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John Edwards gave a great speech, justifying his famous legal background... everyone should check it out.. it's intellectual, factual, and honest; here's an excerpt:The ability of ordinary people to go to court and obtain justice is under siege. This is no coincidence. It is part of a calculated political agenda that plays out every day in Congress and the Executive Branch, an agenda designed to put powerful corporate interests ahead of ordinary people. We see it in budget cuts for day care and student aid and tax cuts for millionaires. We see it in environmental programs that ignore scientific experts and sacrifice our children's health while helping big oil companies. We see it in so-called bankruptcy "reform" that helps credit card companies and hurts ordinary people.
And we see it in the new - and radical - jurisprudence that is being spread through right wing think tanks, media outlets, academics, and even some of our courts. I call it "protect the powerful" jurisprudence because that is what it is designed to do:
Maximize the constitutional protection for corporations and property rights. Minimize the constitutional commitment to equality. And restrict the power of the federal government to solve the country's problems. Of course, the radicals don't talk that way. Their jurisprudence is cloaked in abstract legal principles that sound reasonable - strict constructionism, interpretation rather than legislation, original intent, judicial restraint. But the reality simply does not match the rhetoric.
How is it strict constructionism to interpret the Eleventh Amendment to allow States to violate federal law and discriminate with impunity against their own citizens with disabilities? There is nothing in the amendment's text that supports this result. I thought strict constructionism meant adherence to the text of the Constitution. But the lesson is clear: when the text doesn't fit the political agenda, the text loses.
Many of the people who claim to oppose judicial legislation are the same ones arguing that the Takings Clause requires property owners to be paid for almost any reduction in property value caused by regulation - no matter how valuable the property remains, no matter how necessary the regulation.
Even Justice Scalia does not argue that expansive new protections for landowners are demanded by the constitutional text. Instead, he points to something he calls "constitutional culture."
That sounds to me more like judicial legislation than interpretation. How do those who demand judicial restraint celebrate the Rehnquist Court, which has struck down Acts of Congress at an unprecedented rate; nearly three dozen since 1995? The lesson is clear: judicial restraint is nice, but it shouldn't get in the way of policy results you want.
None of this should be a surprise. Much of it was planned out by the Meese Justice Department - the memos are available on the Internet for everyone to see. Their blueprint for transforming judicial decision-making written twenty years ago has been incredibly successful. Look at what's happening to the First Amendment. In case after case, conservatives invoke the First Amendment to protect powerful economic interests. They seek to invalidate laws that would lessen the influence of money in politics or expand the diversity of voices heard on media. In so-called commercial speech cases, they have suggested that the government's power to protect consumers is strictly limited. Look at the threats to the Equal Protection Clause. And I'm not even talking about Bush versus Gore.
The Fourteenth Amendment was intended to secure equal rights for African-Americans and put an end to discrimination. Today, the right invokes that amendment to stop voluntary efforts to eliminate the effects of discrimination.
Nowhere is the radicals' agenda more apparent than in cases involving judicial access.
Time and time again, they have opposed judicial and legislative attempts to facilitate access to justice of poor, marginalized, and disenfranchised individuals.
Standing doctrine is a shadow of what it once was- ordinary people have a much more difficult time getting into court to challenge government action.
And look at the recent attack on a legal services' funding source brought by a conservative legal foundation.
In the interest of promoting access to justice, all 50 states had enacted IOLTA programs that funded legal services organizations by tapping interest on lawyers' trust accounts. Although the funds in question could not generate income for the lawyers' clients, the foundation nevertheless argued that the program was unconstitutional.
The Supreme Court upheld the program on the obvious grounds that there would be no constitutional violation if the lawyers' clients suffered no financial loss.
The rationale, however, did not persuade the dissenting conservative justices.
To them the IOLTA programs were, in their words, "Robin Hood Takings" designed to help the poor at the expense of the rich. But where is the real taking? The radicals' approach is actually Robin Hood in reverse - protect the wealthy and the entrenched by taking away the ability of others to seek justice against them in court.
And many conservatives are not embarrassed to claim that the Constitution compels this result.
Finally, there is the so-called "Constitution in Exile" movement, recently chronicled in the New York Times.
As you know, it argues that the Court took a wrong turn seventy years ago when it recognized broad congressional power to address our country's economic challenges.
This movement seeks to return to an era in which the federal government has only limited power to address issues such as workers' rights, discrimination, and pollution.
It would be nice if we could think of this movement as an intellectual exercise divorced from the real world - sort of like the flat earth society.
But, the current Supreme Court invalidated a key provision of the Violence Against Women Act on one version of this theory.
And conservative activists are promoting more challenges to federal statutes on this basis.
Of course, attempts to use the Constitution to prevent the federal government from helping ordinary people are not new.
During the Lochner era, conservative courts routinely struck down progressive legislation in the name of constitutional law.
Then as now, many conservatives claimed that striking down such laws was dictated by the law, not their own political preferences.
Then as now we were told that even if the beneficiaries of the Court's actions were inevitably the entrenched and the powerful, this was simply a coincidence.
Here, history is very much on our side. Lochner could not withstand the pressure of the New Deal and industrialization. The Constitution in Exile is just as badly suited to the demands of the new global economy. Neither vision is true to a Constitution built for generations.Text of full speech available here: http://oneamericacommittee.com/20050729.asp#robertsIt was also telecast on C-span Plus, this is what Edwards said about Roberts: We don't know very much about Judge Roberts' approach. At the hearing on his nomination to the D.C. Circuit, he said that he had no overarching ideology. And in the first days after he was nominated, the White House painted a picture of a judge's judge, committed to restraint and respect for the judicial role.
But Judge Roberts did hold key legal jobs in the Reagan and first Bush Administration. And the recent release of documents from the Reagan Administration shows a very different young lawyer at work, a partisan for conservative causes. Someone who opposed efforts to remedy discrimination on the basis of sex and race.
Someone who opposed measures to protect voting rights. Someone who disagreed with Ted Olson—no liberal himself—in defending Congress's right to strip away courts' jurisdiction over controversial subjects.
"On almost every issue he dealt with," the New York Times concluded, "where there were basically two sides, one more conservative than the other,' Judge Roberts 'advocated the more conservative course." The question now is, who is the real Judge Roberts? The Senate has a responsibility to find out. The Judiciary Committee should insist upon access to Judge Roberts' writings from his most recent government jobs. Attorney-client privilege should not prevent the U.S. Senate from seeing documents prepared by a lawyer in a high-level political job representing the United States - especially when that lawyer has been nominated to our nation's highest court. The upcoming hearings should provide answers to some fundamental questions:
Does Judge Roberts still hold today the views he promoted earlier in his career?
Is Judge Roberts committed to implementing the radical "protect the powerful" jurisprudence or does he recognize the claims of the powerless as well as the powerful?
Does Judge Roberts recognize that cases are about the real lives of real people, and not just abstract legal principles?
The Senate cannot settle for boilerplate answers from a nominee with such a limited record of speaking publicly in his own voice.Kennedy and Edwards criticize Roberts' record: http://www.usatoday.com/news/washington/2005-07-29-dems-roberts_x.htm
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