Senate Judiciary Committee members have the opportunity to ask Harriet Miers, President Bush's nominee to succeed Associate Justice Sandra Day O'Connor, certain bedrock but nervous-making questions that they did not ask--or were perhaps too timid to ask--of Judge John G. Roberts Jr. at the hearings on his nomination to be Chief Justice of the United States.
The questions spring from a conveniently forgotten 1978 Supreme Court ruling and from the declaration in the Fourteenth Amendment that no state shall deprive "any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Here are ten sample questions for the committee to pose to Harriet Miers:
In a 1978 ruling on a case titled First National Bank of Boston v. Bellotti, the Court decided, 5 to 4, that banks and business corporations--just as you and me--have a First Amendment right to spend their money to influence elections. But in a dissent widely neglected in the eulogies attending his death, Chief Justice William H. Rehnquist wrote, "It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere."
Do you believe that the influence of corporate money in our elections poses "special dangers in the political sphere"?
The late Chief Justice went on to write, "Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist."
Do you agree?
Finally, Justice Rehnquist said, "I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation." In plain words, he was saying that the state, having created the corporation, can regulate the corporation.
Do you agree?
Who was the "person" whose basic rights the Framers of the Fourteenth Amendment, and the people who approved it, sought to protect?
(The person was, of course, the newly freed slave. The history of the amendment, adopted in 1868--soon after the end of the Civil War--proves this.)
Was the person a corporation?
(No. "[W]hen the Fourteenth Amendment was submitted for approval, the people were not told that [they were ratifying] an amendment granting new and revolutionary rights to corporations," Justice Hugo L. Black wrote in Connecticut General Life Insurance Co. v. Johnson in 1938. "The history of the Amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments. The Fourteenth Amendment followed the freedom of a race from slavery.... Corporations have neither race nor color.")
The people ratified the Fourteenth Amendment in 1868. Only eighteen years later, the Supreme Court had before it Santa Clara County v. Southern Pacific Railroad. Chief Justice Morrison R. Waite disposed of it with a bolt-from-the-blue announcement: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."
How would you characterize the Court's refusal to hear argument in a momentous case before deciding it? In proclaiming a paper entity to be a person, was the Court faithful to the intent of the Framers of the Fourteenth Amendment and to the intent of the people who ratified it?
Would you characterize what the Court did in Santa Clara as conservative? As radical? As "judicial modesty," which was the phrase Judge Roberts used at his hearing?
In 1973, after being fully briefed, hearing argument and long deliberation, the Court decided Roe v. Wade. Judge Robert H. Bork famously denounced the decision as "a wholly unjustified usurpation of state legislative authority."
Without regard as to whether Roe v. Wade was rightly or wrongly decided, was Santa Clara County v. Southern Pacific Railroad "a wholly unjustified usurpation of state legislative authority"?
Again without regard as to whether Roe v. Wade was rightly or wrongly decided, how does it strike you that the Court declared a corporation--a paper entity--to be a person but declared a fetus not to be a person?
Nathan Hecht, your longtime friend, who is a Texas Supreme Court Justice, told the Washington Post that he recalled you saying, "I'm convinced that life begins at conception." He added, "She thinks that after conception, it's not a balancing act--or if it is, it's a balancing of two equal lives."
Do you equate the life of the fetus--a moment, an hour, a day, a week, a month or three months after conception--with the life of the "person" protected by the Fourteenth Amendment?
Justice John Paul Stevens wrote in a 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Robert P. Casey, that "the unborn have never been recognized in the law as persons in the whole sense.... Indeed, no Member of the Court has ever questioned this fundamental proposition."
Do you question this proposition?
Corporate power and money having become so controlling in our lives as well as our politics, it's not just "conservatives" who shy away from asking questions involving the concept of the corporation as a person. "Liberals" and lawmakers--whether Democrats or Republicans matters not--shun the subject, too. Perhaps most unfortunately, members of the Senate Judiciary Committee duck such questions when they consider judicial nominees--even nominees for the highest court in the land.
This time around, will a committee member break the mold?
Don't bet the store.