Obama: Ratify the Women’s Convention Soon

Nearly 30 years after President Jimmy Carter signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the United States remains the only democracy that refuses to ratify the most significant treaty guaranteeing gender equality. One hundred eighty-five countries, including over 90 percent of members of the United Nations, have ratified CEDAW.

U.S. opposition to ratification has been informed not simply by an objective analysis of how CEDAW’s provisions might conflict with U.S. constitutional law. Rather, it reflects the ideological agenda and considerable clout of the religious right and the corporate establishment. Issues of gender equality raise some of the most profound divisions between liberals and conservatives. The right-wing agenda was born again in the Bush administration, which issued numerous directives limiting equality between the sexes. Bush targeted funding for family planning and packed the courts and his administration with anti-choice ideologues.

The parade of horribles trumpeted by ratification opponents includes predictions that it would force the United States to pass an Equal Rights Amendment (ERA). Opposition to the ERA in the 1980s was also grounded in religious fundamentalism. There are fears that ratification may lead to the legalization of same-sex marriage, the abolition of single-sex schools, and create a nation of androgynous children.

Much of the hysteria directed at ratification is based upon false assumptions. One opponent warned: “A messy divorce case shouldn’t end up in the World Court.” This is a reference to the International Court of Justice, which does not even have jurisdiction over marital dissolution cases. An editorial in Hanover, Pennsylvania’s The Evening Sun predicted CEDAW backers will use the International Criminal Court as an enforcement tool. But, the International Criminal Court only has jurisdiction over war crimes, genocide and crimes against humanity.

Cecilia Royals of the National Institute of Womanhood said, “This treaty represents a battering ram against free and democratic societies, and particularly against women with traditional values.” The Weekly Standard charged the treaty “mandates complete sex equality in the military, the overthrow of market wages and implementation of ‘comparable-worth’ pay scales, rigid gender quotas, abortion on demand, and federally mandated child care.” Many opposed to ratification seek to protect the large corporations – the backbone of U.S. capitalism – from having to enact equality provisions that would imperil the bottom line.

Although President Carter signed CEDAW in 1980, the treaty has never been sent to the full U.S. Senate for its advice and consent to ratification. When the president signs a treaty, we are forbidden from taking action inconsistent with the object and purpose of the treaty. But we don’t become a party, with all the treaty obligations, until the president ratifies the treaty with the advice and consent of the Senate.

After Ronald Reagan became president and the Republicans gained control of the Senate, CEDAW languished in the Senate Foreign Relations Committee. Neither Reagan nor President George H.W. Bush sought ratification. Reagan made his contempt for CEDAW perfectly clear when he said that once adopted, the treaty would lead to “sex and sexual differences treated as casually and amorally as dogs and other beasts treat them.”

In 1994, at the behest of the Clinton administration, the Senate Foreign Relations Committee held hearings and recommended full Senate approval of CEDAW. Yet Committee chairman Jesse Helms continued to hold CEDAW hostage by keeping it from a vote in the Senate. In response to a last-minute campaign against ratification fueled by radio talk shows, a “hold” was placed on the treaty, preventing the full Senate from voting on it.

Five years later, 10 female members of the House of Representatives, including Nancy Pelosi, delivered to a hearing of the Senate Foreign Relations Committee (the Committee) a letter supporting ratification, signed by 100 members of Congress. Jesse Helms scolded them with, “Now you please be a lady,” before ordering uniformed officers to “[e]scort them out.”

When the Committee recommended ratification in 1994, it attached proposed reservations, understandings, and declarations (RUDS) to its recommendation, which purported to qualify the terms of ratification. These qualifications, however, would effectively eviscerate the promise of equality enshrined in the treaty. For example, ratification opponents insist that the First Amendment, particularly freedom of religion, trumps a woman’s right to privacy. CEDAW prohibits discrimination by private as well as public entities. States have defined issues of family planning, childcare, marriage, and domestic violence as “private.”

CEDAW, in effect, mandates that states parties take affirmative action to ensure equality for women in the areas of employment, education, health care and family planning, economic, political, cultural, social, and legal relations. CEDAW specifies that temporary measures taken to achieve equality will not constitute discrimination. The U.S. reservation makes clear that notwithstanding the prescriptions of CEDAW to eliminate gender discrimination by any “person, organization or enterprise,” ratification would not mean that the United States would have to ensure that private entities regulate private conduct.

Jesse Helms added an understanding to ratification stating that CEDAW does not create a right to abortion, and that abortion should not be used as a method of family planning. This understanding is unnecessary because CEDAW does not even mention abortion. Opposition to reproductive rights has been a hot button issue for the right-wing evangelicals.

Other reservations specify that the United States undertakes no obligation to enact statutes requiring comparable worth or paid maternity leave. Full-time, year-round, wage-earning American women now earn an average of 75 cents for every dollar earned by men in similar jobs. Women in the United States only enjoy the right to short, unpaid maternity leave, and they can be fired for being late due to pregnancy or maternity-related illness. Women in Canada, Europe and Cuba enjoy greater wage equality and paid maternity rights than women in the United States.

The recommended RUDs purport to ensure that ratification of CEDAW would not require that the United States adopt greater protections than those afforded under the U.S. Constitution. Yet U.S. equal protection jurisprudence falls short of safeguards women would have under CEDAW. Classifications based on race require strict scrutiny and mandate that the government demonstrate a compelling government interest to support them. But classifications based on gender require only intermediate or skeptical scrutiny. Instead of a compelling government interest, there need only be a substantial relationship between the interest and the classification. The Secretary of State even indicated in a 1994 letter to the Senate Foreign Relations Committee that the United States would continue to follow the [lesser] intermediate scrutiny standard after ratification, notwithstanding the treaty’s defining principle prohibiting gender discrimination.

Moreover, CEDAW defines discrimination against women as “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose” of impairing or nullifying women’s human rights and fundamental freedoms. Yet, U.S. constitutional jurisprudence requires that there be proof of both a discriminatory impact and a discriminatory purpose in order to establish an equal protection violation.

It has been U.S. policy to eschew limitations on speech that reinforce the inferiority of women. Indeed, significant inequality between the sexes persists in the United States in employment and education, and in the economic, political, cultural, and criminal system. Women in the United States do not enjoy guarantees of social welfare rights such as food, clothing, housing, health care and decent working conditions. The refusal to enshrine these rights in U.S. law is the reason our government has also failed to ratify the International Covenant on Economic Social and Cultural Rights (ICESCR). See Obama Spells New Hope for Human Rights.

CEDAW, like the three human rights treaties the United States has ratified – the International Convention on the Elimination of All Forms of Racial Discrimination, the Torture Convention, and the International Covenant on Civil and Political Rights - contains a declaration that the treaty is non-self-executing,which means that it requires implementing legislation to make it effective. Scholars including Professor Louis Henkin maintain that the Senate’s general practice of appending non-self-executing declarations to ratification violates the Supremacy Clause, which mandates that treaties shall be the supreme law of the land. The opposition to ratification stems not only from the belief that the United States should not ratify any treaty with provisions inconsistent with U.S. constitutional jurisprudence; it also demonstrates a refusal to require our government to change or enact laws that comport with the obligations we would undertake by ratifying a treaty.

Finally, there is a declaration that the United States will only submit on a case-by-case basis to the jurisdiction of the International Court of Justice to resolve disputes about the interpretation of CEDAW. According to the Vienna Convention on the Law of Treaties, RUDs which are incompatible with the object and purpose of a treaty are void. The RUDs proposed by the Senate committee are not only incompatible with the mandate of equality in CEDAW, they shun the primary object of the treaty: non-discrimination against women. Professor Cherif Bassiouni has said: “The Senate’s practice of de facto rewriting treaties, through reservations, declarations, understandings, and provisos, leaves the international credibility of the United States shaken and its reliability as a treaty-negotiating partner with foreign countries in doubt.”

Yet, in spite of the RUDs, CEDAW continues to languish in Committee. Early in 2002, President George W. Bush called CEDAW “generally desirable” and said it “should be approved.” Yet once the right-wing pressure geared up, Bush backed down. Five months later and shortly before the Senate Foreign Relations Committee voted 12-7 to approve the treaty, Secretary of State Colin Powell reported that the treaty was “complex” and “vague.” Attorney General John Ashcroft, no champion of women’s rights, was charged with “reviewing” CEDAW. Bush never sent CEDAW to the Senate for advice and consent to ratification.

More than 120 organizations, including AARP, the League of Women Voters, Amnesty International, and the World Federalist Association, support ratification. The city of San Francisco voted in 1998 to adopt the treaty, and its provisions are in force there. City departments have incorporated the treaty into hiring practices as well as budgets for juvenile rehabilitation programs and public transportation.

President-elect Barack Obama has said he supports ratification of CEDAW as well as the Equal Rights Amendment. He has promised increased enforcement by his Office of Civil Rights to ensure effective protection from sex discrimination. President-elect Obama should not hesitate to send CEDAW to the Senate for advice and consent to ratification, without the proposed RUDs that would eviscerate its protections.

It took nearly 150 years for women to gain the right to vote in this country. There is no principled reason our government should resist full equality for women. The United States must climb on board and ratify the Convention on the Elimination of All Forms of Discrimination Against Women.

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National Lawyers Guild Welcomes Discussion of Racism Occasioned by Senator Barack Obama's Historic Speech

In response to highly-publicized sound-bites from sermons by Rev. Jeremiah Wright of Trinity United Church of Christ in Chicago, Sen. Barack Obama delivered an historic speech on racism, titled "A More Perfect Union."

Rev. Wright had strongly criticized the U.S. government for putting Indians on reservations, Japanese in internment camps, and Africans into slavery. He said, "We bombed Hiroshima, we bombed Nagasaki, and we nuked far more than the thousands in New York and the Pentagon, and we never batted an eye. We have supported state terrorism against the Palestinians and black South Africans, and now we are indignant. Because the stuff we have done overseas has now brought right back into our own front yards. America's chickens are coming home to roost." Rev. Wright did not justify the 9/11 attacks; he explained they were blowback for a vicious U.S. foreign policy.

Rev. Wright's words were not unlike those uttered by Rev. Martin Luther King Jr. about the Vietnam War in 1968: "God didn't call America to engage in a senseless, unjust war. . . . And we are criminals in that war. We've committed more war crimes almost than any nation in the world, and I'm going to continue to say it. And we won't stop it because of our pride and our arrogance as a nation. But God has a way of even putting nations in their place."

In his speech, Sen. Obama credited the civil rights movement for the progress we have made in overcoming racism. "But race is an issue that I believe this nation cannot afford to ignore right now," he said, citing segregated, inferior schools that continue to exist 50 years after Brown v. Board of Education.

Yet last term, the Supreme Court, in Parents Involved in Community Schools v. Seattle School District No. 1, limited the ability of public school districts to address segregation by prohibiting the use of race-conscious measures as a tool to promote integration. Chief Justice John Roberts based his plurality opinion on the myth of "colorblindness," equating the exclusion and segregation of children by race with the inclusion of different races in the same schools. He ignored the decades of racial discrimination caused in part by segregated schools. Roberts ended his opinion with the flip comment, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Vast disparities with respect to race continue to pervade every aspect of American life. Latinos and African Americans are disproportionately concentrated in poor residential areas with sub-standard housing conditions, limited employment opportunities, inadequate access to health care, under-resourced schools and high exposure to crime and violence.

Racial profiling from the initial police stop to the charging process and trial through the sentencing procedure has been widely documented. Mandatory sentences of life imprisonment are imposed disproportionately on minority defendants. Non-whites are much more likely than whites to be charged with and sentenced to death for substantially similar crimes.

In his 1963 Letter from a Birmingham Jail, Dr. King wrote, "Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured."

Sen. Barack Obama has injected this critical discussion into the national discourse as a means of tackling the problems of inferior schools, health care, jobs and economic opportunities for all races. He said, "It requires all Americans to realize that your dreams do not have to come at the expense of my dreams; that investing in the health, welfare, and education of black and brown and white children will ultimately help all of America prosper."

The National Lawyers Guild welcomes this long overdue opportunity for a national dialogue on the pernicious racism and class oppression that the U.S. government continues to perpetuate.

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Alito Sounds Death Knell for Individual Rights

Yesterday, the Senate Judiciary Committee began its confirmation hearings on the nomination of Samuel Alito for Associate Justice of the Supreme Court.

Alito is no John Roberts. Whereas Roberts had barely been a judge for two years when Bush nominated him for the Supreme Court, Alito has authored 361 opinions during his 15-year tenure on the federal court bench. Whereas Roberts is photogenic, with a winning smile, Alito is stiff and awkward before the cameras. Most significantly, whereas Roberts replaced Chief Justice William Rehnquist, who had a similar judicial philosophy, Alito would take the place of Justice Sandra Day O'Connor, who provided the swing vote 77 percent of the time.

If confirmed, Alito would tip the high court's delicate balance radically to the right. Nearly always favoring the government, corporations and universities, Alito has ruled against individual rights in 84 percent of his dissents.

In a 196-page report released last week, the Alliance for Justice (AFJ) determined that in split decisions - the "difficult cases" - "the reasoning Judge Alito employs and the results he reaches are not balanced. Rather," the report found, "they track the staunchly conservative political and legal views he expressed in his 1985 application to be Deputy Assistant Attorney General for the Office of Legal Counsel in President Reagan's Justice Department."

Alito's 1985 application stresses his commitment to federalism (states' rights), his view that "the Constitution does not protect a right to an abortion," and his disagreement with the criminal procedure, reapportionment (one-man, one-vote), and Establishment Clause (church-state separation) decisions of the Warren Court.

The members of the Senate Judiciary Committee drew clear lines in yesterday's session. Although abortion was a significant concern for three senators from each party, the limitation on executive power was a much more prominent theme during the opening statements.

Six Democratic senators, as well as committee chairman Sen. Arlen Specter (R-Pa.), expressed alarm at the recent revelation that Bush has been secretly spying on Americans since 2002. Five Democrats made reference to O'Connor's opinion for the Court in Hamdi v. Rumsfeld: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Alito's record reveals that he "has been extraordinarily deferential to the exercise of government power, especially executive branch power, except in cases involving alleged infringements on religious expression," according to the AFJ. His "judicial record strongly suggests that he will ... interpret the Constitution as giving the president greater authority to evade Congressional statutes and constitutional limitations whenever deemed essential to national security."

Indeed, in a memorandum he wrote as a lawyer in the Reagan Justice Department, Alito argued that the attorney general should receive absolute immunity from lawsuits when he illegally wiretaps Americans. The Supreme Court rejected Alito's view in a 1985 decision.

Alito also advocated that the president make a "signing statement" indicating what he thinks the law means when he signs a bill. Even though the Constitution grants the lawmaking power only to Congress, and thus courts look to congressional intent to interpret statutes, Alito hoped that the president could divert the courts' focus away from congressional intent in favor of what he called "the President's intent."

George W. Bush has issued at least 108 such "signing statements," according to the Washington Post. Most recently, Bush qualified his concurrence with the McCain amendment that outlaws torture and cruel, inhuman or degrading treatment, implying that he would be free to torture if he felt it was necessary for national security.

In 2000, Alito told a Federalist Society meeting that he was a strong proponent of the "unitary executive," which means that all federal executive power resides in the president. This theory would reject discretionary executive power of independent agencies Congress has created since the New Deal, such as the Securities and Exchange Commission, the Federal Communications Commission, and the Federal Reserve Board.

Alito argued in other memoranda that the Federal Bureau of Investigation should have broad latitude to investigate federal employees, and that an American Bar Association opinion prohibiting lawyers from secretly taping conversations should not prevent IRS lawyers from secretly taping as part of a federal criminal investigation.

Although the senators only touched on Alito's alarming civil rights record in yesterday's session, one would hope they would fully inquire into this area during the questioning.

In split decisions on claims involving violations of the civil rights of women, racial minorities, seniors and the disabled, Alito almost uniformly ruled against the claimants.

As America mourns the deaths of the 12 miners in West Virginia, we are reminded of the importance of mine safety regulations. Yet Alito disagreed with the Department of Labor and would not have applied mine safety rules to an area of a defunct Pennsylvania mine from which the company was still extracting materials to process into energy.

Sen. Edward Kennedy (D-Mass.) has raised the issue of Alito's credibility. Although he promised the Senate Judiciary Committee in his 1990 confirmation hearing for the Court of Appeals that he would recuse himself from cases involving Vanguard companies, in which he had substantial financial investments, Alito subsequently proceeded to sit on a Vanguard case. And on his 1985 job application, Alito boasted of his membership in the ultraconservative Concerned Alumni of Princeton, which opposed co-education and affirmative action. Yet he now denies any memory of being in that group.

In his opening statement, Alito told the senators, "A judge can't have any agenda. A judge can't have any preferred outcome in any particular case."

Yet Sen. Chuck Schumer (D-NY) advised Alito, "We need to know that presidents and paupers will receive equal justice in your courtroom. If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair." Schumer observed, "The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions."

Sen. Patrick Leahy (D-Vt.) said, "It's important to know whether [Alito] would serve with judicial independence or as a surrogate for the president nominating him." Sen. Russ Feingold (D-Wis.) declared, "We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect. And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach."

We will see during the questioning whether the senators will indeed hold Samuel Alito's feet to the fire, and demand that he forthrightly state his beliefs on the critical issues. Sen. Dianne Feinstein (D-Calif.) correctly noted that Alito's nomination is a "pivotal" one in the history of this country.

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John Roberts: Uncompassionate Conservative

George W. Bush has nominated John Roberts to be Chief Justice of the United States. Bush lauded Roberts for his "goodwill and decency toward others." Yet Roberts' record reveals a callous disregard for the rights of people very much like the tens of thousands who have died and been rendered homeless by Katrina.

The outpouring of compassion by people all over this country - and indeed, the world - in the wake of Hurricane Katrina stands in stark contrast to Bush's actions both before and after the tragedy. In spite of warnings about the weak levees in New Orleans, Bush cut the Army Corps of Engineers' budget for levee construction by 44 percent. By sending the National Guard to fight in his trumped-up war on Iraq, Bush deprived the people of New Orleans of critical assistance immediately after the hurricane struck. The day after what may be the worst disaster ever to hit the United States, Bush refused to interrupt his golf game to exercise badly needed leadership.

Most of the tragic images flashing across our television screens are of African Americans. They are suffering indescribable hardship as a result of an administration that failed to protect them from the predicted hurricane, and then failed to timely render aid that would have saved thousands of lives.

John Roberts' career has established his credentials as an uncompassionate conservative. He has worked consistently to deny access to the courts to individuals who have suffered harm like those in New Orleans. He has long been an enemy of civil rights - for the poor, for minorities, for women, for the disabled, for workers, and for a clean and safe environment.

Roberts tried to cut back the federal law that allows people to sue the government when they have been deprived of their federal rights. When he worked at the Solicitor General's office in the George Bush I administration, Roberts wrote an amicus brief in which he argued that the state of Virginia should not reimburse hospitals for Medicaid claims at reasonable rates. Roberts said the Medicaid Act did not create any enforceable rights. Roberts would likely deny relief to people in New Orleans who seek to recover medical costs from a government that failed to protect them.

Roberts viewed legislation to fortify the Fair Housing Act as "government intrusion."

Roberts condemned a Supreme Court decision striking down a Texas law that allowed schools to deny admission to the children of undocumented workers.

Roberts fought for a narrow interpretation of the Voting Rights Act that would have made it much harder for minorities to get elected to public office. He mischaracterized the Act as requiring "a quota system for electoral politics." Robert's characterization of the Voting Rights Act borders on racism.

Roberts contended that Congress could pass a law to prevent all federal courts from ordering busing to achieve school desegregation, a position much more extreme than that adopted by the Reagan administration. Roberts would likely have agreed with his boss William Rehnquist, who argued to his boss Justice Robert Jackson that the racist Plessy v. Ferguson's separate but equal doctrine should be maintained.

Roberts took the position that affirmative action programs are bound to fail because they require recruiting "inadequately prepared candidates," another unfounded and racist stance.

Roberts has referred to the "so-called 'right to privacy'" in the Constitution; he argued that Roe v. Wade was wrongly decided and should be overruled. Roberts' position would consign poor women who could not afford to travel to a state that does allow abortion to coat hangers in back alleys. Roberts would likely vote to uphold state laws that made the sale of contraceptives illegal, which the Court struck down in Griswold v. Connecticut.

Roberts worked to keep women who have suffered gender discrimination out of court. He argued for a narrow interpretation of Title IX that would effectively eviscerate its protections altogether. Roberts wrote an amicus brief in which he argued that a student who was sexually molested by her high school teacher was not entitled to compensatory damages under Title IX. Fortunately, the Supreme Court held otherwise, saying that the girl would have "no remedy at all" if it had adopted Roberts' position.

Roberts ridiculed the gender pay equity theory of equal pay for comparable work as a "radical redistributive concept." He mocked female Republican members of Congress who supported comparable worth, writing, "Their slogan might as well be 'from each according to his ability, to each according to her gender.'"

Roberts supported a dramatic weakening of the Education for All Handicapped Children Act. He maintained that a deaf student who got by in school by lip-reading and using a hearing aid was not entitled under the Act to receive the services of a sign-language interpreter in the classroom.

Roberts defended Toyota for firing a woman with carpal tunnel syndrome.

Roberts argued on behalf of the National Mining Association that West Virginia citizens could not prevent mining companies from extracting coal by blasting the tops off of mountains and depositing the debris in nearby valleys and streams.

Throughout his career, John Roberts has acted without "goodwill and decency toward others." His positions have demonstrated a mean spirit that flies in the face of what we like to think America stands for. The 50-year-old Roberts would have the opportunity to shape the nation's highest court for the next two or three decades. A Roberts Court would threaten the rights of all but the rich and powerful. It is time for the Democrats to utter the "f" word: Filibuster.

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Mr. Roberts' Neighborhood

Who leaked the name of John G. Roberts before Bush's official prime time revelation Tuesday night? My guess: Karl Rove. He had the most to gain from an early announcement. Rove knows the mainstream media has a very short attention span. What better way to deflect our attention away from Rove's crime in leaking the identity of a CIA operative than to leak a potentially contentious nomination for the High Court?

What we'll never know is whether, absent Rove's scandal, Bush would've nominated someone else. Other candidates would probably have drawn a virulent response from Democrats, who have taken a cautious but muted stance toward Roberts's nomination. Many talk of his scant paper trail; they call him a "stealth candidate." But Roberts's record is clear.

As a lawyer for the Reagan and Bush I administrations, and later for his corporate clients, Roberts displayed a consistent commitment to conservative doctrine. In both abortion cases he handled, he maintained a legal attack on reproductive rights. In one case, Roberts argued that Operation Rescue's routine - sometimes violent - blocking of clinics where abortions were performed constituted protected free speech.

In Rust v. Sullivan, Roberts co-authored a brief in support of regulations prohibiting family planning programs that received federal aid from providing any abortion counseling. In that brief, he wrote: "We continue to believe that Roe was wrongly decided and should be overruled ... The Court's conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure, or history of the Constitution."

During his Senate confirmation hearing for appointment to the Court of Appeals in 2003, Roberts changed his tune - apparently. When asked about his views on abortion, Roberts assured the senators, "Roe v. Wade is the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." But his personal views wouldn't keep Roberts from unsettling Roe as the law of the land, consistent with his statement in Sullivan that there is no right to an abortion in the Constitution. Roberts would likely vote to overturn Roe v. Wade if presented with the opportunity as a Supreme Court justice.

Roberts has had other opportunities to demonstrate his partisanship. As a judge, he ruled against requiring Dick Cheney's energy task force to release its records to the public. He opposed protections in the Endangered Species Act. Displaying a clear conflict of interest, Roberts ruled against environmentalists seeking increased government regulation over copper smelters that emit toxic lead and arsenic pollutants; many of those smelters were owned by members of the National Mining Association. Just four years before, Roberts had filed a brief against citizens opposed to the coal industry's destructive mountaintop removal, on behalf of the same National Mining Association.

Last Friday, Roberts voted to support Bush's military commissions to try suspected terrorists, finding that the protections of the Geneva Conventions do not apply to anyone the administration believes is a member of al Qaeda. Bush established those commissions to deny the accused due process protections that are well-established in US and international law. Although he would probably recuse himself from this case if it reached the Supreme Court, Roberts is likely to walk in lockstep with the Bush administration in its "war on terror" and concomitant war on civil liberties in the years to come.

Roberts also showed his true colors when he argued for the expansion of religion in public schools, against a woman with carpal tunnel syndrome who was fired by Toyota, against federal affirmative action programs, and against a congressional effort to enable minorities to enforce the Voting Rights Act.

But Roberts is a dyed-in-the-wool conservative. He was a member of "Lawyers for Bush-Cheney" and served as a legal advisor to Jeb Bush during the recount in the 2000 presidential campaign. He has donated to the political campaigns of several Republican candidates, including one senator on the Judiciary Committee that will vote on Roberts's nomination. He has spent most of his career as a corporate lawyer, and he comes to the Court with a partisan agenda.

At the end of the Supreme Court's 2000 term, Roberts told a reporter for the Baltimore Sun, "The conventional wisdom is that this is a conservative court. We have to take that more skeptically. On the three issues the public was most interested in - school prayer, abortion and Miranda rights - the conservatives lost on all." Sounds like wistful thinking.

It is incumbent upon the senators on the Judiciary Committee, and in the full Senate, to demand all pertinent records on Roberts from the Republican administrations in which he served. Senators must thoroughly interrogate Roberts about his views that could affect his lawmaking as a member of our highest court. They should ask him, for example, whether the Constitution has a right to privacy, and whether a woman's reproductive freedom is entitled to constitutional protection.

Roberts is not brash and outspoken. But he may well be the iron fist in the velvet glove. Having spent his entire professional career as a hired gun for the right-wing, Roberts is unlikely to betray his social and political constituency.

Those who think Roberts is a moderate who will generate little controversy need only notice the reactions of Bush's conservative religious backers. "The president is a man of his word," said Tony Perkins, president of the Family Research Council, a right-wing Christian organization. "He promised to nominate someone along the lines of a Scalia or a Thomas, and that is exactly what he has done." Operation Rescue President Troy Newman agrees. "We pray that Roberts will be swiftly confirmed," he announced.

It's payback time, and Bush has delivered.

And by the way, Bush is a president who insists he is firmly committed to diversity. There have been 109 justices on the Supreme Court. Roberts will be the 105th white male. He will replace the first woman ever to sit on the High Court. That leaves only one.

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Beware Scalia-Thomas Clones

After months of intense campaigning about Iraq, terror, taxes and jobs, the future of the Supreme Court has finally entered the public discourse. Chief Justice William Rehnquist is in the intensive care unit, after undergoing a tracheotomy for thyroid cancer. The Court issued a terse statement, saying the Chief would take the bench when the justices reconvene on Nov. 1. Unlike the detailed updates released during Ruth Bader Ginsburg's struggle with colon cancer in 1999-2000, however, we have been given no details about Rehnquist's prognosis.

Just as Bush has downplayed the disappearance of 380 tons of high explosives in Iraq that U.S. forces should have secured, he has mentioned little, if anything, about Rehnquist's illness. Karl Rove, Bush's evil genius, is undoubtedly aware of the explosive nature of a dialogue about how the next commander-in-chief could shape the face of the Supreme Court for decades.

Rove likely knows a recent Time magazine poll showed 86 percent felt appointments to the Court during the next four years were very important (59 percent) or somewhat important (27 percent) to their choice for president. In that poll, 43 percent said it would make them more likely to vote for Kerry, whereas 38 percent thought it would lead them to choose Bush.

When the issue arose in the second and third presidential debates, Bush said he would have "no litmus test" for his judges. But during the 2000 campaign, Bush let slip that the justices he admired most were Antonin Scalia and Clarence Thomas. During the second debate recently, Bush echoed that sentiment, saying he would pick "strict constructionists," a buzz-phrase for Scalia-Thomas clones.

Fortunately, no vacancies have arisen on the high Court during Bush's term. But his choices for lifetime appointments to the lower federal court bench reveal a definite litmus test - anti-choice, anti-civil rights, anti- worker, anti-gay, anti-environment and pro-corporate. (See my editorial, Bush's Judges: Right-Wing Ideologues.) Bush's 201 nominees - 24 percent of all active judges - were ideologically screened by the conservative Federalist Society. Many Bush appointees are "embarrassingly unqualified for judicial office," wrote Professor Ronald Dworkin in The New York Review of Books recently.

Bush could have as many as four appointments to the high Court during a second term. All justices but Clarence Thomas are over 65 years old. Rehnquist is 80. John Paul Stevens, the most liberal on the Court, is 84. Sandra Day O'Connor, 74, and Ginsburg, 71, are both cancer survivors. Ginsburg, another liberal, is in frail health.

The Supreme Court is currently divided by a razor-thin 5-4 margin. Regardless of the outcome of Rehnquist's illness, he has said he would not remain on the Court for another four years. Bush, if given a second term, would replace Rehnquist with a much younger, right-winger, who would remain on the Court for years to come. Bush would also have the opportunity to choose the next chief justice, who could significantly shape the Court. If Bush had his druthers, he would elevate Scalia or Thomas to Chief. But either choice would invite a nasty partisan battle in the Senate, which must approve the president's nomination by a two-thirds vote. Bush would probably find another right-wing zealot to assume the role of chief justice.

What would the Court look like if Bush were to appoint justices in the mold of Scalia and Thomas? Roe v. Wade could be overturned. Abortion could become a crime in most states - back to back-alley abortions for poor, young women. Workers could lose family and medical leave. Gays could be imprisoned for having consensual sex in the privacy of their own homes. Equal voting rights for African Americans and other racial minorities could be at risk (not just de facto, the way they are today, but de jure, as well.) Affirmative action could be eviscerated. Preservation of the environment could give way to corporate profits. Inmates in this country (not just in Iraq and Guantánamo) could be beaten with impunity.

In the second debate, Bush's seemingly righteous criticism of the racist Dred Scott decision was really a veiled message to his right-wing followers that he would appoint anti-abortion judges to the Supreme Court, according to former Supreme Court law clerks Charles Rothfeld and Thomas Colby, writing for americaprogress.org.

The May 2004 report, Courting Disaster 2004: How a Scalia-Thomas Court Would Endanger Our Rights and Freedoms, published by People For the American Way, concluded: "Supporters of Justices Scalia and Thomas praise them as 'strict constructionists,' 'originalists,' 'traditionalists,' and advocates of the 'rule of law.' These labels are misleading because they obscure the two Justices' ultra-conservative activism. The terms suggest that Thomas and Scalia are committed only to an interpretation of the law that is true to its actual wording, or in the case of the Constitution, true to the intent of the Framers. This legal approach, its adherents say, ensures that they are not activists who use their position to shape the law in their own political image. Actually, the opposite is true. A Supreme Court modeled after Scalia's and Thomas' judicial philosophy would be an activist Court that would produce dramatic changes in the law as we know it. And virtually every change would move our laws in the direction advocated by right-wing conservatives."

The future of the law of the land is at stake in this election. The differences between Bush and Kerry are stark on judicial appointments. During the third debate, Kerry said: "I'm not going to appoint a judge to the court who's going to undo a constitutional right, whether it's the First Amendment or the Fifth Amendment or some other right that's given under our courts today, or under the Constitution." Kerry added: "And I believe that the right of choice is a constitutional right."

Voters will have a choice between an administration that fights to protect the rights of everyone, not just those of straight white rich religious men, and one that promises to remake the Court in the image of those who would deny basic liberties to many.

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Bush Gets 'F' in Civil Rights

While many of our citizens prosper, others doubt the promise, even the justice, of our own country. The ambitions of some Americans are limited by failing schools and hidden prejudice and the circumstances of their birth ... We do not accept this, and we will not allow it ... And this is my solemn pledge: I will work to build a single nation of justice and opportunity...
- President George W. Bush, Inaugural Address, Jan. 20, 2001.

George W. Bush has betrayed this promise, according to a 180-page draft report of the U.S. Commission on Civil Rights, Redefining Rights in America - The Civil Rights Record of the George W. Bush Administration, 2001-2004.

Bush rarely uses the terms "civil rights," "diversity," or "discrimination." When he does, it's usually in reference to a historical celebration or holiday. "The dearth of substantive presidential statements reveals that civil rights is not a priority for this administration," according to the draft report.

Even when Bush does state a commitment to the protection of civil rights, his actions belie his rhetoric. The draft report "finds that President Bush has neither exhibited leadership on pressing civil rights issues, nor taken actions that matched his words." Bush "has not defined a clear agenda nor made civil rights a priority." The net increase in Bush's requests for civil rights enforcement agencies was "less than those of the previous two administrations."

It is not surprising that the Republicans on the Civil Rights Commission have resisted the release of the report until after the November election. They were rebuffed, however, in their attempt to remove the draft report from the website.

The draft report finds: "President Bush does not speak about civil rights initiatives often, but when he does he promotes the faith-based program more than any other. He has presented the initiative as an end to discrimination against religious organizations, using terms such as 'remove barriers,' 'equal access,' and 'equal treatment,' which convey that such programs have civil rights relevance. In reality, the program does not remove barriers to discrimination. On the contrary, it allows religious organizations that receive public funds to discriminate against individuals based on religion in employment."

Whereas the leaders of the Civil Rights Movement in the 1950s and 1960s, and César Chávez with the United Farmworkers Union, used faith to sustain them, Bush uses it as a bludgeon. Bush's faith actually undermines the protection of civil rights. This agenda comes through loud and clear in the draft report: "The faith-based initiative, a so-called civil rights action, actually constitutes a retreat, not an advancement from employment discrimination," especially against gays and lesbians.

Instead of leading him to protect civil rights, Bush's faith has victimized the most vulnerable among us. In nearly every category of civil rights analyzed in the draft report, Bush receives a failing grade. His record is abysmal in education, fair housing, voting, gay and lesbian rights, affirmative action, environmental justice, racial profiling, protection of disadvantaged groups, and judicial nominations.

Equal Educational Opportunity

Bush frequently touts the No Child Left Behind Act (NCLB), which he widely promoted, and which garnered bipartisan support. "Despite its worthy goals, however," the draft report says, "NCLB has flaws that will inhibit equal educational opportunity and limit its ability to close the achievement gap." For example, "NCLB does not sufficiently address unequal education, a major barrier to closing the achievement gap between minority and white students." Furthermore, Bush did not exhibit leadership to make sure NCLB was sufficiently funded, "leaving state and local school boards, teachers, and administrators without the resources to comply with the law."

Fair Housing

"Policies instituted under the Bush administration have diminished housing opportunities for poor, disproportionately minority families," the draft report concludes.

Election Reform

In spite of the national angst over the 2000 presidential election process, and Bush's promise "to unite the nation and improve its election system, the President has failed to act swiftly toward election reform," finds the draft report. "As a result of the President's inaction, little will change before the 2004 elections, and the problems that linger, unless resolved, will most likely disenfranchise some eligible voters." Indeed, evidence has emerged that raises the specter of widespread violation of voter rights. (See truthout's Voter Rights page.)

Christopher Edley, Jr., dean of Boalt Hall School of Law at UC Berkeley, and member of the Civil Rights Commission, documented voter suppression and disenfranchisement "approaching a torrent" in a recent article in Newsday. "The U.S. Commission on Civil Rights, on which I sit," wrote Edley, "has heard many hours of testimony on these abuses, and civic groups are sounding alarms. Dismayingly, Attorney General John Ashcroft has not met the rising flood of examples with high-profile investigations and criminal indictments. Instead," noted Edley, "state and local officials face little more than embarrassment in the media."

Gay and Lesbian Rights

Although Bush appointed some gay rights supporters to Cabinet and administrative positions, he "has stated unequivocal support for a constitutional amendment banning same-sex marriages. If passed," states the draft report, "the amendment would be the first in U.S. history to limit rather than preserve and expand the rights of a group."

Affirmative Action

The draft report concludes that Bush's "stance on affirmative action is equivocal at best ... He has not exhibited strong leadership on this issue where leadership is vital." While celebrating diversity, Bush's administration filed a brief with the Supreme Court opposing university policies that allow race to be considered as one factor to promote diversity in college admissions. "To speak about the importance of diversity without acknowledging the role of affirmative action or the need for comprehensive data is to disregard the remaining vestiges of discrimination," wrote the authors of the draft report.

Environmental Justice

Minority and low-income populations are disproportionately affected by environmental pollutants. Toxic waste dumps are frequently located in neighborhoods populated mostly by people of color. Yet, under the Bush administration, the Environmental Protection Agency "has taken few actions to ensure that minority and low-income persons are not disparately affected by environmental contamination and has failed to develop a standard for assessing how exposure to hazards affects public health," the draft report reads.

Racial Profiling

Early in his term, Bush promised to end racial profiling. He issued guidelines to prohibit racial profiling in federal law enforcement. However, after the September 11 attacks, Bush's attorney general rounded up immigrants of Arab, Muslim and South Asian descent. These men were not suspected of criminal activity, but were targeted solely on the basis of their national origin. "Many detainees alleged mistreatment by prison guards, including being hosed down with cold water, strip searched, forced to sleep upright in freezing conditions, denied food or legal representation, and kept in their cells for long periods."

Immigrants

The draft report examines three Bush administration proposals on immigration. "All lack strong civil rights protections for immigrants," it finds. "President Bush has endorsed policies that allow discrimination against certain groups in the processing of asylum applications," for example, Haitians.

Native Americans

"President Bush has acknowledged the great debt America owes to Native Americans. However, his words have not been matched with action." He has not requested sufficient funding for tribal colleges and universities, Native American health care, or housing programs. "In 2003," according to the draft report, "President Bush terminated funding for critical law enforcement programs, including the Tribal Drug Court Program. Experts agree that problems with the criminal justice system in Indian Country are serious and understated." Bush's "lack of commitment to the nation's trust responsibility to Native Americans ensures that their education, housing, and law enforcement conditions remain substandard."

Women

"President Bush's record on women's issues is mixed. Economic gains for which he has paved the way are overshadowed by other actions that have set back women's rights." His administration launched a program to improve women's access to capital by creating a Web site and conferences, but abolished the Department of Labor's Equal Pay Initiative. Bush "attempted to redirect Title IX enforcement, but ceased his effort after overwhelming public expressions of support for the law." The draft report didn't mention that the Bush administration has resisted the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, which has been ratified by 177 countries, including more than 90 percent of the member states of the U.N.

Judicial Nominations

"Many of his nominees and appointees do not support civil rights protections. The effect may be eventual weakening of civil rights law," according to the draft report. It cites objections from myriad civil rights organizations to several of Bush's nominees, "claiming that the administration is trying to pack the judiciary with anti-civil rights ideologues."

The Disabled

The Bush administration has implemented some programs to benefit the disabled, including an initiative to integrate disabled persons into the labor force, and proposed funding for it. The draft report finds that although it is "too soon to measure the ultimate impact of the administration's efforts, the disability rights community has embraced them."

Bush Betrayed His Promise of Justice and Opportunity

Bush has excluded civil rights leaders from policy discussions and refrained from soliciting input from anyone other than his own close circles, according to the draft report. When challenged on his civil rights record, Bush simply points to African-Americans Colin Powell and Condoleezza Rice and that ends the discussion.

"Under Attorney General Ashcroft, the Department of Justice's enforcement of civil rights has become less vigorous, indeed almost passive, and the pursuit of civil rights cases has waned significantly," the draft report finds.

It concludes: "The administration's statements frequently do not match its actions. Its civil rights promises often suffer for lack of funding and ineffective implementation." Bush has significantly reduced funding for programs that benefit low-income individuals and minority communities. "Failing to build on common ground, the Bush administration missed opportunities to build consensus on key civil rights issues and has instead adopted policies that divide Americans."

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Bush's Judges: Right-Wing Ideologues

In 1988, while trying to convince skeptical conservative activists of his father's Christian bona fides, George W. Bush reassured them that George I was with them on judicial nominations, as well as abortion and other issues dear to their hearts. Then he punctuated his declarations with the six words that would ensure their support for him 12 years later: "Jesus Christ is my personal savior."

Bush's brand of religiosity permeates his national policies. When Bob Woodward asked him whether he consulted his dad before invading Iraq, Bush said, "He is the wrong father to appeal to for advice, the wrong father to go to, to appeal to in terms of strength. There's a higher Father that I appeal to."

George W. Bush's sort of Christianity also guides his judicial nominations. Bush's nominees for lifetime appointments to our federal courts are judges who would eviscerate civil rights, workers' rights, and the environment. Their agendas are anti-choice and pro-corporate.

Many people think the two most important things at stake in November's presidential election are the war on Iraq and the economy. True, but perhaps the most far-reaching impact of this election is who will appoint the nation's judges beginning January 2005.

The political balance on the Supreme Court hangs by a slender thread. Seventeen cases were decided on a 5-4 vote. Associate Justice Sandra Day O'Connor provided the swing vote in many of them. O'Connor and Chief Justice William Rehnquist have reportedly considered stepping down from the Court.

Associate Justice John Paul Stevens, lamenting the Court's interference in the 2000 presidential election, said, "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Although a one-vote margin of the Supreme Court anointed George W. Bush president in 2000, the Court has not voted in lockstep this term. In the Guantánamo and U.S. citizen detention cases, the Court made clear that the President's power is not absolute. It upheld the rights of the disabled, and non-citizens to recover for human rights violations.

But the next President of the United States may have the opportunity to appoint four new justices to the Supreme Court. That power could radically change the complexion of the precariously divided Court that pronounces the law of the land.

Rehnquist, who has been on the Court for 32 years, is 79 years old. Stevens, a member of the Court for 29 years, is 84. And O'Connor, on the Court for 23 years, is 74 years old. Associate Justice Ruth Bader Ginsburg, 71 years old, is a cancer survivor in frail health.

It is common for a Supreme Court justice to serve for at least 20 or 30 years. That means that the man elected in November will likely determine the fabric of the law in America for the next 40 years. Ralph Neas, executive director of People for the American Way, says "more than 100 Supreme Court precedents would be overturned with one or two more right-wing justices like Thomas and Scalia."

If Bush is elected, we can expect his Supreme Court picks to mirror his choices for our nation's lower federal courts. Two of his nominees have made news lately for their advice on how Bush's interrogators can torture prisoners without risking criminal prosecution.

Former Assistant Attorney General Jay S. Bybee prepared a 50-page document that defied U.S. statutory and treaty law by defining torture so narrowly, it would permit horrific treatment as long it wasn't life-threatening. Bush rewarded Bybee for his legal creativity with an appointment-for-life to the Ninth Circuit Court of Appeals, the federal court with the largest caseload in the country.

Pentagon General Counsel William Haynes II is a career military lawyer with almost no courtroom experience that would qualify him for a lifetime seat on the Fourth Circuit Court of Appeals. Yet after Haynes supervised the preparation of a report advising that the President's Commander-in-Chief authority would trump the prohibition against torture, Bush nominated him for a coveted spot on the Fourth Circuit.

This "federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts," Warren Richey wrote in the Christian Science Monitor two years ago. "Today, many of them are the law of the land. Instead of being overturned, these legal theories – involving limits to federal power and defendants' rights – are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court," according to Richey. It's no surprise that John Ashcroft decided to file the cases against John Walker Lindh and Zacarias Moussaoui in the Virginia district court. Ashcroft knew he would get more favorable appellate treatment from the Fourth Circuit, widely heralded as the most conservative circuit in the country.

The revelations of Haynes' apologies for torture may not sit well when U.S. Senators, who must give their advice and consent to Bush's nominees, consider Haynes' nomination. Pictures and accounts of torture at Abu Ghraib prison, Guantánamo Bay and Afghanistan may have poisoned the well for William Haynes.

The Senate has confirmed 198 of Bush's judicial nominees, bringing the vacancy rate to its lowest level in years. Nevertheless, in a campaign trip to Senator John Edwards' home state of North Carolina and to Michigan, Bush claimed that Democrats were unfairly obstructing his judicial nominations.

Edwards' tough questioning of Charles Pickering, Bush's nominee to the Fifth Circuit Court of Appeals, was instrumental in the defeat of Pickering's nomination. Bush, however, circumvented the Senate's constitutional role in the selection of judges by appointing Pickering anyway during a Congressional recess.

Pickering's checkered past includes his article explaining how to strengthen Mississippi's statute criminalizing interracial marriages. He also cast several votes as a state senator impeding the full extension of electoral opportunities to African-Americans. Pickering voted for a constitutional convention to overturn Roe v. Wade. Perhaps his most controversial action as a federal district court judge involved his threats and unethical communications to force prosecutors to drop a charge against a man convicted of burning a cross on the lawn of an interracial couple with a small child.

Bush also ran an end run around the Senate by appointing Bill Pryor to the Eleventh Circuit Court of Appeals. Pryor has expressed extreme hostility to a woman's constitutional right to reproductive choice. He called Roe v. Wade "the worst abomination of constitutional law in our history."

But Pryor's contempt isn't limited to women. When he went to federal court to try to overturn a consent decree protecting abused and neglected Alabama children, he told reporters: "It matters not to me whether or not [my actions protect children]. My job is to make sure the state of Alabama isn't run by [a] federal court. My job isn't to come here and help children."

Pryor fits nicely into Bush's mold for right-wing Christian ideologues. Judge Pryor said that the challenge of this millennium will be to "preserve the American experiment by restoring its Christian perspective."

Bush's recess appointments of Pickering and Pryor so incensed Democratic senators that they held up several of Bush's other pending judicial nominations. In May, Bush struck a deal with the Democrats. He agreed not to make recess appointments; the Democrats consented to allowing the votes to proceed on the 25 mostly "noncontroversial" pending nominees.

By a vote of 51-46, however, the Senate last week confirmed James Leon Holmes for a seat on the Eastern District of Arkansas, a federal district court. Holmes' anti-woman and anti-choice views were so extreme that Republican Senators Hutchison, Chafee, Snowe, Collins, and Warner crossed party lines and voted against him.

Bush's nomination of Holmes became a lightning rod due to his views on the subservience of women. In a 1997 article in a Catholic newspaper, Holmes wrote: "The wife is to subordinate herself to her husband" and "the woman is to place herself under the authority of the man."

Holmes has compared legalized abortion to the Holocaust, and said: "I think the abortion issue is the simplest issue this country has faced since slavery was made unconstitutional. And it deserves the same response." He has even dismissed the rape and incest exception by inventing the preposterous claim that "the concern for rape victims is a red herring because conceptions from rape occur with approximately the same frequency as snowfall in Miami."

In fact, studies estimate that between 25,000 and 32,000 women each year become pregnant as a result of rape in the United States, but only about 50 percent of these pregnancies end in abortion. And it has only snowed once in Miami in the last century.

Holmes blames the feminist movement for what he considers a whole host of immoralities: "It is not coincidental that the feminist movement brought with it artificial contraception and abortion on demand, with recognition of homosexual liaisons to follow. No matter how often we condemn abortion, to the extent we adopt the feminist principle that the distinction between the sexes is of no consequence and should be disregarded in the organization of society and the Church, we are contributing to the culture of death."

Bush's pending judicial nominees for federal circuit court appointments include Texas Supreme Court Justice Priscilla Owen, who voted to benefit Halliburton and Enron after taking campaign contributions from them. He has also nominated California Supreme Court Justice Janice Rogers Brown, whose decisions have shown great hostility to affirmative action, the rights of workers, gays, senior citizens and the disabled, to protecting children from lead poisoning, and to the right of choice. Two hundred-fifty law professors, including this writer, signed a letter to the Senate Judiciary Committee urging rejection of Brown's nomination.

The Alliance for Justice, which monitors Bush's nominations for federal judgeships, has set forth alternative criteria for evaluating the record of a judicial nominee: He or she should have demonstrated a commitment to protecting the rights of ordinary Americans, rather than placing the interests of the powerful over those of individual citizens. The nominee must have fulfilled his or her professional obligation to work on behalf of the disadvantaged. His or her record should show a commitment to the progress made on civil rights, reproductive freedom, and individual liberties. Or the nominee should have manifested a respect for the constitutional role Congress plays in promoting civil rights and health and safety protections and ensuring recourse when these rights are breached.

Many of George W. Bush's nominees fail to satisfy any of these requirements. He has sought out ideologues who meet a litmus test for pleasing his right-wing religious backers. If Bush is elected president in November, we can expect him to mold the federal judiciary – and probably the Supreme Court – in his own image. A frightening thought.

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Affirmative Action Counteracts Centuries of Racism

Since the U.S. Supreme Court's recent momentous affirmative action decisions, the talking heads have railed against "reverse discrimination," a term that entered our vernacular 25 years ago with the Regents of the University of California v. Bakke opinion.

But focusing on equal rights for whites misses the point. Justice Ruth Bader Ginsburg, in her separate opinions in the Michigan cases, hits the nail on the head. In her dissent in Gratz v. Bolinger, where the court struck down the University of Michigan's undergraduate admissions program, she decries the majority's view that judicial inspection of all official race classifications should be judged by the same standard of review. This would be appropriate, she writes, if our country were "free of the vestiges of rank discrimination long reinforced by law."

Ginsburg documents the large disparities between whites and minorities in earning power, unemployment rates, poverty levels and access to health care and quality education. She also discusses institutional racism. Ginsburg then says that the issue presented in Bakke -- where a white man claimed discrimination because blacks were admitted before him -- is categorically distinct from the issue presented in Brown v. Board of Education -- where the Supreme Court said that black kids have the right to go to the very same schools as white kids.

Ginsburg reinforces this distinction with reference to international treaties, saying "Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality," citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination Against Women.

The United Nations Human Rights Committee, which administers the International Covenant on Civil and Political Rights, has determined that affirmative action may involve preferential treatment, and as long as it is needed to correct discrimination in fact, "it is a case of legitimate differentiation."

Illegitimate differentiations have been maintained for years. The children of alumni -- who are primarily white -- have always been granted preference in admission at the elite universities (e.g., George W. Bush). This system has served to discriminate against the children of non-alumni, or non-whites.

Justice Clarence Thomas, dissenting in the law school decision, Grutter v. Bolinger, where the court held that race can be used as a factor to achieve diversity in higher education, says "blacks can achieve in every avenue of American life without the meddling of university administrators." He focuses on the stigma attached to blacks who take positions in "the highest places of government, industry or academia," saying "it is an open question today whether their skin color played a part in their advancement."

Thomas apparently wonders whether he himself benefited from affirmative action when he was admitted to Yale Law School and appointed to the Supreme Court. In any event, he disingenuously seeks to slam the door behind him, and deprive future generations of black students the opportunities that were available to him.

Thomas misses the point. As Justice Sandra Day O'Connor writes for the majority in Grutter, "By virtue of our Nation's struggle with racial inequality, such [minority] students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences."

In my own criminal procedure classes, the perspectives of African-American students about racial profiling which enrich the classroom discussion could not be duplicated by their white counterparts. Indeed, according to O'Connor, "Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."

Read on >>

Affirmative Action Counteracts Centuries of Racism

Since the U.S. Supreme Court's recent momentous affirmative action decisions, the talking heads have railed against "reverse discrimination," a term that entered our vernacular 25 years ago with the Regents of the University of California v. Bakke opinion.

But focusing on equal rights for whites misses the point. Justice Ruth Bader Ginsburg, in her separate opinions in the Michigan cases, hits the nail on the head. In her dissent in Gratz v. Bolinger, where the court struck down the University of Michigan's undergraduate admissions program, she decries the majority's view that judicial inspection of all official race classifications should be judged by the same standard of review. This would be appropriate, she writes, if our country were "free of the vestiges of rank discrimination long reinforced by law."

Ginsburg documents the large disparities between whites and minorities in earning power, unemployment rates, poverty levels and access to health care and quality education. She also discusses institutional racism. Ginsburg then says that the issue presented in Bakke -- where a white man claimed discrimination because blacks were admitted before him -- is categorically distinct from the issue presented in Brown v. Board of Education -- where the Supreme Court said that black kids have the right to go to the very same schools as white kids.

Ginsburg reinforces this distinction with reference to international treaties, saying "Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality," citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination Against Women.

The United Nations Human Rights Committee, which administers the International Covenant on Civil and Political Rights, has determined that affirmative action may involve preferential treatment, and as long as it is needed to correct discrimination in fact, "it is a case of legitimate differentiation."

Illegitimate differentiations have been maintained for years. The children of alumni -- who are primarily white -- have always been granted preference in admission at the elite universities (e.g., George W. Bush). This system has served to discriminate against the children of non-alumni, or non-whites.

Justice Clarence Thomas, dissenting in the law school decision, Grutter v. Bolinger, where the court held that race can be used as a factor to achieve diversity in higher education, says "blacks can achieve in every avenue of American life without the meddling of university administrators." He focuses on the stigma attached to blacks who take positions in "the highest places of government, industry or academia," saying "it is an open question today whether their skin color played a part in their advancement."

Thomas apparently wonders whether he himself benefited from affirmative action when he was admitted to Yale Law School and appointed to the Supreme Court. In any event, he disingenuously seeks to slam the door behind him, and deprive future generations of black students the opportunities that were available to him.

Thomas misses the point. As Justice Sandra Day O'Connor writes for the majority in Grutter, "By virtue of our Nation's struggle with racial inequality, such [minority] students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences."

In my own criminal procedure classes, the perspectives of African-American students about racial profiling which enrich the classroom discussion could not be duplicated by their white counterparts. Indeed, according to O'Connor, "Effective participation by members of all racial and ethnic groups in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."

Read on >>