Last Call for the Court of Last Resort
Hearts heavy with the enormity of the hurricane and the enormity of the waste of our tax dollars, personnel, equipment and other things that could be going to help them if not in Iraq, not to mention the enormity of our wasteful and shortsighted energy and environmental policies designed to protect wealthy corporations and not our environment or our people, the Moraine Township Democrats met to discuss the Supreme Court. State Representative, Karen May started off the meeting with a moment of silence for the hurricane victims and the leaders who now have to deal with the aftermath. The discussion important and necessary even at this time of tragedy because the Supreme Court has historically been the supreme court of last resort for the powerless. Is it still? Will it ever be again?
The panel consisted of Hank Perritt, Law Professor at Kent School of Law, Ed Yohnka of the ACLU, Julie Sweet of People for the American Way and Jed Stone, a criminal attorney. Moderator, Ross Nickow asked the panel questions. Prof. Perritt began by describing the history of the 3 branch system of government, the traditional insulation of the court from politics through life tenure and the vulnerability of the court inable to enforce its own rulings needing the enforcement power of the executive branch. It seems there was some unspoken deal over the years that if the Court kept the number of landmark decisions down, the executive branch would enforce that started when Andrew Jackson backed down and enforced the Court's temporary protection of the Cherokee being forced out of Georgia (which eventually they were).
Mr. Yohnka discussed some of the cases that the Court has ruled upon that affect our daily lives. He used the right to travel as an example. We all think we have that, but do we? Are we to be stopped, searched and detained? Yohnka raised concern about the current role of the Court which has become so political that it is results driven, straining to yield the desired political result in each case and limit the Courts ability to play its traditional role. He mentioned an upcoming case on standing to bring a case on a state parental notification law that could limit the ACLUs ability to bring further cases. If it is decided that the ACLU has no standing to bring the case, such cases will have to be brought more like class action cases where the harm of each member of the class has to be the same.
Julie Sweet discussed the questioning expected in the Roberts confirmation hearings. She expressed concern that Roberts knows how to answer questions and present himself and may project an image rather than being candid. Her group has been looking through the documents given up from the Reagan Administration on Robert's record to get an idea of what Roberts is about. The records from his work in the H.W. administration have been withheld by the W. administration. Sweet pointed out that every time Roberts had an opportunity to make an argument, it was the furthest right-wing argument that could be presented and often rejected even by the Reagan administration. There is no reason to believe he will turn up a moderate. To see the 20 questions proposed by People for the American Way, click here.
Mr. Stone discussed some of the criminal cases in which he argued before the Court. As a young attorney, he said, he always looked at the Supreme Court as the court of last resort, last resort to protect our Constitutional rights. He said that he thinks now it is the press, then later said the court of public opinion. (I think he is being optimistic about it being the press which has gone out of its way to protect the Bush administration.) He mentioned Watson vs. Blackburn in 1987 where Watson was put to death despite getting a 4:4 ruling to take cert on his case. He just needed one more vote to stay the execution. What in blazes is the point of granting cert if the defendant is put to death before the case is heard and if the case merited cert, why did it not merit a stay? Stone sees doors shutting for criminal defendants and cases from the past century being overturned instantly by this court. He made a haunting comment about the wisdom we just miss from the Court.
Then, Hank Perritt started debate about the wisdom of challenging the Roberts nomination. Perritt believes that it may not be a good decision to challenge Roberts because he will probably be confirmed anyway and he does not seem as arrogant as Scalia, or as Perritt put it, "a junkyard dog" making political and religious speeches around the country and pushing for strict construction, but only when it gets to his most right-wing result. Perritt granted that it may be a good idea to make a fuss over the nomination for the sake of the fuss and to use the opportunity to educate the American people, but that the pros and cons needed to be weighed and that Roberts may be the best we can get out of the Bush administration. Perritt believes that we lost this fight when we lost the 2004 election and that the best we can do now is to work to elect Democrats in the future.
Sweet disagreed. She believes that Roberts is unlikely to turn out to be less of a Scalia and more of a moderate because he always bent over backwards to argue the furthest right-wing opinion. She also pointed out that Bush does not have a free ticket for this appointment because the Senate has a duty to advise and consent and the benefit of doubt should be less for a Supreme Court nominee than for a cabinet appointment because the appointee will not go away with the administration, but is likely to be with us for 40 years or so. She also pointed out that Bush is the President of the United States with a duty to represent all Americans, not just the ones with whom he agrees. He needs to be persuaded to nominate a candidate that represents more Americans.
Yohnka said that things will change for Americans with Roberts on the Court. There will be rulings about the power of the government to spread religion in our schools and our lives. Sweet listed some of the effects this court will have on privacy, the right to choose our partners, right to choice in abortion, environmental protections, educational protections, sexual harrassment protections, work discrimination protections traditionally of the Federal government.
Perritt answered back that we are unlikely to change Roberts or Bush by a "roughing up" of the nominee during the confirmation hearings. Yohnka said its not at all a "roughing up" but the need to have his US Senate engage this country in a dialogue about what our Supreme Court will be ruling on over the next 40 years. We need to at least discuss the loss of the protections we gained over the past century of jurisprudence.
I agree with Ms. Sweet and Mr. Yohnka. We need the discussion in the Senate, not a roll over because we are going to lose anyway. So much of what the Bush administration has inflicted upon our country has been done with little to no discussion. The Patriot Act passed just days after 9/11 without much discussion at all and no way did all of congress read that several hundred page long document in so little time. The Iraq War resolution passed quickly with little real evidence of WMD in Iraq. Debate cut short on the renewal of the sunset provisions of the Patriot Act. No one knows or seems to care about the new Bankruptcy Rules (boy will many folks get a big surprise when they try to file next year), the pork laden transportation act (or more correctly called payback for political favors act), or the energy and environmental policies which are leading us to more tragic situations like the one down south this week. We are being lied to by omission more often than the direct, spoken lies.
If we are going to throw away our Court of Last Resort, we should hear about what is going out with it.
By the way: Donate to the hurricane victims, but don't forget to ask if the recipients of the tax breaks, those wealthiest 1% are donating; if the corporate mercenaries who got so much of our tax dollars in Iraq, in cash, are donating;, if the oil company beneficiaries of much of our country's wealth and current energy and environmental policy are donating; if Wal-mart which became rich on the backs of the poor now suffering from the effects of the hurricane is donating; if the pharmaceutical companies who benefited so much from recent legislation disallowing Medicare to negotiate bulk pricing are donating; and if they are all donating a fair share, not just a cosmetic amount relative to their huge profits. Those who benefit so much from our government's current policies need to give back.
The panel consisted of Hank Perritt, Law Professor at Kent School of Law, Ed Yohnka of the ACLU, Julie Sweet of People for the American Way and Jed Stone, a criminal attorney. Moderator, Ross Nickow asked the panel questions. Prof. Perritt began by describing the history of the 3 branch system of government, the traditional insulation of the court from politics through life tenure and the vulnerability of the court inable to enforce its own rulings needing the enforcement power of the executive branch. It seems there was some unspoken deal over the years that if the Court kept the number of landmark decisions down, the executive branch would enforce that started when Andrew Jackson backed down and enforced the Court's temporary protection of the Cherokee being forced out of Georgia (which eventually they were).
Mr. Yohnka discussed some of the cases that the Court has ruled upon that affect our daily lives. He used the right to travel as an example. We all think we have that, but do we? Are we to be stopped, searched and detained? Yohnka raised concern about the current role of the Court which has become so political that it is results driven, straining to yield the desired political result in each case and limit the Courts ability to play its traditional role. He mentioned an upcoming case on standing to bring a case on a state parental notification law that could limit the ACLUs ability to bring further cases. If it is decided that the ACLU has no standing to bring the case, such cases will have to be brought more like class action cases where the harm of each member of the class has to be the same.
Julie Sweet discussed the questioning expected in the Roberts confirmation hearings. She expressed concern that Roberts knows how to answer questions and present himself and may project an image rather than being candid. Her group has been looking through the documents given up from the Reagan Administration on Robert's record to get an idea of what Roberts is about. The records from his work in the H.W. administration have been withheld by the W. administration. Sweet pointed out that every time Roberts had an opportunity to make an argument, it was the furthest right-wing argument that could be presented and often rejected even by the Reagan administration. There is no reason to believe he will turn up a moderate. To see the 20 questions proposed by People for the American Way, click here.
Mr. Stone discussed some of the criminal cases in which he argued before the Court. As a young attorney, he said, he always looked at the Supreme Court as the court of last resort, last resort to protect our Constitutional rights. He said that he thinks now it is the press, then later said the court of public opinion. (I think he is being optimistic about it being the press which has gone out of its way to protect the Bush administration.) He mentioned Watson vs. Blackburn in 1987 where Watson was put to death despite getting a 4:4 ruling to take cert on his case. He just needed one more vote to stay the execution. What in blazes is the point of granting cert if the defendant is put to death before the case is heard and if the case merited cert, why did it not merit a stay? Stone sees doors shutting for criminal defendants and cases from the past century being overturned instantly by this court. He made a haunting comment about the wisdom we just miss from the Court.
Then, Hank Perritt started debate about the wisdom of challenging the Roberts nomination. Perritt believes that it may not be a good decision to challenge Roberts because he will probably be confirmed anyway and he does not seem as arrogant as Scalia, or as Perritt put it, "a junkyard dog" making political and religious speeches around the country and pushing for strict construction, but only when it gets to his most right-wing result. Perritt granted that it may be a good idea to make a fuss over the nomination for the sake of the fuss and to use the opportunity to educate the American people, but that the pros and cons needed to be weighed and that Roberts may be the best we can get out of the Bush administration. Perritt believes that we lost this fight when we lost the 2004 election and that the best we can do now is to work to elect Democrats in the future.
Sweet disagreed. She believes that Roberts is unlikely to turn out to be less of a Scalia and more of a moderate because he always bent over backwards to argue the furthest right-wing opinion. She also pointed out that Bush does not have a free ticket for this appointment because the Senate has a duty to advise and consent and the benefit of doubt should be less for a Supreme Court nominee than for a cabinet appointment because the appointee will not go away with the administration, but is likely to be with us for 40 years or so. She also pointed out that Bush is the President of the United States with a duty to represent all Americans, not just the ones with whom he agrees. He needs to be persuaded to nominate a candidate that represents more Americans.
Yohnka said that things will change for Americans with Roberts on the Court. There will be rulings about the power of the government to spread religion in our schools and our lives. Sweet listed some of the effects this court will have on privacy, the right to choose our partners, right to choice in abortion, environmental protections, educational protections, sexual harrassment protections, work discrimination protections traditionally of the Federal government.
Perritt answered back that we are unlikely to change Roberts or Bush by a "roughing up" of the nominee during the confirmation hearings. Yohnka said its not at all a "roughing up" but the need to have his US Senate engage this country in a dialogue about what our Supreme Court will be ruling on over the next 40 years. We need to at least discuss the loss of the protections we gained over the past century of jurisprudence.
I agree with Ms. Sweet and Mr. Yohnka. We need the discussion in the Senate, not a roll over because we are going to lose anyway. So much of what the Bush administration has inflicted upon our country has been done with little to no discussion. The Patriot Act passed just days after 9/11 without much discussion at all and no way did all of congress read that several hundred page long document in so little time. The Iraq War resolution passed quickly with little real evidence of WMD in Iraq. Debate cut short on the renewal of the sunset provisions of the Patriot Act. No one knows or seems to care about the new Bankruptcy Rules (boy will many folks get a big surprise when they try to file next year), the pork laden transportation act (or more correctly called payback for political favors act), or the energy and environmental policies which are leading us to more tragic situations like the one down south this week. We are being lied to by omission more often than the direct, spoken lies.
If we are going to throw away our Court of Last Resort, we should hear about what is going out with it.
By the way: Donate to the hurricane victims, but don't forget to ask if the recipients of the tax breaks, those wealthiest 1% are donating; if the corporate mercenaries who got so much of our tax dollars in Iraq, in cash, are donating;, if the oil company beneficiaries of much of our country's wealth and current energy and environmental policy are donating; if Wal-mart which became rich on the backs of the poor now suffering from the effects of the hurricane is donating; if the pharmaceutical companies who benefited so much from recent legislation disallowing Medicare to negotiate bulk pricing are donating; and if they are all donating a fair share, not just a cosmetic amount relative to their huge profits. Those who benefit so much from our government's current policies need to give back.
posted by Ellen Beth at
8/31/2005 09:25:00 PM
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