Pro-Life, Pro-Law

It might seem a prescription for disaster, but a pro-life, pro-rule of law campaign can be a winner for the Democrats.

| Thu Jul. 29, 2004 12:00 AM PDT

My ideal fall campaign? John Kerry debating George Bush on what it means to be pro-life. And John Edwards debating Dick Cheney on the rule of law.

Some would argue that’s a prescription for a resounding Democratic defeat. After all, isn’t George Bush, by everybody’s reckoning, the “pro-life candidate”? And haven’t the Republicans gleefully christened the Democratic Vice Presidential candidate John “trial lawyer” Edwards? A recent Los Angeles Times headline summarizes their line of attack. “Cheney Says Rivals Too Cozy With Lawyers.”

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Yet I think a pro-life, pro-rule of law campaign can be a winner for the Dems. Here’s why.

On the pro-life issue, Kerry could cite from Pope John Paul II’s 1995 encyclical, Evangelium Vitae (The Gospel of Life). Those who follow “the way of death”, the Pope declares, citing from the Didache, the most ancient non-biblical Christian writing, “drive away the needy, oppress the suffering; they are advocates of the rich and unjust judges of the poor....”

On the campaign trail, Kerry has repeated Rep. Barney Frank’s famous quip, “for conservatives life begins at conception and ends at birth.” An overstatement? Sure. Yet there’s no question this Administration has spent an inordinate amount of time and energy defending the right of the sperm to get to the egg and the right of the fertilized egg to implant itself in the uterine wall. The list of initiatives is long: hundreds of millions spent on sex education programs in which condoms cannot be mentioned except to comment on their ineffectiveness; The Food and Drug Administration's refusal to allow over-the-counter sales of emergency contraceptives; the Department of Health and Human Services’ proposal that a fertilized egg be treated as a person for purposes of the agency's programs.

After birth, however, Administration initiatives become downright miserly. It has frozen funding for child care programs, including the widely praised Head Start program, which currently serves only 60 percent of eligible three- and four-year-olds. The federal match to state Medicaid spending has been reduced, forcing many states to cut health care services to the neediest and most defenseless of us all.

In fact, many of this Administration’s policy choices seem to satisfy the criteria used by the Pope to define a “way of death.” Consider: one of its highest priorities was to eliminate the tax on dividends, an initiative that overwhelmingly benefits the rich. That lost revenue is sufficient to extend comprehensive health care to all 9.2 million uninsured American children, and Head Start to all unserved eligible preschoolers, according to an analysis by the Brookings Institution and the Children’s Defense Fund.

As for the rule of law, as Jonathan Schell succinctly observes, this Administration has exhibited a “contempt, visceral as well as philosophical, in domestic as well as foreign affairs, for law.” It has declared its right to engage in preemptive war, even when the other nation does not present an imminent threat. It has declared itself unaffected by the Geneva Convention or even the domestic War Crimes Act.

“Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President,” Pentagon lawyers argue. Domestically, the Department of Justice has asserted its right to imprison virtually anyone and deny them access to either lawyers or the courts, for an indefinite period of time.

Domestically, this Administration proposes a new and novel constitutional “zone of autonomy” that would allow the executive branch to operate exempt from nearly all judicial or Congressional oversight.

“Congress does not have the power to inhibit, confine or control the process through which the president formulates the legislature measures he proposes or the administrative actions he orders,” Solicitor General Theodore B. Olson asserts. Olson proposed that argument in a case in which the vice president refused to release the names of those who had developed the Administration’s energy plan. The Federal Advisory Committee Act requires that meetings be public, their records be accessible and membership be “fairly balanced”. Cheney was widely criticized for including only energy industry executives on his 2001 energy task force while excluding environmentalists. Sierra Club and Judicial Watch sued. A U.S. District judge ordered Cheney to produce the meeting’s notes. He refused. A federal appeals court affirmed that decision. He refused. Recently the Supreme Court, on a procedural issue, referred the case back to the appeals court.

The Democratic candidates could argue that this Administration’s position on the supremacy of the State, the need for secret government, and the nearly royalist power of the Presidency is, well, downright unRepublican. The vast majority of Republicans support the fundamental structure of government contained in the U.S. Constitution: a separation of powers, an independent judiciary, and a Bill of Rights.

Of course, when this Administration attacks lawyers, it is not because they represent the people against the state but because they represent the people against corporations. Indeed, next to reducing taxes on the rich, reducing our right to sue is one of this Administration’s highest priorities. It has curbed the ability of patients to sue HMOs, tried to cap jury awards against corporations and moved to shift class action suits to federal courts.

Cheney and Bush talk about frivolous lawsuits. They lecture us on the need to become more personally responsible. I’m sure John Edwards is eager to respond, as he did -- with devastating success -- in his underdog run, in 1998, against North Carolina’s incumbent Republican Senator Lauch Faircloth. “I make no apologies for what I spent my life doing,” he says. His objective, he insists, has been to “leve(l) the playing field.” I “help people who couldn’t help themselves and couldn’t fight for themselves.”

When Republicans trot out the horror stories of predator lawyers and greedy, irresponsible plaintiffs, John Edwards is ready to respond. After all, every lawsuit has two sides. And who is more capable of explaining the plaintiff’s side than a trial lawyer?

Remember the poster child for frivolous lawsuits a few years ago, the elderly woman who spilled coffee on herself and won a $2.9 million jury verdict against McDonald's? Well, as Paul Harvey would say, “And now, the rest of the story.” That woman spent weeks in the hospital. She offered to settle for $10,000. McDonald's refused. She sued only as a last resort. A judge later reduced her original award, as often occurs, to $480,000, and she wound up settling for even less.

But the most important outcome was that McDonald's, which had previously ignored more than 700 similar complaints, stopped serving near-boiling coffee. So did its competitors. That’s the kind of David v. Goliath story Americans would applaud.

This fall, we need to get beyond the 30-second sound bites and examine the cold, hard facts. We need to get beyond the rhetoric and look at the candidates’ actions and records.

And if that happens, I’m convinced that a pro-life, pro-lawyer platform could prove a winning combination for the Democratic Party.

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