What's really at stake regarding Supreme Court Justice selection-Part 5

Link
Continuing along with the speech by a scholar on the Constitution, Parts 1-4 are on previous posts and here is Part 5 of the speech that everyone should read:

"So why doesn't the Radical Right just push their agenda through the Congress and the state legislatures?

First, the people don't agree with it. And secondly, it is an acknowledgment that their current control of Congress and the presidency is temporary. Now is the time for the Right to strike and lock in their philosophy; to handcuff future Congresses from being able to counteract the Right's agenda. For once something is declared unconstitutional, other than through an amendment, we find ourselves at an overwhelming disadvantage to move through with the legitimate will of the American people.

It is also an acknowledgment that the Radical Right can't take on many popular programs and policies -- our environmental and worker protections -- in the clear light of day in the democratically-elected branches of government. So they focus their fire on the judiciary.

Again, don't take my word for it. Richard Epstein, one of the intellectual powerhouses of this movement, said, "Some movement in the direction of judicial activism is clearly indicated."

We are talking about a movement that would wield the Constitution, not as a shield, but as a sword to push an extreme agenda -- an agenda, I believe, the American people do not support.

And it's something that has already begun. The Rehnquist court has been the most activist Supreme Court in our history, striking down a record three dozen acts of Congress in less than 20 years.

What kinds of laws is our high Court striking down? Popular, common sense laws, laws that said, for example, you can't have guns within a thousand feet of an elementary school; laws battling violence against women; laws requiring cleanup of low-level nuclear waste; and laws saying states can't steal somebody's ideas and inventions.

Over the first seven decades of the Court's existence, only two federal laws -- two, t-w-o -- were held unconstitutional.

Let me focus for a minute on one of those laws already struck down, one that's very near and dear to my heart. I grew up in a family where the worst form of unmanly cowardice that one could engage in was to strike a woman. It was the lowest act of all.

As a result, I wrote a law called the Violence Against Women Act, and I have never put so much energy into any single piece of legislation in my 32 years in the United States Senate. I thought the single most important aspect of the law was to empower women to take control of their own lives, to be able to go into federal court and sue their abuser for the abuser's car, business, and worldly goods for the abuse inflicted upon them, whether or not the state or federal prosecutor wished to proceed criminally.

But in 2000 the Supreme Court struck down this right, despite nine hearings, over a hundred witnesses, despite the support of 38 states' attorneys general, despite the overwhelming evidence of gender discrimination in local and the state criminal justice systems.

I term this -- I realize that one man's meat is another man's poison -- but I term this "judicial activism." Laws like this are what's at stake, in my view.

We do well to recall the brilliance of the Founding Fathers who devised a system of judicial appointments specifically aimed at preventing the President from effecting a radical shift in the judiciary. When I was sworn into the Senate, I vowed to "support and defend" this carefully balanced system. And I have no intention of abdicating that responsibility.

The question most asked of me by my students in the constitutional law course I have been teaching the last 15, 16 years, however many -- a long time -- is what the Founders intended the "advise and consent" clause to mean.

To me, the answer is clear and overwhelming. The Founders intended the Senate to take the broadest view of its advise and consent responsibility. And throughout history, the Senate has taken this responsibility to restrain the President very seriously. Over and over the Senate has scrutinized nominees' constitutional methodology and philosophy, and rejected nominees on that basis. One out of five nominees have been rejected over our history.

And I for one find it useful to recall the 1959 statement in the Harvard Law Record of a young Arizona lawyer named William Rehnquist. He called for a Senate approach "of thoroughly informing itself on the judicial philosophy of a Supreme Court nominee before voting to confirm him."

As Walter has taught me, along with my good friend who I impose on much too much, Chris Schroeder of Duke, the country has done this particularly when it is deeply divided and when the balance of the Court is at stake.

Think of how the world has changed since Justice O'Connor first joined the high Court. In 1981, almost none of us had computers. E-mail was largely a figment of the imagination. The Internet was a narrow path being blazed on the frontier of technology, not an Information Superhighway. Imagine what our world will look like in the year 2030 when today's nominee, God willing, could be expected to retire.

Long after Saddam Hussein is dust, after phrases like "CIA leak" are tossed into the scrap heap of historical trivia, long after President Bush and Joe Biden are gone from Washington, far into the 21st century our newly minted Supreme Court Justice will be making critical, critical decisions about the kind of country my children, grandchildren, and great-grandchildren will be living in.

Now, I'm not going to prejudice whether I in the end will vote for or against Judge Roberts. He came to see me, and I told him straightforwardly what I wanted to know. I didn't ask him his views at the time. I said, "Judge Roberts, there are two things at stake" -- and I mentioned them here -- "how far can government intervene into the areas of personal autonomy? How far? What limits does the Constitution provide, if any? And the other side of that coin is to what degree can the government act as a shield to prevent the powerless and the less powerful from the imposition of the heavy economic hand of corporations?" And I said, "lastly, Judge, I want to know your view of stare decisis as a Supreme Court Justice."

It's not the test, I told him, whether or not he's an honorable, intelligent, and well-respected man. To the best of my knowledge, he is.

The Senate is charged first with coming to some understanding of the nominee's constitutional disposition toward the great questions of the day, and second with expressing his judgment as to whether or not those views are acceptable at a time when we have a closely balanced Supreme Court.

Judge Roberts finds himself a fulcrum in our deeply divided nation, upon which great constitutional questions hang in the balance. He has become the embodiment of people's hopes and fears about where the Constitution heads in the future. For the American people -- and we vastly underestimate the soundness of their judgment -- fully understand that the decisions a new Justice will make will affect the very way they can live their lives for a long time to come.

It's an unenviable position and an enormous responsibility for Judge Roberts. I will examine if, in my opinion, he is prepared to protect the personal autonomy of Americans as well as the ability of the government to act as a shield to protect those with less power from the abuse of powerful interests. And the critical determination -- critical for me -- will be his judgment on stare decisis. These questions will determine how I will vote.

For I want to make it clear to you -- and especially you students here -- after you go through the great constitutional law scholars under which you study, and they talk to you about the way in which the Founders may or may not have intended the "advise and consent" clause to work, I suggest you do what I suggest my students do.

Take off your legal scholarship hat, stand back, and ask yourself the rhetorical question: can you imagine on that hot, steamy summer, with the Founders sitting on the second floor so no one could hear what they were doing; can you imagine them saying, by the way, we are going to have three co-equal branches of government. Two of them will be able to be scrutinized by the American people, and the presumption will be that they are not entitled to the office unless a majority of the people conclude they should hold the office. But the third branch, all we want to know is are they honorable, decent, and straightforward?

And as my little granddaughter says, 'Pop, give me a break.'

Thank you very much, ladies and gentlemen, for listening."

Now this was one of the best speeches I have ever heard where I learned so much I hadn't comprehended until I read this. The author ad speaker was Sen. Joe Biden (D) Delaware. Great job Senator and thatnk you for educating me on this matter.