Get Used to It: Ep. 121, "Samuel Alito and the LGBT Community"

(typewriter clicking) (typewriter clicking) (typewriter clicking) (upbeat music) - Hi, welcome to "Get Used to It." I'm Sheila Kuehl, your host for this show. And today, we're gonna talk about a topic that's on everyone's mind, and that is the confirmation process for Supreme Court justices, talking in particular about Judge Alito. And depending on whether you're seeing this in its first run or its re-run, he is going through the confirmation process, in the struggle. It's over. I can't tell you at this moment, but you will know when you see the show, but we're really interested in the process itself and how we analyze. And we use this particular candidate as an example, and especially its impact on the LGBT community, which is a lot of what this show is generally about. Today, I have three wonderful guests, starting closest to me with Jenny Pizer. Welcome Jenny. - Great to be here. - Jenny is the senior council at the Lambda Legal Defense and Education Fund western regional office. And next to her, Doreena Wong, who is a staff attorney for the National Health Law Program. Welcome. - Thank you. - Did we mention that you and Jenny are partners? I don't know if that's important. - [Doreena] Nah. - But people in your own, right, as we say. And third, and of course not least, Brian Chase, who's a staff attorney at the Lambda Legal Defense and Education Fund who has been most deeply involved, I think, in this particular confirmation process for Lambda. Welcome Brian. - Thank you. - Brian, we're gonna start with you. People have identified all sorts of ways that this particular confirmation relates to their community, their issue, et cetera, and I'm certain that gay and lesbian issues are no exception. Could you give us some idea why this might be an important confirmation issue for the LGBT community? - Well, it's important for any number of reasons. I mean, first of all, folks need to understand that the Supreme Court and the federal courts are incredibly important to LGBT people, especially those who don't live in states with friendly state court systems. I mean, recently in Alabama, there was a case where the Alabama Supreme Court held that lesbians were per se less, you know, as a matter of law, they were less capable of being parents than heterosexual women. And that was of course an opinion where the infamous Justice Roy Moore wrote a concurrence relying heavily on his interpretation of the Bible and injecting a number of biases that should not be present in the law anywhere. But it's pretty obvious from the way that decision came down, that it would be hard for an LGBT litigant to get a fair shake in the Alabama Supreme Courts. So when you got a situation where you live in a state like that, where the courts are politicized, and heavily politicized against you, you rely on the federal courts where the justices are appointed instead of elected and they serve for life. You rely on the federal courts for some protection, to get a fair shake, and the more politicized and the more extremist the federal courts become, the more difficult it'll be for people in Arkansas, in Alabama, in Texas, to get a fair shake anywhere because they can't rely on their state courts and they can't rely on the federal courts for fairness. And the Supreme Court, of course, sets the tone for all of the federal courts. - Not only the tone. Hey. - Yeah, exactly. They set the binding law. - I mean, it's sort of the law of the land, what the constitution means, how far it goes and how far it doesn't go. Well, I think that people were feeling actually pretty good about the Supreme Court after the last experience with it. And it may be that some people think well that, sort of, you know, said it, and what do we have to worry about? Are there cases on their way to the Supreme Court that the new justice is going to be involved in? - Right there, there are. There are a number. There's a case about whether or not, whether or not law schools can keep, can keep military recruiters off that was just heard by the Supreme Court. There are a number of cases that Lambda is working on. We just won a victory in Nebraska where we struck down a very, very broad law that banned any kind of domestic partnership protections, any kind of civil union protections, for LGBT families. And we got that struck down at the trial court level. That's another case where we can feel the state courts were the best place to try this issue. So we go to the federal courts for a fair shake. We wanted the trial level and that's going up through the appeals court that might be there within a few years. I'm working on a case right now in Oklahoma, another place where the state courts aren't real friendly, they passed a horrible law saying that if you adopt a child with your partner and you're a same sex couple, and you move to Oklahoma, they passed a law saying that they're going to ignore the adoption. We call it the instant orphan statute because these poor kids can't rely on the legal ties between themselves and their parents. So that case is in the federal courts right now. And conceivably, it could go up to the Supreme Court. And for the last few years in both the Roamer case, that struck down a horrible anti-gay law in Colorado, and the Lawrence Case, where the Supreme Court struck down laws, you know, said that the state government doesn't have the power to throw gay and lesbian people in jail. We have relied on centrist Republican judges. We've relied on Justice Souter. We've relied on Justice O'Connor. All these justices who were appointed by Republican presidents, but who have shown a willingness to at least listen to both sides of a case. And our biggest fear with just with Judge Alito is that the pattern of his opinions throughout his 13 years on the bench doesn't demonstrate somebody who looks at both sides of the case. It demonstrates somebody who knows which side of the case he's gonna come down on, and he always comes down on that side. And that's a- - Yeah, yeah. People are saying now, you know, I hear people saying that it's a kind of a theme that's running through a lot of critique of him, but in his confirmation hearings, he seemed so reasonable. He said he would apply, you know, apply the law fairly. Although he, well, we'll probably talk about this, Doreena. He kind of refused to say whether Roe v. Wade was settled law. Everybody went, "What?" But what is it about Judge Alito's record that gives you pause in the area's LGBT issues that you've been working on Brian? - And what we look at are a judge's history on issues of disability rights, because that's obviously very important for people with HIV. We look at his decisions on what are called privacy cases or liberty cases, because those are the decisions that say that the government can't interfere with the most intimate, personal elements of your life and the way you structure your family. We look at cases involving the other civil rights laws, because we want a justice who understands that the federal government has the power to enforce anti-discrimination laws. And in all of these areas, Judge Alito seems to always come down on a side where we wouldn't want him. I mean, he has a very, very perfect example is his view of the American Disabilities Act and the Rehabilitation Act. These are laws that have been used to protect people from losing their job because they've got HIV. These are critically important laws. And way back when he worked for the Reagan administration, Judge Alito wrote a memo saying that just because an employer was afraid that they might get HIV from an employee or that the employee might spread HIV on the job, that was a good enough reason for the employer to fire him, even if there was no scientific basis whatsoever. And giving employers that much of the benefit of the doubt, that much deference to employers versus the little guy. That's what gives us pause and we see that kind of pattern over and over again with Judge Alito. - Well, there's been a broader issue too that people brought up about him in terms of how deferential they were concerned he might be to the executive branch. Does that figure in in any way in our sort of fear about what he might be like? - You know, that's not one of the issues Lambda Legal works on because we generally don't directly deal with issues of executive authority. That'd be more something for the ACLU. But personally, it certainly gives me some pause. I mean, we just had the appointment and confirmation of a well qualified judge who has a long background of working with the executive branch and being very deferential to the President. Now we've got another executive branch lawyer turned judge who has been nominated to the Supreme Court. These are folks that believe that the executive branch, the President, should have a tremendous amount of power. And we all know that we rely on three branches of government in the U.S. We rely on the judges to be the ones to say, "Whoa, hold it. You're going too far this time." And Judge Alito's pattern throughout his entire career demonstrates that he is unwilling to ever tell the President, "No that's enough. You've grabbed too much power this time." And that is a very legitimate concern for all Americans. - What other kinds of cases are coming up in that effect, specifically effect, the LGBT community? Do you see working their way possibly towards the Supreme Court? - You know, I mentioned a few of the ones that look more obvious, but there are some other cases that might go up there and we've got a lot of concern. I mean, there are a couple of federal cases right now dealing with the constitutionality of the Defensive Marriage Act. These aren't cases that Lambda brought, we've been trying to win marriage one state at a time and, you know, create stepping stones to create the right legal environment for a really good challenge. But some individual folks have brought cases like this that are in the federal court system right now, including one right now in California. And that case could reach the Supreme Court, and we want the Supreme Court to at least look at these cases fairly, to not have a preconceived view of what the outcome should be. And we're really afraid that Justice Alito might not give us that. - Well Doreena, the issue of reproductive rights was one that was really on a lot of people's minds all during the confirmation hearings, and I think in terms of your and your organization's sort of part in the coalition, that was an important part. What was your experience about it? - Well, you know, a lot of people were trying to find out what just Judge Alito's opinions were about Roe v. Wade and trying to get to that in the hearings. But we know that back in 1985 in a Department of Justice memo, when he was trying to get a promotion, he actually bragged about, well, he actually admitted that he felt very strongly, very strongly that the constitution did not have a right for, to, you know, a right to, a woman did not have a right to have an abortion. And he was very proud of the cases that he had, you know, encouraged the justice department in the arguments about that. And when he was given the opportunity in the hearings, he did not repudiate that he didn't distance himself at all. He wouldn't, even, as you had pointed out, say that Roe v. Wade is settled law. Even Justice, Chief Justice Roberts admitted that much. And you know, but they couldn't even get Judge Alito to say that. And then we have actually, you know, there is an abortion case that came before him where he, you know, dissented and said that a woman's, the spousal notification, a woman had to notify her husband in order to get an abortion. He said that that was fine. But when that went up to the Supreme Court, it was rejected. - [Sheila] Right. - You know, and you know, Justice O'Connor said, "No, a woman doesn't lose her right, her constitutional right, when she gets married." I mean it, and so those are, that's why we think that at the very least, even if he doesn't, even if there's not an ability to overturn it immediately, there definitely will be restrictions that will be passed by the states and those challenges, and we pretty well believe that he will uphold those restrictions and kind of chip away at it. And so we're really concerned about that. - Well, one of the reasons I think, why we've been, we've seen this sort of relationship between the feminist community, worried about reproductive freedoms and rights, and the LGBT community also worried about privacy issues is that one whole strand of the law that we've been pursuing in terms of how we secure rights has had to do with, really with privacy. So I think that because there's been this sort of coalition worrying about the confirmation all during the hearings, it, you know, it makes a lot of sense to think about how a judge might do on reproductive freedom issues based on his past history. But in addition, we've got this other strand in the LGBT community in the courts where we look at sort of the equality issues, and I think that's the reason why we've been so interested as well in his record on disability issues. And I know that you and your organization also deal with that and interested in that. What has been his approach or what do we think about him in this arena? - Right. Well, even, well, especially, well in terms of disability, but it also kind of applies generally across the board when any kind of group is trying to vindicate their rights in courts, you know, and trying to enforce their civil rights in federal courts. Because as we know court, as Brian said, you know, courts have formed kind of the backbone of social justice. So it enables people to go to court to be able to get like public benefits, which our organization's very concerned about healthcare, you know, housing, food stamps, and also their civil rights. And so when we're looking in the disability area, he has argued for higher standards for people who are disabled to be able to come to court and prove their case. - So by higher standards, you mean make it more difficult for them to prove their case and therefore probably not get benefits? - Right. And in fact, like throw out their case before they even have a chance to, you know, to prove their case, by saying they don't even have what we would call like access, you know, court access issues. Because we know that if you, if you have a, you know, legal rights are kind of meaningless, unless you have a legal remedy, unless you have access to the courts. And so we've seen across the board, like in 84% of the time in dissents he has voted against, you know, plaintiffs or people who are bringing these cases in discrimination actions. - Well, why do you think a judge's record is relevant in terms of what they'll do on the Supreme Court? I mean, it's sort of a, in a funny way, it's a guessing game, right? We're saying we assume that judges are gonna be fair and neutral, which no judge, no judge, is really neutral. The best they do is to struggle with those things that they believe that make them not neutral and really focus on precedent and other kinds of issues that we count on in the law. And a lot of people said, "Well, why are we digging into a person's record and asking them, you know, how would you go on this and how would you go on that when they're not supposed to say it?" But it seems as though many organizations think it was really relevant because, honestly speaking, it's make, it's really predictable. - [Doreena] Right. Uh huh. - You think it's really predictable? - And he said, in the hearings, "I'm gonna be the same judge as I was for the last 15 years, as I was in the Court of Appeals." So he invited us to look at his record and, you know, and so we can see from that record, I mean, 15 years is a very long time. - [Sheila] Right. - And we can see, you know, that, and a lot of dissents, his colleagues often, you know, criticized him and said, you know, that his interpretation of the law, you know, would make it really difficult for people to bring cases to court, would change, you know, we change, we overlooked. He would go around precedent in order to get to the decision that he wanted. And I think the other area that is really worrisome for us is that he has a very restrictive view of congressional, Congress's power to pass legislation, cause a lot of the civil rights laws and protections for, you know, people like you and me are based on the commerce clause. - [Sheila] Right. - You know? And so in most of the cases, there's one of the most obvious cases is in a case where he, in a dissent, in a Rybar case where he argued against, he said a ban on machine guns was unconstitutional, that Congress did not have the right to ban machine guns. You know, this has been a law in the book since 1934. All the circuits, the six circuits that looked at it said, you know, disagreed with him. The Supreme Court disagreed with him. So he is way, the problem with, what we can say is he is out of the mainstream. He is not, you know, he may seem like a nice fellow, you know, you can, you know, just like George Bush, you can have a beer with him or you can talk to him. But his judicial philosophy is very, very conservative, and he does not see the constitution as protecting an individual's rights, which is very worrisome to us. - Well, Jenny, we're losing Sandra Day O'Connor and I don't know whether people can quite get what that might mean. She's sort of been billed as the person who is a swing vote. And sometimes that means you can't count on them. And sometimes that means you can't predict them. And that can be a good thing or a bad thing. As far as Supreme Court justices are concerned. What are we losing in Sandra Day O'Connor if we have Alito there instead? - Well, many people have described Justice O'Connor as a barometer of where the American public has been on a host of issues. And I think that's a fair description. She's unusual, or has been unusual, in that she was in the Arizona legislature for a number of years as an elected official, as we know that involves quite a lot of skills to serve in the legislature, but in particular, an astute sense of the impact on people of how a program might operate, sort of how is this affecting people on the ground, and paying attention to people's reactions to the law. And some people have found that they have looked at her judicial decisions and can see that perspective and find it unusual, and perhaps as a litigator, a bit frustrating, because she has not seemed as focused as some other jurists, appellate jurists, on trying to look at the law as a coherent set of rules. Often by the time a case gets to the Supreme Court, there have been different federal appellate courts disagreeing. - [Sheila] Right. - And the Supreme Court will take a case. Sometimes the court will say no repeatedly to an issue until a number of cases have percolated and there's a conflict in the circuits. That's not always the way, but that's frequently the way and the role of the Supreme Court is to say, "Ah, there's different ways of looking at this issue. We need to provide a clarification or a rule that will give coherence to the body of law, so all the lower courts, the intermediate appellate courts, and the trial courts can have a rule that they can use and the law will be coherent and things will be orderly and they'll be fair." And it is important for people to be able to understand what the law is so they can follow it, we hope, and rely on it. Her approach has been less predictable. And so that has created some annoyance to some scholars who like to develop a grand theory. - [Sheila] "What's the rule here? What's the rule?" - Exactly. And some have said it's harder her approach sometimes may be harder for lower courts to follow because she doesn't provide always some grand principle with which one can then predict how she will decide the next dozen cases. On the other hand, she has been the fifth vote that has decided an enormous number of cases across many different areas of law. She has been called the swing justice because she's the one that is sat in the middle, and if the litigants could persuade her to their view, the likelihood of getting the outcome they sought went way up be because she has tended another way of describing not having a grand principle is that she has focused on that particular case and tried to fashion a rule that would be just and sensible and not cause a lot of upheaval. So I think of her as a small C conservative in the tradition of conserve, maintain stability, society should function smoothly, and the law has a role to guide and allow people to rely, but not cause turmoil. I think there's a dramatic contrast to Judge Alito. Very likely also Judge Roberts. Both of them have been part of a legal movement called federalism that was developed, it was actually when Doreena and I were both in law school, quite a few years ago, In fact. This is a movement that has been developing and growing for quite a while. I mean, I would really say with President Reagan's election in 1980, there was a decision and a plan made to change the composition of the federal courts because the courts had been staunch enforcers of equality and individual rights in a way that was, it's been critical to who we are as a society, but those who have disagreed with equal opportunity, limited government power, limited power of private business, if there's discrimination, fashioned a both political and legal strategy to turn that back. And so that's not a small C conservative movement, that is a capital C conservative, which in my view is reactionary or radical reactionary. - Well also anti-democratic, I mean, and I mean with a small D of course, because the very methodical movement toward taking over and controlling all three branches of the federal government, you know, the White House, the Congress, which started in '94, the success of that, and the courts took a little longer because, you know, it is a lifetime appointment and you have to sort of wait until there's an opening. And then, but you have to have the executive branch and the legislative branch in place before you can control the judicial branch because of the approval, the appointment and the approval process. And it's been a very, very successful, and I think intentional movement to capture the courts and we see it, you know, happening. One of the things that's a problem about that analysis is one doesn't know exactly what to do about it. I mean, from my point of view, as a politician, the thing to do is to start over the way they did and change all of those things. Different President, different party in Congress, different appointments, you know, and you start going back the other way. But given the fact that we have this makeup of the court, I think one of the questions, and I'd love us to sort of discuss it when we get to the, you know, everybody sitting around the table part, but to ask your opinion first, how then shall we choose how we go to state legislatures, state courts, federal courts, and you know, where do we go to try to preserve and vindicate our rights such as they are at the moment? - Well, I do think one key idea here which should inspire us, that this is long term work is that we have been for many years at Lambda Legal and other organizations that focus on legal rights and legal rights as part of a larger process of social justice is that we're very careful about the cases that we bring. The law shifts and changes as people bring cases to the court. So perhaps the most dramatic example was that I hope people are familiar with, is that in 1986, the Supreme Court upheld the right of states to criminalize consensual adult intimacy in the privacy of the home, application of criminal sodomy statutes, where people would be thrown in prison for having a loving adult relationship. The Supreme Court upheld those laws in 1986, we at Lambda Legal constantly from then after had people coming to us, hurt, outraged, distressed, distraught. Why weren't we bringing more cases and challenging those laws and getting that overturned? And we were very careful and cautious about what we needed to do to prepare the way and to find the right case at the right time after we'd done a lot of building and education, but legal building too, before the moment would be right to bring their next challenge. And that moment did not come until 2003. Now, over those years, many people were harmed because those laws were misused as an excuse to take away people's children and fire people from jobs. It was very difficult to be patient and to focus on this careful strategy while we knew people were being harmed. But that is the discipline and the hard work of working within a system that's conservative. The court was conservative in 1986. It's not the case that it was it, that that is a, that court has been a gay rights party. - Right. Well, we would've seen them as being more conservative in 2003, you know, from every kind of analysis. And yet we did better. So, which brings me sort of to my next question, to really, to all of you. And then I think anything you've heard that the other person said, and you were waiting to come in and say something. Because one of the other things that was going on during those years was really the building of a movement. A lot of coming out, a lot of people engaging in family activity, more familiarity, you know, I won't say more political clout. That's what people say, but it's really not political clout so that it so much as it's tweaking the conscience of America to really take a look at their prejudices, which America's been asked to do over, you know, the last century really, and sort of one community after another. Do you think it made a difference between '86 and 2003, that there was more, you know, movement in addition to waiting for the right plaintiffs? Anybody? I don't care. - A perfect example of that is Justice Powell, who voted to allow states to criminalize gay and lesbian intimate behavior back in 1986. And when he was asked about that later, he said, "Well, I'd never known a homosexual." It turns out that many of his clerks and many people who, these clerks he had treated like sons and daughters were gay and lesbian. And later on, they told him that. And eventually he recanted and said that that decision was one of the worst ones of his life because people came out to him and because he got to know gay and lesbian people as gay and lesbian people. And yeah, that makes a tremendous, tremendous difference in how judges view cases. - One example I would give, I think about the role of a judge like Justice O'Connor, who looked at each case and conservative judges where we feel that our arguments are not heard, is that she was receptive to ideas being presented a number of different ways and thought through the implications. I think that's a key reason why our community movement is so important because we develop these ideas and these connections, and that gives us things to argue. The example I would give is that looking at civil rights and the role of race in our society and the ability of government to try to take steps to create a level playing field with respect to race, there were two decisions announced the same day in which she was pivotal in both. One upheld the idea of having some, that race can be a factor in college admissions if the purpose of it is to have a diverse student body, because that's an important part of education, and that you can't have a rich, vibrant, challenging learning environment if people are all the same and you can't then have trained leaders who represent the diversity of society, who will command respect, if it's just one type of person. So she was looking at the impact and studying the effect, but also thinking about equality in a number of different ways. There was another decision that struck down the idea of using race in a more rigid way of reserving a certain amount of spots or certain percentages. So it needed to be flexible, but it's all about the concept of equality. As we have our movement, as we come out, as we engage in political work and legal work, we help others understand what the concept of equality means. For example, in the concept of marriage. If people think of marriage as well, "That's a man and a woman. That's the definition." Then they would say, "Well, you don't qualify. It's not anti-gay, what you're proposing just isn't a marriage." But if we engage in the conversation of what family is and get people to think, "Well, what is it? Why do they think their marriage is important?" It isn't based on a definition and you could just as well switch out the two parts like widgets, it's personal things that mean a lot to them about love and commitment and caring and, but - That's also a question of who someone is. And I think why it's appropriate to ask who a person is and what they're like. You know, when you're looking at confirmation, because before Ruth Bader Ginsburg began bringing a number of cases about gender and equal protection in the United States constitution, the previous definite holdings had been that the question of whether women could bring a case of sex discrimination under the equal protection clause was just ridiculous because the equal protection clause only compared things that were similarly situated. Were you treating two things that were similarly situated differently? And the court up until these recent cases in the seventies had said, "Women and men are not similarly situated, so women don't have a case under the equal protection clause. Go home." And that was a reflection where they thought they were talking about equality. That is, you don't have to make people equal to everybody else in the universe. You only have to keep the state governments or the federal government from differentiating between them if they're already sort of similar to begin with. But otherwise you can say you're seven years old. You can't vote. You're 18 years old. You can vote. That makes sense. So a lot of it does come out of sort of background, et cetera. Do you think we're going to lose some of the gains that we've made with Judge Alito in the court? - Well, yeah. That's a leading question. - [Sheila] Yeah Doreena. Go ahead. - Well, just to go back to your, you know, what we were talking about previously, I think that that's why it's important for people to get engaged about this confirmation hearing, because you know, the decisions even in the Supreme Court are not decided in a vacuum. It's just a reflection of what people are talking about, the issues of the day and the common thinking. And so, you know, I think that, as you say, you know, from what was the difference between 1986 and 2003, how did we get there? And that was a whole lot of community education and a lot of efforts by a lot of people to show people, you know, to educate about people, not only gay people, but the main, you know, the public that, you know, what, who we are, who we were, and that that's true for every movement, you know, and that's part, that's why these cases aren't separate from the kind of the organizing the community organizing that has come along with it. You know, that you have to bring, do the public education so people understand what you're talking about. Well, what does this legal case really mean? You know, what are you trying to say? You know? And so, that's why I think we've made been able to make that progress. But in terms of what are we gonna lose? Yes, we've already seen a retrenchment of civil rights for the last few years with the Rehnquist court. And so, you know, they've been chipping away at it. They've been slowly restricting congressional authority, you know, under the ADA, the American with Disabilities Act, the Age Discrimination Act, and a lot of different rights, civil rights, for women and minorities and age and disabled. And so it's, I think it's clear from Judge Alito's record that he will also, you know, he's going to push that agenda. He is going to restrict those and make it harder for people to bring cases. And so that's, what's very, very scary about it. So when you look, when you couple, when you were saying that, you know, what about his opinions about giving the executive branch a lot of power? What they call like the Unitarian executive, where it's a lot of power vested in the executive branch. You couple that with his restrictive view of what Congress can do, which Congress reflects the will of the people, he says one person, one branch. The President can make decisions that are as equal or even above what Congress can do, or even the judges or even the courts. - Well, I think that's why people, they don't see the consistency in some of the liberal justices decisions. I had a lot of people ask me about the marijuana decision, for instance. And I said, you know, the reason the liberal justices said that the federal government could criminalize marijuana and say the states did not have the power to do that was really consistent with what they're doing in the civil rights arena, in a way, even though it didn't look consistent, because what they're saying, this is at least that's what it looked like to me. I want you to see if this is right. They were saying Congress can decide these things. The Oregon case about the right to die was not about upholding Congress, but upholding the states under a constitutional analysis. So people say, "Gee, that seems all so inconsistent to me. I don't get it. Why does Ruth Bader Ginsburg say that the federal government can criminalize marijuana?" So is that what you're saying in a way that the, what we're hoping for is to hold on to the ability of the Congress to make these laws about equality, to do the Americans with Disabilities Act, to, you know, to do employment discrimination legislation, et cetera. - Well, when they're, when they identify that there's a problem and they want to do it on a kind of a federal level across all the states so there's consistency, you know, in applying like what the constitution says in the Bill of Rights and what rights people have across the board, you know, then Congress has to show that they have a reason for doing this. - [Sheila] Right. - You know, and if Congress can show that there's a reason, that there's some serious discrimination going on, you know, that's why they passed the civil rights statutes in 1964, you know? - [Sheila] Right. - Because, you know, the south was discriminating and they had to do something on a national level. And so when there's a good reason for that, then yes, Congress does have that authority to do that. But there's a lot of realms where the state, you know, has the authority, should have the authority, and all the other areas, you know, that the federal government doesn't speak to, especially like in criminal statutes there, you know, they have a, they can decide, you know, on a statewide level, you know, how they want to set up their kind of state government state system. So then the federal government, you know, defers to that state, unless there's a higher, you know, a higher good that they're trying to achieve. - There's something going on here that I think can be challenging for people, and it's important. It's important that we're having this conversation. It's really important that the conversations then continue after, if the confirmation goes through, and if Judge Alito becomes Justice Alito, that it doesn't just then get put in a box until there's the next vacancy. But rather that people take opportunities to know that these issues about the legal system are not as removed and difficult to understand as they sometimes may seem, because in my view, the law is not fixed. It's not 10 commandments pounded into a stone. Notwithstanding Chief Justice, former Chief Justice Roy Moore, who with his 10 commandments in the courtroom, there is a constant process of change and pushback, it to me, it's completely alarming and bizarre, This theory that judge Alito apparently was one of the architects of, that the president can change the meaning of a law passed by Congress with a signing message. The rule is very straightforward. Congress writes and passes a law. The President can approve it or can veto it. The President doesn't get to interlineate it and change it and write his own committee report that would be relevant. It's quite a radical suggestion, that the President should have his own ability to stand as an equal partner or even a greater partner to Congress. There can be pushback about that. It is critically important that people realize that these, there are ideas of government and civics, that many of us grow up with the idea of balanced government, separation of powers, and those are very important ideas. And we have had moments in history when things were out of whack, some folks will have studied the New Deal. The country was in an economic crisis. There was an idea to try to help a lot of people and to help the economy with the kinds of legislation. The Supreme Court was extremely conservative, Lest anybody think this is a new thing. We've never been there before and feel like there's nothing we can do about it. Well, we were there before. There was an extraordinarily conservative Supreme Court struck down all of those New Deal laws. And then there was a political pushback said, "You've gotta stop. You know, the country will not stand for this." Really our system of law and of judging works because people respect the court system. And I think there are some judges who have very astute sense of that, that the system works by the consent of the governed. And so if people are involved and participate and speak out, I think the switchboards in Washington the past few days are a bit of a barometer of this as well. There's been massive participation in a way that's really good and healthy. People are paying attention. Now it may or may not mean that those who oppose the Alito nomination will be effective, but I do think it's a demonstration that people are paying attention. - Well, but this lack of effectiveness is a problem for people. I think that people, many people feel that they push for a certain amount of time, and if they don't succeed, that it means that they won't succeed and that's what's allowed the right wing movement to build so steadily, is that it's never given up in the face of not getting there the first try or the second try. That it is a really long term strategy, whereas many of our foot soldiers who are, you know, working towards a goal often really get, and I think the right wing wants us to get discouraged because we all called, you know, Senator Boxer and it didn't work. So yeah, it worked with Senator Boxer and, you know, there was some attempt, but you know, we're talking about a group of people in the minority who did everything they could to stop this and it didn't stop because, well, they don't need more than half the people to vote for him and those half are in the majority. So it doesn't even matter what the minority does. And the experience of members of Congress now on both sides of the aisle is that it is so anti-democratic in terms of its processes, that members of Congress are voting on bills they've never seen and never heard of. And I don't blame them. You know, a lot of people say, "Well, why didn't you read the bill?" Well, for our, in California, we read, we get the opportunity to see everything. Every bill gets a hearing. There's witnesses, pro and con. In about six hearings. Doesn't happen in Congress. and less and less now. You don't get a hearing anymore. So that kind of democracy is shrinking in Congress under the right wing leadership, which is also more evidently corrupt than we've ever seen, at least in my lifetime. Although I know there were some at the beginning of the 20th century and people say, "Well, what do I do about it? I feel so frustrated." So what do they do about it? - And you have to take a long term, a long horizon view of it. I mean, what's happened in the judiciary over the past 20 years happened because think tanks were created. People made contributions. There was a conscious effort to groom a bunch of very conservative judges, get them political appointments, and get them on the bench. And Democrats haven't done that in the exact same way. And there's some merit in looking at it. They've also, there's also been a big change in the rhetoric. There have been constant calls of activist judges, decrying, and insulting, sometimes, judges who have made very difficult decisions and have done it in a fair way, but some folks who haven't liked the decisions. Instead of disagreeing with the decisions they've personally attacked the judges, and we've allowed that to go on without putting forth a strong enough message to counter it. That's why Lambda Legal started our Courting Justice campaign, and if you go to our website you can check that out because it's very important for our message to get out there that no, these aren't activist judges, these are mostly moderate Republicans who have made some fair decisions. So it is a long term process. And it's something folks need to do. But, you know, if you call Barbara Boxer this time, you gotta call her next time as well. - Well, and there will be another opportunity. I mean, the court has shifted very, very far to the right over the past 25 years. Let's keep in mind. You know, you know, when we just graduated from law school and I had the opportunity to work in Washington on some of the hearings related to the Bork nomination, we said "One justice away from injustice." We said it again and again, here it is all these years later, and we're still thinking of things that way. It's shifted to the right, but let's keep in mind Justice Stevens is in his eighties. It's not as if this process has happened and then it will be over. The process will continue. And so we can point out that President Clinton selected nominees in consultation with the Republicans, even though they were in the minority, he still consulted with them at the time, and he selected people with an exemplary record, but including a record of being fair and even handed, not people who were stars in a particular reactionary movement. And so that's a process we can hold up as being appropriate. I think we need to sort of point out and explain the mistake in the rhetoric that says, "Well, we won the White House, we get our people. You win the White House, you get your people." No, it's not the same thing as a cabinet secretary. A lifetime appointment to the Supreme Court, it is different, and the analyses that our organizations do, they are, it involves a lot of reading, developing some principles, and sorting out an ideologue whose opinions show as a consistent effort to basically to find ways to throw cases out of court, procedural hurdles. As Doreena said, evidentiary burdens of proof that no one could could meet. They aren't, you know, they aren't the sexy issues necessarily of saying, "And it was deemed okay to strip search a 12 year old." I mean, people can look at that, shock the conscience and it's terrible. But the analyses we do actually are looking for a pattern of procedural changes in rules that add up to a mountain of unfairness, where we can then say, "This is the analysis that needs to be done, not as a person, genial, clever and genial and polite, but what is the record of accomplishment?" It is appropriate to select people who have a skillset because they've worked as lawyers or judges, and we can see what their work is. And we can say, are they open-minded? You know, do they seem to be taking seriously the principle of access to courts, access to justice? I would hope that we all have learned some things, seeing the Roberts nomination, now seeing the Alito nomination, and that may go even farther than call the Senator and say, "Vote no." Of course that's critical that people do that." But that people are really spending some time thinking about what is the role of the courts? And if you hear pundit using the term judicial activist in a way that seems to be completely unthinking, notice that there is, there's an agenda under that. Notice it. We've had the situation in California where we've been litigating to defend the domestic partnership law that our wonderful folks in Sacramento created to protect families in California. Well, it was attacked by right wing religious legal groups. The Republican appointed, you know, electorally appointed judge who upheld that first was threatened with a recall by the same people who had challenged the law. It was terribly important that members of the judiciary in California were alarmed. Jurors said, "We cannot have that kind of politicization of the judiciary." And they stood by him and were prepared to really help defend his job. Not based on the yes or no of that ruling, although it was completely straightforward. - No, exactly. It was because, but see, there's a real, the real problem, I think, is that for so long, we've just taken for granted that America does all this stuff playing by its own rules. We just take for granted that the country plays by its own rules, that we have three equal branches of government, all the stuff that we learned in school, and we are really not paying attention to the fact that there are people that don't give a damn about that. As a matter of fact, they'd like to change that. And little by little, we do not have three co-equal branches of government. We really don't. Where the Congress defers so much to the President and no one is standing up in Congress saying, or they're just starting to again, "Wait a minute." And who's standing up for the Supreme Court and its independence from the executive branch? Doesn't look like any of the recent appointees will do that. Who's standing up for David Suter, who's got pickets in front of his house because he made a rote, actually, you can't make a decision all by yourself, a decision about eminent domain, and now there's a campaign to take his house by eminent domain. "We'll show him." You know, it's domestic terrorism really against judges. So I think part of the point that's made is really that people have to be vigilant about democracy. It's, you know, it's important. This is important for our community as well. - But it's, you know, and this is, and we were talking about judges and a little bit about the other branches. I mean, it's all related, you know? It's all related and, you know, one's not separate from the other. So when we're talking about, when we actually look at where we have been and where we're going, we're actually like, especially for the LGBT community, we've made a lot of gains, you know, in a relatively short period of time when you compare, like, you know, in the African American community and how long it took them. But, and so I think we forget that we actually are making a lot of gains, and that's why there's this large kind of backlash. And a lot of people who are very upset. So we can't forget that. And so we can't be discouraged by, you know, sure, we have setbacks sometimes. And we have to just remember that, you know, we know that the majority of young people have no problem with, you know, giving the LGBT community their rights and recognitions. And so we just have to wait for our generation to die out before we can maybe experience that. But I do think, so what is key is making sure that those young people and just everybody understands, you know, what you're saying, what this country is about, what a true democracy is. That there are three co-equal branches. It's not just the courts. It's not just a President. It's not just Congress. It's not just a legislature. And that you have to be plugged in and understand how they all work together. And that, no, it's not just majority rule. You know, there's a little thing of minority rights down there, you know, that we tend to, people have forgotten. You cannot vote. The majority cannot vote on the rights of a certain, you know, minority group of people. I'm sorry. You know, and so we have to remind them because, you know, and part of the attack, you know, by the right wing has been, you know, like in education, you know, we have no public schools anymore, you know, democracy is based on an educated public so that they know what is going on and they understand what the issues are. And so we just have to go back and support those institutions, you know, and make sure that people understand what, you know, what a democracy is and demand it, you know, it has to come from the people so that they understand. We have to kind of wake up people so they understand how we got here. You know, we don't have an excuse now, cause now we know it's blatant. We know what their agenda is. Now it's up to us to come up with an alternative and a vision in a, you know, to try to stand up and counter that. - And this goes, I think for all three branches. - [Doreena] Oh right. Yes, yes, yes. - Because we have theoretically the power to choose the executive branch, and we have the power to choose the legislative branch, and they have the power to choose the judicial branch. I mean, that's really sort of how it works. So I think that's, if people are engaged at all of those levels, so what's next for our, if you know, what's next for our legal approach in terms of securing rights? Are we playing defense or do we have something kind of moving along for us? - Well, you know, as we have been saying, and I hope this is a sense of continuity and reassurance and actually inspiration for people. This conservative transformation of the federal courts has been going on for a while. We noticed, okay? And we've had strategies that we've been using with some wonderful effect in this environment that is actually difficult. State court litigation. We're doing the marriage cases in state courts, under state constitutions for a reason, and we're having tremendous positive success also in friendly jurisdictions like California, not just in the courts, but in legislatures. Building good laws, then being able to defend them. So it is a dynamic process. We're thoughtful about what we take on. We pick our jurisdiction and our venues carefully. But I think what this all comes down to is there's information available. There's a lot of information on the Lambdalegal.org website. Knowledge is power. As a community, we are vulnerable if we don't know what's going on, but when we do know what's going on, we're very powerful, and collectively across all the communities that have been having a hard time and are gonna have a worse time, if this court does what we think it's likely to do, we all collectively have a lot at stake. And so, you know, knowledge is power and together we are much more numerous. So, I mean, I think we've had good success. A Doreena said, we can continue that it, but we all need, do need to educate ourselves about what's going on. - Well, I think that's the perfect place to wrap up. I can't, I never can believe that a whole hour's gone by, but thank you so very much for being here. Jenny and Doreena and Brian. Thank you for being with us. It's an ongoing issue to preserve our own democracy and our own place in it. And I hope that you will be part of it every day of your life to preserve this democracy, to speak out, to be involved and in every way, get used to it. (upbeat music) (upbeat music continues)