This diary is my first entry on Daily Kos, although I've been reading material on this site for quite a while. As you all know, the fight over Bush's most controversial nominees has been cast by conservatives and the mainstream media as a battle over the so called moral issues like abortion rights, gay rights, and the seperation of church and state. I am writing this diary because I want to highlight the fact the the current debate over Bush's most radical judicial nominees goes much deeper than these so called moral issues or even the preservation of a long recognized Senate tradition, the filibuster. The Republican's attempt to run roughshod over the American people by confirming Bush's most radical nominees is really about dismantling all our federal work, health, safety, environmental, and anti-discrimination laws and regulations.
More below the fold . . .
Don't get me wrong, Bush & his band of corporate chronies are certainly willing to appoint judges who will eliminate abortion rights, discriminate against gays, and severly limit other civil rights in order to placate their right wing pseudo-Christian base. But don't be fooled by this smokescreen. The psuedo-Christian Pat Robertson types and his horribly misguided followers are only pawns being used by Bush, Inc. to achieve their ultimate goal: undermining virtually all of our federal work, health, safety, environmental, and anti-discrimination regulations and laws that protect us regular folks. If Bush, Inc., has its way, our Supreme Court will become Supreme Court, Inc., and we will see a return to the pre-New Deal Lochner era of jurisprudence, during which the commerce clause was interpreted so narrowly that federal laws prohibiting the interstate shipment of goods produced by child labor were struck down as violative of the 10th Amendment, and the due process rights of corporations were valued more greatly than the due process rights of real people.
For much of the late nineteenth and early twentieth Century, the U.S. Supreme Court enshrined laizzez faire economics into our Constitution. Although there was great public support for laws and regulations aimed at protecting the rights of workers, virtually all progressive measures passed by the legislature were struck down by the judiciary. Progressive federal laws were struck down as violative of the Tenth Amendment, and progressive state laws were struck down as violative of the regulated industry's due process rights under the 14th Amendment. In this pre-New Deal America, workers were exploited, factories were free to pollute, and old people were generally poor when they retired. This judicial activism continued even after the American public had overwhelmingly voted twice for governmental protection from the corporate robber barons by electing Franklin D. Rooselvelt. In fact the Court struck down FDR's National Recovery Act and his first Agricultural Adjustment Act as well. It wasn't until 1937 in NLRB v. Jones Laughlin Steel Corp., that the Court began to back away from it's promotion of laizzez faire economics by finally recognizing a broader conception of Congress's power under the interstate commerce clause by recognizing what has become known as the "substantial effects" doctrine. In short, under this doctrine, any activity having a substantial effect on interstate commerce is fair game for regulation. This new post-Lochner jurisprudence has enabled Congress to enact a whole host of work, health, safety, environmental, and anti-discrimination laws and regulations including the Fair Labor Standards Act, the federal minimum wage, the Environmental Protection Act, the Clean Water Act, the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act.
However, in recent years, the Court has begun to wither away at the "substantial effects" doctrine. Within the past decade in 5 to 4 decisions, with the majority consisting of Chief Justice Rehnquist and Justices O'Connor, Kennedy, Scalia, and Thomas, the Court has struck down the popular Gun Free School Zone Act in U.S. v. Lopez, and a portion of the Violence Against Women Act in U.S. v. Morrison as violative of the 10th Amendment. Justice Thomas in particular wrote his own concurring opinion in Lopez, in which he refers to the Supreme Court's abandonment of its Lochner era jurisprudence in the 1930s was a "wrong turn." Unfortunately, Justice Thomas appears to be joined in his views by a growing chorus of radical right wing legal scholars who want to resurrect a phantom "Contitution-in-exile" and in the process dismantle laws like the Fair Labor Standards Act, the federal minimum wage, the Environmental Protection Act, the Clean Water Act, the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act.
Bush, Inc., has consistently sought to have judges appointed who subscribe to these radical views, and some scholars including Jeff Rosen and Cass Sunstein are warning that Bush may focus on selecting justices who favor will restore the so called "Constitution in Exile." One of Bush's most radical nominees, Justice Janice Rogers Brown, who is currently being opposed by democrats, has roundly criticized the Supreme Court's decision in NLRB v. Jones Laughlin Steel Corp. and other related decisions that year, stating that 1937 marked "the triumph of our socialist revolution." In short, conservatives, who like to complain about activist liberal judges, could achieve their anti-New Deal agenda through judicial activism on the right, and as a result the Fair Labor Standards Act, the federal minimum wage, the Environmental Protection Act, the Clean Water Act, the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act could all be struck down as being unconstitutional. This is not an agenda the public would be likely to sign onto today if it were debated in an election. Thus, conservatives don't talk about this side of so called "strict constructionist" orthodoxy, and instead they focus on the so called moral issues as a smoke screen.
Unfortunately, the subject of work, health, safety, and environmental regulations has rarely been discussed by the mainstream media when they have addressed the judicial filibuster issue. The New York Times Magazine did run a story on this issue back on April 17, but no one else has seemed to pick it up. Despite the fact that most Americans are unaware of the radical judicial activism that may take place if Bush gets his most radical nominees confirmed to life time appointments on the federal bench and the U.S. Supreme Court when a vacancy arises, most Americans oppose the "nuclear option" being put forward by Republicans. If we could somehow disseminate this story about this impending threat of real judicial activism, I am confident that we would garner even more support then we already have on this issue. After all I don't even think that most Republicans support the idea of overturning the Fair Labor Standards Act, the federal minimum wage, the Environmental Protection Act, the Clean Water Act, the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act by judicial fiat. Thus, I am asking you, fellow kossacks, to barrage the mainstream media with emails urging them to cover this underreported story. You can mention the New York Times article written on this subject by Jeff Rosen on April 17 entitled "The Unregulated Offense." We must do everything in our power to de-rail this radical Bush agenda!
Here are some articles and links providing more information on this subject:
http://www.acsblog.org/judicial-nominations-700-the-return-of-constitution-in-exile.html
http://www.washingtonmonthly.com/features/2004/0409.sunstein.html
http://query.nytimes.com/gst/abstract.html?res=F00D17F63E5A0C748DDDAD0894DD404482
http://faculty.smu.edu/jkobylka/SCtItems/how_the_election_affects_the_court04.htm