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June 18, 2006

Summary of Key Issues Facing the Legal System

I had the privilege of hearing Ralph Neas, President of People for the American Way, speak at the YearlyKos convention last weekend.  He spoke about the Supreme Court and the implications of the recent changes in the Court on the law and the challenges of the near-term. 

Neas began by saying that the two best, recent developments affecting the law have been the explosion of grassroots power in the Latino community and the power of the blogging community to build a progressive movement and to hold the feet of the Democratic lawmakers to the fire.

He reminded us that the quality of the judiciary is the single most important factor in what this country will look like in the next 10-30 years.  We are at a perilous moment in the history of our country.  Neas says we are coming very close to a 5 vote control by very conservative lawmakers, precisely what the right-wing has been trying to do for 30 years.  If they get control of the courts, right-wing policies could rule for decades, no matter who controls the Congress and the Presidency. 


In 1937, Roosevelt Democrats got control of the Supreme Court and inaugurated a new era in our country.   What the earlier populists and progressives had proposed beginning in the 1890’s was not widely implemented because of the conservative nature of the Courts.  For the first four years of Franklin Roosevelt’s administration, everything he tried to do was vetoed by the Court.  As FDR was able to select the Justices, a massive changeover to a fairer, juster society was initiated.  The last 70 years have seen a new era in civil rights, women’s issues, the environment, privacy rights, and rights for gays and minorities growing out of that turnaround. 

There has been some erosion since 1995/1996 but there has not been a wholesale overturning of these more progressive policies.  Yet.

The Bush Era

Neas went on to say that “Bush vs. Gore” may have been the worst vote in US history.  Bush had made his views clear.  “I want Supreme Court justices in the mode of Scalia and Thomas.”

What if they get a Scalia-Thomas majority?  What would it mean?  Most rulings have been close, either 5-4 or 6-3.  Neas says that his organization has looked at the implications of a solid 5 vote conservative court.  What they see is that over 100 key decisions of the last 70 years will be overturned, decisions on privacy, civil rights, civil liberties, executive power and property rights. 

He says that the Court would not only be overturning the past 70 years but would also try to checkmate the progressive movement for 2-3 generations into the future.  He sees:

  • Massive permanent tax cuts so that there would be no money to fund progressive politics
  • A take-away of the rights we have
  • The Court would be comparable to the Courts of the late 1800’s and early 1900’s
  • A frightening freedom on the Executive branch that would allow the President to hold detainees, wiretap citizens and torture prisoners

The Response of Congress

On the positive side, the Democrats in the Senate have changed public opinion about the use of the “nuclear option” and 70% of the American public now favors use of a filibuster to prevent bad justices from being nominated.  The filibuster is still alive so the right did not get to take that option off the table.  Yet.  2 million Americans contacted the Senate on that issue and the Senate was in shock. 

It was hard to make a big deal of the Roberts nomination because he was replacing another conservative Justice, Rehnquist so there was no changeover in the voting pattern.  Neas says, however, that Roberts is not just conservative, he is right-wing.  We know that from what he and Alito did and said in the Reagan years.

Neas said that Harriet Miers deserved a hearing.  She probably was fair-minded and that is why the right opposed her.  She had far more experience than Thomas did.  She was undermined by the right-wing rather than by the Republican leadership. 

This proves the power of a movement and points again to why we have to build that movement.

O’Connor, Neas said, was the decisive vote on about 20 different occasions although she went with progressives only about 1/3 of that time.  She is not a winger.  Alito, however, is a winger as his writings from the 80’s prove.

Signing Statements

Neas says that in the near-term, what happens with the theory of a Unitary Executive – the idea that the Executive is more important than the other branches – will be very critical.  He brought up the signing statements that Bush has signed in conjunction with over 750 laws that have been passed.  The statements say something to the effect that the Executive will not enforce the law if it is different that what he believes is right. 

The entire issue of signing statements is absolutely frightening, Neas says.  It can be applied to anything. For example, John McCain was finally able to get an anti-torture bill through Congress and Bush signed it.  But he attached a signing statement to the bill that essentially negated the purpose of the bill.  Neas did say that the ABA has signed up a cadre of attorneys around the country who are investigating all the signing statements and will assess their constitutionality in a report due out in August. 

The Bush Administration claims that signing statements have been issued routinely by other Presidents.  Reagan was the first to issue a few that were constitutional in nature and therefore undermining the nature of the law.  So did George H. W. Bush.  President Clinton used signing statements only for purposes of clarification or to point out places where he thought the law would not hold up constitutionally.  No President has ever used them in the manner in which this President it using them.  It is unprecedented and a qualitative difference from what other Presidents have done.

The Senate and Supreme Court Nominations

Neas says that what is happening with the Judiciary in this country makes him ask over and over again, “Why can’t our side fight?”  He sees the same thing happening with Supreme Court appointments that he saw with “Bush vs. Gore” in Nov./Dec. of 2000.  No fight.  He wants the Democrats to give the American people something to root for.  If we’re going to lose, we should at least fight as hard as possible.  He says that the Democrats in the Senate did not rise to the occasion when presented with the nominations of Roberts and Alito.

The odds are that George Bush will have the opportunity to appoint another Supreme Court Justice.  Senator Spector, the Republican Chair of the Senate Judiciary Committee, does not have the courage to go against the right-wing. The Democrats have been trying to act as judges, to be fair and wait to hear what the nominee says. They need to fight this.  They need to have a 3-month strategy ahead of time, as the Republicans do.  They need to have 75-100 staffers organizing support groups and communicating with the American public.  We need to win the hearts and minds of the American people.

This is one of the places he sees the bloggers having such an impact.  Bloggers eliminate the filter of the MSM.  Bloggers are the best hope for the democratization of the American people.

A change of 1-2 seats in the Senate would make a big difference in the prospects for defeating the next nominee.  A change of six seats, with a subsequent Democratic majority, would change the landscape.  That is why this fall’s election is so important.


Q: Why did we lose the nomination battles?

RN: We lost the fight in messaging.  The Right has simple messages.  We don’t seem to have that, except on choice.  I wish I could say the Democrats had any message at all.  We don’t have Democratic leaders who are out there.  We are fighting on the Republican’s turf.  I have been conveying the magnitude of what we could lose.  They are trying to remake the laws.  A good judge does look to the Constitution.  What we have to do is distill what I have said over this hour into 8 seconds and, at most, a few paragraphs.  Those who define the issues, win.

Q: What happened to the Democrats on the Judiciary Committee? 

RN: They didn’t develop a story line that put a human face on these issues.  Fighting for a good story line would have been a win for Democrats.  They didn’t do it. 

Q: What about Lindsay Graham’s role?

RN:  There was significant evidence that he was at the White House coaching Roberts and then Alito.  We need to have an investigation of this.

Q: What about this tactic of refusing to answer that both Roberts and Alito used?

RN: The Hearings for Bork lasted 14 days and Bork himself testified for 43 hours.  He was voted down.  As a result of that loss, the Republicans decided that nominees shouldn’t talk about their views. Arlen Spector said something 17 years ago in his biography that he unfortunately doesn’t stand by.  He said, “If they don’t answer questions, they shouldn’t be confirmed.”

Q: Which Democrats on the Judiciary Committee are doing anything right?

RN:  Durbin is good on cross-examination.  Feinstein ended up doing the right thing but she agonized too much.  She epitomizes the timidity of the Democrats on this issue. 

People for the American Way

Ralph Neas is President of People for the American Way, which was founded 25 years ago by Norman Lear and Barbara Jordan, among others, to affirm “the American Way” and to pass our liberty onto the next generation.  They have over 900,000 members determined to stand up to right-wing extremism and to preserve our “pluralism, individuality, freedom of thought, expression and religion, a sense of community and tolerance and compassion for others.” 

People for the American Way has a website.  They publish books and booklets, including a cool 50-page booklet they gave us entitled “Courting Disaster 2005”.


Since Ralph Neas spoke at YearlyKos, there has been one key Supreme Court ruling that I believe illustrates exactly what Neas was talking about – the No Knock ruling of a couple days ago.  The diarist Devilstower over at DailyKos had a good post on this.  In it he pointed to an article from the Houston Chronicle which said:

The case of Hudson v. Michigan illustrates how much Supreme Court decisions are affected by the so-called judicial philosophy of each justice. Had Sandra Day O'Connor continued on the court, the case would have gone the other way. O'Connor's replacement, Justice Samuel Alito, joined Chief Justice John Roberts and Justices Clarence Thomas and Antonin Scalia in voting to throw out almost a century of Supreme Court precedents. (Justice Anthony Kennedy voted with the majority but would not go along with ending the knock and announce requirement.)

The court's decision in this case blurs the image of traditional conservatism. Is it conservative to depart from long precedent and to rule that official conduct once thought to be intolerable can now be tolerated? Is it conservative to increase the power of the police at the expense of individual rights? Do conservatives want to hand government the power to intrude upon residents' lives and property without notice?

Posted by Lynn Allen on June 18, 2006 at 02:24 PM in National and International Politics | Permalink


This new composition of the court is almost too frightening to think about. It's not that these people are conservative-- it's that they're anti-liberty and give a very strong appearance of partisanship. We are not only losing our civil liberties -- we're also losing confidence in the courts and in government.

I appreciate the history of the FDR era. Thanks.

Posted by: Noemie Maxwell | Jun 19, 2006 6:30:52 AM

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