Features

Another Close Call


Some of the key issues in the 2004 presidential election campaign are of particular interest to the legal profession. The ABA Journal asked Bush and Kerry to give their opinions on a number of those issues. The responses submitted on behalf of each candidate are presented below.

ABA Journal: The United States imprisons more people than any other nation in the world, and federal prison sentences are becoming longer. But the current sentencing policies have come under fire for being ineffective and too costly, and the status of federal sentencing guidelines is uncertain following recent court decisions. What federal sentencing policy do you favor? How much discretion should federal judges have in imposing sentences?

Bush: The Supreme Court’s recent decision in Washington v. Blakely has raised some concerns regarding the constitutionality of the federal sentencing guidelines as they are now written. However, the 5th Circuit recently upheld the federal sentencing guidelines under Blakely, creating a split with the 7th Circuit, and the Supreme Court has agreed to review the issue. The U.S. government will defend the constitutionality of the existing sentencing guidelines in the courts.

With respect to our overall sentencing policies, the Unit­ed States is experiencing a 30-year low in crime. Nearly 27.5 million violent crimes were not committed in the last decade because of this reduction in crime. It is therefore hard to accept the claim that current sentencing policies are ineffective. Nor are they too costly when state prison budgets today account for less than 2 percent of state and local spending. Our crime rate is low because we are keeping violent, repeat offenders in prison and off our streets.

Kerry: We need to strike a balance between policies that leave judges so much discretion that the same cases regularly receive very different treatment, and policies that leave judges so little discretion that they are unable to do justice to the facts of the case before them. Achieving this balance is a challenge with which Congress and the courts have grappled for many years. Judges across the political spectrum, including Chief Justice [William H.] Rehnquist and Justice [Anthony M.] Kennedy, have raised serious con­cerns that the system now prevents judges from fulfilling their historic role. I am committed to improving the administration of justice in America, as the Supreme Court’s emerging case law allows.

ABA Journal: Are the concerns expressed by U.S. Chief Jus­tice Rehnquist, the ABA and others about compensation for federal judges valid? How will you address the judicial pay issue?

Bush: I support legislation that would increase the annu­al salaries of federal judges and justices by an average of $25,000. This bipartisan legislation responds to the recommendation of the chief justice and the Judicial Con­fer­ence that salaries be increased in the judiciary, and I remain supportive of its goals.

Kerry: Yes. I believe we should work to ensure that judicial compensation levels enable us to attract and retain judges of the highest quality who are committed to enforcing the laws and the Constitution of the United States. I will work to address the serious funding challenges facing our federal court system that are undermining the effectiveness of our courts and the safety of our communities.

ABA Journal: Rancor and political discord in recent years have marred the judicial nomination and confirmation process. How should the process be changed to reduce that partisanship?

Bush: I believe that every judicial nominee should receive an up-or-down vote in the full Senate. I have proposed a plan that would return fairness and dignity to the confirmation process and that would apply no matter who is president or which party controls the Senate. Under my plan, judges would provide one-year advance notice of retirement, when possible; absent extraordinary circumstances, presidents would submit nominations within 180 days of receiving notice of a vacancy or intended retirement; the Senate Judiciary Committee would hold a hearing within 90 days of receiving a nomination; and the full Senate would vote up-or-down on a nominee no more than 180 days after a nomination is submitted. Since I announced this plan, the Judicial Conference adopted a policy urging judges to give one-year advance notices of re­tirement, and I have worked hard to submit nominations within 180 days of receiving notice of a vacancy or intended retirement. Re­grettably, the Senate has not done its part, as some Demo­crat­ic senators unfairly delay action on judicial nominations.

Kerry: The judicial nomination and confirmation pro­cess provides an opportunity to advance justice, not partisan agendas. President Bush has said that America needs “conservative judges appointed to the bench.” I do not believe we need conservative judges or liberal judges. As president, I will only appoint judges who will enforce the laws and the Constitution of the United States, including civil rights and anti-discrimination laws.

We should restore the role of the ABA in evaluating the credentials and experience of judicial nominees. We should make the confirmation process less partisan and less polarizing by engaging in meaningful bipartisan consultations in the case of potentially controversial nominees. Most importantly, I will make judicial appointments to promote justice for all, not to further a narrow ideological agenda.

ABA Journal: Under what circumstances should the constitutional amendment process rather than the legislative process be pursued to address issues of national interest? What, if any, proposed constitutional amendments do you support and why?

Bush: An amendment to the Constitution is never to be undertaken lightly; it is for use as a last resort when the people feel that there are serious flaws in the existing Con­stitu­tion, or in how it is being interpreted by those charged to uphold it. The amendment process has been used in the past to address serious matters of national concern.

The preservation of marriage is a matter of national importance. Because of judicial activism and decisions by certain officials to ignore the law, protecting the institution of marriage now requires a federal constitutional amendment. Both state constitutional provisions and federal stat­utes designed to preserve the institution of marriage against judicial revision are subject to being overturned by judges, and both are now being challenged in federal court. The De­fense of Marriage Act was passed overwhelmingly by Con­gress and was signed into law by Pres­­ident Clinton. It is now being challenged as unconsti­tutional in a federal court in Florida. Nebraska passed a state constitutional amendment by a large margin in 2003, but that amendment is also being challenged in federal court, and Nebraska’s attorney general has predicted that it will be struck down. The union of a man and a woman is the most enduring human institution, honored and encouraged in all cultures and by every religious faith. Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all. The constitutional amendment I seek should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage. America is a free society, which limits the role of government in the lives of its citizens, but our con­stitution does not require the redefinition of one of our most basic social institutions. Our government should respect every person, and protect the institution of marriage, which are not contradictory responsibilities. We should al­so conduct this difficult debate in a manner worthy of our country, without bitterness or anger.

I also support the bipartisan Crime Victims’ Rights Amend­ment that was introduced by Sens. [Dianne] Fein­stein [D-Calif.] and [Jon] Kyl [R-Ariz.]. The amendment would provide victims of violent crime the right in federal or state court to 1) reasonable and timely notice of any public proceeding involving the crime or the release or escape of the accused; 2) not be excluded from these public proceedings; 3) be reasonably heard at public release, plea, sentencing, reprieve and pardon proceedings; and 4) that decisions duly consider the victim’s safety, interest in avoiding unreasonable delay, and just and timely claims to restitution from the offender.

These rights could not be restricted “except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity.” The amendment would not provide the grounds for a new trial or authorize any claim for damages.

Finally, I support a constitutional amendment to protect the American flag, the enduring symbol of our country’s freedom and unity.

Kerry: I revere our Constitution and believe it should be amended very rarely and never for political purposes. The constitutional amendment process is a last resort to be employed only when other avenues cannot achieve our goals and a national response is appropriate.

ABA Journal: The USA Patriot Act is viewed by many as a necessary step, at least on a temporary basis, in this country’s fight against terrorism. At the same time, however, concerns have been raised that some provisions of the act undermine individual rights. Should the Patriot Act be made permanent? Which provisions of the act raise concerns for you?

Bush: The Patriot Act was passed by Congress in 2001 with sweeping bipartisan support, and is proving to be a powerful tool in the fight against terror. It has greatly en­hanced the ability of the United States to protect America’s families and communities by preventing attacks. It has removed many barriers between the law en­forcement and the intelligence communities that once prevented them from sharing crucial information about terrorist plots. The Patriot Act has also extended to terrorism investigations many of the same tools that have been used for years to fight organized crime, drug kingpins and child molesters.

The Patriot Act has been badly misrepresented by special interest groups. The core investigative tools contained in the act require the approval of a judge before they can be used. Similar provisions under other federal statutes have been tested in the courts and found to be constitutional. For example, delayed-notification searches have existed for decades, and have been upheld in court. The Patriot Act did not invent delayed searches, but instead standardized the rules for their use. Similarly, business-records searches have been available through grand jury subpoenas for de­cades; the Patriot Act allows such records to be obtained through a court order signed by a judge as well. Safeguards for civil liberties are built into the Patriot Act every step of the way, and as both Sen. Dianne Feinstein and the inspector general of the Department of Justice have noted, the act has not been shown to be responsible for a single documented civil liberties violation. Because it has been used effectively and responsibly, I have called upon the U.S. Congress to promptly renew the Patriot Act and to extend its provisions now set to expire.

Kerry: I believe in an America that is safe and free. As president, I will defend our liberty and our security at home and appoint an attorney general who values and protects civil liberties. Like eight justices of the U.S. Supreme Court, I do not support the Bush administration’s policy of detaining American citizens indefinitely, without access to a lawyer or a chance to prove their innocence. I believe that some provisions of the Patriot Act–like the money laundering provisions–must be made stronger. Others–like the library and “sneak-and-peek” search provisions–must be made smarter, to better protect privacy and freedom while allowing our government to do everything necessary to track down terrorists and defend America. As president, I will ensure that the American government is open and responsive to the needs and inquiries of Congress and the public, offering enough information to hold the government accountable without compromising our security.

ABA Journal: As a “nation of immigrants” in an age of terrorism, how should the United States balance its commitment to being an open, welcoming society with the need to provide security for its citizens? More specifically, what is your assessment of current U.S. immigration policy, and how would you change it?

Bush: On Jan. 7, 2004, I proposed a new temporary worker program to match willing foreign workers with willing U.S. employers when no Americans can be found to fill the jobs. The program would be open to new foreign workers and to undocumented men and women employed in the Unit­ed States. It would allow those undocumented workers to come out of hiding and participate legally in Amer­i­ca’s economy while not encouraging further illegal behavior. I asked Congress to work with me to achieve this significant reform, which protects the homeland by controlling the borders, serves the economy by matching a willing worker with a willing employer, promotes compassion for unpro­tec­ted workers, provides incentives for temporary workers to return to their home countries, and protects the rights of legal immigrants while not unfairly rewarding illegal immigrants.

In addition, by the end of last year my administration had increased the ranks of the Border Patrol by over 1,000; launched Operation Tarmac to investigate businesses and workers in the secure areas of domestic airports and ensure immigration law compliance; started the Student and Ex­change Visitor Information System, an Internet-based system that is improving America’s ability to track and monitor foreign students and exchange visitors; and deployed the US-VISIT program to digitally collect biometric identifiers, and record the entry and exit of aliens who travel into the United States on a visa. Each of these measures appropriately balances the need for security and freedom.

Kerry: I strongly support responsible reforms of our immigration laws that honor our tradition as a nation of immigrants and make America stronger. As president, I will offer a reform bill in my first 100 days that allows immigrants to earn legalization, encourages family reunification, and strengthens our border protections. Under my approach, undocumented workers who have lived and worked here for five years, who pay taxes and who are successfully screened for security purposes will have a path to citizenship. I will also expand opportunities to learn English and obtain civic ed­ucation classes to help immigrants assume all of the rights and responsibilities of citizenship. As an integral part of my plan for reform, I will reach an accord with neighboring countries to improve security along our borders and stop illegal smuggling. I will improve our nation’s security databases and watchlists, and better control the borders to en­­sure that people who intend to harm us cannot cross our borders.

ABA Journal: Forty years after the Supreme Court issued its groundbreaking decision in Brown v. Board of Education, ra­cial inequality still exists in the United States. What is the role of the federal government in remedying the continuing effects of past discrimination and assuring equal opportunity for all? What specific steps do you support to achieve that goal?

Bush: I have made the enforcement of civil rights protections for all Americans a top priority of my administration. My administration is prosecuting criminal civil rights violations at higher levels than the previous administration. For example, prosecutions for those responsible for human trafficking, a modern form of slavery, have increased almost threefold in this administration compared to the last three years of the previous administration. And I am the first president to ban racial profiling in federal law enforcement.

In addition, my New Freedom Init­iative is a comprehensive strategy for tearing down the remaining barriers to full integration into American life that individuals with disabilities still face. The initiative is increasing access to assistive and universally designed technology, increasing educational opportunities for youth with disabilities, promoting integration of people with disabilities into the workforce, and providing people with disabilities access to all aspects of community life.

One of the first things I did after taking office was work to pass historic and sweeping education reforms to close the achievement gap in education and challenge the soft bigotry of low expectations. I believe that every child can learn and succeed, and that every child should receive a first-rate education. The No Child Left Behind Act is helping to close the achievement gap for our children by refusing to shuffle children through a system that does not work.

Because we passed three tax relief bills in three years, today our economy is enjoying robust growth. We have created almost 1.5 million new jobs since last August, and the unemployment rate (5.5 percent) is lower than the average rates during the 1970s, 1980s and 1990s. The unemployment rate for African-Americans is lower today than it was last year. More moms and dads are working, more families are financially secure. More African-American families own their own homes than ever before, but there is still more we can do.

I also support the policy of affirmative access, which aggressively reaches out to minorities, is inclusive of people of all races, provides equal opportunity, and promotes diversity. Diversity is an important goal on college campuses, in the workforce and throughout society. However, I do not support racial quotas, preferences, or set-asides, which perpetuate differences and can lead people to question the hard-earned gains of successful minorities.

My administration has clearly demonstrated a strong commitment to civil rights, and we will continue to make sure that civil rights guarantees are enforced in the future.

Kerry: As far as we’ve come over the past four decades, we still have not met the promise of Brown. We have not met the promise of Brown when one-third of all African-American children are living in poverty; when only 50 percent of African-American men in New York City have a job; when nearly 20 million black and Hispanic Americans don’t have basic health insurance; when, in too many parts of our country, our school systems are not separate but equal, but they are separate and unequal.

Brown began to tear down the walls of inequality. The next great challenge is to put up a ladder of equal opportunity for all. As president, I will expand opportunity in jobs, education and health care. I will rigorously enforce the nation’s civil rights laws, support congressional efforts to reverse damage done to civil rights laws by ideological judges, and support strong enforcement and equal justice for all victims of hate violence.

I will help America open its doors of opportunity by making decisions that will lift more of our people out of poverty, expand the middle class, make high-quality health care a right and not a privilege, and bring jobs, hope and opportunity to all the neighborhoods of America.

ABA Journal: The Legal Services Corp. continues to be the single largest and most important funding source for the civil legal services programs around the United States, yet federal funding in real dollars has declined steadily since 1981, while 80 percent of the nation’s poor still have unmet legal needs. What is your position regarding the LSC, and what level of funding will you support for it over the next four years?

Bush: The Legal Services Corp. has been entrusted with the important mission of providing free legal assistance to low-income individuals in civil cases. The LSC can play a valuable role in ensuring that poor families are not treated unfairly and illegally by landlords, creditors and others merely because they cannot afford legal representation. LSC’s appropriation for the 2004 fiscal year was increased to $338.8 million.

Kerry: The Legal Services Corp. plays an important role in moving our country toward the ideal of equal justice for all Americans. In a nation where 4 million Amer­icans have fallen into poverty over the last three years, the LSC is more important than ever. I am committed to strong funding for the LSC.

ABA Journal:Proposals to limit recoveries in medical malpractice cases are just one example of efforts to “federalize” tort law, which traditionally has been the province of the states. Do you support federal laws to address any particular tort law issues, such as product liability, asbestos or liability for gun manufacturers? Should the federal government become involved on an issue-by-issue basis, or do you favor a more sweeping federal approach?

Bush: Our nation’s litigation system is broken, and consumers and small-business owners and their employees pay the price. We need to reform the legal system to ensure that it is fair and just, that every person has his or her day in court, and that baseless litigation no longer slows our economy’s growth.

We need medical liability reform to help control the cost of medicine and ensure that patient access to care is not jeopardized. Right now, medical professionals are being forced to raise costs, practice defensive medicine, and even close their practices altogether because of skyrocketing liability insurance rates. This must stop. I have proposed a commonsense reform plan that will reduce the number of frivolous lawsuits, lower health care costs for businesses and employees, and help maintain strong doctor-patient relationships. My proposal would ensure that injured people are fully compensated for current and future economic losses, while reasonably limiting noneconomic damages to $250,000. It would also reserve punitive damages for cases in which they are justified, ensure that old cases cannot be brought years after an event, and provide that defendants should pay judgments in proportion to their fault. This is a national problem that deserves a national solution.

We also need to reform the class-action litigation system. I support legislation that will eliminate the waste, inefficiency and unfairness of multiple overlapping class-action cases by making more class actions removable to federal courts. I also support a consumer class-action bill of rights to ensure that the benefits of class-action settlements go to the people who are injured rather than to trial lawyers. We must also pass a plan for asbestos litigation reform that protects victims with asbestos-related injuries while preserving the security of dozens of companies and tens of thousands of jobs. My administration strongly supported the passage of the Protection of Lawful Commerce in Arms Act, which would have prevented frivolous litigation against gun manufacturers and protected the thousands of workers employed by gun manufacturers and in related businesses. This legislation struck a good balance, reducing frivolous lawsuits while carefully preserving the right of individuals to have their day in court with civil liability actions. The Senate failed to pass this bill, but I will continue to support this legislation in the future.

Kerry: While respecting the traditional role of states, we must ensure that our legal system establishes the rules and incentives needed for the economy to function–without wasting time or money. Our courts–and in particular, the juries at their heart–play a central role in making sure that even the most powerful interests are held accountable, and even the most vulnerable people have protections. At the same time, there is no question that abuses of our legal system have hurt companies and individuals who are acting responsibly.

Frivolous malpractice lawsuits and class actions waste good people’s time and money. That is wrong, and I support reforms that prevent and punish these abuses. For example, in the medical malpractice arena, I support reforms that would require malpractice claims to be verified by a qualified specialist, require states to ensure that nonbinding mediation is available before cases proceed to trial, and support mandatory sanctions against plaintiffs and lawyers who bring frivolous medical malpractice claims (including a “three strikes and you’re out” provision).

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