National Lawyers Guild Calls for Reasoned Analysis of Sotomayor Nomination

New York--In the wake of President Obama's nomination of Judge Sonia Sotomayor to the United States Supreme Court, the National Lawyers Guild (NLG) encourages a reasoned analysis of Sotomayor's candidacy. Critics are focusing on accusations of judicial activism and identity politics rather than engaging in sound examination of her legal qualifications. Comments of this nature serve only to distract from meaningful discussion surrounding the judicial confirmation process.

“When Judge Sotomayor was nominated, conservative pundits immediately leveled allegations of judicial activism against her. That charge is not only hypocritical, but is also disingenuous. Bush v. Gore, supported by these same commentators in 2000, is the most vivid example of judicial activism ever displayed by the highest court,” said Marjorie Cohn, President of the National Lawyers Guild.

Critics have increasingly questioned the role that Sotomayor’s race and gender played in her nomination. Changing the discourse from one of judicial qualifications to one of identity politics detracts from a proper evaluation of her suitability for the job.

The Guild encourages an analysis that focuses on Sotomayor’s credentials and ability to interpret the Constitution of the United States. These are the criteria by which any judicial nominee should be evaluated.

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Supreme Court Checks and Balances in Boumediene

After the Supreme Court handed down its long-awaited opinion, upholding habeas corpus rights for the Guantánamo detainees, I was invited to appear on The O'Reilly Factor with guest host Laura Ingraham. Although she is a lawyer and former law clerk for Justice Clarence Thomas, Ingraham has no use for our judicial branch of government, noting that the justices are "unelected." Indeed, she advocated that Bush break the law and disregard the Court's decision in Boumediene v. Bush:

"Marjorie, I was trying to think to myself, look, if I were President Bush, and I had heard that this case had come down, and I'm out of office in a few months. My ratings, my popularity ratings are pretty low, I would have said at this point, that's very interesting that the court decided this, but I'm not going to respect the decision of the court because my job is to keep this country safe."

What did the Court decide that so incensed Ingraham (who has just been rewarded for her "fair and balanced" views with her own show on Fox News)? Will this decision really imperil our safety? And will Boumediene become an issue in the presidential election?

The Supreme Court held in a 5-4 ruling that the Guantánamo detainees have a constitutional right to habeas corpus, and that the scheme for reviewing 'enemy combatant' designations under the Combatant Status Review Tribunals is an inadequate substitute for habeas corpus, a result I predicted in a December 3, 2007 article.

Guantánamo detainees have constitutional right to habeas corpus

Article 1, Section 9, Clause 2 of the Constitution is known as the Suspension Clause. It reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." In section 7(a) of the Military Commissions Act of 2006, Congress purported to strip habeas rights from the Guantánamo detainees by amending the habeas corpus statute (28 U.S.C.A. § 2241(e)). In Boumediene, the Court held that section of the Act to be unconstitutional, declaring that the detainees still retained the constitutional right to habeas corpus.

Justice Kennedy, writing for the majority, reiterated the Court's finding in Rasul v. Bush that although Cuba retains technical sovereignty over Guantánamo, the United States exercises complete jurisdiction and control over its naval base and thus the Constitution protects the detainees there. Kennedy rejected "the necessary implication" of Bush's position that the political branches could "govern without legal restraint" by locating a U.S. military base in a country that retained formal sovereignty over the area. In his dissent, Chief Justice Roberts flippantly characterized Guantánamo as a "jurisdictionally quirky outpost."

Kennedy worried that the political branches could "have the power to switch the Constitution on or off at will" which "would lead to a regime in which they, not this Court, say 'what the law is.'" "Even when the United States acts outside its borders," Kennedy wrote, "its powers are not 'absolute and unlimited' but are subject 'to such restrictions as are expressed in the Constitution.'"

Thus, Kennedy observed, "the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers." Indeed, habeas corpus was one of the few individual rights the Founding Fathers wrote it into the original Constitution, years before they enacted the Bill of Rights.

"The test for determining the scope of [the habeas corpus] provision," Kennedy wrote, "must not be subject to manipulation by those whose power it is designed to restrain." It is such manipulation that Laura Ingraham would perpetuate. It was a Republican-controlled Congress, working hand-in-glove with Bush, that tried to strip habeas corpus rights from the Guantánamo detainees in the Military Commissions Act. The Supreme Court has determined that effort to be unconstitutional. Fulfilling its constitutional duty to check and balance the other two branches, the Court has carried out its mandate to interpret the Constitution and say "what the law is."

No adequate substitute for habeas corpus

Finding that the Guantánamo detainees retained the constitutional right to habeas corpus, the Court turned to the issue of whether there was an adequate substitute for habeas review. Bush established Combatant Status Review Tribunals ("CSRTs") to determine whether a detainee is an "enemy combatant." These kangaroo courts provide no right to counsel, only a "personal representative," who owes no duty of confidentiality to his client and often doesn't even advocate on behalf of the detainee; one even argued the government's case. The detainee doesn't have the right to see much of the evidence against him and is very limited in the evidence he can present.

The CSRTs have been criticized by military participants in the process. Lt. Col. Stephen Abraham, a veteran of U.S. intelligence, said they often relied on "generic" evidence and were set up to rubber-stamp the "enemy combatant" designation. When he sat as a judge in one of the tribunals, Abraham and the other two judges - a colonel and a major in the Air Force - "found the information presented to lack substance" and noted that statements presented as factual "lacked even the most fundamental earmarks of objectively credible evidence." After they determined there was "no factual basis" to conclude the detainee was an enemy combatant, the government pressured them to change their conclusion but they refused. Abraham was never assigned to another CSRT panel. It is widely believed that Abraham's affidavit about the shortcomings of the CSRT's in Boumediene's companion case caused the Supreme Court to reverse its denial of certiorari and agree to review Boumediene. This was the first time in 60 years the Court had so reversed itself.

While the Court declined to decide whether the CSRTs satisfied due process standards, it concluded that "even when all the parties involved in this process act with diligence and in good faith, there is considerable risk of error in the tribunal's findings of fact." The Court then had to determine whether the procedure for judicial review of the CSRTs' "enemy combatant" designations constituted an adequate substitute for habeas corpus review.

"For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context," Kennedy wrote, "the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government's evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding."

But in the Detainee Treatment Act ("DTA"), Congress limited district court review of the CSRT determinations to whether the CSRT complied with its own procedures. The district court had no authority to hear newly discovered evidence or make a finding that the detainee was improperly designated as an enemy combatant.

The Supreme Court noted that "when the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner's release." Since the DTA's scheme for reviewing determinations of the CSRTs did not afford this authority, the Court held it was not an adequate substitute for habeas corpus and thus section 7 of the Military Commissions Act acted as "an unconstitutional suspension of the writ."

Boumediene will not imperil the United States

In his dissent, Justice Scalia sounded the alarm that the Boumediene decision "will almost certainly cause more Americans to be killed." Likewise, the Wall St. Journal editorialized, "We can say with confident horror that more Americans are likely to die as a result." Their predictions, however, are not based in fact.

Lakhdar Boumediene and five other Algerian detainees from Bosnia were accused of threatening to blow up an embassy in Bosnia. The Supreme Court of Bosnia and Herzegovina concluded there was no evidence to continue to detain them and ordered them released. The Bosnian officials turned them over to the United States and they were transported to Guantánamo, where they have languished since 2002.

Many of the men and boys at Guantánamo were sold as bounty to the U.S. military by the Northern Alliance or warlords for $5,000 a head. Indeed, Maj. Gen. Jay Hood, the former commander at Guantánamo, admitted to the Wall St. Journal, "Sometimes we just didn't get the right folks," but innocent men remain detained there because "[n]obody wants to be the one to sign the release papers . . . there's no muscle in the system."

The Boumediene decision will not directly impact the criminal cases against Khalid Sheikh Mohammed and the few others who will be tried in the military commissions. It is the 211 men who have filed habeas corpus petitions challenging their "enemy combatant" designations who will benefit from this ruling. No one will be automatically released. They will simply be afforded a fair hearing. Most Americans would not object to a requirement that our government fairly prove someone guilty before we imprison him indefinitely.

Even Justice Jackson, the chief prosecutor at Nuremberg, advocated due process for the Nazi leaders. "The ultimate principle," he said, "is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty." Jackson understood the importance of the presumption of innocence in our system of law.

Kennedy quoted Alexander Hamilton, who wrote in Federalist 84 that "arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny." Justice Souter cut to the chase in his separate opinion, citing "the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years." None of them has been charged with a crime and none has been brought before a fair and impartial judge.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times." Kennedy wrote. "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law."

"Security subsists, too, in fidelity to freedom's first principles," according to Kennedy. "Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers ... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."

In responding to Laura Ingraham's false dichotomy between keeping us safe and protecting habeas corpus, I cited Benjamin Franklin's admonition: "They who would give up an essential liberty for temporary security, deserve neither liberty or security."

Attacking judges under guise of national security

The Boumediene decision split along political lines with the four so-called liberal justices - Ginsburg, Stevens, Souter and Breyer - in the majority, and the four conservative justices - Scalia, Thomas, Roberts and Alito - in the dissent. Kennedy, the swing vote, broke the tie. Curt Levy from the Committee for Justice, which seeks to pack the courts with right-wing judges, blogged that Boumediene has "teed up the Supreme Court issue nicely for the G.O.P."

Indeed, John McCain has already seized upon it as a campaign issue. The day the opinion came out, McCain said, "It obviously concerns me . . . but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantánamo Bay and I still think that we ought to do that." By the next day, McCain had changed his tune. "The Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country," he declared. McCain, who hopes to overcome the unpopularity of his positions on the war and the economy, will make national security the centerpiece of his campaign.

Barack Obama, who links our national security with how other nations view us, characterized the Boumediene decision as "an important step toward re-establishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus."

It is very likely that the next president will make at least one nomination, and probably two, to the Supreme Court. Boumediene is the poster child for how delicately the Court is now balanced, and the disastrous consequences to the doctrine of separation-of-powers that await us if a President McCain makes good on his promise to appoint judges in the mold of Roberts and Alito.

(The views expressed in this article are solely those of the writer; she is not acting on behalf of the National Lawyers Guild or Thomas Jefferson School of Law)

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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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The Death Penalty Is Not Pro-Life

In 1960, California Governor Edmund G. "Pat" Brown agonized about whether to grant clemency to death row inmate Caryl Chessman. Brown's refusal to commute Chessman's sentence haunted him for the rest of his life. He reversed 23 death judgments in the last 7 years of his term. Ronald Reagan, who defeated Brown in the 1966 gubernatorial election, used the death penalty as a weapon to unseat the incumbent governor.

Twenty years later, Rose Bird, one of the greatest chief justices ever to serve on the California Supreme Court, lost her confirmation election largely because of the way she voted in death penalty cases. In all 64 capital cases that came before her during her tenure, Bird voted to overturn every one. Her court as a whole reversed 61. Some of Bird's supporters advised her to affirm just one death verdict in order to win confirmation. Bird refused. She said, "It is easy to be popular. It is not easy to be just."

Republican Governor George Deukmejian and President Ronald Reagan both campaigned against Bird. "The defeat of Rose Bird was significant because it created a new danger in [California], the danger of politicizing a judicial branch that had not previously been subject to political pressures," Court of Appeals Justice J. Anthony Kline observed. Reagan's opposition to judges who "save the lives of killers" helped him in his bid for the presidency.

The fate of Stanley Tookie Williams now rests in the hands of California Governor Arnold Schwarzenegger. The governor is damned if he does and damned if he doesn't spare Williams's life. On the one hand, Schwarzenegger is under pressure from right-wing Republicans to refuse clemency. But there's also high-profile pressure on him in California to grant clemency and prove his campaign claims that he really is a moderate.

When Schwarzenegger denied clemency to Donald Beardslee, the governor was the subject of a mighty backlash in his native Austria, which has outlawed the death penalty. And he must deal with his conscience, much like Pat Brown did in 1960. Schwarzenegger said the Beardslee decision was "the hardest day" of his life.

If ever there was a condemned man who deserved clemency, Williams is the one. A co-founder of the Crips gang, Williams has undergone a remarkable transformation in the 24 years he has been in prison. The author of several children's books that decry gang violence (65,000 have been sold to schools and libraries), Williams has been nominated for the Nobel Peace Prize.

In 1993, Williams videotaped a message from death row supporting a truce between the Crips and the Bloods. He said, "Working together, we can put an end to this cycle that creates deep pain in the hearts of our mothers, our fathers, and our people, who have lost loved ones to this senseless violence." The videotape was shown during a peace summit meeting attended by over 400 gang members. If Schwarzenegger refuses Williams's plea, what message will it send to our children?

By granting clemency to Williams, Schwarzenegger would affirm the ideal of rehabilitation he claims to favor. A governor's pardon of Williams would signal that people can be redeemed, that mercy, not just retribution, is a worthy goal. "I have a despicable background," Williams said. "I was a criminal. I was co-founder of the Crips. I was a nihilist. But people forget that redemption is tailor-made for the wretched."

But even if Schwarzenegger pardons Stanley Tookie Williams, we must ask ourselves if we want to continue to engage in the state-sponsored killing of our people. "The reason to oppose capital punishment," the Los Angeles Times wrote in a recent editorial, "has to do with who we are, not who death row inmates are. The death penalty is inappropriate in all situations because it is unbefitting of a civilized society. Williams' case, though poignant, is irrelevant to this argument."

As it deliberates the nomination of Judge Samuel Alito, the Senate must also deal with what it means to be "pro-life." Alito, who claims to be pro-life when it comes to abortion, is pro-death when it comes to the death penalty.

During his tenure on the Court of Appeals, Alito has shown little solicitude for death row inmates bringing habeas corpus petitions, particularly claims based on ineffective assistance of counsel and racial discrimination in jury selection. His positions in these cases run contrary to recent Supreme Court decisions emphasizing the importance of both race-neutral jury selection and constitutionally adequate counsel.

In 2001, Alito voted to affirm the death judgment of an African-American man convicted by an all-white jury in Delaware. The prosecutor had struck all prospective African-American jurors from the jury pool. That same prosecutor had struck every prospective African-American juror in 3 other capital murder trials in the same county during the prior year. When Alito refused to infer racial discrimination from that pattern, he said, flippantly, "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections ... But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?"

A majority of the full court accused Alito of "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."

Stanley Tookie Williams, an African-American, was also convicted and sentenced to death by a jury cleansed of all prospective African-American jurors by the prosecutor, based on the testimony of paid police informants. Williams maintains his innocence.

If confirmed as a Supreme Court justice, Alito would have a powerful influence over whether many of our citizens live or die. In the past 5 years, the Court decided only 3 cases concerning abortion, but over 3 dozen involving the death penalty.

Capital cases are complex and often laden with error. A recent study at Columbia University found that 67 percent of death penalty cases had been reversed for serious constitutional error. Recurring features in these cases include prosecutorial or police misconduct; the use of unreliable witness testimony, physical evidence, or confessions; and inadequate defense representation. There is a growing number of cases where DNA or other evidence has proved conclusively that death row inmates are factually innocent. In some cases, that evidence has surfaced too late - after innocent people have already been executed.

The United States is the only industrialized Western democracy that still executes its citizens. In 2004, 97 percent of all known executions took place in China, Iran, Vietnam and the United States. Several major international human rights treaties eschew the death penalty. None of the 3 international criminal tribunals - the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Tribunal for Rwanda - permit the death penalty as a sentencing option for the most heinous of crimes over which they have jurisdiction.

Scientific studies have consistently failed to find convincing evidence that that the death penalty deters crime more effectively than other punishments, according to Amnesty International.

"The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality," US Supreme Court Justice Arthur L. Goldberg wrote in a 1976 article in the Boston Globe. We must not be a society that rewards the meanest judges and elected officials. Let us choose and affirm life, not death.

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Bush Taps "Scalia-Lite" to Replace O'Connor

On the day we honored Rosa Parks, Mother of the Civil Rights Movement, George W. Bush appointed a white male to replace Sandra Day O'Connor on the Supreme Court. Evidently unable to find a woman or Latino sufficiently "qualified" to sit on the high court, Bush reached deep into the trough of right-wing federal judges and pulled out Samuel Alito.

On Friday, at 12:40 p.m., the same hour that Patrick Fitzgerald announced the indictment of I. Lewis "Scooter" Libby, Bush called Alito. Desperate to stop the hemorrhaging from the withdrawal of Harriet Miers, the grim revelation that the 2000th American soldier had died in his unnecessary war in Iraq, and the pending indictment of a principal White House neocon, Bush tapped a judge adored by the right wing.

The conservatives' giddy reaction to the nomination of "Scalito" or "Scalia-Lite," as Alito is frequently called because of his affinity with Antonin Scalia, stands in stark contrast to that of the more moderate Miers. His record tracks the right-wing agenda.

Alito would gut abortion rights if given the chance. As a judge on the Third US Circuit Court of Appeals in Philadelphia, he voted in Planned Parenthood v. Casey in 1991 to uphold a Pennsylvania law that included a provision requiring women seeking abortion to notify their spouses. When the case reached the Supreme Court, the justices used it to reaffirm Roe v. Wade. Justice O'Connor wrote the decision, which struck down the state's spousal notification requirement. In his dissent in Casey, Chief Justice William Rehnquist quoted Alito's dissent from the lower court opinion.

But Alito's right-wing bona fides don't stop there. Alito engages in "judicial restraint" - the right wing's stated litmus test - only when the conservative ends justify the means. He showed little restraint when he voted to scuttle Congress's intent by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, Alito's colleagues on the Third Circuit observed that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where [Judge Alito] suggests."

Alito voted to invalidate part of the Family and Medical Leave Act, which guarantees most workers up to 12 weeks of unpaid leave to care for a loved one. The 2003 Supreme Court decision in Nevada v. Hibbs upheld the FMLA, essentially reversing a 2000 opinion by Alito which found that Congress had exceeded its power in passing the law.

In Erienet v. Velocity Net, Alito dissented from an opinion that makes it easier for consumers to get relief in state courts for violation of the Telephone Consumer Protection Act.

Samuel Alito has also shown hostility to privacy rights by supporting the unauthorized strip searches of women and children who are not named in a search warrant. He voted to uphold the strip search of a mother and her 10-year-old daughter in Doe v. Groody in 2004. That vote drew harsh criticism from Bush's current Homeland Security Director Michael Chertoff, who was on the Third Circuit at the time. Chertoff accused Alito of rubber-stamping police misconduct. Alito's excessive deference to executive power in Groody could signal his willingness to defer to the power of the executive in Bush's wars on Iraq, terror and civil liberties. This is cause for great concern.

In 2001, Alito authored a decision that struck down a public school district's policy that prohibited harassment against students based on their sexual orientation. The policy focused on harassment that might interfere with a student's educational performance or create an intimidating, hostile or offensive environment. But Alito ruled this policy was unconstitutional because it could cover "simple acts of teasing and name-calling."

Alito pandered to the gun lobby when he voted to strike down a federal law prohibiting the possession of machine guns. His position led Alito's colleagues to accuse him of disrespecting the considered decision of Congress by requiring it to "play 'Show and Tell' with the federal courts."

Several progressive organizations, including the National Lawyers Guild (NLG), the AFL-CIO, NARAL-Pro Choice America, the Alliance for Justice, MoveOn.org and the Leadership Conference on Civil Rights are opposing the Alito nomination. NLG President Michael Avery stated, "Judge Alito's record on the Third Circuit Court of Appeals is replete with examples of how his extremely conservative views have led to decisions that ignore the legitimate interests of women, families, people of color, consumers and working people. These decisions run contrary to established Supreme Court precedent and the will of the Congress."

Alliance for Justice President Nan Aron said, "If confirmed to the pivotal O'Connor seat, Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms." Karen Pearl, interim president of Planned Parenthood Federation of America, agreed. Alito's confirmation "would radically transform the Supreme Court and create a direct threat to the health and safety of American women," she said.

Key Democrats immediately stepped up to the plate and challenged the Alito nomination. Senate Democratic Leader Harry Reid said, "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people." Reid also criticized Bush's selection of another white male: "This appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day O'Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the first Hispanic to the Court ... President Bush would leave the Supreme Court looking less like America and more like an old boys club."

Senator Patrick Leahy said, "Judge Alito's record on the bench demonstrates that he would go to great lengths to restrict the authority of Congress to enact legislation to protect civil rights and the rights of workers, consumers and women. Judge Alito has also set unreasonably high standards that ordinary Americans who are the victims of discrimination must meet before being allowed to proceed with their cases."

Other Democrats have reacted similarly. Senator Ted Kennedy said, "If confirmed, Alito could very well fundamentally alter the balance of the court and push it dangerously to the right, placing at risk decades of American progress in safeguarding our fundamental rights and freedoms." Senator Charles Schumer observed, "It's sad that [Bush] felt he had to pick a nominee likely to divide America." Senator John Kerry asked, "Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?" And Senator Barack Obama said, "President Bush has ... made a selection to appease the far right wing of the Republican Party."

The precariously balanced Supreme Court will tip to the right if Alito is confirmed. Larry Lusberg, a former federal prosecutor who has known Alito for 22 years, affirms: "Make no mistake: he will move the court to the right, and this confirmation process is really going to be a question about whether Congress and the country want to move this court to the right."

With his nomination of Samuel Alito, Bush has thrown down the gauntlet. Although many Democrats are vociferous in their displeasure, it is not clear that 41 of them will agree to a filibuster. Several must stand for election next year in red states, and Alito's intellect and credentials - notwithstanding his radical ideology - may sway them in his direction. If the Democrats do filibuster, it will force the Republicans to use the "nuclear option" to override the time-honored filibuster for the first time.

As the Libby indictment continues to put on trial the lies on which the Iraq war was based, Bush's agenda - including the Alito nomination - may be hobbled.

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Harriet Miers: Bush's Pit Bull

Bush has nominated his Texas crony as a stealth appointment to the Supreme Court. Although the Senate will be hard-pressed to discover Harriet Miers's positions on the critical issues, she does have a long record of loyalty to Bush, whom she calls "the most brilliant man I ever met." Bush undoubtedly knows where she stands - and it doesn't appear to be on the side of civil liberties.

Miers represented a string of large corporations, including Walt Disney Co., Microsoft, Ford, Chrysler, Honda, Citibank and the Bank of America. Like John Roberts, Harriet Miers has no history of protecting the rights of women, minorities, the poor, the disabled or the environment.

Some far-right Christian organizations appear disappointed that Bush didn't tap an ideological judge like Priscilla Owen, Janice Rogers Brown, J. Michael Luttig, or Michael W. McConnell. Public Advocate President Eugene Delgaudio calls Miers's nomination "a betrayal of the conservative, pro-family voters whose support put Bush in the White House in both the 2000 and 2004 elections and who were promised Supreme Court appointments in the mold of Thomas and Scalia."

Miers has never been a judge, so there is no concrete evidence of her judicial philosophy. But when Rush Limbaugh sought reassurance from Dick Cheney that Miers's judicial philosophy parallels that of Scalia or Thomas, Cheney responded, "I'm confident that she has a conservative judicial philosophy that you'd be comfortable with ... And the President has great confidence in her judicial philosophy."

James Dobson, founder of Focus on the Family, and one of the most radical evangelical conservatives, sanctioned the Miers nomination after a well-placed call from Karl Rove. "Some of what I know I am not at liberty to talk about," Dobson said.

Justice Nathan Hecht of the Texas Supreme Court testified to Miers's bona fides as an evangelical Christian. He guarantees that Miers personally opposed abortion and attended "pro-life" events with him.

Bush is asking his right-wing religious backers to take it on faith that Miers will fulfill their agenda of further Christianizing America. There are clues that would confirm that faith. When Bush named Miers as White House Counsel to replace newly minted Attorney General Alberto Gonzales, Bush used the fundamentalist buzz word "grace" to describe Miers. She works with Exodus Ministries, which is dedicated to fulfilling released prisoners' "need for intimate knowledge of the saving grace of Jesus Christ." Its website proclaims that "Exodus is a place where ex-offenders learn how faith in Christ is the first step from captivity to freedom."

After the American Bar Association voted to take a pro-choice position, Miers led the charge to have that vote reconsidered by the ABA membership. While we can expect her to tell the Senate Judiciary Committee that she was only concerned with the proper role for the ABA, Miers's enthusiasm for undoing the ABA's pro-choice stance belies such an excuse.

Harriet Miers was the first woman to serve as president of the Texas Bar Association. Yet she opposed a plan that would guarantee the election of a racial or ethnic minority bar president every sixth year.

Senate Majority leader Bill Frist of Tennessee is delighted with the Miers nomination. He called her "another outstanding nominee," describing her selection as "a nomination we are excited about, we are pleased with." Frist says "she is a woman who understands judicial restraint."

Senate Democratic leader Harry Reid of Nevada is equally ebullient. Evidently relieved that Bush didn't nominate the dreaded Priscilla Owen or Janice Rogers Brown, Reid declared, "I'm very happy we have someone like her."

Harriet Miers is likely to be as circumspect about her views as was John Roberts about his. Indeed, it was Miers who refused to share Roberts' memos from his tenure in the Solicitor General's office with the Senate. Miers will not share her records from her service in the Bush administration either.

Like Roberts, Miers has been a Republican party loyalist. She is being rewarded for her 12-year service to Bush, who plucked her from his inner circle of confidantes. In 1996, Bush called the loyal Miers, who helped Bush hide his National Guard record, "a pit bull in size 6 shoes." Hardly a fitting replacement for the open-minded Sandra Day O'Connor.

When Bush nominated Miers, he proclaimed, "She has devoted her life to the rule of law and the causes of justice." On the contrary, it appears that Miers has devoted her life to the interests of big corporations and George W. Bush.

The senators and the American people will be left to guess at how Miers feels about the issues that affect our lives.

Harriet Miers is not an intellectual giant like John Roberts. The enigmatic Miers must persuade the senators that she is committed to equality under the law. Harriet Miers has a high burden to carry to convince the Senate that she is qualified to sit on the highest court in the land.

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No on Roberts

The Senate Judiciary Committee hearings have ended and the jig is up. Although Roberts characterized his judicial role as merely an "umpire," he consistently played hide the ball about his views during the questioning. Nevertheless, Roberts' disingenuousness came through in spite of his evasions. And the senators have enough information about Roberts' record to know he would move the Court dramatically to the right, eviscerating the hard-earned gains of the civil rights movement.

In a well-orchestrated performance, Roberts refused to divulge his real opinions about abortion, end of life decisions, the constitutionality of the 1964 Civil Rights Act and the 1968 Fair Housing Act, and the power of Congress to pass statutes that protect people or legislation to stop a war.

Roberts painted his refusals to answer as necessary to maintain judicial ethics, repeatedly responding that these issues might come before the high court.

Roberts' ethical veneer cracked, however, when Russ Feingold (D-Wis) challenged him about a very recent conflict of interest Roberts displayed with his decision in Hamdan v. Rumsfeld. At the same time Bush & Co. was interviewing Roberts for the Supreme Court, he voted to give Bush unfettered power to use military commissions that violate due process to try suspected terrorists, and to deny them access to US courts to challenge violations of the Geneva Conventions.

Roberts demonstrated an encyclopedic - indeed, photographic - memory for the details of every case the Supreme Court had decided and every memo he had ever written. But when Feingold asked Roberts about the dates of his interviews for the Court, and whether they overlapped with the dates of his decision in Hamdan, suddenly Roberts stuttered, stammered and couldn't remember.

Roberts also misled the senators in his statements about how he would measure laws that discriminate on the basis of gender. The Supreme Court has held that the Equal Protection Clause requires that racial classifications must be judged with strict scrutiny, gender classifications should be examined with intermediate scrutiny, and classifications based on factors other than race or gender will be upheld if there is a reasonable basis to support them. Some heightened level of scrutiny is necessary only if the classifications discriminate based on race or gender.

Roberts told the committee that he had always supported a heightened level of scrutiny for gender classifications. But in a draft article he wrote in the early 1980s when working for Attorney General William French Smith, Roberts decried any heightened scrutiny for classifications that discriminate on the basis of gender. Roberts lied about his record on sex discrimination.

When challenged about his prior statement that there is a "so-called 'right to privacy'" in the Constitution, Roberts declared that privacy is indeed protected by the Constitution. He cited the Fourth Amendment's protection against unreasonable searches and seizures, the First Amendment's guarantee of freedom of religion and prohibition on establishment of a religion, and the Third Amendment's prohibition on quartering soldiers in private homes. Roberts also said that liberty is protected in the Constitution, and he agreed with Griswold v. Connecticut, which struck down a state statute that prohibited the sale of contraception. But Roberts stopped short of admitting that liberty encompasses a woman's right to abortion. We are left with the statement in Roberts' brief that Roe v. Wade was wrongly decided and should be overruled.

The Democratic senators on the committee were concerned about whether Roberts would overturn Congressional statutes that protect minorities, women, gays, the poor, the disabled, and the environment. Roberts deflected Illinois Senator Richard Durbin's question about whether Justice Roberts would protect the little guy by saying: "If the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then, the big guy is going to win, because my obligation is to the Constitution."

What Roberts continually hid from the senators, however, was an explanation of how he interprets the Constitution, which does not contain the words "the little guy" or "the big guy." While denying he is an "ideologue," Roberts used his extraordinary intellect to dodge every question that would have uncovered his true ideological agenda.

But that agenda comes into focus when one examines his record as a lawyer in the Reagan and Bush I administrations, and as a corporate lawyer. Roberts argued repeatedly against the rights of the little guy.

On the final day of the hearings, Rep. John Lewis (D-Ga) testified against the Roberts confirmation. Lewis, one of the giants of the civil rights movement, was beaten, arrested and jailed more than 40 times for peaceful, nonviolent demonstrations against legalized segregation in the South.

Lewis said, "I fear that if Judge Roberts is confirmed to be Chief Justice of the United States, the Supreme Court would no longer hear the people's cries for justice. I feel that the leadership of the court would promote politics over the protection of individual rights and liberties. If the federal courts had abandoned us in the civil rights movement, in the name of judicial restraint, we might still be struggling with the burden of legal segregation in America today."

Governor Howard Dean has taken a strong stand against the confirmation of Roberts. "The consistent mark of Roberts' career is a lack of commitment to making the Constitution's promise of equal protection a reality for all Americans, particularly the most vulnerable in our society," Dean wrote in an op-ed last week.

The Democrats on the Senate Judiciary Committee should follow Dean's lead. They must vote against the confirmation of John Roberts for Chief Justice of the United States.

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John Roberts: Umpire or Ideologue?

Judges are like umpires. Umpires don't make the rules; they apply them ...
I come before the committee with no agenda. I have no platform.
-- John Roberts' opening statement, Senate Judiciary Committee Hearing, September 12, 2005

The opening statements of the 18 senators who will first vote on John Roberts' nomination for Chief Justice of the United States set the stage for the confirmation battle. The 10 Republicans and 8 Democrats previewed their expectations of the interrogation of Roberts, which begins today.

Whereas the Democrats favor widespread questioning to get to know the man who could shape the law of the land for the next generation, Republicans seek to limit the examination to only that necessary to achieve confirmation. Democrats are concerned about whether Roberts would strike down acts of Congress that protect civil rights and liberties, and whether he would give blind deference to executive power; Republicans are gunning for reversal of Roe v. Wade, and for destruction of the wall that separates church from state.

Roberts ended his opening statement by saying, "I look forward to your questions." The way Roberts decides to answer - or not answer - questions probing his judicial philosophy will determine whether he would come to the Court as an impartial umpire, or a right-wing ideologue.

Republican senators on the committee repeatedly invoked "the Ginsburg precedent," saying that during her confirmation hearing, Justice Ruth Bader Ginsburg refrained from answering questions about her judicial philosophy. But when asked a specific question about a constitutional right to privacy, Ginsburg answered:

There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the Fourth Amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label "privacy" is a constitutional right that has those two elements: the right to be let alone and the right to make basic decisions about one's life's course.

Ginsburg could not have more clearly stated that she believes the Constitution contains a right to privacy. But during his confirmation hearing for the Court of Appeals, John Roberts refused to say whether he thinks there is a constitutional right to privacy. If he refuses once again to answer this hot-button question, it is safe to assume he subscribes to his earlier characterization of the "so-called 'right to privacy'" and the statement in the brief he co-authored in Rust v. Sullivan: "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."

There are two striking differences between the Supreme Court confirmation hearings of Ginsburg and Roberts. First, when Bill Clinton tapped her for the high court, Ginsburg had a much more extensive record of public writings than Roberts. Second, hers was a consensus nomination. Clinton had cleared it with Senate Republican leaders in advance. Bush did not consult Democrats before nominating Roberts.

Most of Roberts' public writings date back to his tenure in the Reagan administration. The White House refuses to supply the committee with memos he wrote while serving as principal deputy solicitor general in the Bush I administration. The memos would provide the senators with more current information about his views. Decrying the Bush administration's refusal to grant access to Roberts' full record, Edward Kennedy (D-Mass) said, "We can only wonder what they don't want us to know." Russ Feingold (D-Wis) added, "I also must say candidly, the refusal gives rise to a reasonable inference that the administration has something to hide here."

Extremist right-wing organizations such as Operation Rescue and the Family Research Council, which have anti-abortion and anti-gay agendas, celebrate Roberts' nomination. Yet conservative Republican senators such as John Kyl (R-Ariz) say that ideology should not play a role in Roberts' confirmation: "It would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one."

Other Republicans are more forthcoming. For Lindsey Graham (R-SC), "the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well-qualified, strict constructionist to the Supreme Court and, in this case, to appoint a chief justice to the Supreme Court in the mold of Justice Rehnquist."

"This is a confirmation proceeding, however, not a coronation," observed Feingold. Speaking of memos Roberts wrote during the Reagan administration, Feingold said, "In memo after memo, his writings were highly ideological and sometimes dismissive of the views of others." This does not bode well for a chief justice who must consider the opinions of his colleagues and attempt to achieve consensus on the Court.

Several Democratic senators were concerned about Roberts' evident willingness to strike down Congressional statutes. "When we discuss the Constitution's commerce clause or spending power," said Patrick Leahy (D-Vt), "we're asking about congressional authority to pass laws to ensure clean air and water and children's and seniors' health, and safe, good drugs, safe workplaces, even wetland protection, levees that should protect our communities from natural disasters."

Republicans frequently decry what they call "activist judges." Richard Durbin (D-Ill) spoke about Frank Johnson, a federal district judge from Alabama and a life-long Republican. "Fifty years ago," said Durbin, "following the arrest of Rosa Parks, Judge Johnson ruled that African-Americans of Montgomery, Alabama, were acting within their constitutional rights when they organized a boycott of the buses and that Martin Luther King Jr. and others could march from Selma to Montgomery."

The Ku Klux Klan branded Johnson the most hated man in America; wooden crosses were burned on his lawn. "Judge Frank Johnson," Durbin noted, "was denounced as a judicial activist and threatened with impeachment. He had the courage to expand freedom in America. Judge Roberts, I hope that you agree America must never return to those days of discrimination and limitations on our freedom."

Durbin also warned of the dangers of government sponsorship of religion. He quoted Justice Sandra Day O'Connor's opinion in the recent Ten Commandments case: "At a time when we see around the world the violent consequences of the assumptions of religious authority by government, Americans may count themselves fortunate. Our regard for constitutional boundaries has protected us from similar travails while allowing private religious exercise to flourish. Those who would renegotiate the boundaries between church and state must answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?"

Diane Feinstein (D-Cal), the only woman on the committee, told Roberts, "It would be very difficult ... for me to vote to confirm someone whom I knew would overturn Roe v. Wade, because I remember ... what it was like when abortion was illegal in America ... As a college student at Stanford, I watched the passing of the plate to collect money so a young woman could go to Tijuana for a back-alley abortion. I knew a woman who killed herself because she was pregnant."

Several senators referred to Roberts' stellar academic and professional qualifications. Yet, in the words of Russ Feingold: "We must evaluate not only his qualifications, but also his ability to keep an open mind, his sensitivity to the concerns of all Americans and their right to equal protection under the laws; not only his intellectual capacity, but his judgment and wisdom; not only his achievements, but his fairness and his courage to stand up to the other branches of government when they infringe on the rights and liberties of our citizens."

Charles Schumer (D-NY) declared that the American people "need to know above all that, if you take the stewardship of the high court, you will not steer it so far out of the mainstream that it founders in the shallow waters of extremist ideology."

Explaining why it is critical that Roberts fully answer questions about his judicial philosophy and legal ideology, Schumer said, "As far as your own views go, however, we only have scratched the surface. In a sense, we have seen maybe 10 percent of you - just the visible tip of the iceberg, not the 90 percent that is still submerged. And we all know that it is the ice beneath the surface that can sink the ship."

Will John Roberts be forthcoming about his views on the issues of concern to Americans, such as civil rights, women's rights, privacy, religious liberty, executive power, and environmental rights? Or will he play hide the ball and deprive us of critical information with which to judge the man who will judge the issues that affect us all?

Quoting Senator Paul Simon at the Ginsburg confirmation hearing, Durbin cautioned Roberts: "You face a much harsher judge than this committee. That's the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you expand it?"

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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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The Roberts Court?

Consider this: John Roberts's nomination for Associate Justice of the Supreme Court is confirmed by the Senate. Chief Justice William Rehnquist steps down. Then, Bush elevates Roberts to Chief.

This scenario would avoid the nasty fight that would surely ensue if Bush elevated his model Supreme Court Justice Antonin Scalia - or chose another rabid right-winger - to be Chief Justice. The Democrats lined up to pose with the smiling Roberts during his expertly choreographed visit to the Senate last week - not a word about a filibuster if Roberts refuses to explain his record as apologist for the Reagan and Bush I administrations and the big corporations he represented. And judging from the giddy reaction of Operation Rescue and the Family Research Council to Roberts's nomination for Associate Justice, Bush's conservative base would be thrilled.

Rehnquist was a radical, far out of the mainstream of the rest of the Court, when Ronald Reagan made him Chief. When he clerked for Justice Robert Jackson, Rehnquist had written a memo called, "A Random Thought on the Segregation Cases," in which he advised Justice Jackson to affirm Plessy v. Ferguson's "separate but equal" doctrine in future segregation cases, including Brown v. Board of Education. The memo stated, "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed." Rehnquist concluded that the Court should uphold segregation and refuse to protect "special claims" simply "because its members individually are 'liberals' and dislike segregation." Plessy was later overturned in Brown v. Board of Education.

A former Rehnquist law clerk, Roberts is Rehnquist Lite - but less controversial than Rehnquist was when he became Chief. While not directly attacking Brown, Roberts, as Associate Counsel to President Reagan, argued in favor of right-wing legislation that would have prohibited judges from ordering busing to desegregate schools. Why? Because, said Roberts, busing "promotes segregation rather than remedying it, by precipitating white flight."

Hale fellow, well met, Roberts is smooth. Since junior high, he has assiduously groomed himself to be on the Supreme Court. In a footnote in his 1994 law review article, Roberts wrote, "In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992-93 term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States." Roberts, who knew that someday he might have to explain those views to a Senate Judiciary Committee, set out to distance himself from them.

After Roberts's nomination last week, the Washington Post, the Los Angeles Times, USA Today and the Associated Press identified Roberts as a member of the right-wing Federalist Society. But after the White House called the news organizations and informed them that Roberts said he "has no recollection" of ever being a member of the Federalist Society, they printed retractions. Lo and behold, the Washington Post reported today that John G. Roberts Jr. is listed as a member of the steering committee of the Federalist Society in its Lawyers' Division Leadership Directory, 1997-1998.

This could blow up in Bush's face. With Watergate, it was the cover-up that became the blockbuster. The same thing could happen with "Federalistgate" (and "Plamegate," for that matter).

But what if Roberts is confirmed? What would a Roberts Court look like? Roberts, who wrote a brief saying there is no right to an abortion in the Constitution, would work to overturn Roe v. Wade. But even more alarming, Roberts, who spent the lion's share of his government service in the executive branch, would extend the scope of presidential authority in an unprecedented manner.

George W. Bush has pushed the envelope of executive power to a new level - by invading a sovereign country that posed no threat to America, based on his illegal "pre-emptive war" doctrine; by declaring that, as Commander-in-Chief, he has the power to suspend the Geneva Conventions; by planning to covertly influence the "democratic" Iraqi elections; by threatening to veto any bill Congress passes that would encroach on his presidential power; by snooping through the sites we visit on the Internet and the books we read; and by shielding Karl Rove from criminal prosecution (don't be surprised if something untoward happens to the independent prosecutor investigating Rove).

Four days before Bush tapped him for the Supreme Court, Roberts, in Hamdan v. Rumsfeld, granted the President unchecked authority to create kangaroo courts to try suspected terrorists, even though the Constitution gives only Congress the right to establish courts.

In the never-ending war on terrorism, Roberts would likely defer to the President to torture, assassinate, or imprison for life anyone the executive dubbed a "terrorist." He would likely defer to the President by upholding the noxious provisions of the Patriot Act that threaten our civil liberties but make us no safer. And Roberts, always the company man, would likely defer to the President whenever the executive takes a position that favors corporations at the expense of workers and the environment.

The justice Roberts would replace, Sandra Day O'Connor, wrote in Hamdi v. Rumsfeld last year, "A state of war is not a blank check for the President." Judging from his decision in Hamdan, Roberts might well write the executive that blank check.

Our constitutional system is grounded in the symmetry of three co-equal branches of government, each with separate and distinct powers. The 50-year-old Roberts would have the opportunity to shape the Court for decades. By moving the judicial branch to bypass Congress and defer to the executive, Chief Justice John Roberts could preside over a Court that will destroy the separation of powers as we know it.

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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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No War Criminal for Supreme Court

No sooner had the ink dried on Sandra Day O'Connor's resignation letter, than the right-wing evangelicals began shouting threats: Bush had better pick a justice who would decimate the right to abortion as we know it. And corporate lobbyists promised to fight hard for a justice who would insulate big business from punitive damages, and against state regulation to protect consumers and the environment.

But most of the post-O'Connor discussion about possible candidates has focused on the bona fides of Bush's Attorney General and confidant Alberto Gonzales, who many describe as a "moderate." The religious conservatives find Gonzales unacceptable, since he refused to say that Roe v. Wade should be reversed when he sat on the Texas Supreme Court. Senate Democratic leader Harry Reid, however, thinks Gonzales is "qualified" to sit on the high court. Indeed, Reid chastised "the far right" for attacking Gonzales.

In their zeal to ensure that Bush does not choose a justice who would tip the court's balance away from allowing a woman to make decisions about her own body without governmental interference, many Democrats would apparently settle for a war criminal. In spite of opposition from the right and the left, Gonzales is expected to be confirmed easily, without the necessity of the nasty filibuster.

Several senators posed hard questions to Gonzales during his attorney general confirmation hearing. Ultimately, however, the Senate confirmed Gonzales 60-36, with 4 abstentions. Six Democrats voted to confirm Gonzales and 3 didn't cast votes. Curiously, Reid, who voted against Gonzales for attorney general, now finds him qualified to sit on the nation's highest court.

When Senator Richard Durbin asked Gonzales at his hearing, "Can U.S. personnel legally engage in torture under any circumstances?", Gonzales failed to give a categorical negative answer. "I don't believe so," he testified, "but I'd want to get back to you on that." Gonzales surely knew that the Convention against Torture, which the United States has ratified, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Gonzales is the very one who, as White House counsel, advised Bush that the President need not follow the law. The Geneva Conventions, which Gonzales called "quaint" and "obsolete," are ratified treaties, and thus part of United States law under the Supremacy Clause of the Constitution.

Gonzales also counseled Bush on how to avoid prosecution for war crimes under the federal War Crimes Act.

Gonzales commissioned the Department of Justice's Office of Legal Counsel's August 1, 2002 memorandum, which illegally redefined torture so narrowly that the pain caused by interrogation must include death, organ failure or serious impairment of body functions. Any treatment short of that would be allowed.

That memo remained in place until December 30, 2004, on the eve of Gonzales' attorney general confirmation hearing. In order to forestall tough questioning of Gonzales by Democrats on the Senate Judiciary Committee about the August 2002 memo, the Justice Department issued a new memo, broadening the definition of torture.

Gonzales' advice to Bush led to the establishment of policies that set the stage for the torture and inhuman treatment of prisoners in U.S. custody in Iraq, Afghanistan, Guantánamo Bay, and secret CIA prisons throughout the world. Torture and inhuman treatment constitute war crimes under the federal War Crimes Statute. That law provides that one who commits a war crime "shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death."

It is not necessary to personally conduct the torture in order to be liable under the War Crimes Statute. Under the well-established doctrine of "command responsibility," a superior who knew or should have known his inferiors would commit war crimes, but who failed to stop or prevent those acts, is just as responsible as those who committed the criminal acts. Gonzales knew or should have known the policies he advocated would result in the torture and inhuman treatment of prisoners in U.S. custody.

Alberto Gonzales should not sit on the United States Supreme Court. He should be indicted and tried as a war criminal. (See The Gonzales Indictment, http://marjoriecohn.com/2005/01/gonzales-indictment.html.)

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Alito Threatens Dr. King's Dream

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.
-Dr. Martin Luther King Jr., Letter from a Birmingham Jail

During his confirmation hearing for the Supreme Court, Samuel Alito Jr. pledged allegiance to the principle of one man-one vote and denied he was a bigot. It is astonishing that these issues even entered our national discourse in 2006. But it is Alito's record, both as a member of the Reagan administration and as a judge on the Court of Appeals, that raises allegations of racism. And it is that same record that betrays Dr. King's values and threatens the future of civil rights in this country if Alito is confirmed to the high court.

In his 1985 application for a job in the Reagan Justice Department, Alito noted that he became interested in constitutional law "in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." The reapportionment cases that upset him were the landmark decisions that affirmed the bedrock principle of our democracy: one person-one vote.

Fred Gray, the veteran civil rights lawyer who represented Dr. King and Rosa Parks, testified at Alito's hearing. "As one who has been in the trenches and still is in the trenches," Gray told the senators, "I appear today to attest to the tremendous importance of the reapportionment cases - those cases decided by the Warren Court, one of which I actually litigated and was my brainchild, Gomillion versus Lightfoot ... The cases illuminate the inequities of mal-apportionment which deprived African Americans of voting strength across the nation. In my view, there is no more important body of law than that generated in the field of voter registration and in civil and human rights." Gray testified, "I am troubled, extremely troubled, by Judge Alito's comments made in his application, notwithstanding his testimony before this committee ... A nominee to the Supreme Court who has a judicial philosophy that's set against the Warren Court and against the reapportionment cases is in effect saying that he would turn the clock back."

Indeed, when Alito became a judge, he ruled against minority voters who claimed a school board voting plan illegally diluted their voting strength. If he is confirmed, Alito will vote on a series of cases alleging minority vote dilution now pending before the Supreme Court.

Moreover, certain important provisions of the Voting Rights Act that have enhanced the opportunities for African Americans and other minority groups to vote effectively are set to expire next year, unless Congress renews them. These special provisions allow for significant federal oversight of state and local voting functions for jurisdictions deemed to have the worst and most persistent histories of voting discrimination against their minority populations. This heightened oversight is intended to identify and prevent proposed voting changes that worsen the position of minority voters, or to deter covered jurisdictions from proposing such voting changes.

For example, section 5 of the act requires certain covered states and political subdivisions to obtain federal or judicial preapproval or "preclearance" of any voting law changes or practices before they can legally take effect. This oversight has resulted in the detection and prohibition of several harmful voting laws and practices. Appeals of district court decisions on these preclearance provisions go directly to the Supreme Court.

Alito will have the opportunity to rule on section 5 preclearance issues, and may also review the 2007 congressional renewal of the act's special provisions.

Besides his astounding statement opposing reapportionment, Alito also proudly touted his membership in the Concerned Alumni of Princeton in the same job application. CAP was formed to maintain Princeton as a white male college. It complained that increased numbers of "women and minorities will largely vitiate the alumni body of the future."

In spite of his avowed pride in being a CAP member, Alito denied any memory of the group after he was nominated for the Supreme Court. His amnesia is particularly surprising in light of his vast recall of the details of the myriad cases on his court's docket.

Alito's judicial record in civil rights cases corroborates his bias. In all split decisions in cases alleging race and sex discrimination, Alito voted against the claimants. His dismal record led the NAACP Legal Defense and Education Fund, the Hispanic Caucus Civil Rights Task Force, and the National Bar Association to oppose Alito's confirmation.

The mainstream media has fixated on Martha Alito's tearful exit from the hearing after Republican Senator Lindsey Graham's defensive rhetorical question about whether her husband was a "closet bigot." Unfortunately, that dramatic film clip obscured the merits of the issue.

Samuel Alito's record on and off the bench shows a consistent pattern of bigotry - a pattern that promises to continue once he becomes a justice of the Supreme Court. Senators from both parties who truly seek to realize the dream of Dr. Martin Luther King Jr. have a solemn obligation to filibuster and defeat Alito's nomination.

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Dear Mr. Gonzales

Dear Mr. Gonzales,

You have been rewarded for your unflinching loyalty to George W. Bush with a nomination for Attorney General of the United States. As White House Counsel, you have walked in lockstep with the President. As Attorney General, you will be charged with representing all the people of the United States. Your performance before the Senate Judiciary Committee on Thursday verified that you will continue to be a yes-man for Bush once you are confirmed.

In the face of interrogation by members of the Committee, you waffled, equivocated, lied, feigned lack of memory, and even remained silent, in the face of the most probing questions. Your refusals to answer prompted Senator Patrick Leahy to say, "Mr. Gonzales, I'd almost think that you'd served in the Senate, you've learned how to filibuster so well."

Even though the Department of Justice retracted the August 2002 torture memo, and replaced it with a new one on the eve of your confirmation hearing, you still refuse to denounce the old memo's narrow and illegal definition of torture. You permitted that definition to remain as government policy for 2 1/2 years, which enabled the torture of countless prisoners in U.S. custody.

You continually evaded inquiries about your responsibility for drafting the now-repudiated memo by portraying yourself as a mere conduit for legal opinions from the Justice Department's Office of Legal Counsel. This puzzled Senator Russ Feingold, who said, "If you were my lawyer, I'd sure want to know your opinion about something like that."

Republican Senator Lindsey Graham told you, "I think we've dramatically undermined the war effort by getting on the slippery slope in terms of playing cute with the law, because it's come back to bite us." Indeed, 12 retired professional military leaders of the U.S. Armed Forces wrote to the Judiciary Committee, expressing "deep concern" about your nomination because detention and interrogation operations which you appeared to have "played a significant role in shaping" have "undermined our intelligence gathering efforts, and added to the risks facing our troops serving around the world."

When Senator Graham, an Air Force judge advocate, asked you if you agreed with a professional military lawyer's opinion that the August memo may have put our troops in jeopardy, you were tongue tied. You said nothing for several embarrassing seconds, until Senator Graham suggested you think it over and respond later.

When Senator Richard Durbin asked "Do you believe there are circumstances where other legal restrictions, like the War Crimes Act, would not apply to U.S. personnel?" you again sat mute for several seconds, and then asked to respond later.

It is alarming, Mr. Gonzales, that a lawyer with your pedigree would be stumped into silence by these questions.

You have taken the unprecedented step of advising the President that the Geneva Conventions have become "obsolete." You testified that since "we are fighting a new type of enemy and a new type of war," you "think it is appropriate to revisit whether or not Geneva should be revisited." You admitted preliminary discussions are already underway.

The 12 former military leaders wrote, "Repeatedly in our past, the United States has confronted foes that, at the time they emerged, posed threats of a scope or nature unlike any we had previously faced. But we have been far more steadfast in the past in keeping faith with our national commitment to the rule of law."

Mr. Gonzales, you have concurred in, even commissioned, advice that led to the following:

Sodomy with a broomstick, chemical light, metal object
Severe beatings

Water boarding (simulated drowning)

Electric shock

Attaching electrodes to private parts

Forced masturbation

Pulling out fingernails

Pushing lit cigarettes into ears

Chaining hand and foot in fetal position without food or water

Forced standing on one leg in the sun

Feigned suffocation

Gagging with duct tape

Tormenting with loud music and strobe lights

Sleep deprivation

Hooding

Subjecting to freezing/sweltering temperatures

"Dietary manipulation"

Repeated, prolonged rectal exams

Hanging by arms from hooks

Permitting serious dog bites

Bending back fingers

Intense isolation for more than 3 months

Grabbing genitals

Severe burning

Stacking of naked prisoners in pyramids

Injecting with drugs

Leaving bullet in body of wounded prisoner

Taping naked prisoner to board

Shooting into containers with men inside

Keeping prisoners in small, outdoor cages

Pepper spraying in face

Forcing heads into toilets and flushing

Threatening live burial, drowning, electrocution, rape and death

Beating prisoners to death

Killing wounded prisoners

Throwing off bridge into river and drowning

Rape

Murder

Saddam Hussein would be proud of you, Mr. Gonzales.

Perhaps most alarming was your response to Senator Durbin's question, "Can U.S. personnel legally engage in torture under any circumstances?" You answered, "I don't believe so, but I'd want to get back to you on that." You failed to give a categorical "no" answer. You surely know, Mr. Gonzales, that the Convention Against Torture prohibits torture at any time. That treaty, ratified by the United States and therefore part of the Supreme law of the land under the Supremacy Clause of the Constitution, says, "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture."

Mr. Gonzales, based on your record and your performance before the Senate Judiciary Committee, I have critical concerns about your appointment as Attorney General. I believe you would stand mute if George W. Bush told you he planned to collapse the three branches of government into one, destroying the Constitutional separation of powers. Even though Article I, Section 8 of the Constitution gives only Congress the authority "to make Rules concerning Captures on Land and Water," you refused to tell the Senate Judiciary Committee that the President is not above the law. You think the President has the power to declare an act of Congress unconstitutional. You would rationalize the torture of prisoners.

Where even the strident John Ashcroft thought prisoners in United States custody are entitled to due process, you designed the military tribunals to deny it to them.

As counsel to Texas Governor George W. Bush, you wrote abbreviated clemency memos in capital cases omitting crucial defenses such as ineffective assistance of counsel, even evidence of factual innocence. Your counsel led Bush to deny pardons in 56 of 57 death penalty cases.

You sat before the Senate Judiciary Committee and the American people for seven hours with a smug grin on your face, lying to us, knowing you will be confirmed.

Your testimony led the New York Times to opine, "Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty," and the conservative Washington Post to say, "The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world." The Post concluded, "Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales."

You will have the distinction of being the first Latino Attorney General of the United States. You come from humble roots in Humble, Texas. You should understand the struggles of people of color, yet you have turned your back on them. As overseer of the policies that led to the torture of myriad people of color in Iraq, Afghanistan and Guantánamo Bay, you have betrayed your roots.

Your actions have shamed us in the eyes of the world and endangered our fighting men and women.

You do not deserve to be our country's top prosecutor, head of the Department of Justice, charged with protecting our civil rights.

Mr. Gonzales, you should be ashamed.

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The Quaint Mr. Gonzales

Most Republicans and many Democrats have hailed Bush's nomination of White House counsel Alberto Gonzales for attorney general as a brilliant choice. Whereas John Ashcroft ruffled feathers with his coarse warnings that opponents of Bush's post-9/11 agenda "only aid terrorists," the soft-spoken Gonzales is much more palatable. And he's Hispanic to boot, so the Bush cabinet diversity quotient won't change when Colin Powell steps aside in the second term. Some Democrats will ask tough questions during Gonzales's confirmation hearing. But it would be unseemly for Democrats to seriously challenge the nomination of the first Latino Attorney General of the United States.

The right-wing Republicans who propelled Bush to a second term are relieved Gonzales was tapped to head the Department of Justice, and not to be a justice of the Supreme Court. Gonzales's views on abortion are too liberal for them, but they don't see him doing damage to their "pro-life" position as the nation's top cop. Tom Minnery, vice president for public policy at the Colorado-based Focus on the Family, confirmed that Gonzales would be objectionable as a judicial nominee because he does not have "strong pro-life beliefs." However, Minnery's group would support Gonzales's appointment as attorney general.

But the New York Times reports that Republicans close to the White House claim the nomination of Gonzales for attorney general is "part of a political strategy to bolster Mr. Gonzales's credentials with conservatives and position him for a possible Supreme Court appointment." One Republican said the nomination hearings on Gonzales would also "get out of the way" the debate over the legal memos Gonzales prepared and supervised as White House counsel.

Notwithstanding his mild-mannered appearance, Gonzales is the iron fist in the velvet glove. Gonzales, whom Bush affectionately calls "mi abogado" ("my lawyer"), wrote one of the most outrageous torture memos. On January 25, 2002, Gonzales advised Bush that "the war on terrorism is a new kind of war, a new paradigm [that] renders obsolete Geneva's strict limitation on questioning of enemy prisoners and renders some of its provisions quaint."

Oh really? The "quaint" Geneva Conventions are treaties ratified by the United States, and therefore part of the supreme law of the land under our Constitution.

Gonzales also provided Bush with novel defenses against potential war crimes prosecutions that might result from torturing prisoners captured in Afghanistan. The 1996 War Crimes Act says that grave breaches of the Geneva Conventions are war crimes. Thus, the definition of war crimes includes torture, inhuman treatment, and willful killing, as well as outrages against personal dignity. Gonzales advised Bush that he could avoid allegations of war crimes by simply declaring that Geneva doesn't apply to the war against the Taliban and Al Qaeda in Afghanistan.

When Colin Powell saw Gonzales's memo, he reportedly "hit the roof." Powell wrote a counter-memo to Gonzales and Condoleezza Rice, warning of the immense damage this could do to the United States - legally, politically, militarily, diplomatically, and morally. To declare that the Geneva Conventions did not apply, Powell wrote, "will reverse over a century of U.S. policy and practice in supporting the Geneva conventions, and undermine the protection of the law of war for our troops, both in this specific conflict and in general."

Powell was right. The Geneva Conventions contain no loopholes that would allow the torture and inhuman treatment of prisoners. Even if a captive did not qualify for prisoner-of-war status under the Third Geneva Convention, he would be protected by the Fourth Geneva Convention on the treatment of civilians during wartime. And article 3 of both conventions prohibits torture, and humiliating and degrading treatment against anyone who is no longer fighting. It is well-established that article 3 applies to international, as well as internal, conflicts.

Bush didn't listen to Powell. On February 7, 2002, Bush declared that Geneva would not apply to Al Qaeda. He added that he had "the authority to suspend Geneva as between the United States and Afghanistan," but declined to exercise it at that time. Geneva "will apply to our present conflict with the Taliban," Bush said. But then, in a striking example of double-speak, he determined they were "unlawful combatants," ineligible for hearings to decide whether they were prisoners-of-war under the Third Geneva Convention. (Under the terms of Geneva, only a "competent tribunal" can make that determination). Bush also proclaimed that article 3 of Geneva didn't apply to either Al Qaeda or the Taliban prisoners.

After the pornographic torture photos, and memos justifying torture, leaked out last April, it was Gonzales who was charged with damage control. While being run out of town, Gonzales made it look like a parade by releasing more memos - though not all of them, then admitting to reporters that Team Bush "felt that it was harmful to this country, in terms of the notion that perhaps we may be engaging in torture."

Another controversial memo, dated August 1, 2002, from the Justice Department's Office of Legal Counsel to Gonzales, was one of the leaked documents. It opined that under the president's powers as commander in chief, interrogators who torture Al Qaeda or Taliban prisoners could be exempt from torture prosecutions.

Gonzales, still trying to stem the rising tide of outrage, said the August memo and another one from the Pentagon had only been meant to "explore the limits of the legal landscape." To his knowledge, said Gonzales, they "never made it to the hands of soldiers in the field, nor to the president."

In his January 25, 2002 memo, Gonzales also outlined plans to use military commissions to try prisoners, in order to deny them due process protections afforded by military and civilian courts. In a significant defeat for the Bush administration, a federal district court judge in Washington D.C. ruled earlier this week that the military commissions violate the Geneva Conventions, and were unlawfully constituted because Congress had not authorized them. The military commissions have been suspended indefinitely.

Gonzales's sordid record goes beyond his apologies for torture of prisoners. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with "scant summaries" on capital punishment cases that "repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales's three-page summary of the case for Bush mentioned only that Washington's defense counsel's 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

Moreover, Gonzales helped write the USA Patriot Act, and managed Bush's selection of judicial nominees, most of whom had to pass a right-wing ideological litmus test. (See my editorial, Bush's Judges: Right-Wing Ideologues.)

When Gonzales was Chief Justice of the Texas Supreme Court, Dick Cheney's Halliburton was the second-largest corporate contributor to Texas Supreme Court races. Over a seven-year period, five Halliburton cases went before that court, and it consistently ruled in favor of Halliburton. And although Gonzales lawfully accepted $14,000 from Enron, he did not recuse himself from the administration's investigation of the Enron scandal when he was White House counsel.

From 2000 to the present, Gonzales led the Bush administration's obstruction of Government Accountability Office access to documents from Cheney's secret energy policy meetings.

Alberto Gonzales has been a loyal foot soldier, walking in lockstep with George W. Bush, for years. As head of the Justice Department, we cannot expect Gonzales to lead independent investigations of the widening probe of Halliburton, or the illegal leak of the identity of a CIA agent by an official of the Bush administration.

In spite of opposition to Gonzales's nomination by public interest groups such as the Center for Constitutional Rights and Human Rights Watch, Democratic Senator Joseph Biden said "I think he's a pretty solid guy."

Unless the Democrats in the Senate show some backbone, and block the nomination of Alberto Gonzales with the only arrow left in their quiver - the filibuster, we will be saddled with another attorney general who mounts vicious assaults on our civil rights.

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