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“For Justice Breyer, constitutional interpretation
should align with these concerns: it is purposive rather than
literal, structural rather than textual, and above all concerned
with how our democracy actually works.”
—Dean John C. Jeffries Jr.
Above, Breyer holds the Constitution aloft. |
Posted March 1, 2004
Supreme Court Designed to Help Americans
Make Democracy Work, Breyer Says
Supreme Court Justice Stephen Breyer called on a packed Caplin Auditorium
audience of law students, faculty, and community members to participate
in American democracy by being involved in public service during his
keynote address at the Fifth Annual Conference on Public Service and
the Law Feb. 28. The Constitution makes public participation key to
a working democracy, Breyer asserted. “We in the Supreme Court don't
make [democracy] work. Our job is to help maintain a system where you
make it work.”
As the years pass after law school, “it's harder and harder to remember
that Roscoe Pound [an advocate of social advocacy in law] called our
profession a profession imbued with the spirit of public service,” Breyer
said. “It's so easy to say when you're in class and so hard to do when
you have a family and have bills to pay and are there in the law firm
day and night thinking about being promoted.” But “if you are nothing
but a private practitioner, maybe you are not even one.”
Appointed to the Court by President Clinton in 1994, Breyer focused
on the meaning of the Constitution and the need for a vocal public
to discuss the most difficult issues democracy faces. Breyer said he
was still in awe of his newfound position, and joked lightheartedly
about his special duties as one of the longest-running junior justices
in Court history. “I've been the junior justice for 10 years,” he said,
joking that in the Supreme Court conference room, “If somebody knocks
on that door, it is my job to open it. The other day somebody knocked
and they had a cup of coffee for Justice Scalia—I thought that was
going a bit far.”
Interpreting the Constitution becomes “a steady diet” for justices,
he said, who cover such ground more commonly than other judges. Breyer
outlined the key elements of the Constitution's framework: it creates
a rule of law, establishes a democratic form of government, has a horizontal
(among federal branches) and vertical (between states and the federal
government) separation of powers, protects basic human rights, and “provides
a degree of equality and respect under the law.”
Breyer described the thrill he still gets from seeing a diverse audience
gather at the Court. “The miracle of this county is that so many different
kinds of people from so many different points of view are in that Supreme
Court chamber, resolving their disputes under oath,” he said. “And
what I'd like to point out is, that that didn't happen by magic.”
Breyer, a former Harvard Law School professor, said he liked to teach
three cases that he felt showed the uniqueness of the American Constitution.
In Cherokee Nation v. Georgia (1831), Cherokees who owned
land in Georgia that was guaranteed to them by treaty were pushed off
the land by Georgians when gold was discovered on the property. The
Cherokees sued, but the Supreme Court sidestepped the first case. Later
a minister from Massachusetts helped the Cherokees and was thrown in
jail for not swearing an oath of loyalty to Georgia's government. He
sued in Wister v. Georgia, saying Georgians had no right to
throw him in jail for being on Cherokee land, which the Native Americans
had rights to govern. Justice John Marshall's Court agreed with the
plaintiff. “That is the case of which supposedly President Andrew Jackson
said, ‘John Marshall has made his decision, now let him enforce it,'” Breyer
said. Jackson sent federal troops to the land to evict the Cherokees,
sending them to Oklahoma; the trail they marched became known as the
Trail of Tears.
In the second case, Cooper v. Aaron (1958), the governor
of Arkansas had blocked a schoolhouse door, denying blacks access to
the school and disobeying Brown v. Board of Education's order
to end school segregation. “You could have had 9000 judges signing
opinions, but how is that going to get the opinion enforced?” Breyer
asked. But President Eisenhower sent troops to Arkansas “and this time
it was in fact not to defy the Supreme Court but rather to enforce
the court order.”
He deemed the third case, “take your pick”—Bush v. Gore, prayer
in schools, abortion—all show that the people accept the Court's decisions.
People feel very strongly about the cases, “but the great untold story
about Bush v. Gore, is that there's no story to tell about
the enforcement,” he said. “It is accepted that that will be followed,
as will prayer in schools, as will abortion, as will many other cases
that are highly controversial, and cases in which I cannot prove that
I'm on the right side nor can anyone else prove that they're on the
right side. There is a lot to be said on both sides of virtually every
controversial case in our court.”
“Perhaps the country has learned something after 200-some-odd years,
because there is no question that those cases will be enforced,” he
said. “Millions of people have internalized the importance of following
the law—that's the rule of law—not the document.”
People learn to follow the law by court cases, by learning from teachers,
and by how people act and the consequences of their actions. “It's
in the public realm where, in fact, the lesson is learned,” he said. “The
thrust of the document is democracy.”
But not everyone agrees with that, he said. Breyer met with Justices
O'Connor and Kennedy a few weeks ago, and talked about surveys from
students, who said the most important part of the Constitution was
free speech
“What's at the heart of this document is a form of government where
people govern themselves,” he contended. He pointed to the arguments
over privacy that have emerged as computer technology has made every
action easily recordable. “How do we legislate in that area? What kind
of laws ought we to have?” he asked. The debate in the public realm
has been voluminous, as seen in everything from American Bar Association
committee discussions to newspaper columns, Breyer said, and “the more
that have an opinion, the better.
“I say ‘wonderful'—wonderful because change comes out of that,” he
said of the debate.
“If you think we have the answer, you're wrong... what we try to do
is not to answer such questions, but to set the guidelines... [we try]
to interpret the constitutional provisions that will give the democratic
process leeway.” The Supreme Court can better define the parameters
of the law when the people have “had a lot of input in a complex question
like that one.”
In deciding the recent Grutter decision that upholds the
consideration of race in college admissions, Breyer said he weighed
the opinions in the amicus briefs. The question revolved around whether
affirmative action could be used under the equal protection clause
of the 14th Amendment. “We ended up thinking it could be used to an
extent,” he said. Two possible interpretations were at stake: a purposive
view that the clause was principally designed to help people who had
been slaves to be integrated into society and to ensure there's no
invidious discrimination, and the second interpretation: that “equal
protection of the law means that the Constitution is colorblind.”
“Both of those interpretations have quite a lot to be said for them
and quite a lot to be said against them,” he said. He carefully considered
the U.S. Army's amicus brief, which said the service had many minority
officers “and they do their job”—but the military can't recruit unless
those minorities get into colleges like West Point. Businesses said
the same thing—Breyer paraphrased, “unless you allow a degree of affirmative
action in elite law schools and universities, we are going to have
a very difficult time maintaining a top-ranking executive cadre that
reflects more than simply the majority race in the United States.
“I'm being told by people who know that if you choose the colorblind
interpretation as the proper interpretation, we're telling you our
institution is not going to work,” he said. “And what we're really
telling you is that the country is not going to work, because you can't
have a functioning democracy where vast numbers of people in the United
States think that this government is not ours.
“I'm saying that as I see this document, it creates a democracy that's
supposed to work,” he continued. The Supreme Court may maintain a system
of democracy, but the people must make democracy work.
Breyer recounted that Pericles once asked the Athenians, “What is
it that we say about the man in Athens who does not participate in
politics?... We do not say he is a man who minds his own business,
we say he is a man who has no business here.”
Breyer asked students in the audience to not just be “the law-firm
type.
“We are in a profession for a good reason that has a spirit of public
service.”
• Reported by M. Wood
So Far, Good Will for No Child Left Behind
Panelists discussing the federal No Child Left Behind Act, which injects
the national government into education issues to an unprecedented degree
by requiring states to develop achievement and accountability standards,
found little to dispute about its aims or methods.
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Kent Talbert: “NCLB
gives parents better report cards on their schools, but parents
still have to use the data and make decisions on it.” |
According to Kent Talbert, Deputy General Counsel in the U.S. Department
of Education and a member of the department's implementation team, “the
very title sets forth the principle of the act: all students can perform
to the same high standard. We shouldn't focus on averages, but the
data on every group. The goal is to close the achievement gap between
the disadvantaged and the advantaged.”
The law recognizes the “natural tension” between national and state
and local laws, particularly the tradition of local control over schools,
he said.
NCLB sets 2013-14 as the deadline for achieving proficiency in reading
and math through the eighth-grade level. Other goals are to provide
school accountability and more options for parents, to retain local
control, and to rely on scientific research and proven instructional
methods. States will be required to give reading and math tests in
grades 3 through 8.
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John DiPaolo, left,
with Stewart Roberson. |
“The impact of NCLB is the overall salutary effect of creating real
urgency and a sense of crisis to improve student achievement. The negative
effect is that it is a blunt instrument from the federal level,” said
John DiPaolo, executive director of for Partnership Schools of Temple
University, an ambitious project by Temple to improve six north Philadelphia
schools where only 20 to 30 percent of students read on grade level
and 85 to 95 percent qualify for the federal free-and–reduced lunch
program.
“The right level of pressure leads to progress; the wrong level leads
to pathology,” DiPaolo said. “There are two solutions to students not
reading: one is to teach reading, the other is to cheat.” He said he
expects to hear more stories about schools cheating on tests in the
future.
Happy that NCLB focuses attention on achievement gaps between high
and low income and racial and ethnic groups, he said the solution is “to
build the capacity to teach effectively. We have to make classrooms
open so they are not just the private discretionary effort of one teacher.
We have to get parents more involved in their kids' education.”
Greater parental involvement was a recurrent theme with the panelists,
as was the need to support teachers' command of their subject matter.
“If we knew how to solve the problem of lack of parental support,
we would solve a lot of our problem,” said Virginia State Senator Frederick
Quayle, a member of the Senate's health and education committee. “Various
strategies we've tried haven't worked. Students don't exert themselves
when their parents don't require it.”
“Schools have to learn to listen to parents,” DiPaolo said. “Many
did not have good experiences in school. Parents can be taught how
to tell if their child's classroom is a good one. The premise [of the
law] is that all students deserve to be taught by teachers who are
highly qualified in the subject they teach.”
Quayle said Virginia has a different take on the law than states not
already reforming their schools on their own. “The basic problem we
have is that we began our own education reform in the ‘90s. We've spent
a lot of money on it and it works. Virginia today is number one or
two as far as the accountability of its schools. The Standards of Learning
were debated very heavily for several years before adopting them and
then amended since then. We've got the SOLs and we're going to keep
them.”
Virginia officials are in the process of integrating No Child Left
Behind into the SOLs, he said. The state is “asking for some waivers
from NCLB because of some [SOL] provisions that we already have in
progress that aim at the same ends.”
He lamented that Virginia's educational bureaucracy is growing to
collect and analyze the data that NCLB requires.
Had Virginia's reform strategy not been similar to No Child Left Behind,
he doubted there would be enough federal funding provided to achieve
NCLB's terms.
Hanover County Superintendent Stewart Roberson called
NCLB “bold and proper” and said concerns with it are not over education
per se, but about federal control and how to promote the change successfully.
Reform mandates have not removed creativity from classrooms, he said.
Educational leadership research shows “that top-down change results
at best in malicious compliance” and bottom-up change that lacks leaders'
support results in “inertia” in the district, he said.
Noting that “50 wildly different tests are being developed by states,” he
wondered if the law would really lead to a relatively uniform minimum
standard for academic performance across the country.
Again, it will come down to what parents do, asserted Talbert. “NCLB
gives parents better report cards on their schools, but parents still
have to use the data and make decisions on it.”
• Reported by M. Marshall
Ending Anonymous “Holds” Could
Repair the Process for Making Judicial Appointments
If the fault line dividing the panel discussing the politicization
of the process for confirming federal judicial nominees is any indication,
the prospects for making it less partisan are remote. Slate magazine
Senior Editor Dahlia Lithwick, who moderated, opened with the assertion
that “This isn't about personalities. It's about a system that's profoundly
broken.”
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The Judicial Appointments
panel: from left, Lillian BeVier, Neil MacBride, Daniel Bryant,
Nan Aron, and moderator Dahlia Lithwick. |
Some politics is normal to appointments, according to Daniel Bryant,
an assistant attorney general in the Department of Justice's Office
of Legal Policy, but things are getting too nasty. “We got here because
the Constitution has an interesting way of assigning responsibilities
in the government. Separation of powers is not precise or pristine.
It involves the branches looking over each others' shoulders.... By
design it's not efficient. It's a full-contact process with some low
blows. A lot of the vigorous interaction is appropriate, but there's
been conflict and bruising that's not consistent with the process as
intended.”
Neil MacBride,'92, Chief Counsel to Senator Joseph Biden (D-DE), who
sits on the Senate Judiciary Committee, agreed that the process could
be more civil. “[Former North Carolina Senator] Sam Ervin once said
separation of powers needn't mean war between the branches.” But, he
asserted, Republicans are distorting how bad things are. “President
George W. Bush has had 171 nominees approved and only 6 rejected in
the last three years.”
Bryant contended that only 60 percent of Bush's nominees for U.S.
Circuit Courts have been confirmed, whereas Carter had 93 percent,
Reagan 89 percent, G.H.W. Bush 79 percent, and Clinton had 77 percent
confirmed during their first four years in office. While the trend
is clear, he pointed to the 17 percent drop for Bush as an even more
partisan climate than previous presidents faced. MacBride called this
assertion another instance of Mark Twain's famous aphorism about “lies,
damned lies and statistics.”
MacBride offered three reasons why appointments have become so politicized.
First, ideological litmus tests are being applied that were not formerly
applied. Second, lower courts are not feeling so bound by stare
decisis [to follow principles and rules set down in earlier decisions]
and, third, the U.S. Circuits Courts of Appeals are now the end of
the road for most litigants.”
For U.Va. law professor Lillian
BeVier, who was nominated for the U.S. Court of Appeals for the
Fourth Circuit by President George H. W. Bush in 1990 but never got
a Senate hearing, the roots of the problem lie in the growth in law
itself. “The law has grown exponentially, so the debate about what
judging is gets more important. As we get more and more law and more
cases, the ideological differences between judges get more meaningful.
You wake up one day and you have the sense that judges are
deciding everything.
“The stakes are high and lots of judges are acting as if they are
political. They are acting on their personal beliefs and not on what
the law says. So the stakes get higher and the game gets rougher.”
Nan Aron, founder and President of the Alliance for Justice, didn't
agree that such abstract causes are at fault. “I don't think the crisis
stems from the process, but from George Bush's court-packing scheme.”
There are almost 200 judges on the U.S. Circuit Courts of Appeals
making decisions on behalf of a national population near 300 million,
she pointed out. “These are very, very important people and they will
be there for life. We've got a president like Reagan who is determined
to leave his imprint on the judiciary. These people named by this administration
have lengthy records of hostility to the rights we care about—clean
air, clean water, choice, civil rights. These people must be
stopped by any means possible.”
“Whose choice should it be?” injected Lithwick. “What's wrong with
the president choosing who he wants?”
“Bush wants to nominate people whose records show legal excellence,
integrity, that they are truly impartial and understand the right role
of a judge as opposed to a legislator,” Bryant answered. “Judges should
not be free to impose their political vision through their decisions.”
“The fact is that despite the effort, and I believe it is a good-faith
effort, to find people who are going to apply the law, all the nominations
have become political now. The president is not going to appoint people
who will make political choices for the other side. It's now a political
fight and it's going to stay a political fight for as far as I can
see,” BeVier lamented.
“What's lost in the current debate is that in most instances this
president has had his nominees confirmed,” MacBride repeated.
Aron said politics should be involved in the nominating process. “It
was envisioned as a political process. Republicans see judicial nominations
in terms of results. They've done this for decades. They want people
who will carry out their agenda for them. They want people like Scalia
and Thomas. Democrats see [nominees] in terms of patronage, rewarding
people who helped in the campaign. This administration has not played
fairly the way Clinton did. He knew the Senate had a co-equal role.
Bush treats the Senate like a stepchild.”
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Daniel Bryant and
Nan Aron face off. |
“Not to put too fine a point on it,” Bryant commented.
Lithwick asked what one thing could be changed to improve the process.
“The process needs to be more transparent,” volunteered BeVier. “Most
of what goes on goes on without the public knowing it. People don't
know how important it is to Sen. Biden when the Alliance for Justice
weighs in. Why don't we just elect the judges and be done with it—but
of course we can't because they have life tenure.”
Foremost among the obstacles to a nominee is the Senate's tradition
of allowing senators to anonymously put “holds” on a nominee and suspend
their consideration, Bryant said. A bill introduced by Sen. Charles
Grassley (D-IO) requiring senators to state their reason for the hold
within two days of placing it got only eight co-sponsors.
“The Senate has a 200-year history of delaying change,” MacBride observed.
Asked later why there are not simply votes on nominees, he explained, “that
requires jettisoning 200 years of Senate tradition. We've never done
it that way. There's a whole waterfront of important issues that come
before the Senate that never get a chance to be voted on.”
“The device of the filibuster and other obstructions are here to stay,” said
Bryant. “I would push for a more open marketplace where nominees get
full debate and the Senate votes them up or down.”
“Nominees don't know what's happening with holds,” said BeVier. “I
was stunned when my nomination lapsed and I found out why. I think
the anonymous business has to stop.”
Macbride compared the process to dating, where evasive answers are
not reassuring, and said nominees “need to be ready to speak at length
about their views on constitutional interpretation.”
BeVier said she knows people who were approached about serving and
said “no way, because they did not want their reputations trashed.”
In the end, answering a question from the audience, MacBride agreed
that reforming anonymous holds would be useful step.
• Reported by M. Marshall
Patriot Act Charges Government with Balancing
Privacy, Security
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Mark Bradley: “I'm
of the view that if we violate the Constitution, we're losing
the war on terrorism.” |
Checks and balances help ensure the safekeeping of constitutional
rights in carrying out the provisions of the Patriot Act, according
to one official who deals with applications to spy on potential terrorists
or foreign agents, but other participants in the Feb. 28 panel “Balancing
Privacy and Security After September 11” said the Patriot Act goes
too far in violating privacy rights.
“The problems that we're facing are at the heart of what this country's
about,” said Mark Bradley, Deputy Counsel for Intelligence Policy in
the Department of Justice's Office of Intelligence Policy and Review. “The
question is, how do we effectively protect the United States without
violating our Constitution, especially the Bill of Rights.”
Bradley said when he left work after September 11, he smelled the
Pentagon burning. “I knew things had changed. They had changed dramatically.”
Bradley said his office primarily prepares applications for the Foreign
Intelligence Surveillance Court (established by the Foreign Intelligence
Surveillance Act, or FISA), which includes 11 federal district judges
appointed by the Chief Justice of the Supreme Court. The applications
usually seek permission for surveillance and electronic searches against
U.S. and non-U.S. citizens who they have reason to believe are involved
with terrorism or spying on the country. While the court has been active
since 1978, the Patriot Act has extended the period of time subjects
can be under surveillance, as well as the kinds of surveillance possible.
After a FISA judge has signed off on the application, the application
is certified by a high-ranking official, such as the director of the
CIA or FBI, Secretary of State Colin Powell, National Security Adviser
Condoleezza Rice, or Secretary of Defense Donald Rumsfeld. Additionally,
four Congressional committees oversee the actions of Bradley's office.
“There is a regime in place that has oversight over this entire process,” Bradley
emphasized. “It's not some cabal sitting in the Department of Justice
at Attorney General Ashcroft's feet.”
The FISA court came into existence because of abuses by the intelligence
community in spying on protestors and domestic critics of government,
such as Martin Luther King Jr.
As a result of 9/11, the job has changed, Bradley said. He reads a
large stack of threat reports each morning. “No one wants to be blamed
for the next attack,” he said. If they're wrong, there could be another
attack, but “if we're wrong again, we could violate someone's civil
rights.
“I have no doubt that [al Queda is] still out there and I have no
doubt that they're going to try again,” he said.
 |
Casey Mattox said
the fact that Justice Rehnquist chooses all FISA court judges
is problematic. |
Panelist Casey Mattox, litigation counsel to Charlottesville's Rutherford
Institute, said one of the biggest problems when discussing the Patriot
Act is that most people haven't read it—not surprising since it's several
hundred pages long.
“These are not evil people,” he said of the administration. “No one
is scheming... that [picture] doesn't help.”
The Rutherford Institute has forged an alliance with the ACLU in fighting
provisions of the Act, and also to challenge the United States' enemy-combatant
policy, in particular the case of “dirty bomber” Jose Padilla, whose
case will be heard by the Supreme Court because of their efforts. Mattox
noted the Institute tends be considered a “conservative right-wing
think-tank,” and “no matter what we do we will always be known as such.”
The usual conservative response to the Patriot Act is to say “I've
got nothing to hide,” so it's acceptable to spy, he said. Most people
were ready to give up some rights after September 11, he said, and
if the government had asked to temporarily suspend the Fourth Amendment,
most would have agreed. Mattox said the Patriot Act essentially does
just that.
Even if the current administration is acting responsibly, “things
could change” with different elected leaders, he added. “My fear is
that we will voluntarily keep handing power over to people who are
trying to protect us,” he said.
Mattox said he was most worried about the sneak-and-peek provisions
of the Act, which give law enforcement authority in some circumstances
to search a home without advance notice and delay after-the-fact notice.
With the Act's allowance of roving wiretaps, the government no longer
has to put taps just on a specific phone or computer; it could put
a tap on a computer in Virginia's Law Library, for example.
“My largest concern isn't so much a privacy concern as the definitions
of domestic terror,” he added. For example, broad civil rights arguments
could be considered domestic terrorism because the Act defines the
term so loosely. If lawyers can find a way to twist meanings, they
will, he warned.
 |
Jeffrey Rosen advocated
for a controlled-use model of surveillance. |
George Washington University law professor and media commentator Jeffrey Rosen argued
it was possible to strike a balance between privacy and security. He
gave the example of the proposed holographic security screener that
many complained about because it shows nude images of passengers passing
through it. Rosen noted that studies show “it turns out people don't
mind being naked at airports” if it means they don't have to wait in
hours-long lines. Still, in response to complaints, Pacific Northwest
Laboratories changed the program, scrambling the image of the naked
body into a nondescript blob—“for most of us an act of mercy,” he joked.
The new model “only focuses on guilty or suspect information,” he said. “It's
very effective in achieving its goal.”
Rosen said he was convinced that all surveillance technology could
be designed to look more like the “blob machine.” As another precaution
in air travel, the government's proposed data-mining program initially
sought “total information awareness,” integrating public and private
databases, and including information on everything from bookstore receipts
to telephone calls. The system was supposed to check if travelers fit
the 9/11 terrorist profile, but there was no guarantee the system would
even work, and no guarantee that law enforcement wouldn't use the system
to prosecute low-level crimes. A coalition including the ACLU and the
Rutherford Institute helped block the legislation allowing the system.
In contrast, Rosen said, Britain is so wired up it “resembles the
set of The Truman Show.”
The system that likely will be used instead, CAPS II (Computer-Assisted
Passenger Screening), is “designed merely to authenticate that I am
who I say I am.” The system helps allay the fear of the “Nixon effect,” where
administration critics are prosecuted for no reason. With CAPS II,
data cannot be forwarded to law enforcement unless the traveler has
been convicted of a serious crime. “That is a victory for privacy,” he
said.
Rosen said he was not as worried about roving wiretaps, since they
mostly allow the old rules to apply to new technologies, or the sneak-and-peeks,
which can be used by law in a number of crimes. Instead, he's most
worried about Section 215 of the Act, the infamous, not-yet-invoked
provision that allows the government to see what books you're checking
out from the library, among other things. He said even Laura Bush,
a former librarian “was troubled by this provision.”
Before, broad surveillance was only allowed if a suspect was believed
to be an agent of a foreign power, but section 215 removed the requirement
that the person be identified as a suspected spy or terrorist. Now
if the government certifies he's a suspect, any data can be sought, “so
theoretically you could have the Nixon effect.”
Some lawmakers have proposed legislation to dampen 215, in particular
the SAFE Act, which re-instates that the subject has to be a suspected
spy or terrorist. It probably won't pass, Rosen said, because the argument
that it could be used to go after low-level crimes “resonates with
people.” Many feel it might be useful to go after low-level crimes,
as was done when Al Capone was convicted of tax evasion, if that's
the only way to prosecute a suspected terrorist. “Resurrecting that
proportionality argument... is politically difficult,” he said.
Rosen instead proposed the “controlled-use model” used by the Germans,
in which the government gets broad authority in surveillance, but can't
prosecute people unless there's evidence of terrorism or a major crime.
Rosen predicted lawmakers would reject this solution because they have
been reluctant to differentiate between high- and low-level crimes.
Furthermore, about 50 percent of the public thinks the Patriot Act
strikes a good balance, and 20 percent think it doesn't go far enough.
That leaves only 20 percent vocally opposing the Act, as Ashcroft is
quick to point out.
“I wouldn't have any confidence that a President Kerry would endorse
a SAFE Act,” he said. He pointed out that most of the Patriot Act provisions
were initially proposed during the Clinton administration.
Rosen said the courts cannot be entrusted to regulate privacy rights,
citing their refusal to recognize private third-party databases. “The
only time justices are really upset about privacy is when they can
imagine their own privacy being violated,” he said. “Constitutional
values are being threatened, but constitutional law is completely inadequate
to the task of regulating.”
Congress is and should be responsible for imposing limits, he said. “What
we need now is the will.”
During a question-and-answer period, Bradley went into more detail
about how low-level crimes could be useful in gathering intelligence.
For example, if a Russian intelligence officer is committing fraud,
he might be approached and asked if he wants to work for the CIA—or
whether he would prefer they tell the Russian government he's been
committing fraud on U.S. soil. The same principle might apply to terrorism
cases, where someone committing fraud might lead to someone planning
a terror attack.
Despite others' concerns over the division between criminal and intelligence
divisions, “we're using these things for the purposes they're supposed
to be directed at,” Bradley said.
“If you're really concerned about this, then get involved in it,” he
urged. He pointed to other law graduates who have had an impact in
government, including FBI Director Robert S. Mueller and the first
general counsel of the CIA. Such jobs are high-pressure, but vitally
important to security and preserving the Constitution. “I gave up sleeping
well a long time ago,” he said.
Mattox expressed concern over the fact that Rehnquist alone picks
the judges; he along with the upper-level administration officials
who certify the applications could constitute a collaborative regime. “That's
maybe something I think that could be addressed,” he said.
Bradley said in his experience the FISA Court includes a cross-section
of judges who are not afraid to reject applications. “The FISA court
seems to be very keenly aware of its jurisdiction,” he said. He assured
the audience that he, too, is aware of the issues at stake. “I'm of
the view that if we violate the Constitution, we're losing the war
on terrorism.” He said Washington, D.C., puts a heavy emphasis on accountability,
which was abundantly clear when FBI agents were called to task for
not being more aware of suspected terrorist Zacarias Moussaoui's actions
in the United States. His office is also aware that people who are
vocal in their criticism of the U.S. government aren't necessarily
worth spying on. “The real guys don't talk,” he warned. “The real guys
don't draw attention to themselves.”
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Professor Elizabeth
Magill moderated the Constitutional Law and Abortion Litigation
panels |
Mattox compared the political atmosphere after 9/11 to the overreaction
caused by the Columbine shootings on zero-tolerance policies in bringing
weapons to school. One boy took a knife from a girl who threatened
suicide and hid it for fear of the school finding out; he planned to
wait and tell his father that night. He was expelled when school officials
found the weapon in his locker that day.
“When fear starts to drive policy, that's part of the problem,” he
said.
• Reported by M. Wood
Right Winning War on Abortion in Court of
Public Opinion
Partial-Birth Cases May Center on Health Exception
The left has been asleep at the wheel while the right is slowly but
surely chipping away at abortion laws, some panelists alleged at the
Conference's Abortion Litigation panel, while an attorney involved
in litigation defending the federal Partial Birth Abortion Act and
rights of pro-choice employees said the battle over early-term abortion
rights was over, and only late-term abortion regulations are being
challenged in court.
The right is “finding ways to chip away at this fundamental freedom,” said
Blake Cornish, Deputy Legal Director for Nominations at NARAL-Pro Choice
America, pointing to the federal ban on partial-birth abortion and
school board laws preventing abortion as a topic in schools. “The pro-choice
majority in the United States is pretty complacent.”
Most people don't know “how close Roe really is to being
completely overturned,” Cornish said. “We could lose it altogether.” More
than half of state legislatures are opposed to the right to choose,
he said, and at least 12 states are likely to ban abortion immediately
if Roe v. Wade is overturned. He identified 400 separate
state laws enacted since Roe that restrict the right to choose
or chip away at such laws. They make accessing abortion “humiliating.”
The right has had a “conscious, long-term, patient strategy... to
pack the courts with pro-life judges.” He noted that the phrase “litmus
tests” was first used during the Reagan administration, when the president
would not appoint judges who were pro-choice. As a result, in the 32
cases in the Court of Appeals since 1992, judges appointed by Reagan
and former President Bush were four times more likely to uphold a restriction
to abortion rights.
People ask “how could this happen,” he said. “The problem is that
the law is not really settled in this area” because of ambiguous Supreme
Court rulings. Planned Parenthood of Southeastern Pennsylvania v.
Casey (1992) replaced the strict scrutiny standard of Roe with
the “undue burden standard” in analyzing pre-viability restrictions
on abortions. State regulations that protect potential life and maternal
health are valid unless they impose a “substantial obstacle” in the
woman's path. The definition of “substantial” has left judges some
wiggle room.
Jay Alan Sekulow, Chief Counsel for the American Center for Law and
Justice, agreed “there is not a lot of settled law” in the area. He
worked on abortion litigation cases in the early 1990s that focused
on free speech and the limits placed on abortions protestors; he is
gearing up for litigation on partial-birth abortions, which will likely
reach the Supreme Court, he said. “All of these cases tend to be on
the margins.”
When the partial-birth ban reaches the Court, “You could just ask
everyone to leave, except Justice O'Connor,” he said. “It's going to
be a close call.”
Sekulow predicted a potential Supreme Court case would center on the
health-care exception, adding that he would be able to get testimony
from a score of witnesses from esteemed health care institutions who
have performed abortions themselves and believe partial-birth abortions
are never medically necessary.
But “there'd have to be a lot of changes in the Court for Roe to
be obliterated,” he added, arguing that litigation is more likely to
focus on partial-birth abortions and restrictions rather than a total
elimination of abortion rights. Parental notification, for example, “makes
sense.” He recalled one case he worked on in which a school guidance
counselor sent a minor across state lines to have an abortion without
getting a judge's approval and without getting parental permission.
She later had complications the parents had to pay for. The counselor “didn't
even follow the law” by asking for a judicial bypass, he said.
Karen Raschke, Chair of Planned Parenthood Advocates of Virginia,
said she would have killed herself if she had become pregnant in the
pre-Roe South. She compared the demise of abortion rights
to pulling a string of a sweater and watching it slowly unravel.
She suggested audience members understand how these issues are talked
about in state legislatures. “I hate how women's body parts are tossed
around the General Assembly,” she said. She displayed charts used by
lawmakers showing a partial-birth abortion procedure that didn't show
the mother's head.
Partial-birth abortion foes were able to win because they changed
the terms of the debate, she said. In her view, a DNX procedure is
needed when a pregnancy goes terribly wrong. In Congress, “'partial
birth' became a battle cry.”
“At one time we described the bill as a classic bait and switch,” she
said. The bait was describing the fetus as a “Gerber baby” without
mentioning the consequences for the woman, and the switch was the legislative
language that described the procedure vaguely. By controlling the language
of the debate and focusing on the most distasteful aspects of abortion,
the right could triumph, she said. “Their territory is on later abortion
and it's what makes us uncomfortable,” she said, noting that the vast
majority of abortions in the United States are not late-term cases.
“Unwitting” reporters perpetuated the partial-birth abortion terminology
and “as a result of all those mistakes and all the unwitting participants,
the few abortions we were talking about became all abortions,” she
said. “We did lose and we still lose in the court of public opinion....We're
playing the same game now with emergency contraceptives.”
In the question-and-answer session, Cornish noted that pro-choice
advocates are trying to get legislation passed that would amend laws
supposedly banning partial-birth abortion to ban just that procedure.
The language of such laws, if upheld as is, would ban second- and third-trimester
abortions, he said. “Under Roe, you do need an exception to
protect the woman's health”—and doctors or anti-choice advocates should
not be making that decision, he added. “This health exception is kind
of where the action is now.”
Sekulow said challenges to the federal Partial Birth Abortion Act
are proceeding in New York, Illinois, and San Francisco. In New York,
judges are giving pro-choice plaintiffs a rough time for not handing
over medical records of patients to medical experts testifying for
the other side. Sekulow said the records are necessary to determine
whether the abortions were medically necessary or not, while Cornish
said the plaintiffs were trying to protect the privacy of women who
are not plaintiffs in the case.
“Notice the debate primarily is the later terms,” Sekulow said of
the trend in abortion litigation cases. “You don't hear a lot of debate
on first or early or second-term abortions.”
Sekulow has also worked on a number of “conscience clause” cases in
which doctors or nurses don't want to participate in an abortion procedure.
They are “very winnable for my side,” he added. A California jury awarded
a nurse compensatory and punitive damages after she was fired for not
helping with an abortion procedure that she was asked to assist in
outside her regular unit.
Cornish classified the same cases as falling under the “denial clause” or “refusal
clause.” He said he thought individuals have rights in not performing
services, but giving the right of refusal to HMOs is problematic.
“For us to allow one person to deny a service... I think is just so
unethical,” Raschke added.
Another stumbling block for pro-choice advocates was the announcement
in 1997 by the American Medical Association that they favored a ban
on partial-birth abortion, Raschke said. It turned out only two AMA
members had made that official position, but the correcting statement
didn't grab headlines the way the first announcement did.
Cornish noted that targeted regulations of abortion providers are
forcing them out of business, especially in rural and southern locations. “Eighty-seven
percent of counties in states have no abortion provider,” he said.
Raschke said white and middle-class women would always have access
to abortions, but “we'll have a lot more poor and underclass children
because their mothers won't be so lucky.”
• Reported by M. Wood
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