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Last Updated: Tuesday, 6 September 2005, 11:33 GMT 12:33 UK
The princess and the frog

A POINT OF VIEW
By Harold Evans

As President George Bush nominates John Roberts to take over as the US chief justice following the death of William Rehnquist, all eyes are on how the new appointee will perform.

This is a story about a Princess and a frog, about a kiss and a betrayal. But it's not a fable.

It's a true story that goes to the heart of politics in America and in particular the fate of the man President Bush has nominated to a pivotal seat on the Supreme Court, the conservative jurist John Roberts.

The appointment of a Justice to the Supreme Court, the highest court in the land, is always a marathon of revelation and controversy because there are nine judges and they often split 5:4. So the politically-divided Senate, which has to approve a nomination, always wants to investigate how a new Justice might apply the Bill of Rights.

John Roberts
Man at the centre: John Roberts
This one vote can tip the affairs of the nation in dramatically different directions on hot issues like pollution, civil rights, abortion, privacy, school prayers and so on.

The Princess in our story is an honorary title I've bestowed on her for a grace and spirit superior to the rather sulky Princess of the fables. She's a young woman named Christy Brzonkala. She was a bubbly high-school basket player who enrolled at Virginia Polytechnic Institute in the expectation of qualifying for a sports career.

The frog is Bufo. To give him his full name, Bufo is Bufo microscaphus californicus who lives in southern California. Strictly speaking he's toad, but a very distinguished toad, his head crowned by a white v-shaped cross.

The princess and the frog have not met in person but they both figure as controversial characters in America's legal system.

Protected

It was with rare creatures like Bufo in mind that the US Congress passed the Endangered Species Act in 1973. Bufo has been proudly on the protected list since 1994 - that was the year Christy began her new life as a student at Virginia Tech.

It was with women like Christy in mind that the country's principal law-making body, Congress, spent four years listening to testimony from victims of rape and domestic violence, backed up by reports from law enforcement agencies, physicians, and federal and state officials.

A shameful scene was revealed. An estimated four million American women are battered each year by their husbands or partners; rape has risen four times as fast as the national crime rate and half a million girls will be raped before they graduate.

Yet many state courts have been soft on rapists. About a quarter of convicted rapists never go to prison and another quarter get off with less than a year in jail. Forty one per cent of judges believe juries give sexual assault victims less credibility than other crime victims.

So in 1994 Congress in its wisdom, with both political parties in support, made a new federal law, the Violence Against Women Act. It provided funds for enforcement.

Charges

One night that very September, a few weeks after her 18th birthday, Christy was devastated. An innocent kiss turned into a brutal gang rape by Virginia Tech football players led by one Antonio Morrison.

When she pressed charges through the university's judicial system, the jocks on campus were hostile. Football matters such a lot in American colleges. There was no frog to retrieve her golden dreams.

Virginia Tech administrators considered the allegations of rape strongest against Morrison and suspended him for two terms. Morrison's family appealed, claiming he was being treated unfairly because he was black. The university's provost - a woman - decided his punishment was excessive. She allowed him back on campus and into the team.

"I fell in a big black hole," said Christy. "My personal safety wasn't worth a nickel on that campus." She had a breakdown and dropped out of college.

The freshly minted Violence Against Woman law gave Christy hope. She became the first woman in the country to use it. United States attorneys argued for her in the Virginia courts. Virginia's judges were divided - not about the facts, at issue for them was whether the Congress in Washington had any business laying down the law about a rape in their state of Virginia. They decided it did not. So Christy was left out in the cold once again.

Virginia's refusal to enforce the new law was a direct challenge to the authority of Congress. In a case like this, the Supreme Court is the arbiter. Had Congress had gone beyond its powers?.

By 5 votes to 4 the Supreme Court decided that it had.

About Christy's rape, it said: "If the allegations here are true, no civilized system of justice could fail to provide her a remedy...but under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States."

"I cry whenever I think how much it could have been the other way," says Christy. She became a waitress.

Reforms blocked

The struggle between legislators and judges is perpetual. It's an inevitable outcome of America's founding belief in the separation of powers.

In many high profile cases - like this one - the heart of the dispute is the so-called "commerce clause". Furious with the way their reforms were continuously blocked, Congress in 1887 gave itself power to regulate any activity that might conceivably cross state lines. By very imaginative interpretations of what constitutes interstate commerce, Congress has enacted many reforms like the Violence Against Women Act and another banning guns near public schools.

Then in the 1980s, the Supreme Court started putting its foot down. Who did Congress think it was? The court struck down that school gun law as unconstitutional just as it struck down Christy's law.

Enter Bufo stage left and John Glover Roberts Jr. stage right.

Bufo, like the Princess, was menaced by big guys. In his case, the big guy was a San Diego developer who wanted to get his hands on the soil from Bufo's breeding ground. This would have been the end of Bufo and all his kind. The US Fish and Wildlife Service - Bufo's bodyguards if you will - stopped the developer. So the developer went to court. A three-judge panel in California ruled for Bufo and against the builder. For their authority, they relied on that commerce clause.

Step forward Judge Roberts - that pivotal nominee for the Supreme Court. Everyone has been trawling through his record to see how he might tip the balance of the Court.

A response of his to Bufo gives us the best clue so far. Writing a commentary, Roberts was critical of those three judges who rescued Bufo from extinction.

Bufo, he said, ought not to have been protected by the interstate commerce clause, because "he is a hapless toad that for reasons of its own lives its entire life in California."

Hearings

Such reluctance to interpret the law broadly suggests to Democrats that the judge may bring to the Court extreme views on the limits of congressional power. This would affect millions more than just Bufo with serious implications for other federal laws - on abortion, pollution, worker protection and a variety of civil rights.

So Roberts is sure to be grilled on "the hapless toad" when his confirmation hearings begin in Congress next week.

Personally, I take comfort from what we learn of the character of the man. He has shown compassion, he has a quick intelligence and modesty - and he has a passion for the meaning of words.

There's yet another important light into his soul. He has a passion for P.G. Wodehouse. And anyone who appreciates the Empress of Blandings Castle - the story of a pig, you will remember - might turn out to be not the villain of the piece but a prince after all.


A Raped Woman should be able to obtain a legal remedy from the highest court in the land. To obtain justice will be much harder and it is a mark and test of our humanity to ensure that it will be provided by the lowest.
David Langley, Macclesfield, Cheshire

... another important insight into his soul is the fact that Bush chose him over anyone else. Therefore Bush must be expecting Roberts to uphold his administrations beliefs irrespective of it moral groundings!
Jim, Birmingham

The US Constitution attempts to keep 'big government' in a box and only let it out when there is a really compelling benefit in doing so. I suspect that the founding fathers would not have felt that they really should keep George III in charge just in case he had a sound line on Toads. No they felt that they could get much more right locally than wrong and that they had the right to make mistakes, their own mistakes. If Justice Roberts takes that line, he'll make a good judge
Vernon Porter, Oxford

This article explores some very interesting aspects of the law in America, and Evans clearly knows the intricacies of the system. But using the Princess and the Frog analogy is not only patronising but offensive. Is it really necessary to characterise a rape victim as a 'Princess' in order to maintain our interest in the story? It's infantile and trivialising. Reporting on the US doesn't mean the BBC has to accept the popular American media style, which is most definitely 'dumbed down.'
Andrew, UK

I had never heard of Christy's case before and am shocked and deeply saddened that the prevalent fear among US authorities at all levels not to be called racist could lead to the ludicrous decision to let a violent rapist go unpunished. The importance of high school football over any other issue is also a damning indictment of America's investment in human rights. It has long been the cause of many injustices like Christy's. I'm sorry that this young woman gave up her dreams and let the canker that permeates US campuses - where you can rape, steal and more without consequence just so long as you're good at playing sports - prevail.
Hilary James, UK

How both the state and federal law let down Christy Brzonkala is a total disgrace. It just shows that success is everything in the US, no matter what it destroys, in this case Christy.
Jeremy Pallett, Lincoln

Has America gone so mad that people can sue because their microwaves did not say 'Do NOT microwave your cat' but a woman is raped and the judges decide that the law put in place to protect her doesn't belong in THEIR state. So she is refused any acknowledgement as the victim of a disgusting and terrible crime and the animals who did it get away because some judge decided he did LIKE this particular law?
Anna White, London

Mr Evans' optimism based on a love of PG Woodhouse seems at odds with the gist of his piece, a piece which reflects trends within the US power structure which places the welfare of economic structures above the welfare of it's individual citizens, and toads. The implications of which, to place Mr Evans' comments in a wider perspective, have been all too evident in the wake of the recent hurricane.
agl fletcher, london/ UK

Surely Christy's story is an example of what happens when people care more about the constitution, then they do about the people the constitution was written to protect. This is yet another case where the institution designed to serve and protect people actually oppresses and enslaves them.
Jon M, Sunny Grangetown on Sea

What have you got against local laws and the local values they embody? Do you really want the sizeable combined Congressional delegations from the increasingly heavily populated Bible Belt to have even more power over Manhattan and San Francisco?
Laura, Boston, MA

How much longer can the US be run on a system set up by a group of gentlemen governing a few hundred thousand people in 13 eastern seaboard states 250 years ago. Either bring government into the 21st century or admit that really the US isn't one country but a widely divergent group of countries desperately trying to maintain a collective myth.
paul braham, Southampton UK

Oh, for crying out loud. The man is an ultra-conservative whose appointment is opposed by every single women's rights group in the USA. But he likes PG Wodehouse, so he must be a good guy?
Caroline, Newport, S Wales

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