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Statue of Justice
05.20.05
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DAVID BRANCACCIO: NOW on PBS…

POLITICAL AD: What's all this filibuster talk really about? Power. And too much power is a dangerous thing.

BRANCACCIO: The battle over the President's judicial nominees. Just how ugly will it get?

POLITICAL AD: Democrats have abused the rules and refused to allow a vote.

BRANCACCIO: And just how would these judges change America?

JAN LARUE: The people who founded this country certainly came here for religious liberty. But they never meant to exclude religious people from having a say in public policy.

BRANCACCIO: We take a closer look at one of the nominees…

SENATOR DIANE FEINSTEIN: "The result of Government is a debased debauched culture which finds moral depravity entertaining and virtue contemptible." do you really believe that?

BRANCACCIO: And Molly Ivins on the Texas roots of the so called "nuclear option."

MOLLY IVINS: This peculiar combination of theocracy and plutocracy, which has been governing Texas for some time now, appears to be spreading nationwide.

BRANCACCIO: Welcome.

Our program is all about the politics of right now. Here's a startling comparison, but it may be one of the few things Republicans and Democrats might not argue with at this moment in history: getting rid of the filibuster so that only 51 votes instead of 60 are required in the Senate to pass key nominations would be like waking up to find there'd been a special election overnight and that Republicans had won nine extra votes in the United States Senate.

The filibuster fight is about amassing the power to transform the country.

Joining me is a woman who has a clear vision on this. Jan LaRue is the top lawyer for Concerned Women for America, one part of a sprawling coalition of conservative groups who are taking no prisoners in their efforts to get President Bush's nominees on to those federal benches.

BRANCACCIO: Jan, thanks for doing this with us.

JAN LARUE: My pleasure David.

BRANCACCIO: Jan, what's going on now has been described as a climax of a 30 year culture war. Is that hyperbole? Or is that how much is at stake here really?

JAN LARUE: No, I don't think it's a hyperbole at all, David. Because if you look at some of the recent rulings by federal judges. It is, in fact, about the culture, and whether we the people get to define our culture or unelected lawyers do.

For example, last year, you had three separate courts strike down the federal ban on partial-birth abortion despite the will of the majority of Congress. And, last Friday, in Nebraska, another single federal judge ruled against the will of 70 percent of Nebraskans and declared that their state amendment limiting marriage to a man and a woman violates the federal Constitution. So it really is about very important issues. Judges effect every area of our lives.

BRANCACCIO: How far do you take this? Do you think that the traditional separation between church and state is a good thing or a bad thing?

JAN LARUE: Depends on what you mean by the separation of church and state. If you mean the separation of God from the public square, I totally disagree. That's not at all what the First Amendment is about. So I think there is a true assault, by very extreme left wing people, who are very afraid of a mention of God in public, especially when it comes to a simple posting of the Ten Commandments on a courthouse wall.

The people who founded this country certainly came here for religious liberty. But they never meant to exclude religious people from having a say in public policy, or an acknowledgment of God by our leaders and our people.

BRANCACCIO: So in my efforts here to understand, sort of, where your limits are on this, you wouldn't support a state that wanted to establish an official religion would you?

JAN LARUE: Well, you know, the interesting thing is that the founding of our country, there were state churches. That's what it's all about, in a country where the people get to rule, and if you, you know, you're in a state you don't like then you get to move to another state. I think that's highly unlikely, in this day and age, where we're gonna have any state church. What we need is protection of all faiths.

BRANCACCIO: I don't wanna be flip. But the fact is, you know, I have my own copy of the Constitution. But I also pulled one off Google this morning, the text. And if you do a search function, a find, the word "God" isn't in it. In the US Constitution. It just comes up empty on that point. There is a legitimate debate about how much our Founding Fathers expected religion to be a part of our public life.

JAN LARUE: Actually, the Founders did go to the point of putting God in the Constitution. It ends by not just stating that they it says in the year of our Lord.

BRANCACCIO: Well, Jan, it's true. You got me there. If you actually look at the Constitution at the very end right before the signatures it says this thing is witnessed "in the year of our Lord 1787." Lord does appear there. But that's not exactly framing the construction of our new government in terms of making it a religious institution.

JAN LARUE: No. But it certainly-- when you look at that and when you look at the first amendment, what's the very first liberty that's secured? It is religious expression. It is religious liberty. But you can't just look at the Constitution.

You have to look at the founding document, the Declaration of Independence. And clearly in there, Thomas Jefferson made it clear that our rights do not come from government, they come from the creator. And we are endowed by our creator with certain unalienable rights. And among these are life, liberty and the pursuit of happiness.

And certainly that is very important and people have to understand that what the government gives you, the government can take away. But what God gives you, he gives you permanently. And that's the role of government and the role of the Constitution and our laws is to secure the liberties that God has given us. And the people who founded this country recognized that importance.

BRANCACCIO: The Bush administration's had a pretty good record getting its judicial nominees through Congress. There's been well over 200 that have gotten through. What we're talking about is really just a very small handful. But the overall record's very good. Why don't you compromise on the last couple?

JAN LARUE: Why should we? The president made it quite clear that the kind of judges that he would nominate the people reelected him. And they sent more Senators to the Senate to help him do that. The fact of the matter is that these nominees that the president has put forth the Democrats have attacked all of them. They call them extremists. I can tell you this is a very hot issue with our constituents. They're wanting to know why it has taken four years for example for Priscilla Owen, the nominee to the Fifth Circuit, to even have the chance of a vote on the Senate floor. And so this is a very important issue. And there shouldn't be any compromises by the party that won. People sent them there to act like they won, not to cut deals with people who are using deception against these stellar nominees. Destroying their records and doing character assassinations. So the fact of the matter is the Democrats wanna hold on to the filibuster because they're looking to the big prize when the Supreme Court has vacancies.

BRANCACCIO: You'd think that Concerned Women for America would just be generally happier with the president they want in office, both Houses of Congress controlled by Republicans. A pretty conservative US Supreme Court. Guys like Rehnquist are no flaming liberals, you must admit. But you still sound aggrieved to me.

JAN LARUE: Oh, we appreciate a lot that the president has done in advancing pro-life legislation. But I have to chuckle when you call this Supreme Court conservative. There are three conservatives on the court. There are four liberals. And there are a couple of centrists. But most of the time they're going the other way. This is not a conservative Supreme Court.

There shouldn't be a battle if and when Chief Justice Rehnquist retires. It should be quite obvious that the president would want to replace him with a Chief Justice who is conservative. And that is wouldn't change the balance of the court whatsoever. But I still think it will be the mother of all battles.

BRANCACCIO: Well, Jan LaRue, Concerned Women for America, thank you very much.

JAN LARUE: Thank you, David. My pleasure.

BRANCACCIO: So here we are, but how did we get here? And just who are the nominees that have the Senate so worked up? One of them is California Supreme Court Justice Janice Rogers Brown, nominated to the Circuit Court of appeals in Washington DC.

Now, that's the court that oversees many government agencies, which is why justice Brown's views on government attracted so much attention when she came before the Senate Judiciary Committee back in October 2003. Let's refresh our memories.

SEN. HATCH: This morning, the committee considers the nomination of California's Supreme Court Justice Janice Rogers Brown.

BRANCACCIO: What is Janice Rogers Brown's philosophy? Her own words are a guide. Consider her comments on the role of government at the conservative Federalist Society several years ago. "Where government moves in," she said, "civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the street; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit."

SENATOR DIANNE FEINSTEIN: Your views are stark. So the question I have, is that the real you?

JANICE ROGERS BROWN: Let me respond to your question first by taking issue with the characterization that my speeches are intemperate. I may speak in a very straightforward way, I'm very candid and sometimes I'm passionate about what I believe in, but often I am talking about the Constitution and what is being reflected in those speeches is that I am passionately devoted to the ideals on which I think this country is founded.

SENATOR DIANNE FEINSTEIN: Then you would say that the quote which I read to you yesterday, and I'll just read one part today, on government, is that, "The result of government is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible." Do you really believe that?

JANICE ROGERS BROWN: Well, as we discussed yesterday, I am myself part of government. I think that there are many things that government does well, many things that only government can do, but I'm referring there to the unintended consequences of some things that government does.

BRANCACCIO: To what extent Brown believes government is a force for evil or a force for good is a big deal. The court for which she's been nominated, the DC Court of Appeals, is considered the second most powerful in the America, second only to the Supreme Court. It oversees the work of several government agencies that deal with consumer, worker, and environmental protection, areas where Brown has been most outspoken.

SENATOR EDWARD KENNEDY: My question is to you: how in the world can anyone whose rights are being represented and protected by these organizations have any confidence with how you'll rule in the district court when you've taken these positions.

JANICE ROGERS BROWN: I understand what you're saying, Senator, and so I want to do everything I can to assure you that I understand that government can have a very positive role and that there are very beneficial things that government can do.

BRANCACCIO: Senator Richard Durbin of Illinois wanted to know about another part of that Federalist Society speech.

SENATOR RICHARD DURBIN: You called 1937, the year in which President Roosevelt's New Deal legislation started taking effect, "the triumph of our socialist revolution." What do you mean by that?

JANICE ROGERS BROWN: Well, Senator, what I'm doing there is making a speech and I note that the speeches that have been of most interest to people are the ones that I have made to younger audiences, to law students and in making a speech to that kind of audience, I'm really trying to stir the pot a little bit, to get people to think, to challenge them a little bit and so, that's what that speech is designed to do. But I do recognize the difference in the role between speaking and being a judge.

BRANCACCIO: But the Democrats argued she has failed to keep those roles separate, and that, in fact, some of the views expressed in her speeches have crept into opinions she's rendered as a judge in California. For example, that quote about the socialist revolution of 1937 found its way into an opinion she wrote about rent control laws.

SENATOR CHARLES SCHUMER: Can you explain why virtually identical rhetoric, that many would call quite extreme, finds its way into both your speeches and your judicial opinions?

JANICE ROGERS BROWN: I will willingly acknowledge that a judge is not some kind of automaton or computer. You know, a judge is a thinking human being and the writing of a judicial opinion is an organic activity. So it is never true that nothing of a judge is reflected in the work that they do. Writing is that kind of task.

BRANCACCIO: Beyond her speeches, Brown also has a history of issuing controversial opinions. In one age discrimination case, Brown stated, quote: "discrimination based on age… does not mark its victim with a stigma of inferiority or second class citizenship."

And in another case involving Avis Rent-A-Car, Brown concluded that a supervisor's use of racial slurs against Hispanic workers was protected as free speech, even if it violates federal laws against racial discrimination. Groups like the Afl-Cio and the National Organization for Women are not fans. And in this letter, the Congressional Black Caucus urges Brown's defeat, saying that, quote, "nothing less than our liberty and our freedom are at stake."

BRANCACCIO: Senator Orrin Hatch of Utah dismissed such concerns.

SENATOR ORRIN HATCH: Okay. Now, you've been attacked by many groups, mainly the usual suspects among liberal special interest groups, who we've had to put up with around here.

BRANCACCIO: The Senate Judiciary Committee approved Brown's nomination shortly after those hearings in 2003 by a vote of 10 to 9 along strict party lines. But so far Democrats have successfully blocked her nomination from coming to a full Senate vote.

President Bush stands by Justice Brown, calling her a person of "integrity and honor" representing "the best of America." And THE WALL STREET JOURNAL said this of her: "the truth is that Judge Brown is all too qualified, and what scares the left is her chances for promotion."

BRANCACCIO: The naked power plays in the U.S. Senate this week come as no surprise to anyone who knows their way around certain state capitals. The one in Texas comes to mind where White House political Genius Karl Rove and others in President Bush's inner circle cut their professional teeth.

Syndicated columnist Molly Ivins has been following this posse out of Texas since long before its members rode into Washington, and she joins us.

BRANCACCIO: Well, Molly, it's great to meet you.

MOLLY IVINS: Nice to meet you, David.

BRANCACCIO: So Republican officials over in Texas were absolute geniuses. I mean, they've got both houses of the state house. They've got the governorship. They've got pretty much the state supreme court.

MOLLY IVINS: The entire state. Right.

BRANCACCIO: Anything that you could tell us about the Texas experience that would help us to understand what is going on today in Washington D.C.?

MOLLY IVINS: Well, I think of Texas as the national laboratory for bad government. And, basically, we are far ahead of the curve. Usually, people think Texas is behind; little understanding that we are cutting edge in our way.

What you see developing in the political culture of Texas is a combination of theocracy and plutocracy. Very, very active Christian right concerned about social issues, and meanwhile, huge corporate special interests-- just squirreling away, digging new loopholes in the law. Digging-- rigging the rules to their own benefit in ways that are really impressively imaginative.

BRANCACCIO: This issue about the judicial nominees if you take a look at Washington now, what are some of the things that bother you the most that are being bandied about?

MOLLY IVINS: Oh, the claim that this is unprecedented. Never before in American history have people tried to filibuster judicial nominees. That's nonsense.

Priscilla Owen of Texas is one going to be one of the first judges, if not the first judge, to come up. We've had a solid right wing, extremely corporate Supreme Court in Texas. Very, very favorable to business. And even on that bench, Priscilla Owen stands out as particularly active. Particularly prone to rule for business and against consumers. And, of course, she is very much opposed to abortion and abortion rights. And her rulings in this area have been particularly controversial.

BRANCACCIO: She's very in touch with her Christian faith and-

MOLLY IVINS: That's correct.

BRANCACCIO: What you're hearing from conservative voices is that they're tired of being ashamed of being Christians. They should be able to display and act on their faith like anyone acts on other parts of their humanity.

MOLLY IVINS: I have no problem at all with that. I am certainly not opposed to Priscilla Owen because she belongs to an Evangelical church. I mean, really, I've been to this church. They're lovely people. I'm opposed to her on her record. I mean, that's all that counts. It's what kind of job she does. Priscilla Owen is almost the definition of an activist judge.

BRANCACCIO: In what way?

MOLLY IVINS: Well, the particular matter with that it has-- where it has come up again and again in her rulings is the question of judicial bypass, to the state law requiring parental consent for abortion for minors.

BRANCACCIO: Texas has a law that provides for that.

MOLLY IVINS: Parental consent is mandatory. However, if a girl feels that there is some legitimate reason she cannot or should not notify her parents, she can then go before a judge and present the facts and see if she can get a judicial bypass to the requirement. And anyone who has ever sat through these cases knows that they are some of the saddest stories in the world. You don't know what dysfunctional family means until you've heard some of these stories.

And, several of these cases have gone up to the Texas Supreme Court. I believe there was a run of about six of them. And in five of the cases Judge Owen could find no reason to grant judicial bypass. And, further explained that one girl should not have her appeal granted because she had not been fully informed of the moral and religious teachings.

And, there is nothing in state law that says that you must inform a minor who needs an abortion of-- to take a course in ethics. I mean, it was just made up out of whole cloth.

BRANCACCIO: So that would fit the Molly Ivins' definition of activist judge.

MOLLY IVINS: Judicial activist, yeah.

BRANCACCIO: Of a different political stripe, though.

MOLLY IVINS: Yeah. Yeah. And so of course, it's hard to tell whether it's irony or hypocrisy, but here are the people who have been pleading-- have been saying activist judges are a total menace. And the first one they put up is a notorious activist.

BRANCACCIO: They're not just complaining about the types of judges on the bench, but there's even talk in some conservative quarters about eliminating whole courts. The LOS ANGELES TIMES said they'd obtained a audio tape of the Reverend James Dobson, a very important conservative figure, and he was addressing-- a Protestant group. And the quote the LA TIMES had from him-- "Very few people know this-- that the Congress can simply disenfranchise a court. They don't have to fire anybody or impeach them. Or go through that battle. All they have to do is say the Ninth Circuit doesn't exist anymore. And it's gone."

MOLLY IVINS: I really think this is dangerous folly, that kind of talk.

BRANCACCIO: What worries you about a statement like that?

MOLLY IVINS: Because it is a complete violation of the concept of checks and balances between three separate branches of government. The independence of the judiciary is one of the most important tenets of the American Constitution. And I think to cavalierly propose to change it simply because you don't like some judges and let me point out there a great many right wing judges on the bench in this country. It is not some monolithic liberal — that's such nonsense.

MOLLY IVINS: And, one of the amusing things about public debate is the right eternally casting themselves as victims. Poor, helpless things with no voice in the halls of power.

BRANCACCIO: Well, I talked to people that actual feel discriminated against. They say because they're Christian-

MOLLY IVINS: Here are these people-- they have all these executive power. They have all the legislative power. They're getting all the judicial power. Just as fast as they can. And sitting around whining about people of faith being discriminated against. It's silly.

BRANCACCIO: But fostering this sense of victimhood works, to some extent.

MOLLY IVINS: Yeah. The learned helplessness is actually, a terribly dangerous thing. It's just a political pretense. It's a ploy. And I'm sorry that there are people who feel that because they're Christians, they're discriminated against. But that strikes me as truly unlikely proposition. Because, perhaps, many people don't agree with your specific kind of Christianity certainly doesn't mean that you're being discriminated against. People are entitled to disagree, you know?

BRANCACCIO: And the argument's been made that the Republican Party doesn't have a monopoly on faith.

MOLLY IVINS: There are those of us who are Christians who believe that the politics of the right is actually un-Christian. It's not a hard position to hold.

BRANCACCIO: Well, Molly Ivins, thank you very much.

BRANCACCIO: Next week we return again to the issue of jobs in America. Can you say David and Goliath?

Migrant workers at the bottom of the pay scale taking on a fast food giant.

SEAN SELLERS: We weren't going to be able to make a difference in Southwest Florida by just writing letters to our Representatives or Senators.

BRANCACCIO: And that's it for NOW. I'm David Brancaccio. We'll see you next week

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