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Remarks by John Kerry-The Case of the Bush Majority vs. Justice and Opportunity

Location: Washington, DC

October  03,  2003
National Council of Negro Women, Washington

For almost seventy years, the National Council of Negro Women has been pushing and prodding our nation towards a true vision of equality - speaking out for the disadvantaged in this country and all over the world.  You have been a powerful voice, especially for women of color, who are often struggling to keep a family together, to cope with a hostile work environment, and to give their children a better life despite the burdens of poverty and racial prejudice.

I am so honored to be here with Dr. Dorothy Height who - time and again - was the only woman in the room when the civil rights leaders began the great struggle that culminated in the 1964 civil rights act.  And Dorothy Height is not finished, though she has every right to relax. She still wants a better America not for herself but for the next generation and the ones that will follow.

By tradition, the first Monday in October has been more than a date on the calendar - it has marked the opening of a new term at the Supreme Court. A time when Americans have looked toward the Supreme Court with hopes for justice and opportunity.  Sometimes those hopes have been surpassed - at other times the hopes have been dashed - but the impact of the Supreme Court in shaping and reshaping America cannot be denied.  The next President of the United States will clearly have the power to shape and reshape the Supreme Court itself - and that's why I believe it so important that America elect a President with a broad vision of opportunity and a commitment to equal justice in 2004.

It's no accident that I wanted to speak here today.  Because on this day 99 years ago - October 3, 1904 - in a rented cottage near the railroad tracks - Mary McLeod Bethune opened her Daytona Educational and Industrial Training School for Negro Girls.  In the century since then, people of color and women have made great strides - and suffered great setbacks.  And all the while, the Supreme Court has been the center of those struggles.

And it still is today.  This past term showed a Court at the crossroads.  A thin majority brought progress on equal rights for gays and lesbians and people of color.  But at the same time, the specter of multiple retirements - and a President with an unwavering commitment to refashioning the court in the ideological image of the far right - have caused many Americans to worry about what lies ahead.

We will soon surpass the record for the longest period of time without a vacancy on the Court.  By the end of the next President's term, six of the current members of the Court will be over 70 years of age.  The average age of retirement over the past century has been 71 - and so we are likely in for an unprecedented wave of retirements.  It is entirely possible that whoever is elected next November will have the power to appoint a new majority of the members of the Supreme Court. 
No President will have made this many appointments since FDR.  And when it comes to making this deep of a mark on the nation, I somehow trust Franklin D. Roosevelt more than George W. Bush.

Imagine the impact of a Bush Majority on the Supreme Court.  In the next few years, the Supreme Court will be making decisions that will have an impact for generations.  Restrictions on affirmative action, hate crimes, the right to choose and the right to privacy, basic civil liberties in an era of a global war on terrorism, the right to counsel, voting rights. All these are up for examination - all these are up for grabs.

We don't have to imagine the kinds of Justices President Bush would appoint in his second term.  We need only look at the kinds of judges he has appointed thus far.  Since he has taken office, President Bush has pursued a strategy of quietly but steadily packing the courts with judges whose thinking is shared by the tiniest sliver of the far right.  He's made judicial nominations red meat for the right wing, hoping the rest of us aren't paying attention.  Last year he said, and I quote, "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate."  With all due respect, I disagree.  I don't believe we need conservative judges or liberal judges or anything but patriotic American judges who will enforce the laws and the Constitution of the United States.

Instead of acting on his promise to change the tone in Washington, the President's appointments have hardened partisan decisions and poisoned the atmosphere of justice.  He has turned judicial discussions into political debates - and, in the process, diluted the independence of our legal system.

People of color and American women have suffered most from these judges' backwards thinking - and they would be hurt most by George Bush's continued attempts to take America backwards.

We can simply not afford to ignore a disturbing trend in our judicial system.  In the past few years, courts have struck down or weakened important sections of the Violence Against Women Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act - and they have continued to steadily erode the right to choose. You don't need to have a crystal ball to be concerned about the future.  Without a dramatic change in the direction of judicial appointments - away from the ultra-conservatives nominated by this administration - the very laws that protect us against discrimination based on race and gender could well be the next casualties of an increasingly conservative federal court system.

A quick review of some of the judges that President Bush has nominated make clear that his goal is to use the nomination process to score political points with right-wing extremists - not to further the cause of equal justice.

Brenda and Earl Polkey, an interracial couple in Mississippi, were the victims of a cross-burning on their front law.  Judge Charles Pickering set out on a personal campaign to get the sentence of the ringleader of this crime reduced.  He even crossed lines of ethics and lobbied a Justice Department official on this point.  President Bush believes this kind of record is worthy of a promotion.

When she was a Justice Department official in the Reagan Administration, Judge Carolyn Kuhl convinced the Attorney General to reinstate the tax-exempt status of Bob Jones University.  More than two hundred Justice Department lawyers - even including now Solicitor General Ted Olson - protested and the Supreme Court reversed the decision eight to one. 
When Azucena Sanchez-Scott was undergoing a breast examination in her doctor's office, the doctor invited in a drug company salesman to watch and laugh at Ms. Sanchez-Scott.  Judge Carolyn Kuhl didn't see any invasion of privacy there - and dismissed the case.  The appeals court looked at the case and overruled Judge Kuhl.  President Bush looked at this record and decided Carolyn Kuhl deserved a promotion.

Charles Pickering and Carolyn Kuhl.  These may be George Bush's ideas of good nominees to the federal bench - but they are not mine. 

Sadly, President Bush is labeling those who oppose his nominations of right-wing minorities, women, and Catholics as anti-minority, anti-woman and anti-Catholic.  These tactics have no place in a free and open debate about the qualifications of lifetime appointments to the federal bench.

We all know the difference between Thurgood Marshall and Clarence Thomas. 

We oppose his nominees because they are bad for justice and bad for America.  Because they seek to change the law in ways that will hurt all Americans, especially women and people of color.

It won't surprise you to know I think that elections for Congress and the Presidency are important.  But appointments to the bench are just as important - maybe more so.  Senators and Presidents come and go.  Judges rule for a lifetime. 

And while they only see a tiny percentage of federal cases, there is a reason the Supreme Court is the highest court in the land.  It is there that debates are settled, that doctrines are set, and that millions of Americans look for justice and wisdom. 
In recent years, we have seen a Court that has split five to four on important cases - and even split this closely on the fundamental question of, in effect, choosing the President of the United States.  With divisions so great, it is important that the next appointments to the Supreme Court be individuals who can bring consensus, not conflict; who will fairly interpret the Constitution without attempting to advance an ideological agenda or make decisions based on their personal politics.

Just think what is at stake if President Bush is reelected for a second term and has the opportunity to appoint a Bush Majority on the Supreme Court. It could mean:

The end of affirmative action and a retreat from diversity in universities and workplaces
   · The end of Roe v. Wade and a woman's right to choose
   · A return to the criminalization of homosexuality
   · A threat to the federal government's ability to protect our air and water.
   · A license to John Ashcroft to trample on our civil rights and invade our privacy.
   · A weakening of the protections for ordinary American workers.
   · A threat to the rights of the disabled and the elderly
   · A threat to the rights of African-American voters

My position on judicial nominations is clear: I will oppose, and filibuster if necessary, any Bush Supreme Court nominee who would turn back the clock on civil rights and protections against discrimination, on the right to privacy and the right to choose, on individual liberties and on the laws protecting workers and the environment.  I have applied and will apply a similar standard to lower court judges.  The stakes cannot be any higher.

With the future of the Court on the line, the same is true about the stakes in this election.  If I am elected President, I will appoint Justices with a broad understanding of American life today and with a commitment to diversity, fairness, and equality.  People who understand that the battle against racial discrimination continues, who know working people deserve protections on the job, who recognize that our natural environment is a trust we hold for our children, and who have an unshakeable commitment to a woman's right to choose.

The skills, dedication, and commitment to justice of the men and women that make up our judiciary are the foundation upon which justice stands in America. They need to be the best and brightest, of course, but they also need to have an unerring commitment to justice - especially for those among us who are least able to fight for their fundamental rights.

Without justice, opportunity may never exist for some.  But justice within the courts, without opportunity outside of them, is a promise only half-filled.

1935, the year Mary McLeod Bethune founded the National Council of Negro Women, was the same year the Supreme Court moved into the building it now inhabits - and which has become a symbol of faith and promise for all Americans.  It is the promise of an America on the road to becoming a more perfect Union.

Mary McLeod Bethune lived to see progress toward that promise.  The daughter of slaves she helped bring about the day when the Supreme Court struck down the disgraceful doctrine of "separate but equal."  On the occasion of that day, May 17, 1954, she wrote that "There can be no discrimination, no segregation, no separation of some citizens from the rights which belong to all…We are on our way.  But these are frontiers which we much conquer…We must gain full equality in education…in the franchise…in economic opportunity, and full equality in the abundance of life."

Next year, we will celebrate the 50th anniversary of the decision in that case of Brown versus Board of Education at a time when America is still on our way to a nation of civil rights for all - but in an America where there are still frontiers left to conquer.  Next year's election will help decide whether America moves forward on that path to progress - or whether we will retreat and reverse our gains.  The American people have a choice between the specter of a Bush Majority committed to a rollback of fundamental rights - or a Court where Justices dispense justice and dispense with ideology in favor of fairness. 
We can have a nation in which the justice is the birthright of every person in America without regard to their race, their gender, their religion or their sexual orientation. And a community in which opportunity is a gift which all of our children can share. The power in the hands of the American people has never been greater.  And the choice has never been clearer.  Thank you.

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