Civil
Liberties
Justice, Equity, Compassion, and Federal Judges
The Reverend Anthony P. Johnson
October 13, 2002
The second principle in the Unitarian Universalist statement of purposes
and principles is this: We affirm justice, equity and compassion in
human relations. If there is anything that identifies our action in
the world, it is this commitment: from Benjamin Rush's opposition to
slavery and work for mental health in the 1700s; to the abolitionists
of the 1800s; to the founding in 1834 of the Benevolent Fraternity of
Unitarian Churches to minister to the poor of Boston; to the work for
women's suffrage through the 1800s; to the Service Committee's work
with refugees from fascism prior to and during the Second World War;
to the opposition to McCarthyism in the 1950s; to the active involvement
in the Civil Rights and Anti-war Movements of the 1960s and '70s.
Our affirmation of justice, equity and compassion in human relations
follows directly from our first principle: We affirm the worth and dignity
of every person. Our faith is in this sense secular. Since the Unitarians
preached against the Calvinist idea of the depravity of human nature
and the Univer-salists against eternal punishment for sin, we have based
our living of our faith on our human com-mitments to each other. While
we may seek to find eternal and universal truths, if there is one truth
upon which we operate, it is this: Every person is precious. This truth
demands a commitment to and practice of justice, equity and compassion
in human relations.
We are thus in line with the expansion of human reason and freedom and
the expansion of democ-racy associated with the Enlightenment, that
period of intellectual and social growth of the 17th and 18th centuries.
We are allied with the development and expansion of democracy based
on the belief that authority -- be it religious or political -- resides
first in the people, not in the state or a hierar-chy. This puts us
at odds with Antonin Scalia, the associate justice of the United States
Supreme Court, whom George W. Bush holds up as the kind of judge he
would like to appoint to the federal bench and ultimately to the Supreme
Court.
Justice Scalia argues that the growth of democracy has led to a decline
in the application of divine justice. The Constitution must be taken
to mean what it did when it was written, not be interpreted to fit the
conditions of the 21st rather than 18th century. Scalia argues that
a judge who does not support the death penalty as it existed when the
Constitution was written -- applied for many crimes against property
as well as persons and against persons as young as 17 years of age --
should resign from the bench. It is not a judge's job to act on the
basis of evolving social standards. That is the business of the legislative
and executive branch. As a Roman Catholic, Scalia even opposes the Catholic
hierarchy's opposition to capital punishment. As a Christian who believes
in eternal life, he declares death is no big deal. God's justice is
-- in effect -- undermined by a secular and democ-ratic society that
values human life for its own sake. Government is made legitimate not
by the vote or confidence of the people, but by God. The state is divinely
ordained.
Scalia quotes Paul's Epistle to the Romans, to justify the imposition
of divine law by a divinely or-dained state: Let every soul be subject
unto the higher powers. For there is no power but of God: the powers
that be are ordained by God.
We children of the Enlightenment, believers in democracy, seekers of
the divine not outside of this world but in it, are more likely to agree
with Walt Whitman -- the great poet of democracy and the authority of
ordinary humanity -- than with Paul:
We consider bibles and religions divine--I do not say they are not divine,
I say they have all grown out of you, and may grow out of you still,
It is not they who give the life, it is you who give the life,
Leaves are not more shed from the trees, or trees from the earth, than
they are shed out of you.
The judgment of New York University law professor Patricia J. Williams
(writing in the October 7, 2002 issue of "The Nation") is
that Scalia seems to be driven by a wondrously reactionary religious
crusade. This helps to explain how he and four other justices joined
in 2000 to declare George W. Bush the winner of the vote in Florida
and of the Presidential election. The five-justice majority acted in
opposition to existing electoral law, consistent deference to states
in elections except in the case of civil rights violations, and its
own precedents. There is likely to be a vacancy on the Su-preme Court
during this administration and the conservative majority wanted to sure
that any new appointment would be of someone of their ilk. Among this
majority was Chief Justice Rehnquist, who began his career in Arizona
Republican politics four decades ago by challenging black voters at
the polls.
During much of the second half of the 20th century, the Courts -- including
the Supreme Court -- served as a true check both on the executive and
the legislative branches. Whatever the intent of the framers of the
Constitution may have been, beginning with Marbury v. Madison in 1803,
the Su-preme Court has served as a balance to the federal and executive
branches of the federal govern-ment. At that time, the justices began
to articulate and claim for themselves the role of expounders of the
meaning of the Constitution as a living document. Politics has always
played a role in ap-pointment and confirmation of Supreme Court and
other federal judges. During the first century of its existence, one
of every four Supreme Court nominees was rejected by the Senate. Over
its entire history, it has been one of five.
In the 1940s, '50s and '60s, Supreme Court justices -- whether denominated
as liberal or conserva-tive -- were highly respected lower court judges,
legal scholars, and political activists. Some of the outstanding judges
have been William O. Douglas, a New Deal Democrat, Earl Warren, a conserva-tive
Republican from California, and Hugo Black, a former Klan member who
became an effective voice and vote for civil rights.
What has changed since Reagan nominated the eminently reactionary Robert
J. Bork to the Su-preme Court is that nominations have been so consistently
ideology-driven that the capacity to judge, to make carefully considered
decisions, has become a secondary concern -- if considered at all. David
Souter looked like a conservative of narrow view when appointed and
that was behind his appointment. However, he has demonstrated an impressive
capacity for intellectual honesty in his judgments.
Because Federal judges are under the Constitution appointed for life,
the power of the President to appoint federal judges and the power of
the Senate to confirm or reject such appointments is impor-tant. The
U.S. Supreme Court has shifted under the long tenure of Chief Justice
Rehnquist from one that emphasized due process and the protection of
individual rights and civil liberties to one that emphasizes the rights
and powers of the state and corporations over against those of individual
citi-zens.
During the Clinton administration, the Republican Senate rejected the
many of President's federal court appointments. In egregious abuses
of the Senate's role, then-Senator John Ashcroft led the effort to defeat
the confirmation of Ronnie White, a black member of the Missouri Supreme
Court, to federal district court. Ashcroft described White as "pro-criminal."
Perhaps this was because White voted to uphold only 41 of the 58 death
penalties he reviewed on the court and this failure to uphold all of
these outweighed the endorsement of Missouri's Fraternal Order of Police.
Or maybe -- suggests journalist Jack Newfield -- it was racism.
Had the present set of Justices been sitting thirty years ago, the secrecy
of the Pentagon Papers would have been legally maintained.
There are now pending before the Senate -- with its one vote democratic
majority -- a number of appointments so driven by a extreme conservative
agenda that they may not get past the Judiciary Committee which has
-- with a Democratic majority -- passed on to the floor most of Bush's
nomi-nations, because most though conservative were viewed neither as
extreme nor unqualified. In the hopes of getting a new Clarence Thomas
on the Court eventually, Bush has sent up federal court nominations
of minorities with right-wing commitments and little experience.
The American Bar Association -- you may recall -- gave Thomas the lowest
rating it ever gave a Supreme Court nominee and the Leadership Conference
on Civil Rights opposed his nomination. At his confirmation hearings
Thomas stated under oath that he had never thought about abortion or
dis-cussed Roe v. Wade. Yet he had given a speech against abortion rights
to the Heritage Foundation. He was confirmed in spite of significant
opposition. As soon as he assumed office, George W. Bush announced that
he would no longer consider ABA ratings of judicial nominees.
The citizenry has to press our Senators to look closely at all federal
court nominees and not let a rigid ideologue pass just because he is
black or Hispanic. Bush has nominated several Hispanics for federal
court positions. Miguel Estrada has been a lawyer in the Solicitor General's
office and a partner in a Washington law firm, but never a judge. He
has been nominated to the U.S Court of Appeals for the District of Columbia.
The Justice Department refuses to release his legal memo-randa to the
Senate Judiciary Committee, as it has in the past when former Department
staff mem-bers have been nominated for judgeships. Paul Bender, his
supervisor in the Solicitor General's of-fice, opposes his confirmation.
After a meeting of Estrada with the Hispanic Caucus in Congress, Congresswoman
Nydia Velásquez said …he was quite insensitive about immigrant
rights--and he is an immigrant himself! Congressman José Serrano
told journalist Jack Newfield "He wouldn't even acknowledge there
was discrimination against Hispanics in America." [The Nation,
10/7/02]
There have been and are other cases: The Judiciary Committee rejected
Mississippi Judge Charles Pickering and Priscilla Owen for the fifth
circuit court of appeals.
As I have already said, since federal judges serve for life, these appointments
matter. Federal judges are often candidates for Supreme Court appointments.
But even while on the federal circuit and appeals courts, they wield
great power.
On Tuesday, October 8th, a three-judge panel of the United States Court
of Appeals for the Third Circuit upheld the secret deportation hearings
that have been a centerpiece of the administration's response to 9/11.
The panel's majority said in effect that claims if national security
trumped open judicial proceedings and the public's right to know. This
2-1 decision contradicted that of the Sixth Circuit in August. All three
Third Circuit panel judges were Reagan appointees -- and they were split.
The three members of the Sixth Circuit panel were appointed by Carter
or Clinton. The Third Circuit's majority opinion stated that there was
an insufficient tradition of openness regarding access to hearings,
a statement that is factually wrong, according to ACLU attorney Lee
Gelernt. Gelernt in arguing the case allowed that judges should be allowed
to selectively close hearings, but that open hearings even in terrorism
cases should be the norm. Eric Freeman, professor of law at Hofstra
Uni-versity, stated the decision to keep hearings close was "unduly
deferential to the government." Closed proceedings are always more
convenient to the executive branch. [New York Times 8/9/02]
Federal judges are central to the affirmation of justice, equity and
compassion in contemporary U.S. society. Brown v. Topeka Board of Education,
the Seeger decision allowing conscientious objection on humanistic as
well as religious grounds, Roe v. Wade, and the Pentagon papers case
are major examples of the role of the top level of the federal judiciary
-- the U.S. Supreme Court -- in affirm-ing justice, equity and compassion
and the underlying principle of the worth and dignity of every person.
These are principles that are not ours alone as Unitarian Universalists
-- but principles of a free, fair, open, and democratic society. Our
history as a religious people is tied up with the history of the growth
of democracy, the freedom of the individual, and the demise of the belief
that God rather than citizens give their rulers or leaders legitimacy.
The law -- like religion -- is a human creation. The law is legitimate
because we recognize it as such. Bibles are divine because we make them
so.
Antonin Scalia and other right-wing judges may cite the Apostle Paul
in support of the divine right of kings -- or a president appointed
by a majority of the Supreme Court. However, if they are so sure of
the divine origin of their power, I urge them to look to these words
in the Epistle to the Co-lossians [3.12-13a]:
Then put on the garments that suit God's chosen people… compassion,
kindness, humility, gentle-ness, patience.
But people and religion are still growing. Revelation -- whether of
matters religious or constitu-tional -- is not sealed. With Whitman
we believe that it is people who make Bibles divine. And it is people
who make governments legitimate.
Nonetheless, in growing we do not reject what is good from the past.
We can find in ancient scrip-ture support and encouragement for justice,
equity and compassion that speaks to us today. Said the prophet Jeremiah:
Deal justly and fairly, rescue the victim from the oppressor, do not
ill-treat or do vio-lence to the alien, the orphan, or the widow, do
not shed innocent blood in this place. [22.3]
To which I say Amen!
