Restoring the Rule of Law
Monday 02 April 2007
The following remarks were delivered by Senator Kennedy at an event organized by the Alliance for Justice on Wednesday, March 29, 2007.
Thank you, Nan, for that wonderful introduction. I commend the Alliance for its long-standing commitment to the rule of law and your dedication to liberty, justice and opportunity for all. You've been a pioneer in educating the public about the impact of the federal courts on Americans' everyday lives, and the important film you will present today continues that vital service.
At the heart of many of the serious challenges we face is the Bush administration's lack of respect for the rule of law. The administration views our system of justice as merely another arena for furthering its rightwing ideology. It sees the Senate's constitutional role in confirming those who enforce our laws as a road block to be circumvented whenever possible.
The ongoing scandal over the firing of United States attorneys is a stunning example. Using a stealth provision slipped into the Patriot Act reauthorization, the administration has replaced US attorneys without Senate review.
Each day the evidence grows that the White House fired US attorneys because they balked at using the enormous power of federal law enforcement to serve the partisan ends of the Republican Party. Carol Lam in San Diego had been too vigorous in pursuing corrupt Republican Congressman Randy "Duke" Cunningham. David Iglesias in New Mexico had refused to indict Democrats before last November's election. John McKay in the State of Washington had refused to pursue voter fraud charges as a means of challenging a Democrat's close victory in the 2004 election for governor.
Equally disturbing, several of the US attorneys appointed without Senate review have scant litigation experience, but deep partisan credentials. For instance, Bradley Schlozman, the new US attorney for the Western District of Missouri, was involved in the
politicization of the Justice Department's voting rights enforcement efforts.
After President Bush took office in 2001, the Department filed only one case alleging race discrimination against African Americans in voting, but it took a number of steps to undermine voting rights for partisan gain. In 2003, Mr. Schlozman and other political appointees approved Tom DeLay's Texas redistricting scheme over the unanimous objections of career staff that the plan discriminated against Latino voters. The Texas plan was later struck down by the Supreme Court because of its discriminatory effect.
In 2005, Mr. Schlozman again overrode career professionals in approving a Georgia photo identification requirement for voting that clearly discriminated against minority voters. That law was later blocked by a federal court that compared it to a twenty-first century poll tax.
Mr. Schlozman also was involved in filing amicus briefs in the key battleground states of Florida, Michigan and Ohio in 2004, seeking to prevent the counting of provisional ballots in the presidential election.
Other attorneys with relatively little litigation experience but strong partisan credentials have been placed in US attorney positions in states likely to be vital in the 2008 election, such as Florida, Iowa, Minnesota and Arkansas, to name a few. Add to this that John McKay and David Iglesias were removed in battleground states because of their unwillingness to pursue meritless voter fraud allegations. Tim Griffin, Karl Rove's former deputy, was sent to Arkansas. The conclusion is inescapable that the administration has methodically placed reliable partisans in positions where they can influence the outcome of the 2008 election.
The havoc the administration has played with the Justice Department is complemented by the damage it has done to the courts. In choosing nominees for the federal courts, particularly the Supreme Court, President Bush selected ideologues, and then sought to circumvent the process by which the Senate obtains information about the nominees' legal views.
In my years in the Senate, I've had the honor of participating in 23 Supreme Court nominations, including the nominations for each of the justices now serving on the Court and hundreds of lower court judges.
More than any other president before him, George Bush has succeeded in denying the Senate the information it needs to make informed judgments about nominees to the Supreme Court and the lower federal courts. Despite days of testimony, the hearings for John Roberts and Samuel Alito served only to obscure the legal views and philosophies that would guide their work if confirmed.
The film Quiet Revolution comes at a time when the Supreme Court nomination process is in need of a serious overhaul. I intend to work with Senator Leahy, the chairman of the Judiciary Committee, and my colleagues on the Committee, to ensure that the process again becomes a means for learning about legal views and philosophies before nominees are confirmed.
The breakdown in the nomination process matters because the Supreme Court decides issues of enormous importance to Americans' daily lives. The confirmation process is the Senate's constitutionally-conferred opportunity to determine that nominees deserve to be entrusted with this awesome res'onsibility.
In the past, questions asked at confirmation hearings - together with the candidates' records - often gave senators a solid basis for deciding whether or not to confirm a nominee. In fact, I voted for three of the five Supreme Court justices nominated by President Reagan.
In rare instances, it may be possible to know from the nominees' records alone whether they should be confirmed. In most cases though, a realistic exchange during the hearings is invaluable. This is particularly true when - as in the Roberts and Alito nominations - a president intentionally selects nominees for their legal views and for their lack of a paper trail that would reveal such views.
In past years, Senate questioning of nominees generally served well the Framers' desire to ensure checks and balances in appointing Supreme Court justices. The system worked as it was intended in 1970 when President Nixon's nomination of Harrold Carswell was derailed after the Senate discovered his segregationist past. The process also worked in 1987 when the Senate rejected Robert Bork's extreme views, prompting President Reagan to nominate the more moderate Anthony M. Kennedy, who was confirmed unanimously.
The confirmation process broke down, however, because the Bush administration learned the wrong lesson from the failed Bork nomination. It decided it could still nominate extremists as long as their views were not well known. The previous Bush administration tried a similar approach with Clarence Thomas's nomination, but the current White House turned the effort to hide nominees' views into an art form.
It insisted that the Senate must confine its inquiry largely to its nominees' personal qualities, and coached its nominees to evade the Committee's questions. Many Republican senators used their time to praise, not probe, the nominees. Guided by White House aides, the nominees resisted attempts to explore their judicial philosophies. As a result, the thoughtful exchanges of past hearings were replaced by carefully directed theater, which left the Committee with only hints about how nominees viewed the major legal issues of the day.
That's unacceptable. Qualified Supreme Court nominees are selected from among the nation's most seasoned and intellectually vigorous lawyers, scholars and judges. Of course they have thought deeply about the law and have substantive views on important legal issues. At the very least, they have read and debated the major cases that every first-year law student has read, and they can intelligently discuss whether they agreed or disagreed with those cases.
Instead of substantive answers on these issues, Roberts and Alito worked hard to give the impression of moderation. Over and over, they assured us that they would not bring an ideological agenda to the bench.
After confirmation, we saw an entirely different side of Judges Roberts and Alito.
Although it's still very early in their terms on the Court, they have already begun to reveal themselves as ideologues ready and willing to tilt the court away from core protections important to the American people. In fact, in their very first term on the Court, according to a report completed at Georgetown University Law Center, they voted together in 91 percent of all cases and 88 percent of non-unanimous cases - more than any other two justices.
They have held that the First Amendment does not protect public workers who blow the whistle on internal fraud and corruption. They have sought to radically cut back the Clean Water Act, which protects our natural heritage from pollution.
The topics in which their decisions raise the greatest concerns, however, are among those that were most troubling during their confirmation hearings - government power and civil rights.
Chief Justice Roberts and Justice Alito have voted repeatedly to expand the power of the state at the expense of cherished individual rights. Their position is particularly troubling in light of the Bush administration's unprecedented effort to expand presidential power. It claims that t'e president can arrest American citizens on American soil and jail them for years, without access to counsel or the courts. It claims that the president can open the mail of US citizens and spy on persons on American soil, without the court order required by law. The administration even believes that torture can be an acceptable practice, despite laws and treaties that expressly prohibit it.
Seldom has the nation been more in need of a Supreme Court that will restrain a president who overreaches. But the records of the two newest justices give little hope that they will do so.
In Hamdan v. Rumsfeld, the Court reviewed the constitutionality of President Bush's military commissions, created to judge alleged enemy combatants in secret and without the protections typically afforded criminal defendants. The Court held that the president had violated both the Uniform Code of Military Justice and the Geneva Conventions by establishing the commissions without Congressional authority. Justice Alito disagreed, although during his confirmation hearing he claimed no longer to believe, as he had written in a 1985 job application, "very strongly in the supremacy of the elected branches of government." Although Chief Justice Roberts did not participate in the Hamdan Supreme Court decision, as a court of appeals judge in the same case, he too had sided with the president.
Justices Roberts and Alito have both sought to narrow individual protections against government power. They joined a 5-4 opinion in Hudson v. Michigan holding that your home is no longer your castle. Rejecting almost a century of precedent, they ruled that evidence obtained in unconstitutional searches of Americans' homes can be used to convict them. Justice Alito had replaced Justice O'Connor, and his vote probably changed the outcome of the case.
The new justices' records also raise alarm bells in civil rights. As an official in the Reagan Justice Department, Roberts had opposed the Civil Rights Restoration Act of 1988, had sought to narrow Title IX's protection against sex discrimination in education, and had worked extensively but unsuccessfully to prevent a key amendment to the Voting Rights Act to outlaw unfair tactics that dilute minorities' votes. Memoranda he drafted made clear that his opposition to the amendment reflected not only the Reagan administration's position, but his own strong, personally-held beliefs.
During the Senate hearing on his nomination, I asked about his views on the Voting Rights Act, particularly his statement that the Act's protection against vote-dilution was one of "the most intrusive interferences imaginable by federal courts into state and local processes." In response, he suggested that his words were nothing more than an "effort to articulate the views of the administration ... for which I worked...."
Today - too late - it's clear that Chief Justice Roberts's personal view is the same as the position he advocated then. In LULAC v. Perry, the Supreme Court held that Tom Delay's Texas redistricting plan violated the Voting Rights Act by excluding many Latinos from the district at a time when their numbers had become large enough for Latinos to elect a representative of their choice.
Chief Justice Roberts denied the obvious injustice. He concluded that the courts should not have been involved and that it "is a sordid business, this divvying us up by race." Fortunately, a majority of the Court understood that the Voting Rights Act, far from dividing Americans, keeps the divisions that already exist in society from shutting minorities out of the political process.
Even worse, although he did not participate in the LULAC case, it appears that Justice Alito may become the member of the Court most hostile to civil rights. In Burlington Northern & Santa Fe Railroad v. White, the Court reviewed the claim of a working mother whose employer had subjected her to shift changes, undesirable job assignments and poor job reviews after she complained of sexual harassment. Justice Alito was the only member of the Court wh' argued that Title VII protects workers only from limited kinds of retaliation.
The comments of Justices Roberts and Alito at argument in the Seattle and Louisville voluntary integration cases also did not inspire confidence, although it is, of course, a mistake to assume too much from justices' questions at oral argument. At his nomination hearing, Chief Justice Roberts had testified that the Court in Brown v. Board of Education was right "to look at the discrimination in ... context...." But his questions at the oral argument ignored context, drawing no distinction between the stigmatizing segregation at issue in Brown and present-day efforts to achieve integration so that all children enjoy the benefit of a diverse learning environment.
Although Justice Alito had testified at his confirmation hearing that he valued having a diverse group of students in the classes he taught as a law professor, he seemed unwilling to recognize the importance of diversity in the voluntary integration cases. It's too soon to know for certain, but the oral arguments suggest that the praise the new justices heaped on Brown v. Board at their confirmation hearings will ring hollow once the final votes are counted in the voluntary integration cases.
At a time when vast legal issues are being decided by the slimmest of margins, we cannot afford to learn nominees' views only after they have obtained lifetime tenure on the nation's highest court.
The only way to know whether a nominee will meet the high bar for confirmation is to have an honest, in-depth exchange during the nominations process. The Judiciary Committee, the Senate and the American Bar Association need to work together - with the White House - to make that happen. I support reform despite my belief that the next justice will be nominated by a Democratic president and be sent to a Democratic Senate for confirmation.
Reform should begin with a few basic changes. We must somehow put the "advice" back into the constitutional requirement that nominees be appointed with the "advice and consent" of the Senate. In the recent nominations of Justices Alito and Roberts, President Bush made token calls to many of us in the Senate before announcing his selections, but it was clear his decision had already been made. A better course would be to allow real advice and consultation before making a choice.
In addition, any qualified nominee to the Supreme Court will have spent many years thinking about legal issues. We should require that nominees share their thinking with the Judiciary Committee and not pretend that such candor is tantamount to prejudging specific cases. We know from their past decisions how most of the current justices interpret Roe v. Wade, yet they are not precluded from sitting on future cases involving abortion. Why then shouldn't we also know how Supreme Court nominees view Roe v. Wade and other important legal decisions?
The Judiciary Committee also needs to improve how it obtains information. An in-depth inquiry requires more than short rounds of questions that move from senator to senator.
The Senate should insist on having the same access to the nominee's writings and other relevant documents as the administration, and it should receive those records before the hearing.
Each member of the Committee should have the right to submit a limited number of written questions to the nominee, which the nominee should answer in writing in detail under oath before the confirmation hearings. This will enable senators to go into greater depth in the hearings themselves, and it will give the Senate - and the American people - valuable information in considering nominees.
In addition, no senator should accept incomplete answers from a nominee about important legal issues, regardless of which party's president made the nomination. Nor should nominees who have served as high-ranking government officials, as Chief Justice Roberts and Justice Alito did, get away with claiming they were just "representing a client" when asked about advice they gave in their role' as legal policy makers. Only if every member of the Senate insists on responsiveness from the nominees will we restore open dialogue to the nominations process.
As Senator Arlen Specter wrote in his book, Passion for Truth:
"The Senate should resist, if not refuse to confirm, Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy, but should be able to judge on the basis of the candidate's expressed views."
Finally, and above all, we must remember what this process is all about. It's nice to hear
that a nominee has a loving family, faithful friends and a sense of humor. It's important to know that nominees possess the intellect, life experience and discipline to make a good judge. But it's essential that we learn enough about their legal views to be certain that they will make good on the simple promise engraved in marble over the entrance to the Supreme Court: "Equal Justice Under Law."
I commend all of you at the Alliance for all you do so well to keep those four basic words at the heart of this all-important debate. Thank you very much, and I hope you'll watch the Alliance's important documentary, Quiet Revolution.