Everything You Wanted to Know About Corporate Power But Were Afraid to Ask, Part I



Statement of Ralph Nader on the nomination of John G. Roberts Jr. by President George W. Bush to be Chief Justice of the Supreme Court of the United States submitted to the Senate Judiciary CommitteeU.S. Senate, Washington, D.C., September 12, 2005

Mr. Chairman and members of the Senate Judiciary Committee, thank you for the opportunity to submit testimony on the nomination of Judge John G. Roberts Jr. for the position of Chief Justice of the Supreme Court of the United States. I ask that this statement be made part of the printed hearing record.

In 1994 I testified before the Senate Judiciary Committee on the nomination of Stephen G. Breyer by President Clinton to be an Associate Justice of the Supreme Court of the United States. In that testimony I called attention to the importance of balance in the way our laws handle the challenges of corporate power in America.

I said: For our political economy, no issue is more consequential than the distribution and impact of corporate power. Historically, our country periodically has tried to redress the imbalance between organized economic power and people rights and remedies. From the agrarian populist revolt by the farmers in the late 19th and early 20th century, to the rise of the federal and state regulatory agencies, to the surging trade unionism, to the opening of the courts for broader non-property values to have their day, to the strengthening of civil rights and civil liberties, consumer, women’s and environmental laws and institutions, corporate power was partially disciplined by the rule of law.

Today it is more important than ever for all Supreme Court Justices and, in particular, the Chief Justice of the Supreme Court to have the inclination and wisdom to realize that our democracy is being eroded by many kinds of widely reported systemic corporate excesses. (The Chief Justice decides who will write the Court opinion (when he is in the majority), assigns Associate Justices to the federal Circuits, oversees the Administrative Office of the U. S. Courts, presides over presidential impeachments and submits to Congress an annual report of the proceedings of the Judicial Conference and its recommendations for legislation.) Giant multinational corporations have no allegiance to any country or community, and the devastation and other injustices they visit upon communities throughout the United States and around the globe have outpaced the countervailing restraints that should be the hallmark of government by, for and of the people. Unfortunately, the structure and scope of these hearings are not likely to devote a sufficient priority to the corporate issues of our times.

In 1816 Thomas Jefferson wrote: “I hope we shall… crush in its birth the aristocracy of our moneyed corporations, which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country.” Imagine his reaction to the corporate abuses of

Enron Corp, HealthSouth Corp., Tyco, WorldCom or Adelphia Communications Corp to name only a few, along with the drug, tobacco, banking, insurance, chemical and other toxic industries. The corporate crime and greed of today tower over the abuses of the “moneyed corporations” of Jefferson’s day. The economic power of giant corporations is augmented by a flood of Political Action Committee (PAC) money and other donations that shape the quality and quantity of debate in our country and consequently drive our society to imperatives that are increasingly more corporate than civic.

You will hear about Judge Roberts from several perspectives, but it is safe to assume that questions and testimony about Judge Roberts’ views on corporate power and the rule of law will be inadequate given the broad and profound impact giant corporations have on our democracy. An important procedural and substantive corollary is the important role our civil justice system plays in expanding the frontiers of justice and in giving individuals the ability to hold “wrongdoers” accountable in a court of law. “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice,” said the famous jurist, Learned Hand.

Unfortunately, powerholders, corporations and other institutions which are supposed to be held accountable by the civil justice system, are striving to weaken, limit and override the province of juries and judges. Some companies, led by insurers, have used expensive and focused media to promote the view that civil juries are too costly and too unpredictable. This narrow and short-sighted perspective is contrary to the long-standing tenets of our democracy and in particular the Seventh Amendment to our Constitution.

The civil jury system of the United States embraces a fundamental precept of tested justice: ordinary citizens applying their minds and values can and do reach decisions on the facts in cases that often involve powerful wrongdoers. This form of direct citizen participation in the administration of justice was deemed indispensable by this nation’s founders and was considered non-negotiable by the leaders of the American revolution against King George III. But the civil jury is more than a process toward bringing a grievance to resolution. The civil jury is a pillar of our democracy necessary for the protection of individuals against tyranny, repression and mayhem of many kinds and for the deterrence of such injustices in the future. Our civil jury institution is a voice for and by the citizenry in setting standards for a just society. Jury findings incorporated in appellate court decisions contribute to one of the few authoritative reservoirs of advancing standards of responsibility between the powerful and the powerless — whether between companies and consumers, workers, shareholders and community or between officialdom and taxpayers or citizens in general. Knowing the evolution of the common law and the civil jury provides compelling and ennobling evidence of this progression of justice. Chief Justice William Rehnquist wrote, ” The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.” Parklane Hosiery Co. V. Shore, 439 U.S. 322 (1979).

As the hearing unfolds, I suggest that the members of the Judiciary Committee devote some time to areas beyond those that are traditionally the focus of witnesses and questioning by Committee members and ask fundamental questions about the views of Judge Roberts, a former corporate lawyer at Hogan & Hartson, regarding corporate power and the civil justice system.

In the spirit of expanding the criteria by which the Committee and the public can measure Judge Robert’s judicial and civic philosophy, I offer the following questions for you to pose to the nominee. Some of the questions are narrowly focused and some are broad-gauged. But, in their totality they constitute the broad kind of “litmus test” that should be applied in selecting and confirming all judges. In short, does the nominee, having met the threshold requirements of competency, believe that the rule of law should be used to broaden and deepen, procedurally and substantively, our democracy — even if it means the rights of the giant corporation or powerful interests must be circumscribed to protect the rights of the individual citizen and of our communities — rural or urban, large or small?

In pursing its own line of questions, the Committee should not let its exploration of the nominee’s views be artificially restricted. Judicial nominees have given two reasons for refusing to answer questions, but these reasons are contradictory. First, they say, if they publicly express their views, it will compromise them if the issue comes before the Court. Second, they say, judges do not decide legal issues in a vacuum: they only decide a concrete dispute in a specific adversarial
context. Accordingly, some nominees claim it’s silly or inappropriate, for example, to say whether they believe the Constitution protects the right to abortion, because Justices don’t decide cases by asking such abstract questions. They face a particular statute, challenged by a particular party directly affected in a particular way, and the resolution of that dispute will turn on all those particulars.

This second response has a degree of merit — and undercuts the first reason for refusing to answer most questions. Precisely because neither nominees nor the public can know in what context issues will reach the Court (if at all), it is not problematic for nominees to discuss their views. They should not say how they would decide an actual pending case, but, short of that, it is fine for them to discuss issues because that in no way commits them to taking sides in any actual dispute — such disputes are invariably context-specific. For example, a nominee may be asked about the doctrine that treats a corporation as a “person” entitled to various constitutional rights. His or her thoughts on this issue will not tell us what he or she will do if such an issue is raised in a case before the Court. The latter may depend on the nature of the corporation (non-profit? media? multi-national?), the nature of the claimed right, and much more.

Moreover, even if the nominee testifies that he or she disapproves the doctrine, as a Justice the nominee may hold that the question is settled law. Or if a nominee says that he or she agrees with the doctrine, a new circumstance — or a party making a new argument — may lead the nominee to hold otherwise. Nothing a nominee says guarantees that he or she will decide any case any particular way. Nothing that is said has to be fixed in stone. Judges do give opinionated public speeches, do they not?

It may be wondered whether, in light of the above, any purpose is served by asking the nominee his views. The answer is yes. It’s no secret that nothing a nominee says binds the nominee once he or she receives an office with life tenure. Nominees can’t and shouldn’t be bound. But especially with a nominee who has a limited public record, the hearings provide some basis for gauging the nature and quality of his ideas, about his philosophy of due process for example. At any rate they have that potential — if Senators do their job and do not accept a nominee’s self-serving refusal to answer questions.

At the outset, it would behoove the Committee to establish the parameters the nominee will use in fashioning responses to your questions by asking:

What criteria are you using to determine if you will directly answer or not answer questions posed to you by members of the Senate Judiciary Committee?

If the Court has recently ruled on a matter, will you provide the Committee with your views on the Court’s ruling? If a matter is long settled, will you provide the Committee with your views on the Court’s ruling?

Once this baseline has been established, the following questions should shed light on the nominee’s approach to some major issues of our day.

Part II, questions, next week

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