Four Days For Forty Years

If only corporations could laugh—if only corporations could laugh during the Senate Judiciary Committee’s hearings on Judge John Roberts’ nomination for Chief Justice of the Supreme Court, they would head for the nearest champagne closet in their executive suites.

What a triumph for the most dominant powers in and around our nation. Judge Roberts got away without having important questions asked regarding the interface between corporations, the Constitution, the election laws, the regulatory agencies as they relate to workers, consumers, the environment, manipulated communities, the double standard justice system and the pertinent practices of corporate law firms.

It is not for lack of trying by various citizen groups, including our own, who beseeched one Senator after another to ask this former corporate lawyer about widely reported contemporary conflicts between unusually deceptive or reckless large corporations and real human beings. The U.S. Chamber of Commerce and the National Association of Manufacturers came out big time with big publicity budgets for Judge Roberts. They had not done this for previous nominations for the High Court. That ought to tell you something.

Since these two giant business lobbies swarm over Capitol Hill, together with other similar lobbies, and finance many campaigns there, the prediction was that Judge Roberts would not be asked penetrating questions about the federal regulatory role, the federal pre-emption of state laws protecting consumers and injured people, the questionable authority given NAFTA and the World Trade Organization to make decisions overriding our judicial and regulatory institutions or the unequal status under our Constitution, as interpreted by Supreme Court decisions, between corporations and real people.

Much has been written about the growing and varied power of global corporations. Recently, the Justice Department has been signing “deferred prosecution” agreements with companies that admitted criminal guilt. The reasons given: prosecution could seriously damage the company or, more quietly, going to full trial would drain the limited resources of the federal government devoted to pursuing trillions of dollars of corporate crime, fraud and abuse.

Corporations, like giant banks, have long been on Washington’s list as being “too big to be allowed to fail” no matter how badly these banks behave. So the federal government has bailed them out, because they were too large a factor in the economy to fail. Well then, why weren’t the antitrust laws enforced to preclude such massive concentration in our economy? And isn’t it unfair competition against smaller companies, smaller banks, who have the freedom to fail all on their own without a federal taxpayer rescue?

Corporate attorney, now Judge Roberts, should have been asked to respond to such questions before the millions of Americans who were watching or listening to these hearings.

For some eleven years, John Roberts worked at the large corporate law firm, Hogan & Hartson, in Washington, D.C. He should have been asked whether he believes in the positions he took on behalf of his major corporate clients. Prominent corporate attorneys like the late Lloyd Cutler pride themselves on asserting that they do believe what they argue.

Much was made of Judge Roberts’ integrity and character. But no one tested them. He was not asked about a widespread and well-documented practice of billing abuses by corporate lawyers. What did he know? Did he openly disapprove of these practices by corporate law firms? Did he know of any such billing frauds in his firm or in his own practice?

Judge Roberts made two troubling declarations during his roughly three days of public hearings about which more needs to be made. He was asked whether he regretted or changed his mind about any of the positions he took in hundreds of memos on many significant legal issues which he wrote for the Reagan White House or the positions taken at the Justice Department years ago. He did not name any. Maybe that is understandable for an advocate, but not for a judge repeatedly referring to his “open mind” and judicial temperament.

The other assertion was simply not credible. He stated that when deciding cases he leaves his values and personal philosophy at home. No human being, short of robotic status, can so detach himself or herself. (Later in his testimony, Judge Roberts himself acknowledged widely differing “philosophies” on the Supreme Court now.) He was simply not being forthright.

As has been my practice with Supreme Court nominations, I early on requested to testify, sensing that corporate power subjects would not be given much attention. My request was turned down by Senator Patrick Leahy, who filled his 15 permitted witness slots with good people mostly concentrating on non-corporate issues of law and justice. I was permitted to submit testimony for the hearing record, which is on Democracyrising.us or Nader.org in its entirety.

To emphasize the gravity of his nomination, several Senators noted that, given decent health, Judge Roberts could be Chief Justice for 40 years or until 2045. So then what was the rush with the hearings which started Monday and ended by Thursday afternoon? In fact, Chairman Senator Arlen Specter announced a short recess to let some Senators catch planes.

The Committee called 30 witnesses, many of them from long distances, and gave them 5 minutes each to speak. Most Senators who remained that last Thursday afternoon and early evening did not even bother questioning them, thereby losing an opportunity to make important points, elicit more insights and further inform the millions of people paying attention to these proceedings.

Quite disappointing was that during Panel Six, featuring such significant witnesses as former Secretary of Labor, Robert Reich, and president to the National Association of Manufacturers, John Engler, the ranking Democrat on the Committee, Senator Patrick Leahy remarked, when his turn came to ask questions, “I’m sorely tempted, but no.”

In the future, it would improve the process for such nominations to have some witnesses go first, then receive the nominee, then have some witnesses follow. For forty years of projected tenure to head the Supreme Court, four rushed days were grossly insufficient, in both quality and quantity.

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