up for familiar battles against the right-wing agenda. And yet people on many progressive fronts do recognize the changing circumstances before them, and they are in a still-fragile process of inventing smart new politics to engage the possibilities. Our endorsement goes first to this spirit of renewal.
The promise can be glimpsed in the precious few bright spots of the campaign--especially the resonance of Nader's voice--but also in the political system's continuing failures. A new movement of allied concerns surfaced in the protests in Seattle a year ago, and yet neither major-party candidate dared even mention globalization when the two men met in face-to-face debate. Their awkward silence suggests our growing presence. If Nader draws enough voters to carry the Green Party over the 5 percent hurdle for ballot recognition, that vehicle provides concrete opportunity. If Democrats manage to win back majority control of the House, or even the Senate, their victory multiplies opportunities for educating and agitating on new issues. A Bush victory would be a terrible setback to our optimism, no way around it, but if Gore manages to win the White House, despite his weaknesses, the center-right moves a little bit our way and, in any case, becomes the object of purposeful leveraging.
These new prospects did not originate from any clever slogans; they reflect the harsh contradictions visible in people's lives and shifting sensibilities across the nation--the general disgust with corporate money's overbearing influence on public decision-making, the fragile desire for a new and more humane internationalism, the growing but unfocused anger at government's failure to act on any of the largest problems. These and other discontents are the opportunities for our side, if people will assume optimistically that many fed-up Americans are at last ready to listen to heretical analysis and fundamental solutions. The fog is lifting, though not yet gone.
If we take the long view and our optimism is grounded in reality, this opening requires some changes in us as well, both in temperament and strategy. The test of a first-rate intelligence, F. Scott Fitzgerald wrote, is the ability to hold two contradictory ideas in one's head at the same time. For this election and in the politics beyond, we think our readers must learn to juggle similar tensions, between the pragmatic and the idealistic--accepting that long-term allies will disagree and coalesce at different junctures, that politics can be both inside and outside in pursuit of the same goals.
In that spirit, we embrace Nader's ideas and creative idealism and hope that his strong showing will rattle the windowpanes throughout American politics. However, to realize the openings before us, we warn that there is greater urgency to preventing Bush and company from capturing all three branches of government for the right-wing agenda. In the long view, such tensions are symptoms of forward progress. We can learn to live with them.
Ralph Nader has already accomplished a greater victory than even some of his original supporters imagined possible--he has made our side visible again. Even a two-minute TV burst from Nader provides a stunning catalogue of the neglected grievances in American life and corrupted governance as well as the plausible remedies. He does not talk down to voters. Nader's idealism, starting from his earliest consumer crusades more than thirty years ago, is based upon the conviction that Americans at large are eager for serious discussion of public ideas and fully capable of grasping the complexities. One shudders deliciously at what a three-way debate would have been like if the corporate-owned debates commission had allowed it (the commission is already one of the big losers of Election 2000, and the agitation should start now, not in 2004, to blow up its monopoly on political discourse).
Despite minimal media coverage, Nader connected the spirit of Seattle with a much larger audience of Americans--filling halls of 10,000 and more with people, many of them young, who paid to hear him talk. When did that last occur in US politics? Pat Buchanan's right-wing version of insurgency was effectively eclipsed by Nader; even Gore paid backhanded tribute by discovering that this election is about "the people against the powerful." The point is, Nader started something new and potentially sustainable, both as an alternative soapbox and as electoral leverage on regular politics, especially that of the Democrats (whose Congressional candidates may benefit from the new, young voters Nader draws into the process). The future will depend entirely on what people decide to make of it. In the meantime, Nader has articulated the superstructure of progressive thinking--a work in progress, to be sure, but already brimming with big ideas.
In the spirit of positive thinking, we observe first that Al Gore wisely abandoned his New Democrat playbook on many issues in order to connect with the natural constituencies of his own party. His attacks on big oil, big insurance and other malefactors sounded a bit clunky, to be sure, and, although he attacked Bush's tax cut for the wealthy, Gore evaded a fuller discussion of economic inequality since, as everyone knows, it deepened dramatically while he was Vice President. But the Democratic candidate is a smart and capable man who, at different points in his career, has displayed a forward-looking vision on great public problems, like the ecological crisis. Still, no one who has watched the abrupt changes in his campaign persona can have any confidence that the progressive Al Gore would emerge in the White House. The promise, though limited, lies in the fact that Gore has uttered the requisite words on a wide range of subjects, from universalizing healthcare to establishing labor and environmental rights in global trade agreements. As President, Gore would have to choose between the people who elected him and the DLC moneybags who financed him. It's another opening for popular mobilization.
The real argument for Gore is named Bush, and it's the most compelling case. The implications of a Bush victory are well understood across many vital issues (one of Nader's rare false notes was to assert that these are inconsequential differences). The Gore-Bush agendas are indeed overlapping on many central matters--monetary policy, the death penalty, the failed drug war, to name a few--but that doesn't tell the whole story. Gore promises, for instance, to listen to labor, environmentalists, human rights advocates and other protest voices on reforming the global system. Bush's leading foreign policy adviser, on the other hand, proclaims, "The Seattle agenda is a real threat." Bush embraces the continuing crusade against women's right to choose abortion, among other retrograde social positions, while no one doubts Gore would appoint Supreme Court Justices who would defend Roe v. Wade and other civil liberties.
While Bush appears an amiable lightweight, his blank, meek expression merely accentuates the question of who really owns this man. The answer is obvious from his Texas record and personal heritage. Tearing up Social Security delivers the money to Wall Street brokerages. His "compassionate conservatism" extends to shielding insurance companies and drug manufacturers from public wrath, plus old friends in oil and the military-industrial complex. His education experiments, if they proceed, are destined to gut the financing of public schools. It's a long and devastating list, which candidate Gore failed to illuminate fully. Bush's handlers, on the other hand, understood that the son could not run like the father or as a born-again Newt--that revolution is over. At the end of the day, however, the right-wing legacy rules. Bush's White House would obediently vet its legislative agenda and appointments not only with corporate America but with Trent Lott and Tom DeLay, the hard-right caucuses in the Senate and House, the TV Bible-thumpers whose piety is rooted in intolerance.
In another season, when our insurgent values have accumulated more momentum and self-confidence, we might see things differently. This time around, we believe the practical priority of keeping the Bush squad from winning power takes precedence, while we also urge that, if possible, progressives help Nader score a blow to the status quo. For the larger progressive community, the tension can be resolved by following the logic of Texas columnist Molly Ivins. Her rule: Vote with your heart where you can, and vote with your head where you must. In states where either Gore or Bush has a commanding lead, vote Nader. In the states too close to call, vote Gore. In either case, the imperative is to end Republican control in Congress by electing Democrats, also vital to the prospects for progressive change.
The question Election 2000 poses for the ranks of left-labor-liberal-progressive outsiders is: Despite occasional clashes over their different directions, can the radical-to-moderate critics of the decayed status quo learn how to pursue a politics in which radical idealism coexists with heads-up pragmatism? As Nader has said, "There are millions of progressives in this country--the problem is, they've never met each other." That captures the larger, long-term challenge, regardless of the election's outcome. If the fragmented progressive community can begin working together, developing inside-outside electoral strategies, doing the hard work of engaging alienated citizens in the conversation, things will look very much better four years from now. Despite its disappointments, Election 2000 might yet turn out to be the progressive moment--when we stopped backing up and started moving forward.
The voters hear on Halloween
The country's doorbell ring.
There's Bush dressed up as real adult
And Gore as human being.
I'm surprised at how many otherwise thoughtful people seem convinced that this election "makes no difference." In my very first Nation column, I quoted Justice Antonin Scalia, who, during a 1997 visit to Columbia Law School, stated publicly that if Brown v. Board of Education came to him as a case of first impression, he would vote against the majority. Most of the federal judiciary are Reagan/Bush appointees. There are an unprecedented number of judicial openings right now because of the unprecedented blocking of Clinton appointees maneuvered by the Republican-controlled Judiciary Committee. A sense of urgency thus prompted me to cull an unscientific sampling of lawyers, writers and human rights activists--all of whom feel that this is an important election in which to make one's voice heard.
Charles Ogletree Jr., professor, Harvard Law School: "The most important election in recent memory will occur on November 7, 2000. George W. Bush, who favors Antonin Scalia and Clarence Thomas, and Al Gore, who favors someone in the mold of Thurgood Marshall and William Brennan, have radically different views of the next Supreme Court appointments. With Roe v. Wade, affirmative action and majority-minority districts at stake, there is no graver choice facing the nation than a progressive Gore Court or a reactionary Bush Court."
Reva Siegel, professor, Yale Law School: "Last term, the Court invalidated provisions of two different civil rights laws, holding that Congress lacked power to enact the antidiscrimination statutes--something the Court has not done since the nineteenth century. After these rulings, it is no longer clear how statutes like the Family and Medical Leave Act or the Pregnancy Discrimination Act can be enforced against state employers, or what kind of hate crimes legislation the Congress can enact. But more is at stake than the particular provisions of the Age Discrimination in Employment Act or the Violence Against Women Act, which the Court struck down last term, or the provisions of the Americans With Disabilities Act, which the Court is considering this term. The question is whether the Court continues to recognize and respect the federal government's power to prohibit discrimination as that power has been exercised by Congress in the decades since passage of the Civil Rights Act of 1964."
Richard Matasar, dean, New York Law School: "Judicial appointment is the stealth issue of every national election. While abortion and crime occupy the attention of the press, the judiciary can also carry on a quiet revolution in its allocation of authority between state and federal government. The Republican judiciary has already significantly shifted the distribution of power between governments; this election can break or solidify that shift."
Maivan Clech Lam, professor, City University of New York Law School at Queens College: "The Supreme Court's rulings on state and federal power are very likely in the next years to determine issues of sovereignty important to indigenous Hawaiians and possibly all tribes in general."
Bob Wing, editor, ColorLines: "The prospect of an entrenched reactionary Supreme Court majority is awful.... However, I wish that I was more confident that Al Gore, who is associated with the Democratic Leadership Council's center-right wing of the Democratic Party, would reverse that trend."
Peter Gabel, president, New College School of Law: "I'm not sharply critical of those who want to vote for Gore to protect the Court, but I do think they overestimate the Court's role as an active progressive power and fail to see its essential commitment to maintaining a center (whether center-right or center-left). It is movements in society that motivate the Court to move. A real left needs to do the opposite of defending the empty center, which is perpetually self-erasing and actually blocks the development of a progressive movement. Instead, we must try to emerge into public visibility--visibility to one another!--by voting for Ralph Nader."
Jill Nelson, writer: "I've been thinking that it's the height of the ever-growing class-based disconnect in this society for people who consider themselves left or progressive or liberal to run the 'I'm going to vote for Nader because there's no difference between Gore and Bush.' Rest assured, I'm not happy with any of 'em, but I'm very clear about the importance of Supreme Court appointments and for that reason will vote for the lesser evil, which is the real, disappointing, difficult nature, it seems, of democracy as we know it. The alternative is for me to delude myself that an abstract notion of principle trumps class privilege, which it doesn't. Sure, no matter who's on the Court, me and mine can have abortions and hire top attorneys and otherwise have the possibility of buying ourselves out of whatever mess we're in, but that's not enough. For me, democracy is fundamentally about community, and to paraphrase Reagan in that movie, what about the rest of us?"
Sydelle Pittas, attorney: "In the course of work on a television series I produced for the Women's Bar Association on 'Your Legal Rights,' I interviewed almost all of Massachusetts' sitting federal judges. From them I learned a few things that showed me how important it is to have Justices who understand the experiences of real women. Justices are human beings, and while they are impressive in how mightily they strive to find the law rather than make it, how they make those findings necessarily comes from their own understanding, based at least in some part on their experience."
Bill Ong Hing, professor of Law and Asian-American Studies, University of California, Davis: "People of color and other traditionally subordinated groups have few institutions upon which they can rely. Their skepticism of the judicial system's desire to respond to their plight has reached a new high point, as the Court molded by Nixon-Ford-Reagan-Bush (Carter made no appointments) has come to dominate the nation's jurisprudence.... Whether and to what extent, if any, the Supreme Court serves as an agent or ally of social change is debatable. But a progressive voice of a Supreme Court majority--open to the views and experiences of those who have been marginalized--would foster a culture (and hope) for change in other mainstream institutions."
As Bush and Gore battle for the Northwest, Nader's power grows.
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