Archives 7/4/05 thru 8/24/05
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Posted at 11:06pm on Aug. 24, 2005 On Vacation Until September 6
By AndrewHyman
Iââ‚â„¢m going on vacation, but of course others will be blogging here. Click on the image if you'd like to see some more Roberts cartoons:
I bet you've never seen a donkey-shark before, have you? :-) Conan Oââ‚â„¢Brien recently had some wisecracks about Roberts, at Wââ‚â„¢s expense:
President Bush announced his Supreme Court pick. Isn't that exciting? President Bush announced that he has nominated Judge John Roberts to the court. When asked why, Bush said he picked Roberts because he has one of the finest legal minds since Matlock. . . . President Bush had breakfast with his Supreme Court nominee John Roberts. Afterwards Bush said he's never seen such a qualified candidate, and John Roberts said he's never seen a grown man eat Count Chocula.
Feddie already linked to a funny Jon Stewart video regarding Roberts, and hereââ‚â„¢s more. Finally, some lesser-known remarks by the nominee....
In a case involving discrimination and a church-run school, Roberts wrote in an Aug. 2, 1984 memo, "There should be little press interest . . . since we are on the side of the black parents at this point."
In another memo, replying to an eccentric octogenarian who had suggested that the 17th Amendment (which mandated popular election of US senators) was invalid, Roberts said the White House would normally not reply, but should make an exception. ''Anyone who can quote inspiring passages from Plato and Webster, however, and use a word like 'slumgullion,' deserves a reply, and I have drafted one," he wrote.
In August of 1983, a University of Georgia professor wrote what Roberts called a "snide letter" to Reagan, alleging that a government agency was compiling a blacklist and suggesting that the government might investigate him for complaining about it. In a memo to his boss Fred Fielding, Roberts noted, "Once you let the word out there's a blacklist, everybody wants to get on."
Hat Tip: Villainous Company.
Posted in Humor —
Posted at 5:28pm on Aug. 24, 2005 PFAW Versus CFJ
By AndrewHyman
The group People for the American Way (PFAW) has officially closed its collective mind, and announced its opposition to the nomination of John Roberts. Immediately, the Committee for Justice (CFJ) rebutted Ralph Neas of PFAW. The full CFJ rebuttal is below the fold.
ââ‚¢ RALPH NEAS' FOUR JOHN ROBERTS MYTHS AND COUNTING
1. Women's Rights.
Allegation: John Roberts has supported or advocated positions that were harmful to efforts to achieve equality for women.
Response: First, the PFAW criticism of John Roberts's interpretation of Title IX's sex discrimination prohibitions in the education arena is flawed. What PFAW does not tell the reader is that John Roberts's interpretation of the law for the Reagan Justice Department was precisely what the US Supreme Court had ruled. Second, on the issue of whether Title IX plaintiffs should get money damages (a position Roberts opposed on behalf of the Bush Administration), the fact of the matter is that the availability of money damages from Title IX lawsuits has exposed schools to huge liabilities and thereby diverted funds from educational and sports programs, enriching only the trial lawyers who bring these suits. Third, the fact that PFAW faults Roberts for opposing comparable worth shows how out-of-step Neas and his brethren really are on issues of equality.
2. Segregation in Education.
Allegation: Roberts repeatedly took positions that would have had the effect of limiting the ability of people to turn to the federal courts to challenge state and local laws and policies that resulted in unequal access to educational opportunities.
Response: First, it is a mark of thoughtfulness and courage that John Roberts criticized the failed experiment of court-ordered busing legislation; limiting this kind of remedy garnered the support of 22 of 46 Democrats at the time, including Senator Biden. Second, in terms of whether states could have education policies that treat illegal aliens different from everybody else, Roberts was merely stating the view that the Constitution created no special rights here (what is good policy might be a different matter), and four Justices (including Sandra O'Connor) actually agreed with Roberts. Third, in the case PFAW cites pertaining to whether sign-language interpreters need to be provided in the classroom, PFAW's criticism of Roberts's view that the law does not provide such a right once again shows its extreme stripes; six Justices agreed with Roberts's view, including the most liberal Justices, Harry Blackmun and John Paul Stevens.
3. Voting Rights.
Allegation: Regarding the Voting Rights Act, John Roberts fought hard to restore its full effectiveness.
Response: Neas' claim --- namely, that Judge Roberts's warnings about potential constitutional concerns with imposing a nationwide effects test under amendments to section 2 of the Voting Rights Act threatened to severely harm voting rights progress --- have been proven to be unfounded. In fact, Judge Roberts's view was vindicated when the Congress ultimately changed the language of the bill to carve out the constitutionally questionable application Roberts had warned against, namely the creation of a right to proportional representation. Moreover, Judge Roberts's views about the potential constitutional issues surrounding a nationwide effects test proved prescient. For example, half of the full Second Circuit court of appeals, sitting en banc, joined an opinion concluding that it is unclear whether, as a general rule, the results methodology of [the amended section 2 of the Voting Rights Act] is constitutionally valid. Baker v. Pataki, 85 F.3d 919, 928 n.12 (2d Cir. 1996) (en banc) (opinion of Mahoney, J., joined by half of the judges of the Court). And subsequent Supreme Court cases, such as City of Boerne v. Flores, 521 U.S. 507 (1997), have reinforced the validity of Judge Roberts's points.
4. Religious Freedom.
Allegation: Roberts has a record of hostility to the separation of Church and State.
Response: First, John Roberts's criticisms of the Supreme Court's Establishment Clause case law is well within the mainstream of American public life. Justice O'Connor as well as Justice White (appointed by JFK) have agreed with Roberts's view that the case law is unhelpful and does not create principled standards. Even extreme liberals like Larry Tribe and Mark Tushnet have said the same thing in law review articles. Second, Roberts, while at the White House, on at least two occasions edited Reagan speeches in order to be more ecumenical and inclusive in their discussion of God and religion mindful that government should not stigmatize or show preference by talking about religion in an overly sectarian manner. Neas ignores this work by Roberts. Third, while Neas makes note of the fact that Roberts had no quarrel with then Secretary Bennet's criticism of a Supreme Court case striking down the posting of the Ten Commandments in public schools, Neas conveniently omits a memo Roberts wrote for the Reagan administration recommending against the President endorsing a Kentucky resolution that would have required the posting of a religious statement at schoolhouse doors. Roberts felt the issuer needed to be hashed out by the state and the courts and the President should not weigh in.
Posted in News —
Posted at 4:29pm on Aug. 24, 2005 An Issue that Remains Unresolved
By AndrewHyman
Thursday at noon Eastern Time you can join a telephone press briefing (TEL 800-381-2652) with ââ‚Å“Planned Parenthood Representatives to Discuss the Critical Impact Of Roberts' Nomination to the Supreme Court.ââ‚?
Not coincidentally, there was an article this week in the Journal of the American Medical Association suggesting that unborn humans feel no pain before the third trimester. However, according to the Philadelphia Inquirer, the "seven-page article has a weakness: It does not mention that one author is an abortion clinic director, while the lead author --- Susan J. Lee, a medical student --- once worked for NARAL Pro-Choice America."
Meanwhile, Jay Sekulow is saying that "how John Roberts is going to decide Roe v. Wade . . . isn't even the right question. I don't even know of a case in the system that addresses it."
Posted in News —
Posted at 2:04pm on Aug. 24, 2005 More on Chemerinsky and Fisk
By Carol Platt Liebau
(Here's a different take -- that reaches the same conclusion -- as Andrew's discussion below of the Chemerinsky/Fisk piece).
The Chemerinsky/Fisk piece is a set-up for the Roberts hearings, and essentially alleges that both conservative and liberal judges "make" law through their rulings -- and that "[c]onservatives are no more willing than liberals to defer to government choices they dislike." Well, the former charge is true insofar as of course (as the authors note) "judicial lawmaking" may consist of "the interpretation of vague constitutional or statutory provisions" or a determination that "clear legal language means something different than what a layperson might think."
But the key question is on what basis a judge (or justice) reaches a decision on these matters in the tough cases. And that's the difference between conservative and liberal jurisprudence: Conservatives rely on the plain text of the Constitution, the intent and understanding of the founding fathers when they ratified it, and time-honored and (virtually) universally accepted principles. Liberals rely on their own (elite) policy preferences, the trends of the day, and other extra-judicial materials.
Take an example that Chemerinsky and Fisk offer:
Two years ago, conservatives were angry the top court did not declare unconstitutional the University of Michigan Law School's affirmative action program. That same year, conservatives were outraged the court overturned the Texas law prohibiting private consensual homosexual activity.
That makes sense to me. Even many of the founding fathers thought that slavery (ie race based discrimination) was wrong -- hence the compromise to allow at least some counting of slaves as part of the population of their state, albeit inexcusably as only 3/5 of a person. Enough Americans believed slavery (race based discrimination) was wrong to fight the Civil War in large part over it. And certainly no one (absent a few fringe weirdos) would today argue that the 1964 Civil Rights Act -- eliminating many of the outrageous Jim Crow arrangements that disgraced this country for too long -- was misguided. Equality is a core American commitment, and has been from the beginning (remember the Declaration's "All men are created equal"?). That commitment has been the engine that has driven the peaceful and democratic realization of that principle from its imperfect inception. Given all those facts, seeing a system established that in fact justifies and enshrines racial discrimination implemented and administered by a state university is good cause for anger.
In contrast, Lawrence v. Texas was a case that illustrates the characteristics of liberal jurisprudence. Through no textual basis in the Constitution, historical precedent, or near-universally shared belief, the liberal majority on the Court substituted its (elitist, blue-state) judgment for that of the Texas legislature, and found that there is never a "rational basis" for legislation that is based primarily on moral considerations. It was done in order to find a Constitutional right to homosexual sodomy -- a "right" that had hitherto never been found in the Constitution, and has certainly never been a core American commitment in the mold of racial equality (in fact, the Supreme Court had ruled the opposite way on the same question about 21 years earlier in Bowers v. Hardwick). What could justify such a radical volte-face in just 17 years (obviously, the words of the Constitution hadn't changed) but a desire to make new ("pathbreaking"), politically correct law from the bench? Seems to me some outrage certainly makes sense here.
Finally, any examination of liberal jurisprudence must include Kelo v. New London. That's the case that allows the government to "take" private property and give it to private developers who will pay more taxes. Conservative jurists objected -- the Fifth Amendment plainly reads: "nor shall private property be taken for public use, without just compensation." And "public use" means what it means and has always meant -- public use, i.e. road, bridge, airport. Liberals, however, rewrote the Fifth Amendment -- "public use" = "public purpose" = "higher tax revenues." And so the prospect of receiving higher taxes from one private party than another was somehow deemed to be a "public use" sufficient to justify the government's confiscation of one private landowner's property to be given it to another, more favored private landowner.
Chemerinsky and Fisk admit that liberal judges "make" law -- a concession that they must make, as their own examples demonstrate that judges uphold racial discrimination but strike down laws that represent a people's long-held moral consensus. The only way they can ameliorate this sad fact is to argue that "well, conservatives do it, too!"
Not so.
http://carolliebau.blogspot.com/2005/08/interpreting-law-not-making-it.h...
Posted in SCOTUS —
Posted at 1:17pm on Aug. 24, 2005 Bob Hope on Zombies
By AndrewHyman
Here's a funny movie clip that has continuing relevance.
Hat Tip: CFJ.
Posted in Humor —
Posted at 4:27am on Aug. 24, 2005 Fiction by Chemerinsky and Fisk
By AndrewHyman
In USA Today, Erwin Chemerinsky and Katherine Fisk have an op/ed deriding ââ‚Å“President Bush and Republican politicians [who] constantly repeat, as a mantra, that Roberts is a desirable choice because he won't ââ‚Ëœlegislate from the benchââ‚â„¢ and will merely ââ‚Ëœapply the law, not make it.ââ‚™ââ‚? According to their op/ed, ââ‚Å“almost all tort law (governing accidental injuries), contract law, and property law are made by judges.ââ‚? Chemerinsky and Fisk hide the fact that they are referring here to law made by state judges rather than federal judges, and they also conveniently neglect to mention that such common law is almost always subject to modification by state legislatures.
When finally their USA Today op/ed gets around to talking about federal judge-made law, these two fiction writers say the whole doctrine of judicial review was created by judges rather than by law-makers. That's absurd. The framers of the Constitution understood perfectly well that judges would have to determine which law governs in a particular case, such as an older statute versus a newer contrary statute. Determining which law governs in a particular case is all the federal courts are doing when they decide that a constitutional provision applies instead of a contrary statute. Alexander Hamilton explained this whole matter in painstaking detail, in Federalist 78.
Chemerinsky and Fisk also say that the Rehnquist Courtââ‚â„¢s sovereign immunity jurisprudence was judicial lawmaking, in that it created ââ‚Å“a wholly invented broad principle nowhere mentioned in the Constitution,ââ‚? but actually there is a clause of the Constitution that says Congress can only exceed its specific enumerated powers when doing so is ââ‚Å“necessary and proper.ââ‚? Hereââ‚â„¢s what the Court said in Alden v. Maine about how the language of the Necessary and Proper Clause defeats congressional attempts to eliminate a state's sovereign immunity:
Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powersâ₦ When a law for carrying into execution the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions, it is not a law proper for carrying into Execution the Commerce Clause.
Despite this clear textual basis for the Court's sovereign immunity decisions, Chemerinsky and Fisk preposterously claim that ââ‚Å“the court's sovereign immunity decisions are open to the same criticismââ‚? as Roe v. Wade. They add that the ââ‚Å“Constitution says no more about sovereign immunity than it does about privacy.ââ‚? Actually, the Court has no choice but to strike down inappropriate statutes that are not necessary and proper for carrying the specific powers of Congress into execution, just as the Court must also strike down statutes that invade the privacy specifically protected by, for example, the Fourth Amendment. Neither exercise of judicial review involves legislation by judges, and instead it involves interpretation and elucidation of the Constitutionââ‚â„¢s commands. In contrast, when judges issue edicts that are not required or implied or authorized by the Constitution, then judges do enter the forbidden realm of legislating from the bench.
Chemerinsky and Fisk write: ââ‚Å“Lawyers know that the oft-repeated phrases about judges making law are just slogans. But the quality of public debate is lowered when people insist upon something they know to be false.ââ‚? Sure, and the first sentence of the Constitition is just a slogan: ââ‚Å“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.ââ‚?
UPDATE: Chemerinsky and Fisk also allude to the case of Skinner v. Oklahoma as an example of valid judicial legislation. However, in that case, the Supreme Court was attempting to carry out the commands of the Equal Protection Clause, rather than exerting its own will. An Oklahoma law required sterilization of 3-time felons, except for "offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses...." The Supreme Court concluded that treating embezzlement differently from other equivalent felonies violated the Equal Protection Clause. The Court was not resorting to principles that are implied nowhere in the Constitution, and so Skinner cannot be considered an instance of judicial legislation.
Posted in News —
Posted at 5:14pm on Aug. 23, 2005 Specter to Roberts, the Sequel
By AndrewHyman
Following up on his August 8 letter focusing on the Commerce Clause, Senator Judiciary Committee Chairman Arlen Specter has now written an August 23 letter to Judge John Roberts, this time regarding the Americans with Disabilities Act (ADA). The August 23 letter has a postscript disavowing any effort to find out how Roberts ââ‚Å“would have decidedââ‚? specific cases.
Posted in News —
Posted at 2:55pm on Aug. 23, 2005 Feinstein Wants to Know Roberts's Verdict
By AndrewHyman
The San Francisco Chronicle reports as follows about a recent speech by California Senator Dianne Feinstein (my comments bracketed in italics):
While high court nominees are often reluctant to speak about specific cases they may face on the court, "what we will be pushing for are what his views are on certain issues [that he may face on the court],'' the California Democrat told more than 300 high-tech industry and government leaders at a Silicon Valley Leadership Group luncheon in San Jose.
"What is not a good thing to do is stonewall the (Judiciary) Committee [as all nine of the current Justices did],'' Feinstein said. "The American people are entitled to know what this man's views are [before he hears arguments and studies the law and consults with his colleagues].''
Feinstein is the lone female senator on the panel, which has scheduled Roberts' confirmation hearings beginning Sept. 6. In that role, Feinstein told reporters after the speech: "I actually do feel I have a special obligation" to represent women [except for the 72% of women who believe abortion should be illegal months before viability].
The report continues:
"I'm one who remembers when abortion was illegal. ... I saw a terrible, terrible situation back in the 1950s,'' said Feinstein, 72. "I don't want to go back there [although pro-lifers would accept the 60s instead of the 50s]. It would be very difficult for me to vote yes on a nominee who I thought would overturn Roe vs. Wade [even if Roe v. Wade was an act of raw power instead of constitutional interpretation],'' she said, referring to the landmark 1973 Supreme Court ruling legalizing abortion. "And so what I need to find out is what his views are [because governments --- and husbands --- should remain powerless to stop, penalize, or learn about frivolous late abortions, and because irresponsible men and women should continue to sweep away their problems without the slightest penalty].''
And:
"I would like to come away with the view that he was not going to be one who would further restrict and bind lawmakers' hands and keep them from enacting legislation that the people of this country want [except on the subject of abortion]," Feinstein said.
I am so weary of people like Senator Feinstein who take such a simplistic attitude: Roe good, Rehnquist-Scalia-Thomas bad. Perhaps someday she might stop to consider that in her home state of California the third party killing of a fetus is punished as "homicide" if the fetus has developed past seven weeks after conception. More details here.
Posted in News —
Posted at 2:30pm on Aug. 23, 2005 Where's Business?
By Marshall Manson
Over at Red State, Pat Cleary explains why the National Association of Manufacturers endorsed John Robertsââ‚â„¢ confirmation. Read every word. Patââ‚â„¢s post not only explains NAMââ‚â„¢s decision, it makes the case for more businesses and business groups to find their voices in the judicial confirmation debate.
Unfortunately, with the exception of NAM, too many businesses and business groups have been or insufficiently active -- or silent all together -- on judicial nominations. But theirs is a critical voice. Though not enough realize it, the question of who sits on the federal bench effects them directly on a daily basis.
Businesses say that legal reform is a top priority. They have spent millions lobbying Congress, the President and state governments in favor of legal reform. But as I have written previously, any movement towards legal reform must include judicial reform. That means identifying and appointing judges who make decisions based on the law, even when that necessitates saying ââ‚Å“noââ‚? to a sympathetic plaintiff. Unfortunately, over the past few decades, weââ‚â„¢ve had too many judges who have been willing to cleverly craft interpretations of the law that would yield desirable outcomes. And that, as much as anything, has contributed to the massive increase in litigation that now costs businesses -- and, thereby consumers -- hundreds of billions of dollars each year.
More businesses need to get involved. They can speak out on their own or get behind groups like CFIF and others. Because, as Cleary explains, judicial selection isnââ‚â„¢t just about the ââ‚Å“social issuesââ‚? that make business interests nervous. Itââ‚â„¢s about having a good, fair and predictable court system. And however you slice it, the present litigation boom, spurred on by malleable judges, is effecting businessesââ‚â„¢ bottom line.
Posted in SCOTUS —
Posted at 9:51am on Aug. 23, 2005 The Ginsburg Precedent
By Marshall Manson
Progress for America is out with an excellent web-video detailing the Ginsburg precedent. It's definitely a must-watch.
Posted in Uncategorized —
Posted at 1:59am on Aug. 23, 2005 Is John Roberts A Shoo-In?
By Pejman Yousefzadeh
I'm not yet prepared to declare that. But Roberts supporters surely must take heart on reading this:
Two weeks before senators begin questioning the Supreme Court nominee, John G. Roberts Jr., the debate over his confirmation is becoming a test of Senate Democrats as well.
The party's liberal base, whose contributions during judicial confirmation fights earlier this year have helped the Senate Democratic campaign fund amass twice as much as its Republican rival, is pressing for another vigorous fight against Judge Roberts as documents from the Reagan administration clarify his conservative credentials.
But as Senator Edward M. Kennedy of Massachusetts and other liberal stalwarts on the Judiciary Committee step up their criticism of Judge Roberts's record, other Democrats are reluctant to join them.
"I am turned off by senators trying to act like they have already found the guy out and they know what he is like," said Senator Russell D. Feingold, a Democratic committee member from Wisconsin who spent last week focused instead on calling for a pullout from Iraq. "I am not part of any Democratic effort to 'set the table' " for the hearings by laying the groundwork to criticize Judge Roberts, he said.
Several Democratic senators said the hearings on Judge Roberts were shaping up as a risky balancing act. Failing to press him could look weak to their liberal base. But attacking too hard could draw Democrats into a losing battle on the treacherous turf of abortion, race and religion at a time when Republicans appear vulnerable on other fronts.
Mr. Feingold said that he considered a Supreme Court nominee too important to evaluate in only political terms, but that in those terms, a protracted confirmation fight "could take away time from issues where Democrats have a much better position politically, on things like health care, the economy, and, yes, Iraq."
Former Senator John Breaux, a Louisiana Democrat, said the hearings were a test of his party's independence. "The interest groups are going to be out there, and this is their issue, and they are going to fight it until the dead warm over, but gas prices, health care costs and Iraq are the things that motivate most people," he said. In a Supreme Court fight, "we are not expanding the base, and even if we get 100 percent of the base, we do not win a national election."
Judge Roberts "is a good family man with beautiful children," Mr. Breaux said. "You have to be very careful about how you approach digging into the background of somebody who appears to be a good guy."
The debate within the Democratic caucus over how to handle the nomination has been building behind the scenes for weeks. Senator Harry Reid of Nevada, the Democratic leader, has told his colleagues to "hold their fire" until the hearings, his spokesman said, and in a private meeting in July with Republican leaders he indicated reluctance to go to war over the president's choice, according to a draft of a speech about the meeting written by Senator Arlen Specter. Aides from both parties who were briefed on the meeting confirmed the account.
Other Democrats were already publicly challenging the White House over access to Judge Roberts's work for Republican administrations. But during final negotiations on the timetable for the hearings, Mr. Reid told Republican leaders that he did not yet see obstacles to confirmation and did not expect Democrats to try to block the nomination on the grounds that the administration refused to release relevant documents, as they did with an appeals court nominee who had less of a public record, according to the draft and the aides.
The next day, Senator Charles E. Schumer, Democrat of New York, stormed onto the floor, angry over reports that Mr. Reid and Senator Patrick J. Leahy of Vermont, ranking Democrat on the Judiciary Committee, had agreed to a deadline for a committee vote on the nomination. Mr. Schumer, a member of the committee who had talked openly of blocking the nominee over a lack of information alone, argued that the deadline could limit the Democrats' ability to interrogate Judge Roberts.
Of course, all of these splits can only help Roberts. I expect some form of strategy to finally emerge once the hearings are held, but by then, it might be too late for any Borking operation to be successfully carried out.
At least, let's hope so.
Posted in Uncategorized —
Posted at 10:28pm on Aug. 22, 2005 Roberts on Jurisdiction-Stripping
By AndrewHyman
The Christian Science Monitor is out with a story tomorrow titled ââ‚Å“Roberts's Papers: Congress Tops High Court.ââ‚? The main subject of this article is Roberts's assertion in the 1980s that Congress has authority to strip the Supreme Court and the other federal courts of jurisdiction to hear various types of cases (e.g. gay marriage cases or flag-burning cases or abortion cases, which would be left for the states to decide). Here's an excerpt from the CSM article:
Perhaps the most significant uncovered documents relate to his detailed examination of the court-stripping issue. It came at the request of Kenneth Starr, then counselor to the attorney general, whose request in 1981 came when Roberts was working at the Justice Department. He was 26 years old at the time.
Such court-stripping proposals have long been introduced in Congress by those objecting to what they say are liberal activist judges legislating from the bench. At the time of Roberts's review, there were 20 such bills pending.
The review was requested to help the Reagan administration decide whether to support any of the pending bills. The administration ultimately rejected Roberts's conclusion and declared that court-stripping bills are unconstitutional.
This issue of jurisdiction-stripping remains very controversial and timely. For example, the Republican Policy Committee published a policy paper on the subject on September 28, 2004 advocating constitutionality. The case for unconstitutionality was argued, for example, by Vikram Amar on August 6, 2004 in the context of gay marriage legislation.
The 27-page paper that Roberts wrote on this subject back in the 1980s is very interesting. Roberts followed up years later with a one-page memo dated May 6, 1985 which is also well worth reading (I've extracted the memo from this larger file).
Roberts was describing a way for Congress to exercise some influence over vital issues that have basically been commandeered by the Supreme Court. Roberts said that the Constitution contains more than one clause that is ââ‚Å“by its nature indeterminate and incapable of precise or fixed meaning.ââ‚? He said that allowing states to handle interpretation of those vague clauses would let the American people have more influence over how we are governed, although Roberts also said that jurisdiction-stripping would be "bad policy and should be opposed on policy grounds."
I don't want to address right now which side of the jurisdiction-stripping battle has the better constitutional argument. But, I would like to point out that Roberts's very thoughtful and reasonable 27-page memo from the early 1980s mentioned the Due Process Clause as one of those constitutional provisions which is ââ‚Å“by its nature indeterminate and incapable of precise or fixed meaning.ââ‚? I very much disagree with that assertion, and so have others (e.g. Justice Hugo Black). Alexander Hamilton explained in 1787 that, ââ‚Å“The words ââ‚Ëœdue processââ‚â„¢ have a precise technical importâ₦.ââ‚? So, the original meaning of this term "due process" is not ambiguous at all, and I wrote a whole law review article on the subject. Anyway, I do hope that Judge Roberts has an open mind on this subject of the Due Process Clause.
Posted in News —
Posted at 3:03pm on Aug. 22, 2005 The Truth Finally Comes Out About John Roberts
By AndrewHyman
The Washington Post has the scoop.
Hat Tip: The Federalist Society.
Posted in Humor —
Posted at 2:56pm on Aug. 22, 2005 Little Spending (So Far) On Roberts' Nomination
By Carol Platt Liebau
According to this piece, the relatively low sums of money spent by special interest groups on both sides indicates that the Roberts nomination won't be much of a fight.
Maybe so, maybe not. Certainly it indicates that the conservative groups don't see the need to spend a lot of money if the liberal groups aren't.
But the liberal groups may only be waiting for the hearings to begin. It doesn't sound like the leftist interest groups intend to go down without a fight.
Posted in Analysis and Predictions —
Posted at 2:04pm on Aug. 22, 2005 The Attack and Cajole Clause
By AndrewHyman
Bayard Friedman has an interesting piece at Tech Central, discussing the history of SCOTUS confirmation hearings. Friedman observes that, ââ‚Å“Since 1955, when Senate Judiciary members began regularly questioning nominated justices, their role of offering ââ‚Ëœadvice and consentââ‚â„¢ has been devolving into a responsibility to ââ‚Ëœattack and cajoleââ‚â„¢ judicial nominees.ââ‚?
The attacking and cajoling of Judge Roberts will probably feature this quote from Roberts himself: ââ‚Å“The Senate is free under the Constitution to consider whatever it cares to consider in voting on a nominee.ââ‚? But notice that Roberts said ââ‚Å“voting on a nomineeââ‚? rather than ââ‚Å“questioning a nominee.ââ‚?
Posted in Analysis and Predictions —
Posted at 12:42am on Aug. 22, 2005 Dems, <I>Please</I> Listen to Teddy!
By Carol Platt Liebau
According to the NY Times, there is a conflict within Democratic ranks about how to treat the Roberts nomination.
The interest groups and senators like Teddy Kennedy want to go to the mattresses and fight. Other, more intelligent senators (like former Senator John Breaux) understand how that will look to regular Americans -- who see a superbly qualified and decent man in Judge Roberts.
As a partisan Republican, one is tempted to hope that they choose the Teddy/NARAL path. If they do, pull up a chair & pop up the corn -- let the games begin! Let's watch the Democrats alienate regular America.
Note: The story says that "[Senator] Feingold [D-WI] said that he considered a Supreme Court nominee too important to evaluate in only political terms ...." Hmm. Someone on the Dem side as worried about intellect and integrity (the sole criteria applied to Justices Breyer and Ginsburg) as he is about Roe? Color me shocked.
Posted in Analysis and Predictions —
Posted at 2:00pm on Aug. 21, 2005 Sounds Like a Good Conservative to Me
By Carol Platt Liebau
The Washington Post today tries to sum up the contents of some of John Roberts' memos during his years in the Reagan Administration.
His writings sound pretty normal and conservative to me. But note the Post's snarky description of Roberts as "A successful son of the American establishment." As opposed to whom? Radical outsiders like Justices Ginsburg or Breyer? If there's a justice from outside the corridors of the "American establishment," it's Justice Thomas. But I don't seem to recall that fact making the Post any more in favor of his nomination and confirmation.
Posted in Roberts —
Posted at 5:02pm on Aug. 20, 2005 Paul Mirengoff on Ted Kennedy's WaPo Piece
By AndrewHyman
Yesterday, Senator Kennedy had an op/ed piece in the Washington Post, in which he argued for access to confidential Solicitor General documents pertaining to John Roberts (Marshall and Carol mentioned Kennedy's op/ed below). Over at Power Line, Paul Mirengoff exposes some very flabby thinking on Kennedy's part. Paul starts out by quoting the Senator's op/ed:
"If Roberts continues to hold the views he appears to have expressed in the early 1980s," Kennedy intones, "then his views on civil rights are out of the mainstream, and the people have the right to know that." In other words, according to the Senator's addled logic, we need to know what Roberts believed in 1990 [while in the SG Office] in order to determine whether, in 2005, Roberts believes what he believed in 1984. Why not just ask Roberts during his confirmation hearings whether he agrees with the various statements Kennedy finds objectionable?
Senator Kennedy and his family did great things during the 1960s to advance the cause of civil rights. But please, let's not pretend that John Roberts is Bull Connor, and let's not pretend that Senator Kennedy is more interested in seeing the Solicitor General documents than in complaining he can't see them.
UPDATE: Roberts's stance on civil rights is defended here, by Peter Kirsanow.
Posted in News —
Posted at 4:22pm on Aug. 20, 2005 So Tart It's Sweet
By Carol Platt Liebau
It's official -- I am now a huge John Roberts fan, not just intellectually but personally . . . at least if his views haven't changed from those that Washington Post columnist Dana Milbank sets out in his column.
Here's Roberts' tart comments, circa 1984, having read remarks Reagan was to deliver upon bestowing an award on Michael Jackson that said 100 women who work at the White House "all said their name is Billie Jean." Roberts wrote:
"Cognoscenti will recognize the allusion to a character in one of Mr. Jackson's popular ballads, a young lass who claims -- falsely, according to the oft-repeated refrain of the singer -- that the singer is the father of her illegitimate child. This may be someone's idea of presidential humor, but it certainly is not mine."
Oh yes. And generally on the idea of bestowing an award on Michael Jackson, Roberts had this to say:
"The whole episode would, in my view, be demeaning to the President."
Quite so. How refreshing -- how heartening -- that the idea of propriety isn't a dead letter (at least as of 20 years ago in John Roberts' world).
The hipsters no doubt will try to denigrate what sounds like an old fashioned sense of what is becoming a president. But in an era marked by often crass appeals to the lowest common denominator (in movies and in so much else), Roberts' voice sounds like a cry for dignity and a sense of what is fitting in a world where both are, sadly, too often in short supply.
John Roberts' tart comments are more than sweet . . . they are the mark of a real and good and honorable man.
Posted in Roberts —
Posted at 9:43am on Aug. 20, 2005 "The Judge Report"
By feddie
In case you missed it, you've gotta go watch the "Judge Report" video clip from the Daily Show (where Jon Stewart rips on NARAL's now infamous ad against Judge Roberts). It's freakin' brilliant.
Posted in SCOTUS —
Posted at 2:51am on Aug. 20, 2005 Roberts Roundup
By Carol Platt Liebau
Sounds like the young John Roberts was a cautious young man -- with quite a sense of humor -- who believed in judicial restraint and who had quite a far-ranging and sensible grasp of policy.
So far, so good. Of course, nothing will please Pat Leahy -- or his masters. But we knew that already.
Posted in Analysis and Predictions —
Posted at 1:46am on Aug. 20, 2005 Roberts Opposed Elevating O'Connor To Chief Justice
By Lorie Byrd
In my opinion, this is just one more reason to love John Roberts.
In an Aug. 2, 1984, memo, Roberts responded to a former member of the Federal Reserve's Board of Governors, John E. Sheehan, who had written President Reagan to suggest an election-year strategy that Roberts described as closing the "so-called 'gender gap.' " Reagan was more popular among men than women.
Sheehan's plan called for then-Chief Justice Warren Burger, who was nearing retirement, to step down soon after the 1984 Republican convention and be appointed as an ambassador.
"The president would elevate Justice O'Connor two weeks later, and then name yet another woman to succeed O'Connor two weeks after that. Presto! The gender gap vanishes," Roberts wrote.
"Any appointments the president may make to the Supreme Court will not be based on such crass political considerations," Roberts advised in a memo to his boss, Fred Fielding.
Posted in Uncategorized —
Posted at 10:36pm on Aug. 19, 2005 C-Span Reminder
By Lorie Byrd
Tomorrow at 7:00 p.m. EDT, C-Span will be airing the confirmation hearing of Judge Roberts to the Circuit Court from January 2003. (via Betsy's Page)
Posted in Roberts —
Posted at 10:08pm on Aug. 19, 2005 Adopt a Box of Docs for Hugh
By AndrewHyman
Hugh Hewitt is inviting bloggers to adopt a box of Roberts documents to review.
Posted in News —
Posted at 2:00pm on Aug. 19, 2005 John Roberts Hates Women (again!)
By Carol Platt Liebau
Here is another offering from The Washington Post -- blaringly headlined "Roberts Resisted Women's Rights." Needless to say, the headline is foolish and the charge is plain wrong.
The paragraph attempting to explain just how Roberts "resisted" women's rights is as follows:
n
In internal memos, Roberts urged President Ronald Reagan to refrain from embracing any form of the proposed Equal Rights Amendment pending in Congress; he concluded that some state initiatives to curb workplace discrimination against women relied on legal tools that were "highly objectionable"; and he said that a controversial legal theory then in vogue -- of directing employers to pay women the same as men for jobs of "comparable worth" -- was "staggeringly pernicious" and "anti-capitalist."
And he was right on all counts. Thanks in overwhelming part to the single-handed efforts of Phyllis Schlafly (quoted later in the piece), the Equal Rights Amendment was shown to have a host of unintended consequences that would have been highly unpopular -- not to mention undesirable (e.g. requiring that women be drafted into the military). The whole comparable worth canard is discussed here (opposing comparable worth isn't anti-woman; it's pro-market economy). Whatever the "state initiatives to curb workplace discrimination against women" were (the Post doesn't tell us, of course), given the militant feminist tone of the times, it's not a leap to conclude that Roberts was probably 100% right in deeming them "highly objectionable."
Funny, isn't it, how "women's rights" as defined in this article are only those remedies for discrimination conferred by the government? The Equal Employment Opportunity Act of 1972, the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 were vital to ensuring that everyone would receive a fair shot. But here, the Post seems to confuse "women's rights" with radical remedies for unequal outcomes. And if John Roberts opposed them, in that view, he must oppose women's rights.
Simple. But wrong.
Posted in Analysis and Predictions —
Posted at 1:39pm on Aug. 19, 2005 Teddy Speaks
By Carol Platt Liebau
There are few more intellectually dishonest, brass-knuckled partisan senators than Teddy Kennedy (I'll spare you the obvious Chappaquiddick jokes -- they're just too easy).
Today, as noted below, hhe has a piece in The Washington Post, claiming that he needs -- needs! -- documents from John Roberts' tenure at the Justice Department (some twenty years ago) to ascertain whether the judge is qualified to sit on the Supreme Court, i.e., whether his views comport with Teddy's own.
His argument is dishonest on its face.
Is there anyone who thinks that Teddy Kennedy would really consider voting for John Roberts? I didn't think so . . . And given that he really doesn't have an open mind, it's hard to imagine why anyone would think that any of his "demands" should even be heard, much less met.
And former Solicitor General Walter Dellinger should be ashamed of himself. In the past, he has argued -- along with all the other former solicitors general -- that documents from that office shouldn't be subject to discovery by the legislative branch. Now, at least according to Teddy, he's attempting to argue that the Roberts case is a distinction:
"Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn't any federal judgeship but the Supreme Court itself."
This is just incredibly dishonest. First, the whole rationale for refusing to release confidential memoranda is that doing so would, in the future, deprive top policymakers of the unvarnished views of their subordinates. If that rationale obtains in the case of a "civil service lawyer," how much more is it relevant and important in the case of a "senior political appointee in a policymaking position"?
Second, Dellinger apparently is attempting to distinguish between "any judgeship" and "the Supreme Court itself." For someone who -- as Solicitor General -- was supposed to be dedicated to principled argument, this is laughable. The difference is one of degree, not of kind. The Supreme Court may be more powerful than the other federal courts, but the principles at stake are the same . . . Dellinger simply seems to imply that, if the position at stake is high enough, the principle doesn't matter. Disgraceful.
The rest of Teddy Kennedy's piece is nothing more than the usual mishmash of liberal pretension and accusation -- John Roberts will turn back the clock, he's against civil rights, blah, blah, blah. It's lucky for him that his brother was president; otherwise, his "sell by" date would have expired long ago.
Posted in Judiciary Committee —
Posted at 12:03pm on Aug. 19, 2005 ABA Sits on Roberts Evaluation Report
By AndrewHyman
As Marshall mentioned here at confirmthem, a 15-member ABA committee has unanimously rated John Roberts "well-qualified." But, outgoing chair Thomas Z. Hayward Jr. says that his ABA committee doesn't plan to release its full evaluation report on Roberts until Hayward provides testimony to the Judiciary Committee --- and he hasn't been invited to testify. Whether Hayward's invited or not, it seems odd that the evaluation report can't be released right now. It's also strange --- but hardly surprising --- that Democratic Senators are clamoring for release of confidential materials from the Solicitor General's Office, before they've even asked to see the ABA report.
Carol noted that the ABA no longer plays an official role in vetting nominations, but that's no reason for the ABA to sit on the evaluation report.
Posted in News —
Posted at 11:53am on Aug. 19, 2005 Lefty Nit Wits
By Marshall Manson
Today's newspapers are full of stories about how John Roberts is opposed to equality for women. Virtually all of them rely on the same quote from a memo Roberts wrote while he was working in the White House Counsel's office: "some might question whether encouraging homemakers to become lawyers contributes to the common good."
My reaction: Oh, come on. Is this really the best they can do?
Roberts was making a joke about lawyers, not women. And anyone with half a brain and a sense humor would understand that. Apparently, the Left is lacking both.
The recent document dump has revealed many things about Judge Roberts. But most importantly, they've confirmed what we already knew. He's brilliant. He's sharp. And he's witty. It's going to fun reading his opinions for years to come.
Posted in Roberts —
Posted at 11:39am on Aug. 19, 2005 Kennedy Continues to Caricature Himself
By Marshall Manson
Ted Kennedy has been a one-trick pony so long, itââ‚â„¢s pretty hard to take him seriously. And his Washington Post op-ed does little to change that view.
Kennedy takes the completely predictable position that unless Judge Roberts agrees with him on all of the Senatorââ‚â„¢s favorite issues, Roberts must be outside the mainstream.
The irony -- and absurdity -- of liberal poster boy Kennedyââ‚â„¢s position really does speak for itself.
Posted in Roberts —
Posted at 8:14pm on Aug. 18, 2005 The Roberts Silliness Never Ends
By Carol Platt Liebau
Here's another example: An AP story purporting to tell us how John Roberts disparaged state efforts to enforce equal rights for women.
The payoff for such a headline? A throwaway sentence in a memo, about whether it's really for the public good that a woman (who was a teacher) has become a lawyer.
Maybe Judge Roberts should ask his wife -- and how much animus can he have against female lawyers, seeing that he married one?
As a female lawyer myself, I can't for the life of me figure out why anyone would deem this to be news.
Oh -- and by the way -- it makes a great deal of difference what "state efforts" the judge opposed. One can't help suspect that it's more likely that he was opposing comparable worth legislation than equal wage laws . . . not that the press is really helping make that distinction clear.
Posted in Roberts —
Posted at 8:13pm on Aug. 18, 2005 About the Post Immediately Below
By Carol Platt Liebau
On the request to the SG's office . . . Solicitor General Paul Clement is a brilliant man, and an honest one (he's also a good friend of mine from law school). He will do the right thing -- to the extent the choice is his to make.
Posted in Analysis and Predictions —
Posted at 12:47pm on Aug. 18, 2005 Howard Dean Says Solicitor General Shouldn't "Hide Behind" the Law
By AndrewHyman
Former Vermont Governor Howard Dean --- now Chair of the Democratic Party --- is submitting a Freedom of Information Act request to get documents about John Roberts from the Solicitor General's Office. The FOIA request is here. Dean admits that "FOIA allow[s] the government to withhold documents," but he urges the government to not "hide behind legal privileges."
Absent serious allegations of wrongdoing against Roberts, it seems very improbable that anything hidden is going to be disclosed. There's no compelling reason to waive confidentiality.
Posted in News —
Posted at 11:42am on Aug. 18, 2005 Giving the ABA Game Away
By Carol Platt Liebau
This story tells you all you need to know about the ABA game -- and how the left has tried to play it.
As reported yesterday, Judge Roberts received a "well qualified" rating from the ABA. Of course.
And it's long been obvious with anyone with eyes to see or lips to hear that the left has tried to turn the ABA ratings into a partisan evaluation (Mommy, why do all the "well qualified" judges believe in a living Constitution? [ subscription required]). Now, in their desperation, the left gives the game away. In response to the Roberts "well qualified" rating:
But Democrats pointed out that the ABA never got the chance to see nearly 50,000 pages of records related to Roberts' time as associate counsel to President Reagan, or documents relating to his work in the solicitor general's office under the administration of President George H.W. Bush.
No, the silly ABA just based the rating on his recent history as one of the nation's foremost Supreme Court advocates and his work on the D.C. Circuit. Funny how it wasn't obsessed with trying to read the political tea leaves from Judge Roberts' work twenty years ago.
The outcome highlights the wisdom of the President's ABA policy. Maybe being somewhat shut out of the process has restored the ABA's honesty . . .
http://carolliebau.blogspot.com/2005/08/giving-aba-game-away.html
Posted in Analysis and Predictions —
Posted at 11:20am on Aug. 18, 2005 The History of <em>Associated Press</em>
By AndrewHyman
As Marshall and Carol have already mentioned here at confirmthem, Associated Press hurled this nonsense at us this week:
Like many towns across America, the exclusive lakefront community where Supreme Court nominee John G. Roberts Jr. grew up during the racially turbulent 1960s and '70s once banned the sale of homes to nonwhites and Jews....It is hard to know how much Roberts' upbringing in this northern Indiana community on the shores of Lake Michigan influenced his views. Some say the fact that there were riots and restrictions on home ownership is not relevant at all.
I'd just like to add that AP has its own hometown, which has its own history.
Like many other companies across America, the city where Associated Press was founded during the racially turbulent mid-1800s was plagued by political corruption, gangs, and also riots against the increasing political, economic and social power of African Americansâ₦. It is hard to know how much APsââ‚â„¢ roots in New York City influence its views today. Some say the fact that there were corruption and racism is not relevant at all.
In case you haven't figured it out, the first blockquote is real, and the second is parody. The authors of the real AP article are Tom Coyne and Ashley M. Heher.
Posted in News —
Posted at 11:18am on Aug. 18, 2005 Judiciary Committee's Closed Session
By Marshall Manson
In a comment in response to an earlier post, Stan asks why the Judiciary Committee is planning a closed session during the Roberts hearing. Great question.
This closed session is purely routine. The Committee goes to closed session to consider the findings from the FBI's background chgeck. The FBI's report is strictly confidential because it contains unsubtantiated information. Committee members are not to discuss the contents of the file publicly for any reason (Ahem, Harry Reid).
The Committee held closed sessions for the same purpose during the Ginsburg, Breyer and Thomas hearings.
Again, it's important to understand that the closed session is absolutely routine. Nevertheless, be ready for the Left to say that it implies something sinister.
Posted in Judiciary Committee —
Posted at 9:50am on Aug. 18, 2005 RE: <i>More</i> Roberts Ridiculousness
By Marshall Manson
I just wanted to add my own thoughts on the AP story that Carol took apart in her post below.
First, this really is the worst kind of sleazy journalism. Despite the writing duo's best efforts to slant the underwhleming facts that they gathered, there's just no news here. It's impossible to understand how any editor with even a hint of news judgment could have allowed this story on the wire in the first place. The story is a case study in attack by implication and assault by innuendo. The AP, whose political coverage I generally find to be reasonably balanced, really ought to be ashamed of this story.
Also, you've got to read Patterico's revelation that Justice Ginsburg grew up in a neighborhood with restrictive covenants.
UPDATE: I've had an exchange of e-mails with the AP's Indianapolis Bureau Chief. See below the fold for .
I sent the following e-mail to Mr. Coyne, Ms. Heher and a flock of AP Editors at the Indianapolis and Washington Bureaus:
I am writing about your story that appeared on the wire yesterday profiling the John Roberts' boyhood community.
I deal with reporters on a daily basis in my role here at the Center, and I am generally pretty circumspect about news stories. I am also a big fan of the AP. Its political coverage is generally in depth, balanced, and stunningly broad in its scope. It's very unusual that I reach out to a reporter to criticize a story.
But the news judgment that fostered yesterday's story is simply beyond my understanding. So I am writing simply to ask for an explanation. How can you and your editors possibly justify the story? What relevance could it possibly have on John Roberts capacity to serve as a Supreme Court Justice?
It strikes me that the news value of the story ranges somewhere between zero and and almost zero. As far as I can tell, you don't actually break any news. It appears that you wanted to write a story about Roberts' living in a home with a restrictive covenant, but the facts got in the way.
So instead, you tried to imply that John Roberts' view of civil rights ought to be in question because of the community in which he grew up. You've given us 500 words of information, but absolutely none of it (except your report that the Roberts house did NOT have a restrictive covenant) relates in any way directly to Roberts.
In my judgment, for you to make an argument by innuendo in the way that you have that questions a Supreme Court nominee's view of civil rights is simply beyond the scope of any reasonable news story. Yet that's exactly what you've done.
I could go on at length with my criticism, but I'd really just like an answer to my question above: how can you and your editors possibly justify moving a story with no apparent relevance and zero news value?
I look forward to hearing from you.
Sincerely,
Marshall Manson
Senior Vice President of Public Affairs
Center for Individual Freedom
UPDATE II: Keith Robinson, who is the Chief of the AP's Indianapolis Bureau, was kind enough to reply to my e-mail. Here's his response:
Dear Mr. Manson:
In reference to your e-mail letter about our story on John Roberts' boyhood community, the reason for the story is noted in the third graf, in which we point out that his life is receiving intense scrutiny as the Senate prepares for its confirmation hearings.
His entire life indeed is being scrutinized, and we thought it was important for the public to know the environment in which he grew up, considering that the community had a history of exclusion. We were not questioning his views on civil rights. We had, in fact, comments from individuals who speculated that the community in which he lived might not have influenced his views on civil rights at all. Still, we thought the public might find this part of his life of interest. That was the sole purpose of the story.
I hope this helps to explain why we did the story.
Sincerely,
Keith Robinson
Chief of Bureau
Indianapolis-AP
I'm sure it won't surprise anyone to hear that I'm not persuaded by this explanation. Essentially, Mr. Robinson seems to be saying that because people are scrutinizing Judge Roberts, then everything about Judge Roberts must be fair game. This is the same kind of logic that brought us the New York Times investigation of the Roberts kids' adoptions.
Editors -- especially for wire services -- should and must exercise news judgment. Does a story break news? Does it add something to the public discourse? Does it add relevant color? The fact this story ran at all reflects an unfortunate lack of that news judgment.
UPDATE III: Ever the gluton for punishment, I replied to Mr. Robinson's e-mail. Here's the key portion:
Mr. Robinson,
Thank you for taking the time to reply.
I'm sure it won't surprise you to learn that I respectfully disagree. Even if I concede that there might be news value in learning about the place that Roberts grew up (and I'm not sure that I do. Remember, Roberts isn't running for office. He's been appointed to the bench. That's not a political post.), that's decidedly not the focus of the story. The story as presented is about how the place where Roberts grew up is overwhelmingly white. In other words, if the story had been an objective or a color piece about the town or about Roberts' childhood in the town (talking to school friends, people from the steel mill, etc.), and there was a graph about how the town was overwhelmingly white, I could see the news value. But the way this story is presented -- relating absolutely nothing to Roberts himself -- it's just impossible for me to understand the news value. As I said, it winds up looking like an attempt at "guilt by implication" while adding absolutely zero news about Roberts himself.
Robinson quickly wrote back and said that we'd just have to agree to disagree.
I realize that I'm not going to win this fight. But I remain so absolutely galled by the story that I just had to do something. If anyone has other suggestions, let me know.
UPDATE IV: Stephen Spruiell at National Review's Media Blog has more to say on this (and it's very entertaining.) And the Media Research Center has also weighed in.
Posted in News —
Posted at 2:44am on Aug. 18, 2005 Democratic Division
By Carol Platt Liebau
Here, The Washington Post analyzes the tensions -- exacerbated by the Roberts nomination -- that are simmering between different factions of the Democratic Party.
Here is the Democrats' choice, according to The Post:
[Democrats] can risk heading into the 2006 midterm elections with a demoralized base. Or they could potentially turn off swing voters, who may view Bush's nominee in less ideological terms and could recoil at a party they perceive as driven by die-hard activists.
It's a conundrum . . . and it couldn't be happening to a nicer group of people, now could it? If I were a mainstream Democrat, I would be a little nervous.
Here's why: The Roberts hearings will give full throat to the Democratic moonbat coalition -- what with Senators Leahy, Kennedy and Durbin on the committee. And then there's "slow Joe" Biden, who'll be grinning frantically as he seeks to garner activist support for his nascent presidential bid while simultaneously trying to avoid coming off as a left-wing lunatic. Not to mention obnoxious non-pareil Chuck Schumer. Talk about a parade of horribles . . . Red State Democrats watching from home will be, figuratively, shrieking in anguish.
In this context, the "voices of reason" on the Democratic side will come down to Russ Feingold, Dianne Feinstein and Herb Kohl. Ouch.
http://carolliebau.blogspot.com/2005/08/democratic-division.html
Posted in Judiciary Committee —
Posted at 10:06pm on Aug. 17, 2005 <I>More</i> Roberts Ridiculousness
By Carol Platt Liebau
Update: For more on the backgrounds of the reporters referenced below, check out Radioblogger.
Here is a simply unbelievable piece. It's about John Roberts' hometown -- and the fact that there were riots and racially restrictive covenants on some of the homes there during the '60's. (As if that makes it unique!).
Here's the most ludicrous paragraph of all:
It is hard to know how much Roberts' upbringing in this northern Indiana community on the shores of Lake Michigan influenced his views. Some say the fact that there were riots and restrictions on home ownership is not relevant at all.
Yes, "some" would say that -- in fact, any normal person would say that. Because John Roberts lived in a town where there were riots and racial covenants, it follows that . . . what? After all, Bill Clinton's childhood in the segregated South was constantly trotted out as proof of his racial sensitivity, not of the opposite.
In fact, it should be noted that racially restrictive covenants -- obviously invalid -- exist in many existing deeds (they're ugly relics of earlier times that have simply not been excised). In fact, in one of the Senate campaigns I worked on, we even found one in the deed of our candidate's opponent.
But even in opposition-campaign mode, it was deemed too ridiculously far-fetched to try to draw an inference about someone's racial attitudes based on a bigoted but obviously inoperative racially restrictive covenant in the deed to the opponent's house.
How much more ridiculous is it to try to gauge someone's racial attitudes by the fact that, more than thirty years ago, he lived in a town that had race riots and houses with racially restrictive covenants? Has the press coverage really come to this?
How profoundly ridiculous.
http://carolliebau.blogspot.com/2005/08/more-roberts-ridiculousness.html
Posted in Analysis and Predictions —
Posted at 6:45pm on Aug. 17, 2005 ABA Rates Roberts "Well Qualified"
By Marshall Manson
Well, duh.
Posted in Roberts —
Posted at 5:53pm on Aug. 17, 2005 Lefty Lapdogs & Roberts Ridiculousness
By Carol Platt Liebau
Apparently, Democratic senators have not expressed enough venom about the Roberts nomination, and are therefore being called to heel by the fringe elements of their party.
How reassuring to know, as The Washington Post puts it, that
The response [to the liberal demands] was quick and pointed, as two key senators unleashed their sharpest criticisms yet of Roberts and sought to assure activists that the battle is far from over.
Not surprisingly, Teddy Kennedy and Pat Leahy fell quickly into line.
But really, the left-wing frustration is understandable -- what they've got (and are obviously peddling to the journos behind the scenes) is thin gruel, indeed. (Remember the "John-Roberts-opposes-equal-rights" gambit from yesterday?).
Judge Roberts was part of a unanimous panel that decided military could be used to try suspected terrorists at Guantanamo.
Any wrongdoing here? Nope. The best the Post can muster is this:
Nobody is alleging that Roberts sided with the administration to curry favor with Bush, but some academics say Roberts should have, at the very least, considered stepping aside to make sure there was not an appearance of conflict.
OOOh. Let's make everyone happy. Judge Roberts "considered" stepping aside, and then didn't. OK?
And now archivists at the Reagan Library have misplaced a file that Justice Department lawyers inspected. This is somehow news even though, according to the story, "Archivists said the lawyers returned the file but it now cannot be located." So what's the point?
No wonder the leftist moonbats are flashing signals with their secret magic decoder rings in Leahy and Kennedy's direction. ( Once Durbin joins in, the leftist loon triumvirate will be complete.)
They must be pulling their collective hair out. It just wasn't supposed to be this way . . .
Posted in Judiciary Committee —
Posted at 3:24pm on Aug. 17, 2005 Liberal Groups Jerk the Leash
By Marshall Manson
The Center for Individual Freedom just dispatched this statement to reporters and bloggers concerning the attacks on Judge Roberts by Senators Leahy and Kennedy.
FOR IMMEDIATE RELEASE
August 17, 2005
Liberal Groups Jerk the Leash, Senate Democrats Respond with Attacks
Statement of CFIF President Jeffrey Mazzella
Alexandria, VA ââ‚• Following a report in the August 16 edition of the Washington Post which indicated that Democratic Senators were generally not inclined to wage partisan warfare over Judge John Robertsââ‚â„¢ confirmation to the U.S. Supreme Court, liberal groups like People for the American Way and the Alliance for Justice reacted angrily. And almost immediately, Democratic Senators unleashed a surge of attacks against the nominee.
In response, Jeffrey Mazzella, President of the Center for Individual Freedom, made the following statement:
ââ‚Å“The remarkable control that liberal groups have over their puppets in the Senate is plain for all to see.
ââ‚Å“Liberal groups yanked on the leashes of Democratic Senators, and they responded like well-trained dogs, directing a torrent of misleading attacks at Judge Roberts.
ââ‚Å“Groups on the Left and Democrats in the Senate have repeatedly demonstrated their willingness to smear judicial nominees in order to justify their campaign of obstruction. These attacks are yet another clear example.
ââ‚Å“Senators have a duty to ensure that the confirmation process is civil and dignified, and they should treat Judge Roberts with the respect befitting a distinguished attorney and federal judge.ââ‚?
I also want to commend to everyone Erick's post over at Red State on this subject. He hits the nail right on the head.
Posted in Roberts —
Posted at 12:38pm on Aug. 17, 2005 Leahy: Roberts is Radically Different from an Ultra-Liberal
By AndrewHyman
Senator Leahy says that Judge Roberts is a radical, but the Associated Press reports that Roberts is generally in line with other conservatives:
Sen. Patrick Leahy says Supreme Court nominee John Roberts holds "radical" views and has been an "eager, aggressive advocate" for policies of the far rightâ₦.In material released Monday, Roberts emerged as an attorney serving in the Reagan White House who held views generally in line with those of other conservatives. He was sympathetic to prayer in public schools, dismissive of "comparable worth," referred to the "tragedy of abortion" and took a swipe at the Supreme Court for being too willing to hear multiple appeals from death row inmates.
Leahyââ‚â„¢s full statement is here. Leahy must have meant that Roberts is radical in relation to Leahy's crowd, rather than with respect to the American mainstream.
In his statement, the Vermont Senator makes various charges against Roberts, but provides no links to explain or substantiate his charges. Leahy has previously dubbed himself the so-called ââ‚Å“cyber senator," but if he's really the so-called "cyber senator" then why not link to further info about each of his vague accusations? I include links all the time, and it's not difficult to do --- assuming there's actually something to link to.
Posted in News —
Posted at 10:35am on Aug. 17, 2005 Stop Counting Those Chickens
By Marshall Manson
Yesterday's story in the Washington Post declaring "Roberts Unlikely To Face Big Fight," touched off no small amount of chicken counting. In response, Sean Rushton, E.D. Executive Director of the Committee for Justice, e-mails this helpful reminder:
Washington Post reports Senate Democrats may refrain from attacking John Roberts, allowing him easy confirmation. Pasted below, articles from the Clarence Thomas confirmation, after Thomasââ‚â„¢ initial testimony before the Senate Judiciary Committee.
The New York Times
September 14, 1991
THE THOMAS HEARINGS;
Thomas to Win High Court Seat, Senators Predict
By NEIL A. LEWIS
The Washington Post
September 14, 1991
Thomas Gaining Momentum as Week Ends;
Senators' Gentle Questioning on Fourth Day of Hearings Suggests Doubts May Be Put Aside
By Ruth Marcus
The Associated Press
September 14, 1991
Democrats Admit Thomas Heading Toward Senate Confirmation
By James Rowley
Los Angeles Times
September 14, 1991
Democrats Talk as if Court Seat for Thomas is Assured
By David G. Savage
The Atlanta Journal and Constitution
September 14, 1991
Frustrated Democrats take a softer line in questioning Thomas; Even skeptics seem to expect confirmation
By Bob Dart
And today's news coverage makes it clear that for the Left, the fight is far from over:
Democrats Feel Heat From Left On Roberts
Charles Babington and Dan Balz, Washington Post
Senate Democrats Increase Resistance to Roberts
David Kirkpatrick, New York Times
Leahy Lambastes Roberts' 'Radical' Stands
David Espo, Associated Press
UPDATE: I just noticed Sean has posted the same info at Bench Memos.
UPDATE II: And check out this press release from Sen. Kennedy. No, folks. The battle isn't over yet.
Posted in News —
Posted at 8:22pm on Aug. 16, 2005 On Roberts & <i>Romer</I>
By Carol Platt Liebau
A few minutes ago, Hugh Hewitt interviewed Jay Sekulow, Chief Counsel of The American Center for Law and Justice and a man of unimpeachable conservative credentials. (Transcript here.)
Questioned by Hugh about Roberts' work on the Romer case, Jay Sekulow noted that such help is routinely given by the [fairly small] Supreme Court bar -- even to litigants with whom they disagree.
Sekulow revealed that he, in fact, had offered advice to Michael Newdow (of the infamous effort to remove "under God" from the Pledge of Allegiance case). His pointers to Newdow don't signal agreement with Newdow's position -- no more does Roberts' advice to the Romer advocates indicate his.
Posted in Analysis and Predictions —
Posted at 2:18pm on Aug. 16, 2005 Comparable Worth Isn't "Equal Pay" -- It's Socialism
By Carol Platt Liebau
Here is a perniciously titled little story from USA Today: "Roberts Scoffed At Equal Pay Theory."
It's misleading (and liable to be misunderstood -- see this post at the Huffington Post -- "Roberts Scoffed At Equal Pay For Women").
What John Roberts opposed, rightly, was something called "comparable worth." And it's not about equal pay, it's about socialism.
Under "comparable worth" theory, the government -- yes, the government -- would decide what pay a particular job was "worth" and then mandate that it be compensated accordingly. So under that theory, it could be decreed that a secretary be paid the same as a logger, despite significant differences in the danger, degree of difficulty, unpleasantness, requisite skill level etc. of the two jobs.
Feminists were big on comparable worth in the late '70's and early '80's because, in their view, the equal pay laws (i.e. Equal Employment Opportunity Act of 1972, the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964) weren't "solving" the problem of the disparities in pay between men and women fast enough. Accordingly, they decided it would be preferable to let "Big Daddy Government" take over the problem than to let the market work -- even though disparities in pay can, even today (as noted here and here) be attributed to factors other than gender discrimination.
There is no reason to doubt that John Roberts supported "equal pay" under the law. He didn't support "comparable worth." Thank heaven.
And, if -- as the headline states -- he "scoffed" at the theory, well, kudos to him. It is one of the silliest relics of '70's feminist theory, and -- more than anything -- is probably responsible for the stereotype of women as being unable to understand economics. The proponents of "comparable worth" certainly didn't.
http://carolliebau.blogspot.com/2005/08/comparable-worth-isnt-equal-pay-...
Posted in Analysis and Predictions —
Posted at 12:47pm on Aug. 16, 2005 The Rutledge Precedent Debunked
By Marshall Manson
I wanted to follow-up briefly on yesterdayââ‚â„¢s opus about the politicization of the judiciary through the confirmation process.
The Left has spent the last four years laying the groundwork for liberal Senators like Chuck Schumer and Dick Durbin to undertake extensive and detailed questioning of judicial nominees concerning their positions on specific issues. The liberals unapologetically argue that the judicial confirmation process is and should be a political one, and they try to justify their self-serving outcome searching with allusions to historical precedent.
In particular, the Left likes to point out that the Senate rejected John Rutledge, President Washingtonââ‚â„¢s nominee to be Chief Justice of the United States, on purely political grounds. (For example, here, here, and here.) This historical tidbit has been so often repeated and relied upon that it has become ubiquitous in discussions about the role of ideology in the confirmation process.
Hereââ‚â„¢s how the Center for American Progress (.pdf) spins the tale:
In 1795, after months of fierce debate, the Senate rejected President Washingtonââ‚â„¢s nomination of former Supreme Court Justice John Rutledge to be Chief Justice of the United States. Rutledge was a distinguished jurist who was clearly well-qualified for the post, but his nomination was defeated over his opposition to the Jay Treaty with Great Britain.
Unsurprisingly, the Leftââ‚â„¢s portrayal of the Rutledge rejection is simply wrong.
Indeed, the historical facts bear little resemblance to the Leftââ‚â„¢s creative depiction.
John Rutledge had served as an Associate Justice on the Supreme Court earlier in President Washingtonââ‚â„¢s term, resigning after two years to take what he viewed as the more prestigious post of Chief Justice of the South Carolina Supreme Court. (As an aside, given the more powerful role for the states at the beginning of our Republic, the Chief Justiceship of a state Supreme Court may have been a more powerful position, indeed.) In 1795, upon Chief Justice John Jayââ‚â„¢s retirement to become Governor of New York, President Washington nominated Rutledge to be Chief Justice of the United States.
The Senate being in its lengthy recess between sessions, Washington used his constitutional authority to appoint Rutledge to the post on a temporary basis. And so, John Rutledge became the second Chief Justice of the United States.
Meanwhile, as Rutledge learned of his appointment, the public was venting its outrage over the treaty that Chief Justice Jay had negotiated with England at President Washingtonââ‚â„¢s request. Though Washington favored the treaty and the Senate ratified it, when the public learned of the terms, they were furious. It was in this climate that Rutledge, now serving as Chief Justice, gave an injudicious and well-publicized speech in South Carolina proclaiming his vehement opposition to the treaty.
A short time later, Rutledge took his seat as Chief Justice to preside over the Supreme Courtââ‚â„¢s August Term. But when the Senate reconvened in December, it promptly rejected Rutledgeââ‚â„¢s nomination to be Chief Justice by a vote of 11 in favor to 14 against. The debate did not last for months. Indeed, it did not even consume an entire day.
Those are the historical facts.
So, just to be clear, Rutledge, while serving as Chief Justice, engaged in the very intemperate and injudicious behavior of voicing an opinion on a purely political question. Today, Rutledge might have been in violation of the canons of judicial ethics. Back then, the members of the U.S. Senate didnââ‚â„¢t need the canons to understand that judges could not properly be political figures and that Rutledgeââ‚â„¢s foray into politics while sitting as Chief Justice had been improper.
And if the Senate in 1795 understood that politics had no place in the judiciary, surely todayââ‚â„¢s Senate can learn the same lesson.
UPDATE: Cross posted at the Center for Individual Freedom, here.
Posted in SCOTUS —
Posted at 11:42am on Aug. 16, 2005 <em>USA Today</em> Smears Justices Scalia, Thomas, and Rehnquist
By AndrewHyman
USA Today has an editorial today on the issue of privacy. Here's an excerpt:
Three current justices â₆William Rehnquist, Antonin Scalia and Clarence Thomas â₆have questioned whether a right to privacy exists. The court doesn't need a fourth, not least because the anti-privacy argument is a denial of history and basic American valuesâ₦.[F]ew would want a nation in which there was no limit on government intrusion into personal lives. In the confirmation hearings that begin next month, the Senate has an obligation to explore where John Roberts would draw the line.
This is blatantly false. In the 2001 case of Kyllo v. United States, for example, Justices Scalia and Thomas vigorously defended privacy rights, by forcefully rejecting the "power of technology to shrink the realm of guaranteed privacy." William Safire wrote an excellent column about that Kyllo case on June 21, 2001 titled "Scalia on Privacy," and I've pasted Safire's entire column below the fold. Likewise, Chief Justice Rehnquist has emphatically defended privacy rights, for example in the 2000 case of Bond v. United States, among many other cases.
SCALIA ON PRIVACY By William Safire
WASHINGTON -- "The question we confront today," wrote Justice Antonin Scalia in an opinion that places him up there with Louis (the right to be let alone) Brandeis, "is what limits there are upon this power of technology to shrink the realm of guaranteed privacy."
Cops in Oregon suspected a man of growing marijuana inside his house. They knew he would have to use high-intensity lamps, so they had this bright idea to place a thermal imaging machine across the street to measure the heat coming through his walls â₆enabling them to "see" inside the house as if they had X-ray vision.
Unconstitutional, ruled the Supreme Court, in a 5-to-4 decision that crossed all ideological lines. To the lower court that held that the thermal search had revealed no "intimate" details, Scalia replied, "In the home, all details are intimate details." He refused to "leave the homeowner at the mercy of advancing technology," bottoming the majority's opinion on the original intent of the framers of the Fourth Amendment prohibiting unreasonable searches.
Thus our homes are still our castles, into the most humble of which not even a king may pass without the owner or occupier's consent.
The Supreme Court's reaffirmation of the individual's right to privacy is heartening news to citizens who want to maintain personal control of their medical, financial and academic records, their buying habits, their genetic makeup and other intimate details of their lives. Such information should be available to others only with the individual's consent.
Identity theft is the fastest-growing crime in America today, impoverishing a third of a million households last year. The key to your identity door is your Social Security number. Shouldn't there be a law to stop companies from demanding your number, or selling it to anyone, including potential stalkers or identity thieves? President Bush is ready to sign one, but an anti-privacy lobby keeps Congress from passing it.
You've probably been getting mail lately from your bank spelling out in unintelligible prose its "privacy policy." The Washington Post's Robert O'Harrow Jr., whose coverage of privacy sets a high standard, reports that a billion or more of these policy fliers â₆10 per household on average â₆are being sent out in compliance with a 1999 banking law.
Unless you assume the burden of "opting out" by filling out a form, finding a stamp and mailing it back, the bank can share all your private dealings with any affiliate or marketer or just about anybody. Fewer than 5 percent of us protect ourselves by taking the trouble to say "no"; we're lazy, which is just what the perpetrators of "opt out" count on.
Banking-insurance combines, credit agencies, Internet cookie-cutters, private investigators and other snoops are dead set against the method known as "opt in," which would require them to get our informed consent before spreading our private data around for their profit. The anti-privacy lobby has been delaying, watering down and defeating legislation to require the customer's consent before using information having nothing to do with the goods or services that the buyer is buying.
Who's pro-consent in the Congress? At Senate Commerce, the new chairman, Fritz Hollings, has been a staunch advocate of "opt in," but the anti-privacy lobby is counting on John Kerry and John McCain, who have swallowed its "opt-out" line. Senator Dianne Feinstein's bill goes both ways. The Democrat Chris Dodd and the Republican Richard Shelby are strongly pro-consent, having just pushed through an amendment to the education bill requiring consent from parents before marketers can obtain data from children in schools. (Primedia is determined to kill that in conference.)
In the House, Florida's Clay Shaw has reintroduced his bill to restrict the sale and display of Social Security numbers, and Senators Jim Bunning and Tom Harkin have its companion in the Senate. But the House Democratic leader, Dick Gephardt, is the prime captive of the anti-privacy lobby; the snoopers' friend has inexplicable support from the American Enterprise Institute, now distributing a tract arguing that consumer consent is just too costly for business to bear.
Which approach will prevail â₆opt-in consent or opt-out intrusion? Do not despair, consenters; Scalia (and Justices Thomas, Ginsburg, Souter and Breyer) have given us hope.
The Kyllo and Bond cases were both decided based upon the Fourth Amendment. In contrast, USA Today seems to think that the Ninth Amendment creates an even broader right to privacy. USA Today says that, "the Ninth Amendment was added to assure that other rights already taken for granted were retained by the people." Actually, the Ninth Amendment was added to assure that other rights already retained by the people would not be diminished due to not being listed in the Bill of Rights. I previously wrote about the Ninth Amendment at confirmthem, here and here.
Posted in News —
Posted at 9:34pm on Aug. 15, 2005 Roberts's White House Counsel Records . . .
By feddie
would seem to confirm that the good judge is a solid legal conservative.
Posted in SCOTUS —
Posted at 1:13pm on Aug. 15, 2005 Dishonorable Democratic Disgrace Dick Durbin
By Carol Platt Liebau
In this piece from The Washington Times, not only does it become clear that Dick Durbin tried to slime John Roberts with a story that was inaccurate -- he (and his spokesman) wanted to do it anonymously. And then run for cover and blame Jonathan Turley after the account was published and disputed by Fred Thompson, who accompanied Judge Roberts to the meeting.
How sad is it that Judge Roberts must have a chaperone in order to keep US Senators from lying about what he says?
Equally distressing is that this kind of dishonorable behavior is typical of the senior senator from Illinois.
Posted in Analysis and Predictions —
Posted at 11:15am on Aug. 15, 2005 Justice Sunday II
By AndrewHyman
There was a huge rally yesterday, broadcast from Nashville. According to the Palm Beach Post, tens of millions of people took part:
The movement's broader goal, organizers said, is a federal judiciary and Supreme Court that reverse 40 years of "anti-religion" rulings and that regards the Constitution with the same reverence that a fundamentalist church holds for the Bible. Organizers said the live nationwide television simulcast reached 79 million households in 50 states and millions of others on the Internet and radio. It was beamed via satellite into scores of churches around the countryâ₦. "We do not claim the right to speak for everyone, but we do claim the right to speak. And speak we will to the millions of Americans who share our values," said [Tony] Perkins.
Not being a follower of any organized religion, I donââ‚â„¢t have any particular reverence for the Bible as the word of God. However, I do have huge reverence for the Constitution, as the word of the people. And, the speakers at Justice Sunday II are 100% correct that the Constitution has been stretched almost beyond recognition by the courts.
The Due Process Clause has been turned into a license for the Supreme Court to legislate new rights from the bench, even if they conflict with and destroy the rights of others. Some of those court-selected rights I like, and some I don't like, but none are legitimate constitutional rights. The courts of England clearly explained in the 1700s the meaning of due process: "the words lex terrae ... used in Mag. Char. are explained by the words, due process of law; and the meaning ... is, that all commitments must be by a legal authority."
Some people suggest that the Ninth Amendment allows the judiciary to legislate new rights from the bench, even if the Due Process Clause does not. But, anyone who reads the Ninth Amendment can see that it only prohibits your unenumerated rights from being denied by reason of their omission from the Bill of Rights, and not for any other reason.
The twisting of the U.S. Constitution must stop, IMHO.
How Appealing lists recent articles about Justice Sunday II, as well as other nomination news articles.
Posted in News —
Posted at 9:45am on Aug. 15, 2005 Confirmation Process Shouldn't Be a Political Quest for Legal Outcomes
By Marshall Manson
Much has been written (especially over at Bench Memos) about what questions Judge Roberts should have to answer and how much ideology should enter into the confirmation process. But asking about "ideology" is just a way to pursue an underlying unspoken inquiry: How will Judge Roberts rule on the cases and controversies that the questioner cares about?
The Importance of the Rule of Law
In the abstract, federal judges have a relatively simple sounding mission: administer our justice system by interpreting and applying the law. In practice, the role of a judge is extraordinarily complex, and the role of a Supreme Court justice even more so. Judges must apply complicated laws and interpret often ambiguous commands from other legal authorities. They must face litigants who have been badly aggrieved while still maintaining objectivity. Most importantly, our judges are entrusted with the critical task of determining how and when the Constitution, our nationââ‚â„¢s fundamental law, limits the governmentââ‚â„¢s power.
But at the core of this complexity lies a principle that is very simple, indeed. The law must come first.
It has been observed correctly that the foundation of our constitutional system is the rule of law. This is undeniable. Consider a system in which the government or the people routinely ignored the law. There would be no effective limit on government power or on individual action. Efforts to enforce such limits in courts would be useless. Anarchy would reign.
Instead, we rely on our legal system and the popular respect of the rule of law to hold back the inevitable chaos that would follow in their absence. At the core of our legal system, ââ‚Å“We the People of the United Statesââ‚? have established a Constitution to serve as our nationââ‚â„¢s fundamental law. And, in doing so, ââ‚Å“We the Peopleââ‚? have chosen to surrender to the government certain rights and authorities that we would otherwise naturally retain. ââ‚Å“We the Peopleââ‚? have not, however, surrendered everything. Indeed, the Constitution serves more to define the limits of the governmentââ‚â„¢s power than it does to invest it with authority over us.
Luckily for us, the Framers understood that left unchecked, the government would simply ignore those limits and seize all of the power, inevitably resulting in tyranny and oppression. As they drafted the blueprint for our government, they understood that only the law could protect the people from tyranny. So they made the courts a separate and co-equal branch of our government, and they rejected suggestions that they adopt the English system where a legislative body (in our case, the Senate) would be the final word on legal matters. As distinguished law professor and constitutional history expert Paul Presser observed in testimony before a Senate subcommittee, ââ‚Å“the genius of the separation of powers in America is that law is different from politics, and liberty and rights in this country are best protected by maintaining that separation.ââ‚? (Emphasis added.)
The Framers understood, as Alexander Hamilton wrote in Federalist No. 78, that ââ‚Å“the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep [Congress] within the limits assigned to [its] authority.ââ‚? Put another way, the Framers expected that Congress and the President would be the political branches, subject to the whims of those who elected them. The courts, on the other hand, would put politics aside and focus only on the law. As long as the other two branches and the people retained their respect for the rule of the law, the courts would be in a position to protect the people from the government and from each other.
However, the Framers themselves recognized that this was asking a lot. They understood that in real terms, the judicial branch would be the least powerful of the three. Indeed, Hamilton observes in Federalist No. 78 that the judiciary would have neither the power of the purse nor of the sword and, hence, would be dependent on the other two branches.
Judges Set Apart from Politics
Therefore, in order to be effective guardians of individual rights and arbiters of the law, the courts must maintain a moral superiority, exhibited by objectivity. Should the judiciary be trivialized or the respect for the rule of law diminished, the lynchpin of our constitutional system would be removed, and the system itself could crumble.
To achieve this, the Framers embraced a system that set judges apart from politics. Rather than political functionaries weighing the sentiments of the people or even relying on their own consciences, Federalist No. 78 instructs that judges are ââ‚Å“to avoid an arbitrary discretion,ââ‚? and instead should make decisions based on the law, bound by ââ‚Å“strict rulesââ‚? and ââ‚Å“a very considerable bulkââ‚? of precedent ââ‚Å“which serve to define and point out their duty in every particular case that comes before them.ââ‚? In practical terms, this means that judges should not approach any case with notions about what the proper result might be. Judges must also be prepared to rule against even the most sympathetic claim if thatââ‚â„¢s what the law instructs.
Put more succinctly, judges must not be concerned with selecting a ââ‚Å“desirableââ‚? outcome. They must, instead, focus on the law and let it lead them to the proper legal result.
The Framers understood, as we should, that outcome selection is simply the manifestation of politics in the judicial process, and if political forces rather than the law guide judicial decisions, then the law will mean nothing at all.
Politics Infecting the Judiciary
The Senateââ‚â„¢s deliberation of Judge John Robertsââ‚â„¢ nomination to the Supreme Court demonstrates, however, the extent to which politics is increasingly infecting the judiciary.
Within hours of his nomination, groups on the Left and the Right and Senators of both parties began expressing concerns about Judge Robertsââ‚â„¢ views and framing questions that they hope he will answer. Nearly all are aimed at determining how Judge Roberts will rule in particular cases.
For example, abortion interest groups on the Left and the Right want to know whether Judge Roberts will vote to uphold or overturn Roe v. Wade. The National Abortion Rights Action League (NARAL) is opposing Judge Robertsââ‚â„¢ confirmation because its advocates believe he does not share their view of the issue. Environmental groups are worried because Roberts might not agree with their expansive interpretation of the Constitutionââ‚â„¢s Commerce Clause under which they believe Congress is empowered to protect endangered species.
Individual Senators have also joined the demand that Roberts pronounce his views on particular issues. Senator Patrick Leahy (D-VT), the top ranking Democrat on the Judiciary Committee, said that he would vote against confirmation if Judge Roberts expressed views supportive of recent Supreme Court decisions ââ‚Å“str[iking] down parts of the Violence Against Women Act, environmental acts, [and] child safety legislation.ââ‚? In a supposedly private meeting later detailed in the press, Senator Ron Wyden (D-OR) asked Roberts about Congressional intervention in the Terry Schiavo case with the obvious hope that Judge Roberts would indicate his disapproval. Senator Charles Schumer (D-NY) sent Judge Roberts a seven-page list of seventeen questions, each with numerous subparts, seeking the nomineeââ‚â„¢s specific views on a wide range of specific legal issues. More are sure to follow as Senators grill Judge Roberts under the bright lights at his Senate confirmation hearing.
Previously, Senator Schumer, with aid and comfort from liberal law professors Laurence Tribe and Cass Sunstein, hosted a subcommittee hearing during the brief interlude in 2001 when Democrats controlled the Senate that was designed to justify more intrusive questioning concerning a nomineeââ‚â„¢s ideology. But in explaining his definition of that term, Schumer admitted ââ‚Å“ideologyââ‚? is essentially outcome-seeking and revealed his true political motive:
I have been asked by some: what do we mean by ideology? â₦ What it means is your views on not just broadly that you would support the Constitution, but what is your view of privacy, what is your view of how broadly or narrowly the First or Second Amendments should be interpreted, what is your view of federalism and the amendments that relate to the relationship between the State and the Federal Government. And there is also, in my judgment, nothing wrong with asking about decided cases, such as Roe v. Wade, such as Lopez, such as so many of the others that have come up.
Schumerââ‚â„¢s statement also reveals this quest to determine outcomes is simply an attempt by political groups and politicians to assure that the next Supreme Court justice shares their political views.
The Framers certainly never intended judicial nominees to be subjected to such inquisition. In Federalist No. 76, Hamilton makes clear that the Senateââ‚â„¢s role in the confirmation process is to ensure that the President is not practicing favoritism or cronyism in his selections. Hamilton goes on to predict that Senate rejection of judicial nominees will be infrequent. ââ‚Å“It is not likely that [the Senateââ‚â„¢s] sanction will often be refused, where there are not special and strong reasons for the refusal.ââ‚?
Indeed, confirmation hearings for Supreme Court nominees did not become common until 1955. The first nominee to testify at all was then-Attorney General Harlan Stone in 1925, and then only to answer allegations of prosecutorial misconduct.
Unfortunately, over the last four years, Democrats seeking to obstruct President Bushââ‚â„¢s judicial nominees have escalated the ideological war they began with Judge Robert Borkââ‚â„¢s nomination in 1987, and have relied more and more on outcome-focused questioning. In doing so, they have politicized the confirmation process as never before. But applying the kinds of ideological tests that are now advocated, judicial giants like Justices Oliver Wendell Holmes and Hugo Black would never have been confirmed.
Increasingly, conservatives and Republicans are joining the chorus. Even as Senator Leahy, Schumer and Wyden together with groups on the Left began clamoring for Judge Roberts to answer their questions, a number of commentators on the Right weighed in to support the idea of expansive questioning. Judiciary Committee Chairman Arlen Specter (R-PA) sent Judge Robertsââ‚â„¢ a letter previewing specific questions about Robertsââ‚â„¢ views on Congressional power under the Commerce Clause. Some conservatives have expressed concerns about Judge Robertsââ‚â„¢ positions on social issues like gay marriage, while others have insisted that he be rejected if he wonââ‚â„¢t pledge to overturn Roe.
But insisting on outcome-seeking questions is inappropriate whether instigated by the Left or the Right.
In 1996, the Miller Center for Public Affairs at the University of Virginia [link to the Center] assembled an eminent bipartisan panel to consider ââ‚Å“problems concerning the process of appointing federal judges.ââ‚? The group included former Senators Howard Baker (R-TN) and Birch Bayh (D-IN) as well as former White House Counsels Lloyd Cutler, who served Presidents Carter and Clinton, and Fred Fielding, who served President Reagan.
The panelââ‚â„¢s conclusion (.pdf) speaks directly to the issue at hand.
It is most important to appoint judges who are learned in the law, who are conscientious in their work ethic, and who possess what lawyers describe as ââ‚Å“judicial temperament.ââ‚? That term, though difficult to define, essentially describes a personality that is evenhanded, unbiased, impartial, courteous yet firm, and dedicated to a process, not a result. The law should be fairly read and applied, irrespective of the judge's personal views as to its wisdom. â₦ The Commission believes that it would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science, it also serves to weaken public confidence in the courts. (Emphasis added)
So what should the judicial selection process look like?
In Federalist No. 78, Hamilton writes,
There can be but a few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making proper deductions for the ordinary depravity of human nature, the number must be smaller of those who unite the requisite integrity and the requisite knowledge.
With this in mind, the ideal judicial selection process ought to be relatively straightforward. The President should choose a nominee from among the best and the brightest in the legal field. As it does now, the FBI should complete a thorough background check to ensure that all of the proper deductions for ââ‚Å“depravity of human natureââ‚? are made. The Senate should employ its resources to verify the nomineeââ‚â„¢s intellect and qualifications and to ensure that he or she is not benefiting from favoritism, cronyism or nepotism. After these processes are complete, the Senate should hold a simple up-or-down vote on confirming the nominee. If the nominee is distinguished and without difficulties, he or she should be confirmed. If not, then the Senate should exercise its constitutional duty and reject the nomination.
Meanwhile, back in the real worldâ₦
As pleasant as this ideal process sounds, one would have to be living high in the clouds to believe that it could ever happen.
Indeed, the aforementioned Professor Tribe argued at Senator Schumerââ‚â„¢s 2001 hearing that ââ‚Å“Some might be tempted â₦ to imagine that, if we could only wave a magic wand and remove all ideological considerations from judicial selection â₦ somehow the Olympian ideal of a federal judiciary once again above politics and beyond partisan reproach could be restored. For several reasons, that is a dangerous illusion.ââ‚?
Tribe goes on to argue that practical considerations make it impossible to achieve the ideal. But Tribeââ‚â„¢s practical objections really reveal nothing more than his concern that his preferred outcomes wonââ‚â„¢t prevail. After asserting that the Supreme Court is ââ‚Å“tilted in a rightward direction,ââ‚? Tribe declares that ââ‚Å“anything less than a concerted effort to set the balance straight would mean perpetuating the imbalance that gave us not only Bush v. Gore but the myriad of decisions â₦ in which the Court thumbed its nose at Congress.ââ‚? In other words, Tribe is saying that because the Court didnââ‚â„¢t do what he wanted, there must be something wrong with it.
Tribeââ‚â„¢s underlying point ââ‚• echoed by Professor Sunstein and others ââ‚• is that the Senate should force ideological balance and thus, moderation, on the judicial system through an aggressive use of its ââ‚Å“consentââ‚? power. But their view of moderation is an activist bench ready and willing to embrace the outcomes that Professor Tribe seeks. And ââ‚Å“moderationââ‚? is nothing more than a political objective. So any attempt to force moderation is to pursue that political goal with political means. Tribeââ‚â„¢s effort demonstrates that introduction of politics into the judicial equation only promotes more politics while undermining the law. (Professor Keith Whittington dedicates a Commentary to tearing the balance argument limb from limb at National Review Online.)
At the same time, Tribe raises another point that merits contemplation. Why should the Senate refuse to consider outcomes and ideology when the President will almost certainly nominate judges who conform to his judicial philosophy? The answer, however, is fairly straightforward: for better or for worse, the Constitution grants the President the power of selection and thus, as Federalist No. 76 instructs, though the Senate may reject the Presidentââ‚â„¢s nominee, that one will only be replaced by another of the Presidentââ‚â„¢s choosing. ââ‚Å“The person ultimately appointed must be the object of [the Presidentââ‚â„¢s] preference, though perhaps not in the first degree.ââ‚?
This gives little comfort for those who believe constitutional understanding is a black and white, right or wrong question. For instance, many conservative friends believe strongly that Justices Antonin Scalia and Clarence Thomas view the Constitution ââ‚Å“correctly,ââ‚? in that they try to view its meaning as it was originally understood. How to explain, then, that the two Justices disagree on more than a few questions? Indeed, no survey of the most learned scholars and legal experts would ever find two who are in complete agreement on every facet of the fundamental document of American law.
So instead of searching for the ââ‚Å“rightââ‚? answer, we are back to asking our judges to seek the ââ‚Å“bestââ‚? possible ruling based on an objective, well-reasoned understanding of law while putting aside personal biases. But identifying judges to provide that service is, though challenging, at least achievable. Thatââ‚â„¢s not to say the President shouldnââ‚â„¢t concern himself with finding judges who rely on the plain meaning of the Constitution while resisting the temptation to invent novel constitutional theories. He should. As made clear earlier, only when our legal understanding is based firmly on the clear meaning of the Constitution can there be any result that isnââ‚â„¢t by its nature political or, even worse, a mere reflection of a judgeââ‚â„¢s own conscience.
Just as in every other facet of his position, a presidentââ‚â„¢s ability to make this choice effectively will vary from one to the next. ââ‚Å“We the Peopleââ‚? will not always be pleased with his choices. But if our objections are strong, we have recourse every four years.
On the other hand, if we allow politics to continue to overwhelm our judiciary and undermine popular respect for the rule of law, we have no recourse at all. Slowly, but steadily, chaos will surely reign.
So America should once again embrace optimism and strive for a better process. We should continue to insist that our elected representatives in the Senate stop treating judicial nominees like political footballs. We should urge them to confine their questioning to qualifications and background if they must question at all. And we should encourage our President to keep finding and nominating the best and brightest to the federal bench. Heââ‚â„¢s certainly done so with Judge Roberts.
Cross posted at the Center for Individual Freedom.
UPDATE: I just saw Andrew McCarthy's piece from Friday on NRO addressing the Question of Questions.
Posted in SCOTUS —
Posted at 9:17am on Aug. 15, 2005 Morning News Summary
By Marshall Manson
Each weekday morning, by about 9:30 Eastern (and often earlier), I post the highlights of the morning's newspaper coverage of the Supreme Court nomination fight here. This morning's clips are now up. Feel free to bookmark the page and visit each day.
There are lots of other good places to check out the latest news. Patrick Ruffini's SCOTUS Wire is among the best.
Posted in News —
Posted at 6:37pm on Aug. 13, 2005 The <em>Los Angeles Times</em> Needs a Lawyer
By AndrewHyman
No, not a lawyer to defend themselves. They need a lawyer to help them understand legal news.
Today, the LA Times ran a story about the request by eight Democratic Senators for confidential attorney-client documents written by John Roberts when he was in the Solicitor General's Office. The Times article quotes extensively from a case (In re Lindsey) in which the DC Circuit held that President Clinton's White House Counsel had to testify to a grand jury investigating criminal misconduct. This decision of the DC Circuit acknowledged that courts "recognize a government attorney-client privilege that is rather absolute in civil litigationâ₦ââ‚?
The LA Times should have explained the difference between a criminal investigation, as opposed to an investigation in which no civil or criminal wrongdoing is even suspected. The Times (like the eight Democratic Senators) makes a very big deal about statements years ago by Senators Orrin Hatch and Fred Thompson in relation to impeachment proceedings against President Clinton, but last I heard there have been no credible accusations that Judge Roberts has broken any law.
UPDATE: It seems the LA Times has made this error before.
Posted in News —
Posted at 3:39am on Aug. 13, 2005 Roberts Seen With Playboy Bunny
By AndrewHyman
In private practice, John Roberts did some moot court work on behalf of Playboy. I report this mainly as an excuse to use the bunny image. However, his involvement in the case does show yet again that it's customary for lawyers in a firm to help each other on cases that the firm has accepted, whether its pro bono (as in Romer) or not (as here). This is how the lead counsel in the case, Robert Corn-Revere, described working with Roberts:
In the 3-and-a-half to 4 years we worked on that case, John may have devoted about a dozen hours at most....John, as he did with many clients at the firm, was available for advice from time to time....In this case, he helped with moot courts in preparing me for oral argument in the case at the Supreme Court....I never had a sense that Johnââ‚â„¢s work for any clients necessarily represented his own personal views....He was being a professional and he was helping out colleagues....Just like others in the firm, he was generally available for advice if something came up in his field.
The Supreme Court's decision in the Playboy case is available here. Playboy won.
UPDATE: A commenter notes that Justice Thomas voted with Playboy. Also, Justice Breyer voted against Playboy. Go figure.
Posted in News —
Posted at 12:49am on Aug. 13, 2005 NARAL Hasn't Pulled Ad and Won't For Several Days
By AndrewHyman
Regarding NARAL's lying attack-ad accusing Judge John Roberts of condoning violent crimes, the ad hasn't been pulled, and won't be pulled for a few more days:
NARAL told the Times it would replace the ad with a campaign on Roberts' record, including a statement he made, while arguing a case for the government, that abortion-landmark case Roe vs. Wade had been wrongly decided. That campaign is to begin Monday.
This is from a UPI report. So, until NARAL gets around to deciding how to tell the truth, it figures it might as well go on lying some more. Apparently, that organization's sense of responsibility to tell the truth equals its sense of responsibility about the consequences of having sex.
Posted in News —
Posted at 7:18pm on Aug. 12, 2005 NARAL Ad Fallout
By Marshall Manson
I just received a reliable report that NARAL parted ways with its Communications Director today.
Hard to imagine what might have precipitated that...
Posted in News —
Posted at 4:27pm on Aug. 12, 2005 Luttig, Jones, and Owen
By AndrewHyman
Robert Novak reports that, in the event Chief Justice Rehnquist retires, the ââ‚Å“unquestioned favorite for a conservative chief justice is Appeals Court Judge J. Michael Luttig." Novak also writes that two women also ââ‚Å“pass fastidious muster on the Right." They are Judges Edith Jones and Priscilla Owen. Info about all three of them is listed on the right side of the confirmthem page under the category "SCOTUS candidates."
Regarding Judge Jones, NBCââ‚â„¢s ââ‚Å“First Read" once noted that some liberal critics have dubbed her the ââ‚Å“Darth Vader of the 5th Circuit." Jonesââ‚â„¢s excellent reply: ââ‚Å“At least they could get the sex right and call me Lady MacBeth." Judge Jones has a solid record.
Some people are especially upset about one of Jones's decisions in the year 2000, where she agreed that a capital defendant did not deserve a new trial merely because the defendant's attorney dozed off at unspecified points during the trial. Here's an interesting law review article about that episode, pointing out that Judge Jones was not alone in that Burdine case: Fifth Circuit Judges Jolly and Barksdale both agreed with her as a matter of law (as did Judges Smith and Garza).
More about sleeping attorneys can be found here. If an attorney in a death penalty case nods off for ten seconds during a months-long trial, should that automatically entitle a defendant to a whole new trial? No judge of the Fifth Circuit took that position. So, what's all the fuss? After all, the trial court in the Burdine case did not say that the lawyer was asleep during any substantial portion of the trial.
The other case that some people seem to be upset with Judge Jones about was a sex harassment case in 1989. The thing people need to understand about that case is that it involved sexual harassment by coworkers instead of by a supervisor/employer. All of the judges of the Fifth Circuit agreed that coworkers can sexually harass a person in the most shameful and disgraceful ways, without running afoul of the federal statute, unless the employer "knew or should have known" about it. So, don't be misled by all the gruesome details of the harassment in that case. The issue was whether the employer was responsible.
UPDATE: Regarding slumber at the Supreme Court, see here.
Posted in SCOTUS —
Posted at 3:47pm on Aug. 12, 2005 NARAL Stalls on Removal of Ad
By AndrewHyman
"A NARAL spokesman said it will remain on the air for another day or more until the substitute ad is produced and made available," according to the Washington Post. The Post correctly calls this "a smear that will do less to discredit Judge Roberts than it will the organization that created it."
Hat Tip: CFJ Blog.
Posted in News —
Posted at 12:37pm on Aug. 12, 2005 Fred Thompson on the Roberts Nomination
By AndrewHyman
You may know that the former Tennessee Senator and star of Law and Order has been designated by President Bush to escort Judge Roberts through the labyrinth otherwise known as the U.S. Senate. In a recent two-part interview (here and here), Thompson said this:
I was a little bit surprised when I read his resume, through Harvard in 3 years, at the top of his class, editor of the Law Review at Harvard, outstanding in every way. I said, you know, I'm not going to be smart enough to talk to this guy. But yet, you spend a little time with him, and he's the most unassuming, down-to-earth, decent individual you'd ever meet. And that's the kind of person the American people are going to get to meet during these hearings. And it reflects in his judicial philosophy. He has a modest judicial philosophy, and that is, no one stormed up a hill somewhere in the face of gunfire to give John Roberts his way. They did it for the rule of law, and judges ought to adhere to the rule of law, and not make law, and not get up and decide how society ought to be transformed, according to their own dictates. They ought to follow the law, and follow the Constitution and adhere to the rule of law. And that's the way he's lived his professional life. That's what he believes in. And it's totally consistent with the kind of person he is.
Nothing definite here, but nothing to sneeze at either.
Posted in News —
Posted at 11:22pm on Aug. 11, 2005 Policing Their Own
By Pejman Yousefzadeh
It is good to see that even abortion rights supporters are upset about the recent NARAL ad attacking Judge Roberts. What remains to be seen, however, is whether that outrage will be translated into action demanding that NARAL and other groups demonstrate a sense of fair play and respect for the facts in the upcoming confirmation fight. It should say something if a certain group believes as a matter of course that any and all nominees put up by the Bush Administration should be fought tooth and nail. Such an attitude encourages a willful disregard of facts and those who display such an attitude should--in a just world--see their influence and credibility drop correspondingly.
Posted in Uncategorized —
Posted at 10:17pm on Aug. 11, 2005 NARAL Backs Off
By AndrewHyman
False ads about John Roberts are withdrawn.
Posted in News —
Posted at 7:23pm on Aug. 11, 2005 Specter, NARAL, and Roberts
By AndrewHyman
Senator Arlen Specter has written a letter to NARAL calling on them to pull their blatantly dishonest attack-ads from television.
Also, the 45-minute audio from a February 2005 speech by Judge Roberts at Wake Forest University is now available for your listening enjoyment, here.
Hat Tip to How Appealing on both counts.
UPDATE: The LA Times has a summary of the speech here.
Posted in News —
Posted at 2:57pm on Aug. 11, 2005 Misery Loves Company?
By Carol Platt Liebau
This AP story provides an overview of the whole sorry spectacle of CNN's trashing its own reputation by running an ad that even independent analysts characterize as false. Note that the CNN spokesman had erroneously implicated Fox and MSNBC in running the ad, as well.
Let's hope that NARAL continues down this road, and drags a bunch of Democratic senators with them. Let's hope that the left-wing moonbats throw a fit over every divisive cultural issue in America. Here's why.
Posted in Analysis and Predictions —
Posted at 2:19am on Aug. 11, 2005 The Motive Behind the Madness?
By Carol Platt Liebau
Is all the NARAL slime really intended merely to deter President Bush from appointing an outspoken conservative when the next Supreme Court vacancy arises? Bob Novak thinks so.
That's probably one of the reasons behind the sleaze campaign.
Another is that NARAL has a constituency to please and money to spend (and money that must be raised) -- and picking a fight against the Roberts nomination is a way for it to validate its existence in all three spheres.
Finally, the left-wing moonbats have genuinely worked themselves into a mouth-foaming frenzy of hysterical certainty that confirmation of Judge Roberts will bring the world to an end in short order.
Posted in Analysis and Predictions —
Posted at 2:09am on Aug. 11, 2005 Smoke and Mirrors from the <em>Atlanta Journal Constitution</em>
By AndrewHyman
Jay Bookman of the AJC criticizes a recent op/ed piece by Rich Lowry about the right of privacy. Lowryââ‚â„¢s piece was titled ââ‚Å“Out of Nothing at All,ââ‚? in which Lowry explained that the Supreme Court has invented a generalized right of privacy from thin air, and in which Lowry praised John Roberts's writings on this privacy issue. Bookmanââ‚â„¢s attempted rebuttal to Lowry's piece is titled ââ‚Å“Privacy Right Unlisted, but Perfectly Clear.ââ‚? Bookman relies entirely upon the Ninth Amendment of the U.S. Constitution.
The Ninth Amendment has been a subject of discussion recently at confirmthem, especially here (also see here). This is what Bookman says in his AJC piece:
Madison suggested what â₦ became the Ninth Amendment. It states, in its entirety: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." That is a blunt, unequivocal rejection of the anti-abortion stance on the right to privacy. It obliterates the argument that since the right to privacy is not listed explicitly in the Constitution, it must not exist.
Actually, Lowry specifically said that the Constitution does protect privacy:
There are privacy rights in the Constitution. The Fourth Amendment, for example, prohibits unreasonable searches and seizures. The entire constitutional scheme is meant to limit government power and leave people alone most of the time. But there is not a generalized, abstract right to privacy unhinged from any constitutional text.
Regarding a generalized right of privacy, Lowryââ‚â„¢s argument is that since such a right is neither listed explicitly nor implied by the Constitution, the Constitution therefore neither denies the right nor affirms the right.
Perhaps an analogy will help. A ââ‚Å“right to pollute reservoirsââ‚? is not listed explicitly in the Constitution, but that doesnââ‚â„¢t mean that such a right automatically exists by virtue of the Ninth Amendment. Same thing with a generalized right to privacy. Thus, legislators can punish people who pollute reservoirs, just like they can punish people who commit crimes in the privacy of their homes.
The Ninth Amendment declares that many rights are retained by the people. But that amendment does not say those rights include a generalized right of privacy. Moreover, the amendment does not prohibit denial or disparagement of any right for reasons other than its omission from the Bill of Rights.
Perhaps this is why Justice Goldberg, joined by Justice Brennan and Chief Justice Warren, wrote the following in Griswold v. Connecticut, 381 U.S. 479 (1965):
I do not mean to imply .... that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government.
And perhaps it is why Justice William O. Douglas, who authored the Court's opinion in Griswold, acknowledged the same thing: "The Ninth Amendment obviously does not create federally enforceable rights." Doe v. Bolton, 410 U.S. 179, 210 (1973) (Douglas, J., concurring).
The meaning of the Ninth Amendment is not a partisan issue, nor is it an issue about which there has been much disagreement in the Supreme Court. Justice Scalia described his view of the amendment in the case of Troxel v. Granville, 530 U.S. 57, 95 (2000):
[T]he Constitutionââ‚â„¢s refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judgesââ‚â„¢ list against laws duly enacted by the people.
As Justice Scalia indicated, the Ninth Amendment is a rule of construction only.
Posted in SCOTUS —
Posted at 12:43am on Aug. 11, 2005 Hey, MSM -- Don't Trust NARAL!
By Carol Platt Liebau
Note to the press: It's probably better -- MUCH better -- if you don't trust information from NARAL too much. According to the American Spectator, NARAL was the one who got the whole "let's look into the Roberts' children's adoption" ball rolling. And now, Stephen Spruiell at National Review Online reports that NARAL is the one who told The Washington Post -- erroneously -- that Fox News Channel was going to air its sleazy anti-Roberts ad.
Posted in Analysis and Predictions —
Posted at 7:17pm on Aug. 10, 2005 We're Not Telling the Truth?
By AndrewHyman
Earlier this month, Senator McCain sent a letter to a concerned citizen who had inquired about the ââ‚Å“Gang of 14" deal. Among other things, Senator McCain said someone's not telling the truth:
We did not use the filibuster to block President Clinton's judicial nominees because we successfully prevented many of those nominees from coming to the Senate floor for a vote or from even receiving a hearing in the Senate Judiciary Committee. Please know that anyone who claims Republicans haven't prevented Democratic nominees who had the support of a majority of Senators from receiving an up or down vote on the Senate floor is simply not telling you the truth.
Despite what Senator McCain says, Republicans have never prevented any Democratic JUDICIAL nominee, who had the support of a majority of Senators, from receiving an up or down vote on the Senate floor. When President Clintonââ‚â„¢s judicial nominees were languishing in committee, Democrats could have filed a discharge petition to get the nominees to the Senate floor --- they didnââ‚â„¢t even bother to file a discharge petition, because they knew a majority of Senators very probably would have voted against the discharge petition. Likewise, the Fortas case is no precedent for perpetually filibustering majority-supported nominees.
Anyway, I hope the deal that Senator McCain helped negotiate continues to succeed. If not, the tradition of up-or-down votes for majority-supported judicial nominees really ought to be restored, by invoking the Constitution's provision that allows a simple majority to change the rules so as to prevent abuse of the filibuster.
As James Monroe said at the Virginia Ratifying Convention (on 10 June 1788):
He is to nominate, and, by and with the advice and consent of the Senate, to appoint, ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States. THE CONCURRENCE OF A BARE MAJORITY OF THOSE WHO MAY BE PRESENT WILL ENABLE HIM TO DO THESE IMPORTANT ACTS.
Monroe carried on this tradition as one of Virginia's first United States Senators. This majoritarian tradition for confirming judges, which endured for 215 years, should not be destroyed.
UPDATE: I should note that Senator McCain's letter also said this:
Senate rules specify that a two-thirds majority of Senators is required to change a Senate rule. That has been the practice here for many, many years. The "constitutional" or "nuclear" option would have changed the Senate rule on filibusters with only a 51 vote majority. I opposed trying to change a rule by breaking another rule.
Actually, the constitutional option has been used before. Tom Curry of MSNBC has written as follows:
There is precedent for such a rule change: on Feb. 20, 1975, by a vote of 51 to 42, the Senate lowered the threshold for ending a filibuster from two-thirds of those senators present (67 if all 100 were in the chamber) to 60 senators.
You wouldn't think such a thing ever happened, from reading Senator McCain's letter.
Posted in Senate Rules —
Posted at 7:02pm on Aug. 10, 2005 Radio Discussion of Roberts, NARAL et al.
By Carol Platt Liebau
I'm about to begin co-hosting the Hugh Hewitt Show along with Peter Robinson. We'll be talking about Roberts, NARAL, The New York Times, the whole shebang. Listen online here and here.
Posted in Uncategorized —
Posted at 3:42pm on Aug. 10, 2005 Robertsââ‚â„¢ or Robertsââ‚â„¢s?
By AndrewHyman
OK, now for a really trivial issue. What do you do when writing the possessive form of a name that ends with the letter ââ‚Å“s"? I respectfully disagree with Carol about this.
One of the most thorough discussions of this issue on the web is provided by North Carolina State University. Bottom line: it all depends which expert you ask, so Iââ‚â„¢m sticking with the extra ââ‚Å“s."
The Associated Press Stylebook and Libel Manual recommends that possessives of proper names ending in "s" be formed by adding an apostrophe only (no extra "s"). Thus, in AP style, the possessive of Jones is Jones'. But different style manuals handle this in different ways. The Chicago Manual of Style, which is the manual for book editing, recommends that most possessives of proper names include an extra "s." It makes exceptions for Jesus, Moses, and names of more than one syllable with an unaccented ending pronouned "eez." Thus, Euripides', not Euripides's. The Chicago Manual of Style, rule 6.30:
How to form the possessive of polysllabic personal names ending with the sound of "s" or "z" probably occasions more dissension among writers and editors than any other orthographic matter open to disagreement. Some espouse the rule that the possessive of all such names should be formed by the addition of an apostrophe only. Such a rule would outlaw spellings like "Dylan Thomas's poetry," "Roy Harris's composition," and "Maria Callas's performance" in favor of "Thomas'," "Harris'," and "Callas'," which would not commend themselves to many. Other writers and editors simply abandon the attempt to define in precise phonic or orthographic terms the class of polysyllabic names to which only the apostrophe should be attached and follow a more pragmatic rule. In essence this is, "If it ends with a z sound, treat it like a plural; if it ends with an s sound treat it like a singular." Thus they would write "Dickens', Hopkins', Williams'," but also "Harris's, Thomas's, Callas's, Angus's, Willis's," and the like.
So, Iââ‚â„¢m sticking with ââ‚Å“Robertsââ‚â„¢s," at least until he tells me to stop. It matches how I speak. Here's a blog discussion of this burning issue.
UPDATE: One of our commenters generously left a link to this zero-tolerance approach to punctuation (keep in mind that pandas eat bamboo shoots!). And, I agree with another commenter that the "Robertsesââ‚â„¢ legal records" definitely should not have an "s" after the apostrophe (although I'm not sure what the penalty should be for noncompliance).
Posted in Roberts —
Posted at 3:02pm on Aug. 10, 2005 Update on New York Times / Wyden story
By Marshall Manson
Just a quick update to Carol's post immmediately below.
The White House has sent a letter to the New York Times detailing what really happened and asking for a correction. The full text of Ed Gillespie's letter to the Times bureau chief appears below the fold.
August 10,2005
Mr. Philip Taubman
Bureau Chief, Washington Bureau
The New York Times
1627 I Street, NW, 7th Floor
Washington, DC 20006
Dear Mr. Taubman,
In covering a meeting yesterday between Senator Ron Wyden (D-OR) and Supreme Court nominee Judge John Roberts, the New York Times provided the Senator's characterization of Judge Roberts' views in relation to the Schiavo case, which were based on notes from the meeting taken by the Senator's staff. In reporting on the meeting, the New York Times chose not to contact the White House for comment.
Had it done so, the White House would have been happy to have provided the recollections of others present in the meeting. Former Senator Fred Thompson, who is helping Judge Roberts in his meetings with senators, does not believe that Judge Roberts made comments as described in the article. For example, the Times writes that Roberts "made clear he was displeased with Congress's effort to force the federal judiciary to overt- a court order withdrawing her feeding tube." He said no such thing, according to others in the meeting.
In fact, notes taken by a White House aide at the meeting reflect that Judge Roberts said he had not studied the Schiavo case and could not comment on either the case itself or Congress's actions related to it.
Judge Roberts' courtesy visits with senators are closed to the press and are treated as private by Judge Roberts and the White House, but if a senator chooses to publicly characterize the nature of those conversations, the White House would appreciate the opportunity to provide a fuller accounting of a two-way discussion. The New York Times is welcome to contact our press office for such perspective 24 hours a day, seven days a week.
In the meantime, we would appreciate the Times correcting today's article in writing, noting that notes taken by a White House aide present in the meeting show that when Senator Wyden asked Judge Roberts what he thought about the Schiavo case, Judge Roberts replied, "I haven't studied the case. I wouldn't want to opine on it." And in addressing "the idea generally of specific remedies," Judge Roberts noted that "I am aware of Court precedents which say congress can overstep when it prescribes particular outcomes in particular cases."
As the person charged with coordinating the White House's efforts to confirm Judge Roberts, I would appreciate your consideration of this time-sensitive request.
Sincerely,
Ed Gillespie
Posted in Roberts —
Posted at 1:50pm on Aug. 10, 2005 Ask the Wrong Question, Get the Right Answer
By Carol Platt Liebau
The Democrats and their allies aren't just seeking a foothold to attack Judge Roberts on "beginning of life" (i.e. abortion) issues. They're also after the end of life issues, as demonstrated by this report in The New York Times.
As The Times reports it, Senator Ron Wyden (D-OR) was poking around to see if Roberts thinks Congress should have intervened in the Terri Schiavo matter -- according to Wyden's own account, he asked "whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy." Roberts' answer to the question was just fine -- one with which every conservative can agree: "I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court and prescribe particular remedies in particular cases, Congress has overstepped its bounds."
But it's worth noting that the answer doesn't actually respond to any issue that was associated with Congressional intervention in the Terri Schiavo case.
There, Congress didn't prescribe a remedy. As this MSNBC piece (written at the time) acknowledges, the Congressional legislation merely "gave federal courts authority to fully review her case." No remedies were ordered by Congress -- nor, under separation of powers doctrines, would Congress have the ability to force any court to issue any remedy in a particular case anyway.
When The Times writes that Wyden "made clear he was displeased with Congress's effort to force the federal judiciary to overturn a court order withdrawing her feeding tube" -- well, once again, it's misstating the facts in order to make Republicans look bad. Congress didn't seek to order removal of the tube, it merely gave federal courts jurisdiction to look at the case for themselves. . . so that a federal judge could decide what remedy was appropriate.
The left shouldn't be able to get away with reporting the judge's answers to mere hypotheticals as reflecting his opinion on specific cases. Nor should it be allowed to rewrite the history of Congressional action in the Schiavo case as it rewrote the history of the Thomas-Hill hearings.
Posted in SCOTUS —
Posted at 12:20pm on Aug. 10, 2005 Shame on CNN
By AndrewHyman
NARAL President Nancy Keenan says this to reporters: ââ‚Å“we are not suggesting that Mr. Roberts condones or supports clinic violence.ââ‚?
However, NARALââ‚â„¢s CNN ad says this to TV viewers: Roberts's "ideology leads him to excuse violence."
Clearly, CNN is broadcasting a blatant and egregious lie. I hope that any rebuttals to this lie are broadcast on other networks than CNN, lest CNN profit further from circulating lies.
For more about NARAL, see this piece today in the Wall Street Journal.
Posted in News —
Posted at 12:08pm on Aug. 10, 2005 No Way Out but Through
By Carol Platt Liebau
Judging from the piece in today's Washington Post, the Bush Administration has apparently realized anew that trying to destroy the Roberts nomination represents a blood sport to the Democrats.
There is no way out of the thicket but through. It's good to hear that staffers are combing through Reagan Administration papers at the Reagan Library, so that they're prepared. It's not clear to me exactly when they were dispatched (whether immediately after the nomination was announced or after the adoption story indicated that Roberts' opponents would stop at nothing). But the important thing is that they're there now.
I tend to agree with those quoted in the story who oppose shying away from Roberts' conservative record unnecessarily. Despite the baying of the MSM and the liberals, there's no decree that says a conservative -- a true conservative -- either doesn't belong on or can't be confirmed to the Supreme Court. Of course there's no reason to bring up issues that Democrats can easily distort -- but what kind of confidence in the conservative movement or conservative ideas does it betoken when Bush administration officials act like membership in mainstream conservative legal organization like the Federalist Society is legitimately controversial?
It's just reassuring to know that the Administration is listening to its lawyers -- who know that no one should ever be release documents to the adversary without knowing what's in them first?
Posted in Analysis and Predictions —
Posted at 11:31am on Aug. 10, 2005 Fox on the Ads
By Erick
Fox News is telling me that it is not showing the NARAL ad. Dan Balz, doing a bit of sloppy journalism, reported that in the Washington Post. There is a local Fox station that intends to show the ad, but Fox News has declined. A number of local stations in New England will be running the ad. Those stations include:
Bangor
WABI CBS
WLBZ NBC
WVII ABC
Portland
WCSH NBC
WGME CBS
WPFO FOX
Presque Isle
WAGM CBS
Providence
WPRI CBS
WNAC FOX
Posted in Roberts —
Posted at 1:16am on Aug. 10, 2005 CNN Iniquity -- Et Tu, FNC?
By Carol Platt Liebau
According to this piece, the outrageously false and misleading NARAL ad first discussed on this site here is set to appear on both CNN and the Fox News Channel.
Given that the University of Pennsylvania's nonpartisan Annenberg Center Fact Check.org has stated flatly that "The ad is false," it's amazing that any reputable news organization would make the decision to air it.
Once again, note that at the beginning of the oral argument in the case with which NARAL takes issue, even according to The LA Times, "Roberts appeared before the court, opening his remarks by saying that he was not defending the acts of the protesters." So how, exactly, does that square with calling John Roberts a judge "whose ideology leads him to excuse violence against other Americans"?
If Fox News and CNN goes on to run these ads, they will tarnish their reputations and erode their credibility. How does any news organization implicitly assert it's telling its viewers the truth, and then run an ad that is demonstrably false in a variety of ways?
They need to return NARAL's sleazy and fictitious ad with a polite "No, thank you." After all, they're in the news business, not the "sanitation industry" -- and that's the only appropriate place for such garbage.
Posted in Analysis and Predictions —
Posted at 9:05pm on Aug. 9, 2005 A Conservative Group Attacks Roberts <br> Few, If Any, Conservatives Have Heard of Them
By Erick
John Roberts today came under sharp attack from some group I've never heard of. Naturally the mainstream media is going out of its way to portray this group as your typical conservative group. At least the media is pointing out that Focus on the Family and the Traditional Values Coalition are still supporting Roberts. The group opposing Roberts appears to be a one issue (anti-gay) organization that masquerades as a mainstream conservative organizaiton. Again, though not determinative, I've never heard of them.
The lefty groups were able to get out that Roberts once helped a group advocating before the United States Supreme Court against a referendum in Colorado that was seen as and was against the interests of gay rights groups. Then they sat back hoping for intra-conservative warfare. Other than this one group on the fringe, that has not happened.
What Roberts did is the same thing I and other lawyers have done -- participating in a moot court exercise and offering helpful criticism to the participating group. Many lawyers I know have done that and the exercise does not mean that the lawyer supports the cause in which he participates. It is a silly argument. It most likely does not mean that Roberts supports the group; it most likely means that Roberts, as a respected attorney, was happy to give helpful criticism to a lawyer who was going into a court room very few ever enter. And, should we believe the reports about his participation, the advice he gave was pointed, but nonexistent as to his support of the overall argument.
This little group of homophobes wanted the media spotlight and they got it today by playing politics against a judicial nominee that mainstream, prominent conservative organizations are supporting. How very Ann Coulter of them. Tomorrow we will go back to forgetting they exist.
Posted in Roberts —
Posted at 2:14pm on Aug. 9, 2005 NARAL Forced to "Walk It Back"
By Carol Platt Liebau
Even Salon (must watch ad to access) is criticizing NARAL's sleazy anti-Roberts ad as inaccurate. It likewise points out that, as noted in an LA Times piece today, Roberts decried abortion violence in a 1986 memo stating "No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals."
Here is a link to NARAL's statement about the ad. It includes this (rather hard to find) quote from NARAL Pro-Choice America president Nancy Keenan:
ââ‚Å“I want to be very clear that we are not suggesting Mr. Roberts condones or supports clinic violence. Iââ‚â„¢m sure he finds bombings and murder abhorrent."
That would square with the words of your ad (that John Roberts is a judge "whose ideology leads him to excuse violence against other Americans)" -- how, exactly? He doesn't "condone" or "support" violence -- he just "excuses" it??? Talk about a distinction without a difference . . ..
We're waiting for your apology, Ms. Keenan.
Posted in Analysis and Predictions —
Posted at 12:00pm on Aug. 9, 2005 Thanks A Bunch . . .
By Pejman Yousefzadeh
To Arlen Specter for ignoring the fact that judicial candidates are bound by the Model Rules of Professional Responsibility from commenting on "cases, controversies or issues that are likely to come before the court." Not that I didn't see this coming. But if Arlen Specter is resolved to "sound like Chuck Schumer," then why don't we just have Chuck Schumer chair the Senate Judiciary Committee? At least in that case, there would be no illusions.
Posted in Uncategorized —
Posted at 11:06am on Aug. 9, 2005 NARAL: Weak, Worthless and Desperate
By Marshall Manson
Just hours before NARAL announced its despicable, sleazy attack ad yesterday, the American Spectator's Washington Prowler column revealed an interesting and important bit of news. Apparently, NARAL was the original source of the adoption questions that Drudge called out the New York Times for exploring.
It was opposition research generated by pro-abortion group NARAL -- and distributed to Democratic operatives working against the Supreme Court nomination of Judge John Roberts -- that spurred these operatives to encourage reporters in Washington to look into the Roberts' adoption process.
"They [NARAL and other anti-Roberts groups] went into this with a laundry list of things, and the idea that given what was at stake nothing was out of bounds," says a Democratic lobbyist who is part of the Roberts fight. "That's why you saw that ridiculous Roberts-is-gay thing spinning through the blogosphere, and why you had serious reporters looking at the adoption issue."
Another Democratic operative said that NARAL officials hit on the adoption issue because "Some of these NARAL and really aggressive pro-choice groups see political motivations behind everything. They see people who adopt children -- beyond the desire for children -- having an ideological predisposition against choice issues. It isn't just about kids, it's about politics."
So, it now appears that NARAL began its desperate paid smear campaign only after its gambit to have the MSM slur John Roberts for free was thwarted. It's worth noting that this is a common tactic in the political arena -- try and get your press to do your dirty work for you.
But in light of this report, NARAL's ad campaign looks even more pathetic. And now that I've actually watched the ad, it strikes me that the message is so over the top that it's simply not believable. (It's also worth noting that the buy is VERY small.)
Does NARAL's ad indicate that the Roberts opposition is in its last throws? No. But it does indicate a new level of desperation, and it portends even more extreme and despicable acts in the coming weeks.
Posted in News —
Posted at 12:30am on Aug. 9, 2005 How Low Can NARAL Go?
By Carol Platt Liebau
In an attempt to push "profile in cowardice" Lincoln Chafee (R[nominally]-R.I.) and Olympia Snowe (R-ME) to vote against John Roberts, MSNBC reports that NARAL is running an ad Rhode Island and Maine. It alleges that John Roberts is a judge "whose ideology leads him to excuse violence against other Americans."
The factual jumping off point for this incredibly serious (and entirely inaccurate) claim? That Roberts, while principal deputy solicitor general, filed a brief in Bray v. Alexandria Women's Health Clinic (1993). Did Judge Roberts argue that violence committed in the course of abortion contests was A-OK, as the ad suggests? Of course not. He merely argued that the Ku Klux Klan Act of 1871 can't properly be applied to abortion protesters because opposition to abortion doesn't constitute discrimination against a "class of people" within the meaning of the 1871 law.
Did Roberts argue that abortion related violence shouldn't be punished? Again, of course not. He argued that state penalties would be sufficient to punish and deter such violence. And the Supreme Court agreed with him, 5 1/2 to 3 1/2 (Souter concurred in part and dissented in part).
As anyone with a modicum of intelligence knows, arguing for state rather than federal criminal penalties doesn't constitute "excusing violence." If it did, certainly Roper v. Simmons (abolishing the death penalty for those under age 18, no matter what the crime) would signal an intent to "excuse violence against other Americans" perpetrated by minors.
Don't misunderstand -- Roper is a disgrace (in large part because it is based substantially on international law, which should have no bearing on constitutional interpretation in the U.S.). But forbidding one penalty while allowing others doesn't mean Justices Kennedy, Breyer, Ginsburg, Souter, and Stevens intended to "excuse" murder, rape and the rest of the formerly-punishable-by-death crimes committed by underaged felons.
And even less would it mean that the lawyer(s) who argued on behalf of the criminals in the Roper case condoned the behavior at issue.
Similarly, just because John Roberts argues that violent abortion protestors should be punished under state, rather than federal, law doesn't mean he condones abortion violence. Is this garbage really the best that NARAL can do?
And if Lincoln Chafee does NARAL's bidding, and votes against Roberts, there's no reason to keep him around. None (control of the Senate doesn't hinge on his race). With Republicans like Chafee, who needs Democrats?
Posted in SCOTUS —
Posted at 11:40pm on Aug. 8, 2005 Professor Kmiec is right on the Ninth Amendment
By feddie
With all due respect, Andrew, you are the one who is mistaken about the original/plain meaning of the Ninth Amendment's text.
Posted in News —
Posted at 11:12pm on Aug. 8, 2005 Specter Irate at Disrespect From SCOTUS
By AndrewHyman
Senate Judiciary Committee Chairman Arlen Specter has today sent a letter to SCOTUS nominee John Roberts. Specter says that Congress is irate about the Supreme Court treating Congress like a bunch of incompetents. Specter is putting Roberts on notice that he will be grilled on this subject.
Specter concentrates on two particular cases that struck down federal legislation. The Court said that the legislation in both cases exceeded the bounds of congressional power under the commerce clause. The first case is U.S. v. Morrison (2000), in which Congress sought to punish rapists under the commerce clause. The second case is U.S. v. Lopez (1995), in which Congress sought to keep guns away from schools nationwide, under the commerce clause.
Lopez strikes me as an excellent example of the great importance of the Ninth Amendment. Had there been no Ninth Amendment, then Congress could plausibly have argued that the Second Amendment demonstrates the vast power of Congress to regulate firearms under its enumerated powers. However, the Ninth Amendment forbids Congress from reasoning in such a fashion.
UPDATE: The New York Times reports that Specter is preparing an additional letter inquiring about specific cases. The Times also quotes Sean Rushton of the Committee for Justice as follows:
It certainly sounds as if he's getting pulled into Chuck Schumer's demands for unprecedented specificity in case law....To discuss recent cases and controversies and to have the Senate attempt to reject or confirm nominees based on a checklist of how they would rule on individual cases is clearly an attack on the judiciary's independence.
The White House ought to assign someone full time to research how Roberts can sweet-talk Specter. Perhaps compliments about the single-bullet theory?
Posted in News —
Posted at 5:52pm on Aug. 8, 2005 Professor Kmiec Distorts 9th Amendment and Moves to the Left of Laurence Tribe and William O. Douglas
By AndrewHyman
Professor Douglas Kmiec of Pepperdine University is quoted in the New York Times today as follows:
"Judge Roberts â₦ has articulated the court's own caution to itself, not always observed, that it should be wary of implying rights into the Constitution," Professor Kmiec said. "Should the court ever engage in the practice? Yes, because the founders affirmed in the Ninth Amendment that there were rights not specifically listed which deserved protection. This is a point that Robert Bork mistakenly denied in his own hearings."
Professor Kmiec is dead wrong, if he's suggesting that the Ninth Amendment establishes unenumerated restrictions on the enumerated powers. The Ninth Amendment says this:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Justice Scalia had some wise words about the Ninth Amendment in the case of Troxel v. Granville, 530 U.S. 57, 95 (2000):
[T]he Constitutionââ‚â„¢s refusal to "deny or disparage" other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judgesââ‚â„¢ list against laws duly enacted by the people.
As Justice Scalia indicated, the Ninth Amendment is very plainly a rule of construction only. So-called "liberal" justices have acknowledged that as well. Here's what Justice Goldberg, joined by Justice Brennan and Chief Justice Warren, said in Griswold v. Connecticut, 381 U.S. 479 (1965):
I do not mean to imply .... that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government.
Justice William O. Douglas acknowledged the same thing: "The Ninth Amendment obviously does not create federally enforceable rights." Doe v. Bolton, 410 U.S. 179, 210 (1973) (Douglas, J., concurring).
The Supreme Court has correctly and repeatedly held that, "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." United Public Workers v. Mitchell, 330 U.S. 75, 96 (1947).
And, here's the very liberal Harvard Law Professor, Laurence Tribe, taking the very same position about the Ninth Amendment: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution" (quoted favorably in this Ninth Circuit case).
Apparently, Professor Kmiec believes that Scalia, Tribe, Douglas, Warren, and the rest did not see all of the implicatons in the Ninth Amendment that Kmiec sees. James Madison didn't see what Kmiec sees, either. When Madison introduced a draft version of the Ninth Amendment in Congress on June 8, 1789 he explained its purpose and meaning very clearly:
It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against.
Thus, the Ninth Amendent was primarily intended to prevent the Bill of Rights from in any way being interpreted as enlarging the powers delegated to the federal government in the original Constitution. It was NOT intended to diminish, or carve out exceptions to, those originally delegated powers.
James Madison was not the only one afraid that an enumeration of rights might be construed as disparaging other rights. Hereââ‚â„¢s what Alexander Hamilton wrote in Federalist 84:
[B]ills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. â₦ Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
Just look at the plain text of the Ninth Amendment. Does it say, ââ‚Å“no law shall infringe any right retained by the peopleââ‚?? No. The Bill of Rights uses the word ââ‚Å“shallââ‚? seventeen times, and yet does not use that word in connection with "retained" rights in the Ninth Amendment.
Those retained rights refer to the residual rights that result from delegating discrete powers to the federal government. As Madison put it, ââ‚Å“the constitution is a bill of powers, the great residuum being the rights of the people."
Professor Randy Barnett has mentioned that the framers of the Bill of Rights considered the following draft of the Ninth Amendment:
The people have certain natural rights which are retained by them when they enter into Society, Such are the rights of Conscience in matters of religion; of acquiring property, and of pursuing happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom; of peaceably assembling to consult their common good, and of applying to Government by petition or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by the Government of the united States.
The last sentence of this draft amendment shows yet again that the framers did not consider the previous declaration of rights in the same paragraph to be sufficient to restrict the government. Indeed, when Congress submitted the Bill of Rights to the states for ratification, Congress affixed a preamble, stating as follows: "The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added...." The portion of the Ninth Amendment that mentions retained rights is plainly declaratory rather than restrictive; people as diverse as Antonin Scalia and Lawrence Tribe have acknowledged that fact. Why Professor Kmiec now disputes that fact is a mystery to me.
UPDATE: Incidentally, Professor Kmiec also recently said that Judge Roberts ââ‚Å“would be one of the last votes to say overturning was the acceptable course,ââ‚? with regard to Roe v. Wade or Casey v. Planned Parenthood. If Kmiec is correct about Roberts and Casey, then that would be just as unfortunate as what Kmiec said about Roberts and the Ninth Amendment. After all, over 72% of women in the United States believe that abortion should generally be illegal months before the point of viability decreed in Roe and Casey.
Posted in News —
Posted at 4:10pm on Aug. 8, 2005 Roberts and Romer
By AndrewHyman
Joseph Farah, the founder, editor, and chief executive officer of WorldNetDaily, has written an op/ed piece for that journal, blasting John Roberts for offering ten hours or less of pro bono assistance in the 1996 case of Romer v. Evans. Robertsââ‚â„¢s firm had already begun representing the plaintiffs in that case, and Roberts briefly joined in to help ensure that his firm succeeded in its representation.
With help from Roberts, the U.S. Supreme Court was persuaded to issue a 6-3 decision in that case, overturning a Colorado constitutional amendment dealing with gay rights. Chief Justice Rehnquist, Justice Scalia, and Justice Thomas dissented.
The op/ed by Mr. Farah is wrong on many counts, as pointed out by Nick Danger over at Redstate. Among other things, Mr. Farah wrote this:
Roberts was a partner in the firm. His job was not in jeopardy if he excused himself from the case on principled moral grounds. That would have been the honorable thing to do - either that, or resign from a law partnership that took such reprehensible clients.
Mr. Farahââ‚â„¢s attitude toward homosexuality apparently blinds him to the fact that even murderers in this country deserve legal representation. Lawyers who represent murderers, rapists, and drug dealers should not automatically be tainted by providing legal representation. Far from it.
Putting aside misguided pieces like Mr. Farahââ‚â„¢s, the involvement of Judge Roberts in the Romer case does raise legitimate questions for some conservatives. For example, does Roberts's involvement suggest that he would have voted against Rehnquist, Scalia, and Thomas in that case? This is a legitimate question, given that Roberts could have easily bowed out of the case, and left it for other attorneys to handle.
Hereââ‚â„¢s the language of the Colorado Constitution that the U.S. Supreme Court struck down:
No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.
Undoubtedly, many Colorodans voted for that amendment so that gays and lesbians would not get special rights or privileges, and so that gays and lesbians would be protected by general laws like most other people. However, other Colorodans undoubtedly voted for the amendment out of animus toward gays, as Mr. Farah plainly would have done.
Justice Kennedyââ‚â„¢s opinion for the Court in Romer stated that many local statutes and regulations throughout the United States ââ‚Å“set forth an extensive catalogue of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates - and, in recent times, sexual orientation.ââ‚? My main concern with Kennedy's opinion in Romer is that, once a trait is added to the list, there no longer seems to be any way to remove it. For example, if smoking habits are added to the catalogue of traits, the Romer decision now seems to prevent that trait from ever being removed by the people of Colorado via their constitutional amendment process. So, I have doubts that Justice Kennedy properly interpreted the Equal Protection Clause.
There are legitimate reasons to question the wisdom of the Romer decision, and legitimate reasons to question John Robertsââ‚â„¢s small role in the case. But I donââ‚â„¢t think those questions really amount to much, alongside Robertsââ‚â„¢s clear and demonstrated opposition to using the Constitution as a tool for legislating from the bench.
Posted in News —
Posted at 2:32pm on Aug. 8, 2005 NARAL's Shameful New Ad
By Marshall Manson
It's not terribly surprising that NARAL would stoop to new depths of sleaze in its first attack ad against President Bush's first Supreme Court nominee. But the shamelessness of this particular spot did, in fact, surprise even me. The ad is dangerously misleading and pathetically irresponsible in its content.
Ed Whelan has already posted a point by point rebuttal over at Bench Memos.
This ad reminds me of a political spot cut for a losing candidate in the closing days of a campaign. It seems like an act of desperation when there's nothing left to lose. Nevertheless, it should -- once again -- demonstrate that NARAL and similar groups on the Left have thrown their credibility overboard in the name of ... losing.
Posted in SCOTUS —
Posted at 10:17am on Aug. 8, 2005 A couple of pieces worth reading...
By Marshall Manson
I wanted to commend two pieces to you for your reading pleasure on this Monday morning.
The first is a fascinating piece by Tom Goldstein at the SCOTUS Nomination Blog. It's a real inside-baseball look at how the timing of the Roberts confirmation will actually effect the workings of the Court.
The second is a piece on FoxNews.com by Reid Cox, my friend and General Counsel here at the Center for Individual Freedom, called "The Supremacy of Five." Reid's piece make this critical point:
The current Supreme Court battle is being waged across the political spectrum by people who truly believe in ââ‚Å“government of the people, by the people, for the peopleââ‚? to confirm a justice who will be one of five who understands that what the Constitution says is more important than what the new justice personally believes.
Posted in News —
Posted at 2:58am on Aug. 8, 2005 Disappointing News for the Left
By Carol Platt Liebau
According to this Washington Post piece, "Conservatives Remain Steady in Support of Roberts."
The article contains one paragraph that is worthy of further comment:
Some Republican strategists said they have calculated that support for Roberts among Republican senators is locked down and that Roberts's supporters want to try to attract Democrats by packaging him as more centrist and less doctrinaire than had originally been assumed.
Note to the unnamed "Roberts's [sic] supporters": Don't waste your time. The opposition to Roberts on the left is real, and it is immutable. Democrats who are determined to vote against him (or who are instructed to do so by the leftist special interest groups), and many in the press (including those who would sink so far as to look into his children's adoption records) aren't going to be impressed or coopted by the judge's 10 hours of work on the Romer case.
Anyone who thinks differently must also believe that Hillary Clinton's going to get a favorable second look from conservatives because she's expressed sorrow about the "tragic choice" of abortion.
Posted in Analysis and Predictions —
Posted at 1:13am on Aug. 8, 2005 A Little More on Judge Patel
By Carol Platt Liebau
Given her background, it's no surprise that (as noted below) Judge Marilyn Patel has asked Judge Roberts to call off advertising about his Supreme Court nomination -- at least, the advertising that's favorable to him.
Apparently, before being named to the bench, in a presidential lapse of judgment all too typical of the Jimmy Carter years, the judge served as counsel to the National Organization of Women. More recently, she has been the recipient of the Rose Bird Memorial Award from the California Women Lawyers (yes, that Rose Bird).
Although receipt of the award doesn't necessarily brand one a liberal, let's just say it's the type of accolade unlikely to be bestowed on Judge Edith Jones -- and not just because Judge Jones isn't from California. Even to California judges like Carolyn Kuhl generally aren't considered eligible . . ..
Judge Patel's screed is a political document, and should be understood as such. Just another living example of the left's inability to divorce politics from the judicial function. How ironic that Judge Patel chooses to act politically herself, even as she calls on Judge Roberts to stop others from doing the same on his behalf.
Posted in News —
Posted at 9:31pm on Aug. 7, 2005 Carter Appointees Come Out of Woodwork
By AndrewHyman
In an unusual open letter from a sitting federal judge, Marilyn Hall Patel of the Northern District of California has written to Judge Roberts urging him to unilaterally condemn public relations efforts on his behalf. As Patterico points out, Judge Patel has not secured any similar commitments from the Democratic side. This letter from Judge Patel is very strange, made all the stranger by her flattery of Judge Roberts's physical appearance (he's "easy on the eyes" she says).
Another Carter appointee, U.S. District Senior Judge Marvin Aspen from the Northern District of Illinois, says that political attacks on the judiciary must stop, because they are endangering judges' lives:
He ... decried the political debate that has targeted the judiciary for criticism. "What we have now is really a wholesale attack on the judiciary," he said. The outcry provides fuel for fanatics who hold grudges toward judges, Aspen said.
Judge Aspen is way off base here, although perhaps not as far out as Judge Patel. With all due respect, Judge Aspen ought to confine his attacks to those critics of the judiciary who advocate violence. Judge Aspen is understandably concerned for the safety of judges, and so are we, but confirmthem does not intend to stifle its criticism of the judiciary in the least.
In fact, I will take this opportunity to reiterate that the United States States Supreme Court has usurped the power of state legislatures and of Congress, and imposed upon the nation a regime of legalized murder, in which both parents of an unborn child can conspire to rip that child apart limb from limb for any frivolous reason, months after it is a fully formed, living, thinking human being. And I will also reiterate that 72% of women in the United States have consistently wanted abortion to be generally illegal months before the Supreme Court's sacred "viability" deadline. If these facts make people mad, they certainly should make people mad, but at the same time these facts should absolutely NOT inspire violence against well-meaning but grievously mistaken judges. More info about this miserable controversy is available here.
Incidentally, the Chicago Tribune has a story featuring Erick Erickson, who occasionally blogs at confirmthem.
Hat Tip to How Appealing for alerting everyone to the Chicago Tribune articles linked in this post.
Posted in News —
Posted at 2:09pm on Aug. 7, 2005 On a side note
By krempasky
Sunday is always a good day to say thanks - so let me take this opportunity to express my gratitude for all the posters and commenters here at ConfirmThem. Clearly a labor of love (emphasis on the labor part), they've made this site one of the best places - on the web or off - to follow the fights over judicial nominations. Since this site was launched way back in January, many worthy competitors (we'll call them alternative sources of information..) have entered the fray enriched and expanded the way judicial appointments, and SCOTUS particularly, have been covered. More information and news regarding these most important policy fights are available to Americans than ever before, and there's no going back.
All of the folks that give their time and expertise to making this site successful are due all the credit. They've all been extraordinary. So to old and new, many thanks.
Posted in Administrative —
Posted at 1:23pm on Aug. 7, 2005 Grateful for Small Blessings . . .
By Carol Platt Liebau
And large ones, too. Among the latter is the fact that Mario Cuomo dithered and thereby lost the opportunity to be nominated to the Supreme Court by Bill Clinton.
Along with Pepperdine law professor Doug Kmiec, Cuomo surfaced on "Meet the Press" this morning. Based on his performance there, one shudders at the thought of the bloviating opinions that would have emanated from a Justice Cuomo. The topic was the "religious test" prohibited by the Constitution (Article VI, Section 3) and John Roberts' Catholicism.
Cuomo was clearly there as a representative of the viewpoint set forth by E.J. Dionne last week -- that it's not only permissible, but necessary to make Judge Roberts provide, as Dionne put it, "an account of how (and whether) his religious convictions would affect his decisions as a justice."
Of course, requiring that kind of accounting comes terribly close to imposing a "religious test." As I pointed out last week, Democrats have refused to believe that any person of outspoken faith can, actually, put aside his/her personal religious convictions in order to apply the law as it's written -- even when nominees are willing to assure them of their ability to do so. (See, for example, the Democratic mistreatment of John Ashcroft and Bill Pryor). The bottom line then becomes, of course, that the only people whose views aren't subject to scrutiny are either those who have no faith -- or those who ignore the tenets of the faith they profess.
Perhaps not coincidentally, Cuomo seemed to spend much of the time on "Meet the Press" justifying his own record as a Catholic relative to the abortion issue. And again, it's worth pointing out the difference between the role of a legislator (or even a governor) -- both political roles that involve the formulation of policy -- and that of a judge (or justice), who is supposed to interpret the law as its written.
That's a distinction that's completely lost on Cuomo -- and most liberals -- who seem to equate sitting on a court with formulating policy. Which is a major part of the problem with American jurisprudence today.
Posted in SCOTUS —
Posted at 2:10pm on Aug. 6, 2005 Catching On to the Liberal Agenda
By Carol Platt Liebau
Happily, this piece in The Washington Times indicates that savvy conservatives are aware of the liberal effort (having failed so far to find a way to wage an attack from the left)to split the right over the Roberts nomination.
When this piece in The LA Times appeared last week, it was clear that the story had been called to the paper's attention by someone who wasn't friendly to Roberts, given the eminently forseeable (negative) reaction on the part of some conservatives (presumably, some of Roberts' strongest supporters) .
Interestingly, the only people quoted in The LA Times story were "Jean Dubofsky, lead lawyer for the gay rights activists and a former Colorado Supreme Court justice," "Suzanne B. Goldberg, a staff lawyer for New York-based Lambda, a legal services group for gays and lesbians" and "Walter A. Smith Jr., then head of the pro bono department at Hogan & Hartson." At the time, it seemed clear that none of these people -- with the possible exception of the latter -- were likely to share Judge Roberts' approach to jurisprudence.
And what today's Washington Times piece tells us -- as The LA Times did not -- is that Mr. Smith, in his current job, has aligned his group on some issues with People for the American Way (PFAW), an organization that has opposed John Roberts' from the moment of his nomination. Wouldn't it be interesting to ask Mr. Smith if he supports the Roberts nomination?
So all in all, it should be clear that the Romer story wasn't put out there by anyone friendly to Judge Roberts or his nomination -- and conservatives should be wary of allowing themselves to be used by those on the left who oppose him.
Posted in Analysis and Predictions —
Posted at 2:50am on Aug. 6, 2005 A Few Roberts Items of Note
By AndrewHyman
The LA Times has an interesting blog-like discussion on the Roberts nomination. Bloggers include John Yoo, Erwin Chemerinsky, Marcie Hamilton, and other well-known legal pundits of the blogosphere. But make sure you come back here.
On Friday, the Justice Department sent a letter to the eight Democrats on the Senate Judiciary Committee telling them not to expect any Roberts paperwork from the Solicitor General's Office. The Bush administration is properly declining to waive the attorney-client privilege and the deliberative-process privilege. The Washington Post explains why releasing the documents would be problematic:
[T]he administration's concerns are not trivial. Disclosure of internal documents in judicial nominations has typically occurred in response to accusations of impropriety; there is no suggestion of misconduct in this case. To be sure, turning over the material could establish the precedent that confidential attorney-client material becomes fair game whenever senators are curious to know what a particular nominee thought on a particular issue. The risk that this could chill the willingness of line attorneys to give their candid views is a serious concern.
Meanwhile, Steven Chapman has a very good op/ed in the Washington Times:
There's no way to know if Judge Roberts would vote to junk the 1973 [Roe v. Wade] decision. But if the court were to do so, it would merely let the electorate put its conflicting feelings about abortion into law in a way they can live with. Allowing the American people to have their way on a subject that is not mentioned in the Constitution is not extremism. It's democracy.
And finally, for now, we very very briefly take note of this new blog that focusses on supporting Judge Roberts even assuming he is gay. I think I'll start a pro-Roberts blog that supports him even if he's a space alien.
Posted in News —
Posted at 7:19pm on Aug. 5, 2005 WaPo Misleads About Confirmthem
By AndrewHyman
Today, this item appeared in the Washington Post and MSNBC:
On conservative Web sites yesterday, there was scattered negative reaction to the news that Bush's nominee had helped to advance the cause of gay rights. "Frankly, I find it hard to believe that a 'conservative' Roman Catholic would not have declined to participate on moral grounds," one person wrote at http://www.confirmthem.com.
A commenter here at confirmthem recently made that statement in the comments section relative to Judge Roberts's pro bono work on a gay rights case:
Frankly, I find it hard to believe that a 'conservative' Roman Catholic would not have declined to participate on moral grounds.
The WaPo news article gave the impression that somone affiliated with our website (e.g. a blogger) wrote this, when actually a commenter wrote it. That commenter also has brought the news article to our attention.
If it's not completely obvious to everyone, please understand that the opinions of commenters are NOT necessarily the opinions of this web site, or the opinions of our bloggers. In fact, commenters are sometimes "trolls" who purposely insert insincere comments.
UPDATE: I just gave WaPo some feedback about this.
Posted in News —
Posted at 4:40pm on Aug. 5, 2005 A New Tack: John Roberts = Ken Starr
By Carol Platt Liebau
As fabulous as the internet is, sometimes it's important to hold the paper in your own little hands. It's not easy to find on the site, but on the front page of today's LA Times is the following headline: "With Starr, Roberts Pushed Reagan Agenda."
Then go to the break page. There, one sees a big picture of Ken Starr testifying before Congress. Right below it, a picture of John Roberts.
Get the message? John Roberts is a scary, scary guy -- just like the weird and evil Ken Starr. Never mind that Judge Starr was unforgivably and unfairly savaged by Clinton's attack dogs simply for doing his job as independent counsel. Never mind that he was always one of the most respected members of the D.C. legal establishment. Never mind that he's a person of great intellect. Never mind that he's a fine man.
The Times doesn't care about any of that. All that matters to them is that -- through the efforts of Democratic partisans -- Ken Starr is tainted (albeit unjustly). And if that taint can be transferred to John Roberts, well, all the better.
Posted in Analysis and Predictions —
Posted at 4:36pm on Aug. 5, 2005 Links
By AndrewHyman
Since we're speculating about possible future nominations, please note that we've kept the links for "SCOTUS Candidates" over at the right side of the confirmthem home page. If anyone would like to suggest further links to add there, please let us know. For example, I added a few more links for Diane Sykes yesterday, in response to suggestions from commenter "Ironman."
Incidentally, if you'd like to follow a game of "blog-minton" in which conservative pundits beat up on each other about the always-fascinating issue of incest, then you'll want to know that Professor Matt Franck and our own Steve Dillard (a.k.a. Feddie) are going at it here.
Posted in SCOTUS —
Posted at 4:21pm on Aug. 5, 2005 A little fun speculation (2)
By Ryan K
I'll join Marshall with my own fun speculation (part recommendation). I think President Bush will choose Miguel Estrada. Estrada would be the best strategic pick on many levels. Here's why:
- Hispanic: Need I say why?
- Short "Paper Trail": It has proven to be an advantage for Roberts.
- Highlight Past Dem Filibustering - It will shine the spotlight on past outrageous filibustering by Democrats (helpful for 2006/2008 elections)
- Age - He's only 43.
- Experience: He clerked for Kennedy, worked for Clinton and Bush in Solicitor General's office, DoJ, argued 15 cases before the Supreme Court, now in private appellate and constitutional law practice
- Very Conservative: He's described by everyone that knows him as very, very conservative legally and politically, and past humiliating treatment by Democrats in the nominating process have helped solidify the conservatism.
- Education: Columbia undergrad, Harvard law grad
- Great Story: He immigrated to America as a teen knowing little English, etc.
- Not a judge: Senate Democrats have been publicly calling for nonjudge nominees. Well, here you go.
- Already vetted: Estrada's past has already been thoroughly explored during his previous nomination.
- Specter Support: Sen. Specter has already stated in Estrada's Court of Appeals hearing, "...there is no reason not to confirm Mr. Estrada."
Update: More analysis in this post and comments.
Posted in SCOTUS —
Posted at 3:10pm on Aug. 5, 2005 A little fun speculation
By Marshall Manson
It's Friday in August in the nation's capital. There isn't very much news today. So at the instigation of a commenter in another thread, let's have a little fun.
The commenter asked me to opine on what might happen if and when the Chief Justice retires. The commenter assumes, and I agree, that the Chief Justice will retire sometime before the end of President Bush's term.
So, here are some of my thoughts (and in this case, I need to stress that these are my best guesses only. There's no inside information here. I'm not breaking any news or meaning to start any rumors.) Just a little speculation on a quiet Friday:
First, let's identify our assumptions. When will Rehnquist retire. It seems to me that he will serve through the end of the Court's next term at a minimum. I actually believe, given the Chief's well-known political acumen that he's going to serve two more terms and retire in June of 2007 -- a non-election year.
At that point, Justice Roberts will have served two terms. That's a short tenure by S.Ct. standards, but more than enough time for him to get the feel of the place. Also, his learning curve is likely to be faster given that he clearked for the Chief and is a top Supreme Court practitioner.
So, here's my prediction: First, Bush elevates Roberts. Everything we know of Roberts personality and background suggest that he would be an ideal Chief -- someone who could really move the Court. Second, we know he and the President really hit it off personally, and we know how important that is to the President.
Okay, so with Roberts elevated, who becomes the next Associate Justice? My bet is either Owen or Luttig. Both have solid pedigrees. Owen because Bush has known her for years and has a relationship with her. In two more years, she will have enough experience on the federal bench to make her elevation to the High Court credible. Luttig has an outstanding pedigree on any number of fronts. He's been an outstanding and well-respected appeals court judge. Either would make an outstanding candidate.
What about President Bush's reported desire to appoint the first Hispanic? That opens the door for Alito or Danny Boggs, a Cuban-American who currently sits on the 6th Circuit. But I think my picks are more likely. Why? Gut feeling. No grand strategic insight, I'm afraid.
All right, there are my quick thoughts. What are yours?
Have at it. I only have one request -- Let's keep this fun: what are your predictions for the future?
We've got countless other threads for spirited debate over the current vacancy.
Posted in SCOTUS —
Posted at 12:31pm on Aug. 5, 2005 "Polarizing" Coverage
By Carol Platt Liebau
Newsflash -- John Roberts worked on some "polarizing cases" when he was principal deputy solicitor general!
Well, of course he did. The solicitor general's office represents the United States in many of the most difficult and contentious cases before the Supreme Court . . . the US court of last resort. Where else would the most difficult and polarizing cases go?
Two sentences in the piece are highly instructive:
Because Roberts is not speaking publicly ahead of his confirmation hearings, they believe the documents can provide insight into the legal philosophy of the 50-year-old appellate judge and whether his appointment might shift the high court significantly to the right. [emphasis added].
The latter consideration -- whether the Roberts' appointment would "shift" the Supreme Court -- shouldn't be any part of the Democrats' concern. Of course it will, in all probability. That's what happens when the country elects a Republican president. If the Democrats don't like it, well, they know what to do -- get a Democrat elected (if they can).
It's worth remembering that Ruth Bader Ginsburg was nominated to succeed Justice Byron "Whizzer" White -- a conservative. There wasn't any hand-wringing on the Republican side (and certainly none in the press!) about whether she would "shift" the court to the left . . . it was understood that she would. It was also understood that elections have consequences, and this was one of them.
The second quote from the linked piece that bears noting:
At least some solicitor general communications have been released to senators in the past, during the failed nomination of Robert Bork by President Reagan. Democrats seized on the extensive paper trail and used it to help scuttle Bork's appointment.
One can only hope that The White House remembers this history, so that we're not doomed to repeat it.
Posted in Analysis and Predictions —
Posted at 10:44pm on Aug. 4, 2005 "Ask Judge Roberts"
By Pejman Yousefzadeh
While I don't think that Judge Roberts should be asked to prejudge cases, I know that he will be asked anyway. So I have a case I want to discuss. If you have been reading this blog with any degree of regularity, you will no doubt have guessed what it is.
Posted in Uncategorized —
Posted at 2:56pm on Aug. 4, 2005 Hand-Wringing Du Jour
By Marshall Manson
In an earlier post, I promised to provide more complete thoughts on todayââ‚â„¢s L.A. Times story about Judge Roberts providing some pro-bono assistance in a gay rights case that one of his partners was handling.
Letââ‚â„¢s be very clear about what happened here:
One of Robertsââ‚â„¢ partners, the head of the firmââ‚â„¢s pro-bono department, asked Roberts to get involved. To no oneââ‚â„¢s surprise given his obvious geniality and agreeableness, Roberts said ââ‚Å“yesââ‚?.
Roberts was not an attorney of record. He did not author any legal briefs. He did not argue the case before any court.
According to the Times, Robertsââ‚â„¢ role consisted of reviewing the briefs, providing some advice on how to argue effectively before the High Court, and participating in a moot court in which he played the role of a conservative justice.
As regular readers know, I am not an attorney. But it seems to me that Robertsââ‚â„¢ involvement is a classic example of an outstanding lawyer doing his job. He was asked by a colleague to help out with a case. He did. And he did his best. That, as far as Iââ‚â„¢m concerned, is precisely what a good lawyer is supposed to do.
Some have said that Roberts could have refused the request. Perhaps, in the most technical sense, he could have said ââ‚Å“no.ââ‚? But in a big law firm, requests for help -- especially in a specialized area like Supreme Court litigation -- are routine, and partners just as routinely agree to lend a hand to other partners who need it. I think thatââ‚â„¢s precisely what happened here.
Letââ‚â„¢s also remember that although Roberts had a very distinguished practice, he wasnââ‚â„¢t particularly senior in his law firmââ‚â„¢s hierarchy at this stage. (And I invite our many attorney readers to contradict me on this point if Iââ‚â„¢m off target.) He was made partner in 1987, departed the firm in 1989 for the S.G.ââ‚â„¢s office, and returned in 1993. So when he became involved in this case in 1995, he had been a partner at his firm for a grand total of four years. In the culture of a big D.C. firm, thatââ‚â„¢s still awfully junior.
It seems that some conservatives are allowing this story to fan their fears that Roberts may not be a true conservative. It appears that most of the hand wringing centers around what amounts to wild speculation about whether or not Roberts agreed with his client in this particular case. The reality is simple: we just donââ‚â„¢t know whether he did or not. But it strikes me that these fears are increasingly confounded by Robertsââ‚â„¢ voluminous record. And we certainly shouldnââ‚â„¢t walk away from Roberts on the basis of ill-informed speculation, especially given the mounting evidence and his own stellar qualifications that suggest Roberts is precisely the kind of Justice that President Bush promised to name.
UPDATE: Over at Bench Memos, Kathryn Lopez has precisely the correct take on this story:
Methinks the LATimes is trying to start something here â₆if the Left can't destroy him maybe they can get some of those right-wing whackos to help, is the thinking? I suspect (call it an educated guess) his role in the case is relatively slight.
UPDATE II: A friend was kind enough to draw my attention to this item which bears directly on our discussion:
John Roberts said in a January 1982 article he drafted for then Attorney General Smith: ââ‚Å“Courts cannot, under the guise of constitutional review, restrike balances struck by the legislature or substitute their own policy choices for those of elected officials. Two devices which invite courts to do just that are ââ‚Ëœfundamental rightsââ‚â„¢ and ââ‚Ëœsuspect classââ‚â„¢ review.ââ‚?
Posted in News —
Posted at 1:56pm on Aug. 4, 2005 Alexandre Dumas Would Be Proud
By AndrewHyman
The blog How Appealing presents the results if its writing contest here (the contest was to see who could write the most "dumb-ass" question to ask Judge Roberts). Also, the same blog lists a bunch of the latest news stories about Roberts, here.
Posted in Humor —
Posted at 1:49pm on Aug. 4, 2005 Outrageous and Disgusting
By Carol Platt Liebau
Identifying its source as a "Times insider," The Drudge Report states that The New York Times is looking into the adoption records of Judge and Mrs. Roberts' children -- Jack and Josie.
If true, this is beyond outrageous. Whatever the circumstances of the children's birth and adoption, that is a matter between them and their parents (that is, Judge and Mrs. Roberts). Who knows whether the issue has even come up yet in the family, given the children's tender ages?
If the nominee were a woman, would it be anyone's business whether she had an abortion? Clearly not -- and I doubt The Times would even whisper a word. Apparently, adoption is in another category. "The right to privacy" seems to extend only to people who haven't been nominated to The Supreme Court.
It was wrong and cruel for Saturday Night Live to make fun of Chelsea Clinton's appearance. But this is light-years more intrusive and unkind. Has The New York Times any shred of decency? If this report is true, the answer is clearly "No." How completely disgusting.
Posted in News —
Posted at 1:43pm on Aug. 4, 2005 The Left Steps Over the Line
By Marshall Manson
Drudge reports (and I hope he's wrong) that the New York Times has a reporter investigating the adoption records of Judge Roberts' two children.
Memo to the Left: Stop it. Right now. We can and should have a thorough debate about Judge Roberts' background and such, but the kids are out of bounds. I know it's a faint hope, but it's time for you to get a life. Perhaps you can borrow a sense of shame from someone. It's obvious that you lost yours some time ago.
Hat tip to Kathryn at the Corner.
UPDATE: Apparently, the Drudge scoop and the mass of e-mails to the public editor, got the Times on the defensive. But even the Times' reponse raises disturbing questions.
Posted in News —
Posted at 1:10pm on Aug. 4, 2005 Roberts -- On the Left & Right?
By Carol Platt Liebau
Steve Chapman makes some excellent points about Roe v. Wade and the fact that there has been criticism for the way the case was decided (if not the outcome) emanating from both the left and the right.
Another interesting point he makes: That some consider Roberts a conservative "wing nut" for the position he took as principal deputy solicitor general in an abortion-related case called Rust v. Sullivan back in 1991. That should make a nice bookend, coupled with the fact that many conservatives no doubt today are deeply upset to learn that Judge Roberts offered some advice to his colleagues working on a pro-bono gay rights case.
Am I thrilled to hear about the latter? Not particularly -- both as a conservative and someone who believes that a state's people should (and does) have the right to legislate on the basis of their moral beliefs. But I don't think that Roberts' aid to his colleagues in that particular instance makes him a liberal.
Again, as I pointed out in this column, it makes no strategic sense to attack Judge Roberts now:
Just last week, Senator Sam Brownback (R-KS) and conservative writer Ann Coulter expressed concern about Judge Roberts on the grounds that he might turn out to be a ââ‚Å“stealth liberal,ââ‚? like David Souter. Given that every Supreme Court justice is completely immune from any political accountability once confirmed to the Court, thereââ‚â„¢s certainly no way to be certain how a Justice Roberts might decide any particular case.
But thatââ‚â„¢s no reason to assail the nomination now. Judge Roberts has already been identified as President Bushââ‚â„¢s choice. Attacking him from the right achieves nothing, besides forcing The White House to offer proof of Robertsââ‚â„¢ conservative bona fides ââ‚“ which, in turn, simply offers more targets for adversaries on the left. And even if, somehow, disgruntled conservatives forced the President to withdraw Robertsââ‚â„¢ nomination, does anyone think that this ââ‚Å“victoryââ‚? would strengthen the Presidentââ‚â„¢s hand in winning a confirmation battle for a more militant conservative ââ‚“ even assuming that he would be inclined to reward those who had derailed his first choice?
Aside from the atrocious level of federal spending, President Bush hasn't let down conservatives yet. Let's try to give him -- and Judge Roberts -- the benefit of the doubt, for once. At this point, what's really the alternative?
Posted in SCOTUS —
Posted at 12:35pm on Aug. 4, 2005 L.A. Times Antics
By Marshall Manson
Here's more evidence that the Left's attack machine is finding its legs: Today's L.A. Times contains two stories that make similar charges. The first reports that Roberts provided some pro-bono assistance in a case that one of his partners was handling involving gay rights. (I'll try to comment more on this non-scoop later.) The headline of the second screams that Roberts "admits he registered as lobbyist."
In each story, separate L.A. Times writers embrace the theme that Roberts left information off of his Judiciary Committee Questionnaire.
Needless to say, neither omission is particularly significant. In the first instance, Roberts was not the cousenl of record and did not argue the case or write or sign any briefs. According to the L.A. Times' own account, he apparently lent a hand to a partner working on a complex federal appeal. Of course, that was, after all, Roberts' job. In the second instance, Roberts explains in a letter to Senator Leahy that he simply forgot to mention on the questionnaire that one of his partners had included him on the required lobbying disclosure report after Roberts provided a brief legal analysis.
In neither instance is the omission significant or even bothersome.
If you haven't looked at the questionnaire, I encourage you to do so. It's extraordinarily lengthy and detailed. I know that if I was asked to complete it, I would almost certainly overlook some tiny aspect of my life that the committee was demanding complete details about, in triplicate. So, to any reasonable person, the L.A.Times stories are both non-news.
But I predict that within a matter of days, Democratic Senators and groups and blogs on the Left will be professing grave concern about these omissions. "If Roberts failed to include this information on his questionnaire," they will say, "what else did he omit? What is Roberts hiding?"
Of course, anyone with any common sense -- who doesn't have an obstructionist motive at heart -- knows that Roberts isn't hiding anything.
And, as I've said before, that's the critical point. No one on the Left is after more information. They're only after obstruction.
Posted in News —
Posted at 12:16pm on Aug. 4, 2005 A long way to go...
By Marshall Manson
Joel Mowbray has a must-read column posted over at Townhall. Mowbray hammers home the point that the fight to confirm John Roberts has only just begun and that the Left has only begun to fight.
Here's the key portion:
It was around this time of yearââ‚â€during the dog days of the August recessââ‚â€that a conservative Supreme Court nominee who had appeared destined for a relatively smooth confirmation suddenly found himself firmly in the Leftââ‚â„¢s crosshairs. Democratic Congressmen and Senators, once back home with their constituents, went from relative neutrality on the Presidentââ‚â„¢s pick to outright hostility.
It was 14 years ago, and the nominee, of course, was Clarence Thomas.
White House aides and the network built for ensuring John Robertsââ‚â„¢ confirmation to the high court are well aware of the sudden sucker-punchââ‚â€and they know that the Left has a lot more money this time around to help history repeat itself.
With tens of millions already raised long before Bushââ‚â„¢s pick was announced, leftist organizations are almost certainly not going to let Roberts join the Supreme Court without at least a serious dose of partisan hazing.
After being caught flat-footed and then desperately searching for grounds on which to attack the nomineeââ‚â€including initiating a whisper campaign about Robertââ‚â„¢s pro-life wifeââ‚â€the moveon.org crowd now seems to be digging in for a bloody battle. They most likely arenââ‚â„¢t expecting a victory, nor should they. The goal, however, would be to damage the President and lay the groundwork for an even more vicious fight on the next nomination.
Not to mention that the leftist groups have more than $20 million burning a hole in their pockets.
Read every word, and watch for the Left to continue ratcheting up their attacks as the month wears on.
Posted in News —
Posted at 2:22am on Aug. 4, 2005 Ann's At It Again
By Carol Platt Liebau
Once again, Ann Coulter takes some gratuitous potshots at Judge Roberts here.
She's done it before. And I objected at the time, on the grounds that her criticisms were neither warranted nor strategically sensible (as set forth in more detail in my weekly column here).
Again -- as satisfying as it might be for some conservatives to revel in the delicious agony of dashed expectations, it makes no sense to compare John Roberts continually with Justice Souter. Among other differences, Judge Roberts has lived his entire adult life in Washington, D.C. and won't be overwhelmed by dramatic life changes resulting from his nomination -- as Justice Souter was. (For more on the benefits of an "inside the Beltway" nominee, see this).
And simply because Judge Roberts hasn't shouted his conservative principles from the rooftops doesn't mean that he doesn't hold them, and strongly so (although I would encourage The White House and Judge Roberts both to stop acting as though an affiliation with The Federalist Society is tantamount to membership in the CPUSA).
Let's give John Roberts a chance -- after all, what's the point in attacking him and thereby helping Senators Leahy, Kennedy, Durbin et al.? If he does indeed turn out to be another Souter, there will be plenty of time to take notice of -- and offense at -- his weakmindedness.
Posted in Uncategorized —
Posted at 11:17pm on Aug. 3, 2005 No Souter, He
By Pejman Yousefzadeh
Judge Roberts's answers to a questionnaire regarding his legal views should do more to reassure people that he is not another David Souter waiting to make conservatives wonder what on Earth possessed them to vote for him. I must say, however, that I am quite amused to find out that one of the critiques of his answers was that they were "lawyerly." I admit to a few "lawyerly" writings myself, but that may have to do with the fact that I am a lawyer. As is Judge Roberts. Having thought--at least up until this point--that "lawyerly" writing was to be aspired to by lawyers, I have to say that I am at a loss to respond to this criticism. Who knew that lawyers aren't supposed to be "lawyerly", after all?
Posted in Uncategorized —
Posted at 3:34pm on Aug. 3, 2005 Careful & Cautious
By Carol Platt Liebau
As this piece indicates, John Roberts knows how to craft answers to questions in a way that gives something to both sides. It should make for entertaining television in September, when he begins a battle of wits with unarmed adversaries like Senators Leahy, Kennedy, Durbin and Biden.
In any case, the whole "respecting precedent" debate referenced in the piece is a meaningless one -- because the real question is which precedent is worthy of respect. One would certainly surmise that however much he respects precedent, John Roberts would have had a problem, for example, with Plessy v. Ferguson (enshrining the "separate but equal" doctrine).
We can only hope that the Democrats (cued by the press) will try to make a big issue out of what John Roberts wrote back when he was in the Reagan Justice Department. For starters, there's nothing wrong with the substance of the memoes at issue (they express mainstream conservative opinon at the time). And that was a long, long time ago -- back in the days when Senator Dick Durbin was still pro-life, long before Biden (hopefully) learned that it's just plain wrong to plagiarize.
Here's hoping that Judge Roberts hasn't changed the vast majority of his views since his days in the Reagan Justice Department. But given their own shifts over the same duration, won't it seem a little silly for the Democrats to react like they've just discovered hidden writings of the antichrist?
Posted in Uncategorized —
Posted at 10:27am on Aug. 3, 2005 "Pryor touts Roberts for high court"
By feddie
The B'ham News has this report:
U.S. Circuit Judge John Roberts Jr. is a smart and thorough jurist who has the training and ability to do a great job on the U.S. Supreme Court, former Alabama attorney general and U.S. Circuit Judge Bill Pryor said Tuesday.
. . . .
"I don't know that there's been anyone ever nominated who has a better resume," Pryor said. "He's got all the training and ability from his life experience to do a great job."
Judge Pryor's endorsement of Judge Roberts should hearten those who have questions about Roberts's conservative credentials.
Posted in SCOTUS —
Posted at 9:59am on Aug. 3, 2005 Roberts' Judiciary Questionnaire
By Marshall Manson
The Senate Judiciary Committee released Judge Roberts' committee questionnaire last night.
I have posted scans of it on the Center for Individual Freedom's website here.
Warning: these are .pdf files and they are very large (nearly 30mb each.)
I'll be posting comments about the documents as I have a chance to review them.
Posted in News —
Posted at 12:13am on Aug. 3, 2005 Due Process and Equal Protection Clause Abuses
By Ryan K
I often find myself explaining to family and friends the perplexing method of judicial activism. Particularly, how a judge can exceed the confines of the Constitution by pilfering the Due Process and Equal Protection Clauses to justify an otherwise baseless opinion.
I cannot explain it any better than Justice Black did in his dissent in Harper v. Virginia Bd. Of Elections from 50 years ago.
I have had many occasions to express my strong belief that there is no constitutional support whatever for this Court to use the Due Process Clause as though it provided a blank check to alter the meaning of the Constitution as written so as to add to it substantive constitutional changes which a majority of the Court at any given time believes are needed to meet present-day problems. Nor is there in my opinion any more constitutional support for this Court to use the Equal Protection Clause, as it has today, to write into the Constitution its notions of what it thinks is good governmental policy.
The Court's justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be "shackled to the political theory of a particular era," and that to save the country from the original Constitution the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided. Moreover, when a "political theory" embodied in our Constitution becomes outdated, it seems to me that a majority of the nine members of this Court are not only without constitutional power but are far less qualified to choose a new constitutional political theory than the people of this country proceeding in the manner provided by Article V.
I hope Judge Roberts will write such straightforward and principled opinions.
Posted in SCOTUS —
Posted at 8:26pm on Aug. 2, 2005 John Roberts on Privacy
By AndrewHyman
The National Archives has a bunch of Roberts materials, including an excellent draft article on judicial restraint from 1981 that Roberts apparently wrote. Here's a snippet:
All of us . . . heartily endorse a "right to privacy." That does not, however, mean that courts should discern such an abstraction in the Constitution. . . .
Of course, parts of the Constitution, such as the Fourth Amendment, do protect particular aspects of privacy. But there is no generalized right to privacy in the Constitution. The courts have imagined it's there, but it isn't. The reason it's not there is because it's ridiculous to suppose that every act that people do in private should be legal. Spousal abuse in the bedrooom, counterfeiting in the basement, and opium in the garden are not constitutionally protected, nor should they be. Roberts's essay on judicial restraint is a breath of fresh air, and I hope he stands by it, a quarter century later.
Hat Tip: How Appealing.
UPDATE: The full unedited quotation is this:
All of us, for example, may heartily endorse a ââ‚Å“right to privacy.ââ‚? That does not, however, mean that courts should discern such an abstraction in the Constitution, arbitrarily elevate it over other constitutional rights and powers by attaching the label ââ‚Å“fundamental,ââ‚? and then resort to it as, in the words of one of Justice Blackââ‚â„¢s dissents, ââ‚Å“a loose, flexible, uncontrolled standard for holding laws unconstitutional.ââ‚?
I've put the word "and" in bold italics for emphasis. One of our commenters points out that it gives the sentence a different meaning than if the word "or" had been used.
When people discuss the right to privacy, they often refer back to Justice Brandeis's dissenting opinion in Olmstead v. United States. The question in that case was whether or not wiretaps amount to a "search" within the meaning of the Fourth Amendment. Here's some of what Brandeis said:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
It seems clear to me that Brandeis was simply saying that a search by any other means is still a search. He was referring to intrusions upon privacy that are for the purpose of ascertaining facts. It's by no means clear that he was advocating a generalized, judicially enforceable right of privacy outside the fact-gathering context. It's noteworthy that Justice Holmes also had a dissent in that Olmstead case, in which he spoke of "penumbras" of the Fourth and Fifth Amendments. I don't think that the "penumbras" Holmes and/or Brandeis had in mind in that case extended beyond situations where the government is in a fact-gathering mode. In other words, they were not trying to promote a generalized right of privacy.
Posted in News —
Posted at 5:02pm on Aug. 2, 2005 Lieberman's List of 3
By Marshall Manson
An e-mailer asks if we have heard any reports of Senator Lieberman having a list of 3 acceptable names which he gave to the President. Apparently, Sean Hannity said on his show today that Roberts was one of the three acceptable names.
Perhaps others can comment, but I can only say that in my various talks with people in the Senate and from the White House, I haven't heard any mention of such a list. I can, however, say that Judge Roberts was on the short list of possible SCOTUS nominees for a long time -- long before the Gang of 14 was in the picture. So, in response to concerns that Lieberman and others somehow dictated the President's choice, I would say that's not at all what happened. I would also reiterate that everything we've seen points to the conclusion that with Judge Roberts, President Bush kept his promise to nominate a Justice who will put the Constitution first, not legislate from the bench.
Posted in News —
Posted at 3:09pm on Aug. 2, 2005 Welcome to a New Blogger: Carol Platt Liebau
By AndrewHyman
Weââ‚â„¢re glad to say hello to Carol Platt Liebau, who is joining us as a confirmthem blogger. Carolââ‚â„¢s bio is here. Sheââ‚â„¢s a political analyst and commentator based in San Marino, near Los Angeles. She has provided analysis and commentary on national television for PBS, CNN, the Fox News Channel, and MSNBC, and has appeared locally on the Orange County News Channel and Cox Cable. However, we are assured that Carol will reserve her best commentary for us here at confirmthem. :-)
Weââ‚â„¢ve already quoted some of Carolââ‚â„¢s work here. And, weââ‚â„¢ll look forward to reading much more.
Posted in News —
Posted at 11:14am on Aug. 2, 2005 Bashman and Dumb-Asses
By AndrewHyman
Howard Bashman over at How Appealing has a big collection of Tuesday articles and opinion pieces regarding the Roberts nomination. Also, at some point today, Bashman will reveal the results of a contest which I neglected to announce here over the weekend; the contest was to see who could come up with the most "dumb-ass" question for Senators to ask John Roberts. The results of that contest should be interesting. Note that Senator Hatch once criticized Senator Schumer for previously asking some dumb-ass questions of Roberts, at his hearing to be an appeals court judge.
Posted in News —
Posted at 10:44pm on Aug. 1, 2005 No Litmus Test at Bush's End
By AndrewHyman
Knight Ridder reports:
Bush said he deliberately avoided discussing Roe v. Wade, the 1973 ruling that legalized abortion nationwide, with Roberts before selecting him for a spot on the nation's highest court. The president said he was concerned that if Roberts expressed an opinion, he would have to withdraw from any case challenging the landmark decision. "I said there is no litmus test, and I meant it," Bush said.
Hat Tip: How Appealing.
Posted in News —
Posted at 2:42pm on Aug. 1, 2005 Kmiec: Roberts <strike>Unlikely</strike> Slow to Overturn 5-4 Casey Decision
By AndrewHyman
Bloomberg says:
Some legal scholars question whether Roberts would go so far as to overturn Casey or the landmark 1973 Roe v. Wade abortion decision. Kmiec says he's convinced Roberts ââ‚Å“would be one of the last votes to say overturning was the acceptable course.ââ‚? Roberts testified in 2003 that Roe was ââ‚Å“settled law'ââ‚? and that, at least as an appellate judge, he would abide by it.
In contrast to that Bloomberg report, Attorney General Gonzales has said this:
If youââ‚â„¢re asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because youââ‚â„¢re bound by the precedent. . . . If youââ‚â„¢re a Supreme Court justice, thatââ‚â„¢s a different question because a Supreme Court justice is not obliged to follow precedent if you believe itââ‚â„¢s wrong.
I wonder if Professor Kmiec is being quoted out of context. It's worth keeping in mind that 72% of women in the United States believe that abortion should generally be illegal months before viability, and also worth keeing in mind that even liberal scholars have denounced the rationale in the Supreme Court's abortion cases.
I've sent the following email to the author of the news article that quoted Kmiec:
Date: Mon, 1 Aug 2005 11:14:13 -0700 (PDT)
From: "ANDREW HYMAN"
Subject: Your Bloomberg Article
To: "GREG STOHR"
To Greg Stohr:
Hi, I'm writing with regard to your article of earlier
today titled, "Roberts Debate Focuses on Respect for
U.S. High Court Precedent." You wrote:
"Some legal scholars question whether Roberts would go
so far as to overturn Casey or the landmark 1973 Roe
v. Wade abortion decision. Kmiec says heââ‚â„¢s convinced
Roberts 'would be one of the last votes to say
overturning was the acceptable course.' Roberts
testified in 2003 that Roe was 'settled law' and that,
at least as an appellate judge, he would abide by it."
I find it really surprising that Dean Kmiec would have
said this. Was he really talking about Roe and Casey
as you have indicated, or was he just talking in
general terms? Please note that I am blogging about
this at http://www.confirmthem.com/?p=962.
I look forward to any clarification you can provide.
Thank you.
Sincerely,
Andrew Hyman
UPDATE: Mr. Stohr kindly responded:
Subject: Re: Your Bloomberg Article
He was talking specifically about Roe/Casey with that comment, although I think he would say the same thing about precedent in general. His basic point was that Roberts' approach would be to look hard for some other way to resolve the case short of overturning a precedent. He also said he was skeptical the court would actually be presented with a case that forced it to decide whether to overturn Roe/Casey. One qualifier in case I wasn't clear: Kmiec wasn't saying Roberts wouldn't overturn Stenberg v. Carhart -- he agrees that that decision is easier to overturn than Roe or Casey. Greg
So, apparently, Kmiec meant that Roberts would be slow to say overturning was the acceptable course. Indeed, such a decision should be made slowly, carefully, and after exploring all other alternatives. I've adjusted the title of this post to reflect the email exchange (by switching the word "unlikely" to "slow").
Posted in News —
Posted at 12:12pm on Aug. 1, 2005 Does the ACLU know something that the rest of us don't?
By feddie
The ACLU issued the following press release today. Here are the relevant excerpts:
ACLU Wishes Rehnquist Well; Expresses Concern About Court Moving Further to the Right
WASHINGTON -- The American Civil Liberties Union today wished retiring Chief Justice Rehnquist well in his battle with cancer, but warned that the Bush administration was now in a position to reshape the Supreme Court for the next generation.
"Though we disagreed with the Chief Justice on many issues, we wish him all the best," said Steven R. Shapiro, the ACLU's National Legal Director. "With two vacancies to fill on a closely divided Supreme Court, the stakes could not be higher."
. . . .
While the Court he leaves is undoubtedly more conservative than the Court he joined, Rehnquist was ultimately unable to persuade the Court to overrule Roe v. Wade, reject affirmative action, or permit the official government endorsement of religion. Those battles will not end with his retirement. Instead, they will have to be fought and won again.
Update: It looks as though the ACLU has taken the press release down. I'll be uploading a copy of it shortly either here or at Southern Appeal. Stay tuned.
Update II: Here is a pdf copy of the press release:
Update III: Yes, I am well aware that the press release date is "August 1, 2007. " It was originally "August 1, 2005," and I have an email with the text of the release using today's date. My guess is that the ALCU changed the date shortly after it discovered that the content of the press release had been made public.
In any event, the question remains: Why is the ACLU issuing a press release like this on its website?
Update IV: Howard Bashman--who I just discovered beat me to the punch on this story--notes that the ACLU is claiming that the availability of the press release on its website was due to a technical glitch.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 4:23pm on Jul. 31, 2005 Dodd Hallucinates
By AndrewHyman
I know that the title of this post is perhaps --- shall we say --- inflammatory. But read on, and decide for yourself whether or not it's accurate. Here's what Dodd said today on Fox News Sunday about John Roberts and about the "Privacy Clause" of the Constitution:
I think heââ‚â„¢s probably a pretty good choice. Iââ‚â„¢ve been reading the newspaper articles about him. Heââ‚â„¢s a conservative choice but one that has a distinguished legal record, an academic record, certainly qualified on all of those grounds to be on the Supreme Court.
The open-ended question for us clearly is what are his views about some of the basic values, the equal protection clause, the PRIVACY CLAUSE of the Constitution. These are things that members of the Congress through their -- and their representatives want to know about during the confirmation process.
It's swell that Dodd seems to be acknowledging the sterling qualifications of the nominee. But he's also requiring the nominee's views about something that Dodd calls the "Privacy Clause." But I challenge anyone to go take a look at the Constitution and show me where this mythical "Privacy Clause" is located. I have never, until today, heard anyone on Earth refer to the "So-and-so Clause" of any written law, without the word "so-and-so" actually existing in the text of that law.
Obviously, some clauses of the Constitution do protect certain aspects of privacy. It's especially ironic that Dodd fantasizes about a general "Privacy Clause" and in the very same fantasizing sentence uses the term "open-ended." It's precisely because a "Privacy Clause" would have been so open-ended that it was never inserted into our Constitution; it would have shifted immense and unbounded power from the people's elected representatives to an unelected and unaccountable judiciary. Instead, the Constitution carefully protects certain aspects of privacy.
Senator Dodd should know better, and he probably does.
UPDATE: It occurs to me that the Necessary and Proper Clause used to be referred to as the "Sweeping Clause." However, everyone knew which phrase in the Constitution was being referred to. I have no idea which phrase Dodd is referring to when he speaks of the "Privacy Clause." Maybe he means the Fourth Amendment. Maybe he means the Fifth or the Fourteenth. Maybe he means the Ninth. I have no idea. It appears from searching the Lexis/Nexis database that no Supreme Court opinion or Court of Appeals Opinion (including concurring and dissenting opinions) has ever once mentioned a "Privacy Clause" in the U.S. Constitution. Dodd is hallucinating.
Posted in News —
Posted at 12:22am on Jul. 31, 2005 How to Grill a SCOTUS Nominee
By AndrewHyman
At National Review Online, Andrew McCarthy says it's okay to ask nominees about controversial Supreme Court cases, but Mark Levin says it's not okay. However, they both agree that Justice Ginsburg was not properly grilled.
This same issue was addressed in an interesting speech given in 2003 by Danny Boggs, Chief Judge of the 6th Circuit, and a potential SCOTUS nominee (he's listed at the right-hand-side of the confirmthem home page). His speech also includes some very funny remarks about Theodore Roosevelt, and a funny poem at the end of his speech --- check it out. For further insights about how to grill a nominee, the Republican Policy Committee has this handy grilling guide.
Posted in News —
Posted at 3:36pm on Jul. 30, 2005 Boxer and Cantwell Seek Control over Judicial Branch
By AndrewHyman
Senators Boxer and Cantwell say that Judge Roberts must not only disclose how he would have voted in the 5-4 Casey decision in 1992 (modifying but not overturning Roe v. Wade), but additionally Roberts must also support that decision in order to get their votes.
Previously, Boxer threatened a filibuster if Roberts refuses to oblige regarding this issue. Likewise, Senator Durbin also threatened a filibuster if Judge Roberts disagrees with Durbin about another case.
The issue should be whether or not Roberts has the skills and the integrity to apply the law as written, with impartiality, honesty, and intelligence. Apparently, these Senators don't know how to assess those qualities, and instead want to dictate how nominees must vote in cases that will come before them.
Posted in News —
Posted at 2:43pm on Jul. 30, 2005 Some Saturday Roberts Stuff
By AndrewHyman
Yesterday, the White House formally nominated Roberts.
Carol Platt Liebau has an intriguing piece in the American Spectator; she says it may be a good thing that Roberts has been an inside-the-beltway type for so many years:
John Roberts comes from inside the Beltway. Certainly, for conservatives, the term is often one of opprobrium, but it may be time for them to rethink their storied aversion to the phrase, at least when the stakes involve a lifetime seat on the Supreme Court. Paradoxically, the fact that Judge Roberts is a long-time Washingtonian suggests that he may be immune to the forces that have prompted post-nomination conversions to Beltway thinking by other supposedly "conservative" justices in the past.
On the current Supreme Court, the most reliable conservative votes are those of Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Clarence Thomas. Is it a coincidence that all three, like John Roberts, had substantial Washington experience before being named to the Supreme Court?
â₦.
His extensive Washington experience may help immunize Roberts to the blandishments of the Beltway establishment. Unlike Justices O'Connor, Kennedy or Souter, Roberts won't be embarking on a new life in a strange city, a place with unique rules, rhythms and customs.
Meanwhile, some Democrats are concerned by Roberts's close connection to Toyota (just kidding).
Regarding document requests, eight Senate Democrats have asked for tons more stuff, but the Judiciary Committee has not yet made such a request. Patterico takes a good hard look at whether some of those documents are covered by attorney-client privilege, and concludes that they are (Marshall Manson also wrote about this subject here at confirmthem). Steven Calabresi --- one of the founders of the sinister Federalist Society --- suggests in the Weekly Standard that the Democrats are on a fishing expedition:
Evaluation of whether Schumer is or is not on a fishing expedition is impossible given the public record as it stands now. Accordingly, Senate Republicans and the administration should call on Senator Schumer to immediately release and make public all conversations and emails between the senator and his staff, between Schumer staffers and outside left-wing advocacy groups, and between Schumer staffers themselves relating to the Roberts nomination. Schumer should also be required to release phone records of all telephone and cell phone calls that were placed between his office and outside advocacy groups since the Roberts nomination.
I agree with Calabresi, and if Schumer doesn't turn over this material, then it may unfortunately be necessary to consider expulsion proceedings (not expelling Schumer from the Senate, but New York from the nation). :-)
Posted in News —
Posted at 2:59pm on Jul. 29, 2005 Committee Schedule Set
By Marshall Manson
AP reports that the Judiciary Committee hearing on Roberts' nomination has been set to begin on September 6. Formal announcement later today.
Sources in the Senate have told me previously to expect that the hearing will last 4 days. The first two days will likely be dedicated to Senators' opening statements and questioning of the nominee. During the third day, the committee will go into closed session to consider the FBI's findings. (It's important to stress that the closed session is common, standard practice. It does not imply that the FBI found any problems. The Committee simply isn't allowed to discuss the contents of the FBI report in public. And I hope that the Democrats have learned their lesson and will not follow Harry's Reid lead in revealing the information -- all of which is uncorroborated -- in public.) The fourth day will probably consist of testimony from panels of outside witnesses from the ABA and other groups.
AP further informs that the Committee vote on Roberts' nomination should occur on September 15.
If all goes as planned, the full Senate should vote and confirm Roberts in time for him to take his seat on the Court on October 2.
UPDATE: Reuters now reports that the agreement to begin the hearing on September 6 has fallen apart. No great surprise. The Dems are famous for making agreements to move forward with confirmation business and then breaking their word (see eg: Bolton, John).
UPDATE II: Specter officially announced on Friday evening that the hearings would, indeed, begin on September 6. (Here's the AP story.) All of the other scheduling info I've posted above remains on target.
Posted in News —
Posted at 1:02pm on Jul. 29, 2005 Savagely Misleading Analysis in the L.A. Times
By Marshall Manson
This morning's L.A. Times includes a "news analysis" by David Savage which asserts that the attorney-client and attorney work product privileges may not apply to Judge Roberts' work product from his days at the Solicitor General's office as a result of "a legal ruling won by [Kenneth] Starr himself, when he was independent counsel investigating President Clinton."
Unfortunately, Savage's argument is demonstrably false and appears to be deliberately misleading.
As Reid Cox, the General Counsel here at the Center for Individual Freedom explains in a letter he has just submitted to the Times,
To support his story, Savage cites ââ‚Å“a legal ruling won by [Independent Counsel Kenneth W.] Starr,ââ‚? which ââ‚Å“held that government lawyers did not have the same right to keep secrets as private attorneys did.ââ‚?
Nothing could be further from the legal truth.
In that case, the appeals court only ruled that federal government attorneys ââ‚Å“may not use the privilege to withhold potentially relevant information from a federal grand jury,ââ‚? explaining ââ‚Å“[w]e need not decide whether a governmental attorney-client privilege exists in other contexts.ââ‚? Indeed, the court specifically noted later that ââ‚Å“we believe the criminal context â₦ presents a rather different issue.ââ‚? But Savage doesnââ‚â„¢t quote these passages. Instead, he omits language limiting the decision to ââ‚Å“criminal proceedingsââ‚? from the quote he does use.
Let's be very clear about this: Savage cites a legal decision and makes it appear as though it is favorable to his position. But it is, very simply, not. Indeed, the court goes to great lengths to make it clear that its decision applies only to instances of alleged criminal wrongdoing.
Patterico is also all over Savage's comedy of errors with a much more detailed rebuttal.
I am resisting the temptation to let my rhetoric get carried away about this. It would be easy to say that this looks a lot like Dan Rather's willfull neglect of the facts last year. I'm not sure yet. But at a minimum, the Times and Savage owe their readers a correction and, even better, an explanation.
Posted in News —
Posted at 3:49pm on Jul. 28, 2005 Here's how you can help Judge Roberts
By Marshall Manson
In the last week, I have heard from top Senate staffers and representatives of the White House that the most critical thing organizations and individuals -- especially attorneys, law professors, organizations, and local leaders -- can do to help with Judge Robertsââ‚â„¢ nomination is to send letters expressing support for Judge Roberts to the Senate Judiciary Committee.
If the past is any indication, groups on the Left will inundate the Committee with letters opposing Judge Roberts or raising questions about his record. And at some point during the hearing, we can count on Leahy or Schumer or Durbin whining that they have hundreds or thousands of letters from lawyers, academics, organizations, and individual Americans expressing concerns about Judge Robertsââ‚â„¢ nomination.
Itââ‚â„¢s critical that Chairman Specter, Senator Hatch and others be able to respond in kind, announcing that they, too, have a huge pile of letters, pronouncing support and raving about Judge Robertsââ‚â„¢ qualifications and brilliance.
I have posted information about where to send your letter of support over at the Center for Individual Freedomââ‚â„¢s website. Please check out the page, craft a letter and get it in. I also suggest that you try and get your letter to the Committee within the next two weeks.
Posted in SCOTUS —
Posted at 3:21pm on Jul. 28, 2005 Hyde Slams Anti-Catholicism as McConnell Fights MSM
By AndrewHyman
Illinois Congressman Henry Hyde sent a very good letter today to Senator Durbin emphasizing that evaluating a nominee's religious beliefs is completely inappropriate, and unconstitutional as well.
Meanwhile, Senator McConnell took to the Senate floor today, in order to address some bogus assertions in today's leading so-called newspapers, which wrongly reported that Judge Roberts has endorsed stripping the courts of jurisdiction over volatile social issues.
The New York Times writes this morning that "Mr. Roberts consistently argued that courts should be stripped of authority of abortion, busing, school prayer and other matters."
The Washington Post, yesterday: "Roberts presented a defense of bills in Congress that would have stripped the Supreme Court of jurisdiction over abortion, busing and school prayer cases."
The Boston Globe: "One memo suggested that [Roberts] supported proposals in Congress to strip the federal courts of jurisdiction over abortion, busing and school prayer cases."
McConnell points out that those newspapers are all wrong, as compared to this correct info from Associated Press:
The Associated Press reported yesterday that in 1985 "[A]s a lawyer in the Reagan White House, John Roberts wrote that Congress had authority to strip the Supreme Court of jurisdiction over cases involving school prayer and similar issues, but he added that 'such bills were bad policy and should be opposed'."
The Times, the Post, and the Globe really need to get their acts together.
Hat Tip: Katie Harbath.
UPDATE: More info and links about Senator Durbin's disgraceful treatment of the nominee's religion can be found here.
Posted in News —
Posted at 10:48am on Jul. 28, 2005 Oodles of Articles on Roberts
By AndrewHyman
Howard Bashman provides a large sampling of today's torrent of Roberts news. But be careful. Take your blood pressure medication before reading about Senator Leahy's recent comments saying that a right to rip apart an unborn child is just as fundamental as the right to racial equality.
Posted in News —
Posted at 8:35pm on Jul. 27, 2005 "Federalist forever!"
By feddie
Amen, brother!
BTW, I confess to being one of the "conservatives [who] spoke angrily yesterday [during a feddie leadership conference call] about the White House's decision to disassociate Roberts from the [Federalist Society]."
Posted in SCOTUS —
Posted at 2:42pm on Jul. 27, 2005 Dellinger's Weather Vane Imitation
By Marshall Manson
In a column in todayââ‚â„¢s Washington Post, former Solicitor General Walter Dellinger (who served under President Clinton) does his best impression of a weather vane, swinging at the direction of the hot air blowing from liberal interest groups.
In 2002, Dellinger signed a letter, along with all of the other living former Solicitors General, urging Senate Democrats to drop their request for the internal work product created by Miguel Estrada, whose nomination to the D.C. Circuit the Judiciary Committee was then considering.
In the letter, Dellinger said:
The Solicitor General has the responsibility of representing the interests not just of the Justice Department, nor just the Executive Branch, but of the entire federal government, including Congress.
It goes without saying that, when we made these and other critical decisions, we relied on frank, honest, and thorough advice from our staff attorneys. â₦ Attorneys inevitably will hesitate before giving their honest, independent analysis if their opinions are not safeguarded from future disclosure. High-level decision making requires candor, and candor in turn requires confidentiality.
Any attempt to intrude into the Officeââ‚â„¢s highly privileged deliberations would come at the cost of the Solicitor Generalââ‚â„¢s ability to defend vigorously the United Statesââ‚â„¢ litigation interests -- a cost that also would be borne by Congress itself. [Emphasis mine.]
Today, echoing anti-Roberts interest groups on the Left, Dellinger implies that Robertsââ‚â„¢ work product from the Solicitor Generalââ‚â„¢s office should be released, a request that the White House has properly rejected. But in making his case, Dellinger recognizes that his 2002 letter illustrates his weather vane-like change of heart, so heââ‚â„¢s inserted this:
Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn't any federal judgeship but the Supreme Court itself.
Paul Mirengoff over at Power Line isnââ‚â„¢t buying it and succinctly disassembles Dellingerââ‚â„¢s attempt to justify the Leftââ‚â„¢s document-focused wild goose chase:
Dellinger argues that Roberts is different because (a) he was appointed to his government lawyer job and (b) he is a Supreme Court nominee. The first point strikes me as a distinction without a difference. The solicitor general needs as much candor from lawyers appointed by the president as he does from career civil servants. The second point is just another way of saying that this nomination means too damn much to let principle govern its treatment.
I would go even further.
As a non-lawyer, itââ‚â„¢s often hard to translate sticky questions of legal ethics and confidentiality out of legalese. This is not one of those times. (Though I beg the many attorneys who read this forum to correct me when I inevitably go astray in my effort to explain their world.) Our justice system relies on an adversarial system where lawyers make their cases in court. And the Solicitor General and his staff are responsible for representing the government of the United States before the highest court in the land. Forcing the confidential deliberations and discussions of the governmentââ‚â„¢s top litigator into the public domain wouldnââ‚â„¢t just be a disservice to Judge Roberts. It would be a breach of the responsibility that the attorneys in the S.G.ââ‚â„¢s office have to their client -- the government of the United States and the American people who constituted it.
Some in the Senate are urging the White House to say, effectively, ââ‚Å“Itââ‚â„¢s okay. Go ahead and let the governmentââ‚â„¢s lawyers breach that responsibility. Weââ‚â„¢re part of the government, and we think itââ‚â„¢s a fabulous idea.ââ‚?
That point of view couldnââ‚â„¢t be more shortsighted, and it reveals, yet again, the real political, obstructionist motive that underlies the request. If the White House were to allow the S.G. documents to be released, a precedent would be set, and sometime in the future, when the practical effect of the disclosure is much more significant, the request will be made again.
I, for one, am glad that the White House is willing to stand on principle and protect the legal interests of the American people, not just for today, but in the future as well.
Meanwhile, the Democrats, especially Senators Leahy and Schumer, who are both attorneys, ought to know better than to make the request in the first place. The fact that they have done so anyway demonstrates, yet again, that when it comes to their crusade to block judicial nominees, they really are without shame.
UPDATE: Ed Whelan, who is both a lawyer and a much better writer than I am, has a post over at Bench Memos politely destroying Dellinger's argument from today's op/ed. Read the whole thing.
UPDATE II: This piece is now cross-posted over at the Center for Individual Freedom's Supreme Court Confirmation Watch page.
UPDATE III: Viet Dinh, a former Assistant Attorney General for President Bush, has an outstanding op/ed in USA Today arguing that "candor needs privacy."
Posted in SCOTUS —
Posted at 2:17pm on Jul. 27, 2005 Roberts Hearing to Begin August 29
By AndrewHyman
The Washington Post is reporting this statement by Senator Specter:
I talked to Senator Leahy yesterday repeatedly and posed the question: Is it realistic to get a commitment that we will vote on Judge Roberts by September 29th? And absent that commitment, it seems to me that we have to start in August on August 29th.
Generally speaking, it seems that most Democrats favor asking the nominee lots of detailed questions, whereas Republicans seem somewhat divided about the proper questioning strategy. The Republican Policy Committee is out with a new report on the proper scope of questioning. The RPC report will also be linked over at the right-hand-side of the confirmthem page, under "documents."
Posted in News —
Posted at 10:41am on Jul. 27, 2005 The Left's Religous Test...
By Marshall Manson
The New York Sun has a must-read editorial today shredding Sen. Durbin over his questioning of Judge Roberts' religious beliefs.
The Sun rightly observes:
Interrogating a nominee in respect of his religious beliefs is not only grossly inappropriate. It's unconstitutional. In Article 6, the Constitution provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." No, ever, any. It's the most emphatic single sentence in the entire Constitution.
Unfortunately, Senator Durbin and others on the Left have made it all too clear that they are willing to consider a nominee's religious beliefs disqualifying if those beliefs happen to conflict with the liberalââ‚â„¢s agenda. Consider:
Mr. Durbin and his Democratic colleagues, moreover, have a track record in this regard. Two years ago, they launched a filibuster against Judge William Pryor because of Judge Pryor's "deeply held personal beliefs" regarding abortion. In other words, it was Judge Pryor's Catholicism that disqualified him. Before the confirmation of Attorney General Ashcroft, Senator Reid announced, "I think that we have a right to look at John Ashcroft's religion."
But Durbin's fault goes beyond his willingness to reject the Constitution, common sense and basic decency by considering religious beliefs to be disqualifying. It's Durbin's willingness to throw off any pretense of honesty or candor and instead embrace a callous disregard for the truth or even his own word that makes him so annoying and politically dangerous. As the Sun reports:
Mr. Durbin insisted to reporters last week that he wasn't interested in applying a "litmus test" to judicial nominees. The senator told Judge Roberts, "If you will be honest and forthcoming, you're going to find a warm reception from our side of the aisle, even if we disagree with you on any given issue." But two days later, Mr. Durbin went on NBC's "Meet the Press" to say that if Judge Roberts did not find an implied right to privacy in the Constitution, on which the right to abortion is based, "It would disqualify him in my mind."
As the first of August draws nearer, and the long month begins between the nomination and the hearings, itââ‚â„¢s critical that Americans understand that everything they hear from Durbin and his friends on the Left is crafted with one goal: obstruct John Robertsââ‚â„¢ confirmation.
They will continue to impugn his religious beliefs. They will try to sow discontent among conservatives by embracing what they claim to be his ideology on hot-button issues. They will pass misinformation to the press. They will continue to demand documents to which they have no legitimate claim. And their requests will occasionally sound reasonable. But at no time will any of their pronouncements be guided by anything other than their quest for obstruction. Honesty, consistency, philosophy and principle play no part.
Donââ‚â„¢t believe it? Just look at Dick Durbin.
Posted in SCOTUS —
Posted at 1:02am on Jul. 27, 2005 White House Protects SG Documents
By AndrewHyman
Bloomberg reports about the administration's laudable efforts to preserve confidentiality in the Solicitor General's Office:
The White House won't waive any attorney-client privilege for the time Roberts served as deputy solicitor general under Solicitor General Kenneth Starr, McClellan said. ``We have a responsibility not only to preserve the attorney-client privilege for this administration but also for future administrations,'' he said. Releasing such records ``would stifle the candid, honest and thorough advice that solicitor generals depend on.''
â₦.
Senator Russell Feingold, a Wisconsin Democrat on the committee, said, "given how little we know about the nominee there is a particularly big need to get as much as possible." The issue of the memos Roberts wrote as deputy solicitor general is "the hardest question. I know there are arguments on both sides,'' he said.
Meanwhile, Attorney General Gonzales was on The News Hour with Jim Lehrer, emphasizing that the White House will be providing more than 75,000 pages of documents from Robertsââ‚â„¢s work in the executive branch:
[T]here is an attorney-client privilege here that needs to be respected, and it's a privilege that has been found to be worthy of protection by our courts. But, again, I want to focus on what we are going to be providing. The government is going to be providing, as I said, over 75,000 pages of documents from his work, from John Roberts' work in the White House and in the Department of Justice.
And I'm -- I feel very confident that that information should be sufficient for the members of the Senate to make an informed decision about John Roberts' qualifications.
Patrick Frey (a.k.a. Patterico) and William Dyer (a.k.a. Beldar) have some interesting thoughts about whether or not an attorney-client privilege really exists for documents from the Solicitor General's Office (they say "yes"). Also, a few years ago, the seven then-living former Solicitors General wrote this letter opposing document requests. Keep in mind, by the way, that presidents going back to George Washington have been refusing document requests not just from Senate minorities, but from Senate majorities.
Posted in News —
Posted at 9:08pm on Jul. 26, 2005 What is the Federalist Society?"
By feddie
An interesting and fairly-balanced video report by CNN on the organization I love so dearly.*
Those of you closely following the Roberts nomination will certainly want to watch it.
*Click on the "More politics video" tab, and then click on "What is the Federalist Society?"
Posted in SCOTUS —
Posted at 6:47pm on Jul. 26, 2005 A.G. Gonzales Discusses Roberts and Roe
By AndrewHyman
In a previous post, I mentioned a statement by Senator Lott that seemed to indicate his belief that Judge Roberts would reaffirm Roe v. Wade if confirmed as a Supreme Court Justice. Now comes clarification from Attorney General Gonzales:
If confirmed to the Supreme Court, John Roberts would not be bound by his past statement that the 1973 decision legalizing abortion is settled law, Attorney General Alberto Gonzales said Tuesday.
Roberts testified before Congress in 2003 that he considers the Roe v. Wade decision "settled law." At the time, he had been nominated for the seat he now holds on the U.S. Court of Appeals for the District of Columbia Circuit. But Gonzales, in an interview with The Associated Press, said circumstances had changed. "If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent," Gonzales said.
"If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong," Gonzales said.
UPDATE: Incidentally, Massachusetts Governor Mitt Romney has a damn fine op/ed today in the Boston Globe.
Posted in News —
Posted at 11:54am on Jul. 26, 2005 Selective Judicial Philosophy
By Lorie Byrd
John Hinderaker reminds us of how those on the Left don't seem to mind precedents being overturned when it suits their political philosophy.
But here's what I really want to comment on: The Democrats say they need more time so they can "learn more about Judge Roberts' judicial philosophy, especially on whether he will defer to precedent or seek to undo modern American jurisprudence that many conservatives say has been wrongly settled." We hear this a lot; the Democrats worry that Roberts and other nominees might not adhere to the doctrine of stare decisis, which, in general, holds that courts should follow their own precedents rather than revisiting settled principles.
But the Democrats' loyalty to the principle of stare decisis is highly selective. In fact, most of the decisions most beloved by liberals have overturned precedents that held the opposite. For example, in Lawrence v. Texas, which in 2003 discovered for the first time a Constitutional right to homosexual sodomy, the Court expressly overruled its own decision in Bowers v. Hardwick, which was decided as recently as 1986. So as far as the Democrats are concerned, stare decisis applies only after the Court has made a liberal ruling. Liberal rulings are carved in stone, whereas "conservative" rulings--those that represent the traditional understanding of our Constitution and laws, as written--can and should be overturned freely.
(Cross-posted at Polipundit.)
Posted in SCOTUS —
Posted at 10:40am on Jul. 26, 2005
By feddie
What John Roberts should say to Senate dems who characterize his opinion in the now infamous "french fry" case as "extreme":
"I was just following Justice Souter's lead."
That's right, folks. Judge Roberts's opinion in Hedgepeth v. WMATA, 386 F.3d 1148 (D.C. Cir. 2004), is nothing more than a straightforward application of the Supreme Court's decision in Atwater v. City of Lago Vista, 532 U.S. 318 (2001), where the Court held that "[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Id. at 354.
And who pray tell wrote the majority opinion in Atwater? Why fringe conservative Justice David H. Souter did.
Yes, please do use this line of attack dear liberals. It's a sure-fire winner.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 10:39am on Jul. 26, 2005 The Toad and Judge Roberts
By Marshall Manson
It's obviously dangerous to read too much into a single ruling or opinion. But Alexander Schwab at the Center for Individual Freedom has an interesting and amusing piece about Judge Robert's opinion in the now-famous "hapless toad" case.
The case, as you are probably aware, was a challenge to a government decision made under the Endangered Species Act to block construction of a housing development because it might harm the Arroyo Southwestern Toad. In a dissent, Roberts argues that "a hapless toad that, for reasons of its own, lives its entire life in California" might not have a role in interstate commerce.
After poking fun at PFAW and other liberals for making more out of this case than they should, Schwab makes the critical point:
Environmentalism is not the issue; the Commerce Clause is. Through a near-boundless interpretation of ââ‚Å“interstate commerce,ââ‚? the Supreme Court has justified federal government encroachment in all aspects of American life. Special interests tout amphibian welfare, but their true concern is the restriction on government that stems from an honest reading of the Commerce Clause.
You can read the whole piece here.
Posted in SCOTUS —
Posted at 9:43am on Jul. 26, 2005 Bruce Fein on the Roberts Nomination
By AndrewHyman
Howard Bashman has collected links to a bunch of Tuesday morning Roberts articles, including this link to an op/ed by Bruce Fein in the Washington Times today, titled "Impeccable Choice." Fein has glowing words for Judge Roberts, and the whole op/ed is below, linked to the original.
"To ask what school of jurisprudence inspires Judge Roberts would be like asking Shakespeare what school of drama gave birth to his genius. He sports a trenchant and original legal mind, combining the profundity of Socrates, the wit of Alexander Pope and the statesmanship of Abraham Lincoln. He will be a Justice who lives for the ages, an appointment that should be recorded as one of President Bush's finest hours.
"Mr. Roberts is no political partisan. His loyalty is to the Constitution, simpliciter. His votes will be uninfluenced by whether they bring cheer to Republicans or Democrats, conservatives or liberals. As President Theodore Roosevelt voiced consternation over his acclaimed appointee Justice Oliver Wendell Holmes, President George W. Bush will assuredly prove equally dismayed over some votes of Justice Roberts. Presidents are preoccupied with results, not process, failing to recognize the history of liberty is a history of procedural protections and strict adherence to rules of the game.
"Unlike Justice Sandra Day O'Connor and several of her colleagues, Judge Roberts believes the Constitution delimits the power of judges every bit as much as it does Congress, the president and the states. Article III confines the Supreme Court to exercising "judicial power," i.e., the power to interpret the Constitution and laws according to the text and purpose of the Framers. That lodestar does not eliminate all interpretive ambiguities. Whether freedom of speech was intended to include encouragements of suicide bombers, for example, is not self-evident. But text and purpose sharply narrow the range of predictable and legitimate interpretations -- the essence of the rule of law within the judicial branch.
"Accordingly, nominee John Roberts balks at the proposition Supreme Court Justices, like God in Genesis, are omnipotent over the Constitution, a usurpation achieved through such extraconstitutional blather as "penumbras and emanations" or "evolving standards of decency that mark the progress of a maturing society." Chief Justice Earl Warren was notorious for asking advocates whether a practice under scrutiny was "fair." Associate Justice Roberts will confine himself to the less utopian domain of the Constitution, a restraint consistent with the Founding Fathers' assurance that the federal judiciary would be the "least dangerous branch."
"Limiting the Supreme Court to interpreting rather than improving the Constitution does not mean its architects thought the nation's birth certificate flawless. They saw and anticipated shortcomings. Thus, Article V provides for amendments by a two-thirds vote of Congress coupled with ratification by three-fourths of the states. The Bill of Rights, a virtual codicil to the Constitution, was passed by the very first Congress. No contemporary believed the first 10 amendments, despite their importance, could have been legitimately incorporated by inventive Supreme Court edicts.
"Justice Roberts can be expected to look askance at intellectually flabby Supreme Court precedents that beset abortion, the death penalty, racial preferences, congressional power under the Commerce Clause and section 5 of the Fourteenth Amendment, the establishment clause, campaign contribution and expenditure limitations, and unenumerated rights of privacy. But he should neither be asked by senators nor should he respond to questions about his judicial views on particular issues, a reticence that also characterized exchanges between the White House and Judge Roberts. Justice requires the appearance of justice. That appearance is stained if a Supreme Court nominee has prejudged an issue during confirmation hearings outside the customary adversarial process and with an incentive to abandon sound constitutional viewpoints to propitiate Senate detractors.
"In hindsight, nominee Robert H. Bork regretted answering a battery of case-specific questions posed by his Senate interrogators, including the current chairman of the Senate Judiciary Committee, Arlen Specter, Pennsylvania Republican.
"The Constitutional Convention rejected a proposal for the Supreme Court to advise on proposed laws before their enactment to avoid skewing the justices' views on the constitutionality of statutes they recommended or opposed.
"Justice Roberts will give statesmanlike deference to Supreme Court precedents to honor settled expectations and to avoid inconstancy in the law. He eschews a Robespierre-like zeal to remake the world. Deference, however, is not slavish obedience. As Justice Louis Brandeis advised, stare decisis should bow to the lessons of experience and superior reasoning, recognizing that trial and error has a proper role in the judicial function. The longevity of a precedent confers no shield against an overruling. The odious "separate but equal" doctrine of Plessy v. Ferguson (1896) was reversed 58 years later in Brown v. Board of Education (1954). The alarming holding in Olmstead v. United States (1928) that conversations are outside the protection of the Fourth Amendment was reversed 39 years later in Katz v. United States (1967).
"A delicate balance of prudential considerations is likely to inform Judge Roberts' inclination to overrule a precedent, including egregiousness of the constitutional error, its tendency to breed additional mischief and the opportunity of the political branches to correct the error by constitutional amendment.
"Where that leaves Roe v. Wade (1973) is indeterminate."
Me: I'll comment briefly about the virtual impossibility of correcting Roe v. Wade by constitutional amendment. That will be very unlikely to ever happen, as the past 32 years have shown. By ostensibly amending the Due Process Clause, the Bill of Rights would be altered for the first time in the history of the United States, and that fact alone would stigmatize such an effort from the start. Also, there would be widespread disagreement about whether to completely or partially overturn Roe v. Wade.
Two-thirds of both houses of congress, plus three-fourths of the state legislatures, would be needed in order to overcome the will of the five justices who voted in 1992 to perpetuate Roe v. Wade. If constitutional amendment is the only recourse, then five justices will continue to successfully force the American people to absorb their will and their laws, never exceeding what they can get away with, but always pressing for more.
Posted in News —
Posted at 12:59am on Jul. 26, 2005 Harold Daigle Jr. on the Purpose of Justices
By AndrewHyman
Mr. Daigle of Baton Rouge wrote this in a letter to USA Today:
When liberals want to use the courts for creative legislation, the Constitution is viewed as a living document, for example, creating the right to abortion. Once these rights are established, â₦ suddenly, the Constitution is rigid. The real purpose of a Supreme Court justice is to protect the Constitution, not interpret it and shape it to fit the current whim of modern pop culture.
Well said. Incidentally, congratulations to C. Boyden Gray of the Committee for Justice on his nomination to be ambassador to the European Union. But, no congratulations to the Fifth Circuit for reviving economic substantive due process in this case.
Posted in News —
Posted at 10:00pm on Jul. 25, 2005 Dear Ann Coulter and all other Roberts doubters
By feddie
If the following statements by Leonard Leo don't make you feel extremely secure with President Bush's nomination of John Roberts to the SCOTUS, then nothing will:
Leonard Leo, chairman of Catholic outreach for the Republican Party and someone who has known Roberts for 15 years, agrees.
Even though Roberts has never ruled on an abortion issue, Leo says Roberts opinions on other hot political topics show "a respect for the text and original meaning and a presumption of deference to the political branches of government."
That means Roberts is not likely to agree with the invented abortion right the court found in 1973, the thinking goes.
Leo also points to the Roberts' family's strong Catholic faith, his wife Jane Sullivan Roberts' longtime work with Feminists for Life, a top pro-life women's group, and he said the Roberts moved to a new church to follow the transfer of their priest -- known for his pro-life views and defending traditional Catholic teachings.
BTW, if you don't know who Leonard Leo is, then you ought to think long and hard about whether you have any business commenting on the Roberts nomination in the first place.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 8:53pm on Jul. 25, 2005 Legislating from the Bench
By AndrewHyman
The Supreme Courtââ‚â„¢s favorite method of legislating from the bench has been via the Due Process Clause. No Supreme Court Justice has ever expressed any doubt that "due process" was correctly explained by the Court in 1875 as follows:
Due process is process due according to the law of the land.
What the Court has done in the decades since 1875 has been to gradually dictate not just what the "law of the land" should be in the absence of pertinent statutes, but even what it should be despite pertinent statutes. This gradual creation of an all-powerful federal common law disregards the express language of the Constitution:
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representativesâ₦.This Constitution, and the Laws of the United States which shall be made in Pursuance thereofâ₦ shall be the supreme Law of the Land; and the Judges in every State shall be bound therebyâ₦.
If youââ‚â„¢d like more info about this abuse of the Due Process Clause, please see my article about it. I hope that Judge Roberts will address this issue at his hearing. We need judges who won't legislate from the bench, and who won't reiterate previous legislation from the bench.
Hat Tip: Vincent Flynn for the Englehart cartoon in the Hartford Courant.
Posted in SCOTUS —
Posted at 8:20pm on Jul. 25, 2005 Roberts Didn't Say What Turley Said He Said
By AndrewHyman
Reuters reports:
Cornyn said he asked Roberts about a column on Monday in The Los Angeles Times by Jonathan Turley, a law professor at George Washington University. It focused on a meeting the nominee had last week with assistant Senate Democratic leader Richard Durbin of Illinois. Turley wrote that two people who attended the meeting said Roberts was asked by Durbin what he would do if the law required a ruling that his church considered immoral. "Roberts ... answered after a long pause that he would probably have to recuse himself," Turley wrote. Durbin's office had no immediate comment, but later in the day a spokesman said the column was wrong.
Turley's wrongness is also elucidated here. However, I still haven't heard any explanations as to why Senator Lott believes Judge Roberts has committed to following Roe v. Wade.
Posted in News —
Posted at 8:11pm on Jul. 25, 2005 Tell Me Roberts Didn't Say This
By Ryan K
I hope these "sources" misheard Judge Roberts:
Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral...according to sources in the meeting, [Roberts] answered after a long pause that he would probably have to recuse himself. (link to L.A. Times article)
There has never been precedent that Justices recuse themselves because of their personal religious or atheist beliefs. Regardless, President Bush's staff did ask Judge Roberts if he was compelled to recuse himself from cases that touched upon Catholic doctrine or morals, didn't they?
Posted in Analysis and Predictions —
Posted at 1:27pm on Jul. 25, 2005 The Ginsburg Precedent
By AndrewHyman
I agree with folks at Bench Memos that there's no reason why Republican Senators on the Judiciary Committee shouldn't ask Judge Roberts about his views on privacy, stare decisis, substantive due process, and abortion. Obviously, Judge Roberts should not be required to answer, but Senators are fully entitled to vote for or against him if they find his silence meaningful. The idea that Justice Ginsburg did not discuss her views during her hearing is false. Here's part of what she said:
A woman's right to choose an abortion is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices.
Perhaps Justice Ginsburg also resents government control of a woman's decision to kill her born infant. In any event, would it be so awful to ask Judge Roberts if he agrees with that statement by Justice Ginsburg? The attitudes of recent Supreme Court justices have had an immense impact on all of our lives, so why not see what they have in store for us? CQ Weekly columnist Craig Crawford provides further details about Ginsburg's hearing:
[S]he clearly told senators she favored a right to abortion (and the Equal Rights Amendment). The right, she stressed, should be grounded in a constitutional right to privacy and in the 14th Amendment's "equal protection" clause. (For more, see "Ginsburg Hearings Provide Some Insight Into Judge's Ideals," Christian Science Monitor, July 26, 1993). Also, Breyer testified openly about his thinking on privacy rights. For more on that, see "Breyer Charts Moderate Course to High Court," The National Law Journal, July 25, 1994.
Judge Roberts should not get a free pass. If it turns out that he shares the apparent views of Senator Lott that I described earlier today, then Roberts shouldn't be confirmed, IMHO. This is not just about abortion, but rather is about whether any judicial legislation by past justices should still control us today.
UPDATE: NominationWatch has an excellent post on this subject.
Posted in News —
Posted at 12:44pm on Jul. 25, 2005 Questions about Questions
By Marshall Manson
This morning, Bob Novak focuses his column on the Ginsburg precedent. krempasky posted on this topic last week, but in view of all of the speculation about Judge Robertsââ‚â„¢ positions on particular policy issues, the points in Novakââ‚â„¢s column are worth underscoring.
Specifically, we all need to keep in mind that Judge Roberts shouldnââ‚â„¢t be asked or expected to speculate about how he might rule on some future case. Were he to do so, he would jeopardize his ability to participate in a case on that issue in the future. (Remember, Justice Scalia felt is necessary to recuse himself from the Pledge of Allegiance case only because he had expressed his opinion on the issue in a public forum before the case came before the Court.) And for all of us who care about specific issues -- whatever they may be -- that might come before the High Court, losing Robertsââ‚â„¢ critical vote because of our own selfish desire for a preview of his viewpoint would be absurdly self-defeating.
There is more than enough information to persuade conservatives that President Bush has kept his promise to name a Justice who will put the Constitution first. And if conservatives open the door, urging careful questioning of Robertsââ‚â„¢ on particular policy questions, we are only aiding the Leftââ‚â„¢s obstructionist efforts.
Posted in SCOTUS —
Posted at 8:23am on Jul. 25, 2005 <strong>LOTT: ROBERTS IS "BOUND BY" ROE V. WADE</strong>
By AndrewHyman
Senator Trent Lott has a very interesting and disturbing column today, including this:
He is a conservative who will interpret the Constitution as written, rather than making or formulating law according to his personal world view. . . . Judge Roberts has acknowledged that Roe v.Wade, the case which legalized abortion in the early 1970s, is the law. In keeping with his core conservative philosophy of interpreting the law as written, he is bound by it. That will surely lead to criticism from some on the right.
Yes, it certainly will. If Judge Roberts --- contrary to previous assurances --- shares the view apparently held by Senator Lott, then Judge Roberts should not be confirmed. 72% of women in the United States believe that abortion should generally be illegal months before viability. Senator Lott's message to those women is apparently this: screw you.
Professor Matt Franck has recently been discussing over at Bench Memos whether or not Roberts should answer detailed questions about Roe v. Wade and other matters during his confirmation hearing. Generally speaking, a nominee answers only the number of questions needed to secure committee approval. Up until now, that has usually meant answering few questions about specific cases. But, given Senator Lott's surprising announcement quoted above, I support lots of questions and answers on this subject at Roberts' hearing.
This is the kind of thing that Lott is asking us to accept:
"The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp." Stenberg v. Carhart, 530 U.S. 914, 1007 (2000) (Thomas, J., dissenting) (quoting a nurse) (citations omitted).
Is Judge Roberts going to side with his predecessor about this? After all, Justice O'Connor says that this type of horrific crime is protected by the Constitution, "in the event that contraception should fail." Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992). Or, will Judge Roberts side with Justice Kennedy, who opposes this barbaric crime, and instead wants the abortion to be performed on the exact same child in a more "humane" manner? If he sides with either of them, his nomination should be withdrawn.
Both Kennedy and O'Connor also say that somewhere between the lines of the United States Constitution is a requirement that after this horrific deed is done, a wife is never obligated to inform her law-abiding husband of what she has done. Perhaps Senator Lott or Judge Roberts can give us some clue as to why these holdings of Roe v. Wade and Planned Parenthood v. Casey and Stenberg v. Carhart should be any more immune from alteration than the holdings of Plessy v. Ferguson and Lochner v. New York and Bowers v. Hardwick.
Dr. Jerome Lejeune once explained some of the biological facts about fetal development:
At two months of age, the human being is less than one thumbââ‚â„¢s length from the head to the rump. He would fit at ease in a nutshell, but everything is there: hands, feet, head, organs, brain, all are in place. His heart has been beating for a month already . . . . With a good magnifier the fingerprints could be detected.
In states like California, if someone kicks a woman in order to kill the womanââ‚â„¢s unborn child against the womanââ‚â„¢s will, then that is considered ââ‚Å“murderââ‚? according to California law, provided the unborn child has progressed more than 8 weeks after conception. See People v. Davis, 7 Cal. 4th 797 (1994). At the 8-week mark, an ââ‚Å“embryoââ‚? becomes a ââ‚Å“fetus," and 45% of all abortions in the United States occur after that 8-week mark, totalling more than a half million fetal abortions per year.
Here's a quotation that seems like it might be marginally relevant to the operation of our government . . . . it's the first sentence of the Constitution:
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.
Do you see the words "Supreme Court" in there anywhere? And, here's another excerpt from the same document:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby....
Do Senator Lott or Judge Roberts seriously believe that laws legislated by the Supreme Court reign supreme over federal statutes? The Court's entire abortion jurisprudence rests on baloney, as the Court itself unanimously admitted in 1985:
The very least that should be asked of Judge Roberts is the question that should be asked of any nominee for the Supreme Court: "Will you ever interpret the Constitution in a way that is suggested neither by its language nor by preconstitutional history?"
I've put together a collection of quotations on this general subject here, in case anyone's interested. And, more info about the Court's new-fangled doctrine of super-stare decisis can be found here.
Posted in News —
Posted at 10:26pm on Jul. 24, 2005 Hillary to Support Roberts?
By Ryan K
Drudge claims Hillary Clinton has decided to support Judge Roberts. I'm not buying it just yet, primarily because I do not believe she has the 2008 nomination wrapped up. If she votes "yes", she'll continue to lose support from the important activist left who lead the 2008 nomination charge, especially after two years of Roberts' decisions hanging around her neck. Voting against Roberts is politically a safer bet for Hillary.
Posted in Analysis and Predictions —
Posted at 6:26pm on Jul. 24, 2005 Sunday Talk Show Surveillance
By AndrewHyman
Mark Kilmer had the talk shows staked out today. His full report is here. Mark observed Dick Durbin on Meet the Press:
Durbin asserted that "it would trouble me" if Roberts wanted to return the issue of abortion to the States, although he wanted the Court to do so as recently as 1983. We're all entitled to change our minds every 20 years, and Durbin says he did so for "freedom and privacy."
So, Roberts must conform to Durbin's periodic changes of mind. Mark also monitored Pat Leahy's discussion of document requests, on ABC's This Week:
Leahy declared that there was no attorney-client privilege involved, as Roberts worked for the American people, not for the White House.
Perhaps Leahy should file a Freedom of Information Act (FOIA) request, if the documents he wants should be available to the public. Mark also heard Dianne Feinstein appraise the Supreme Court nominee on Late Edition: he's a "very striking figure," she said. More details from Mark here.
UPDATE: Beldar has skewered Leahy regarding attorney-client privilege.
Posted in News —
Posted at 2:02am on Jul. 20, 2005 Dumb-Ass Questions
By AndrewHyman
Judge Roberts testified before the Senate Judiciary Committee twice in 2003, during January and April. Just for fun, check out the April 2003 hearing, and search for the word "dumb."
Today, Senator Charles Schumer (the senior Senator from New York) compiled an extensive list of questions that he would like Judge John Roberts to answer. The last question is really dumb: "Can you identify three Supreme Court cases that have not been reversed where you are critical of the Court's holding or reasoning and discuss the reasons for your criticism?" In other words, can you please telegraph your intentions and your biases about three cases that may come before you? What a dumb-ass question.
Hat Tip: How Appealing for recalling the April 2003 hearing.
Posted in News —
Posted at 1:43am on Jul. 20, 2005 "Controversial"
By Lorie Byrd
According to this Fox News account, Senator Dick Durbin has already labeled Judge Roberts as a "controversial" nominee. Dick ("Gitmo Gulag") Durbin is calling Judge John Roberts controversial? Do Democrats not see how absolutely ridiculous that charge is, especially coming from Durbin? I know it is early, but after hearing Chuck Schumer's statement and Dick Durbin's I have to ask if it is possible that Democrats have already made some serious mistakes in their reaction to this nomination?
(I posted additional reaction to the Roberts' nomination at Polipundit.com)
Posted in SCOTUS —
Posted at 12:44am on Jul. 20, 2005 <strong>Reasonable reactions by the legal left on the selection of Roberts</strong>:
By feddie
Many conservative blogs will, no doubt, be highlighting and linking to the nuclear meltdown taking place on the left side of the blogosphere over President Bush's selection of John Roberts to replace Justice O'Connor as an associate justice on the Supreme Court of the United States. Sorry, that's not for me. Instead, I'd rather praise the sensible reactions to the news of Roberts selection by my two favorite penumbra-loving bloggers, Publius of Legal Fiction and Scott over at L-cubed:
Well, to be perfectly frank, I don't know much about the guy. My initial reaction is that it could have been a lot worse. It's a case of preferring the "known unknown" to the known fire-breather. I have friends on the DC Circuit and they say he's sick brilliant and no-nonsense. And his legal credentials are impeccable. And most importantly, he doesn't seem to be a fire-breather or "true-believer" ideologue on either the religious or the "lost Constitution" front.
My take - (1) not that bad; (2) coulda been worse (a lot); (3) no justification for a filibuster. This is all subject to me learning more, but I think Bush did OK.
And here is Scott's take on the selection of Roberts:
I just finished listening to President Bush announce the nomination of Judge John G. Roberts, Jr. of the D.C. Circuit Court of Appeals for the position of Associate Justice of the Supreme Court of the United States. He was followed by off-the-cuff remarks by Judge Roberts himself. Then came the cautionary words of one of my legal idols, Professor Larry Tribe, and one of my most beloved teachers, Professor Jon Turley. I sat on my couch in front of my television, wondering what I thought about Judge Roberts, what I thought about the balance of the Supreme Court in general, and what I thought about a bunch of ancillary matters, like how the media screws everything up (um...Joy Clement was all but dining at the Old Ebbitt Grill according to the MSM).
Here's what I've concluded. And I'm going to put it out there and not say anything more for the rest of the confirmation process. I'm okay with Judge Roberts.
John Roberts is a white, reliably conservative, young man. None of those traits are what I would have picked were I the one replacing Justice O'Connor. But you know what? I'm not the President. President Bush won the majority of votes in the last election, so he gets to nominate candidates for the Court, and the Republicans, who won the majority of votes for the majority of seats in the Senate, get to confirm him. I may not like it, but I have to accept it, because that's the way the Framers drew it up. I may get a lot of crap from my liberal friends and family for taking this position, but you know what? It's our fault. Let's win some elections again, and then we would get to make the decisions.
In the meantime, because I've accepted the fact that Bush gets to nominate who he wants to the bench, I am faced with a choice. I can fight anyone he picks, out of the lingering bitterness I have over the fact that he won and I disagree with most everything he stands for, or I can hope for, and in turn support, a nominee who could have been a lot worse. I have chosen the latter. Bush could have nominated a moderate, minority candidate, who was conservative on some issues, but on record as not willing to overturn precedents that are important to me. Or he could have nominated a political hack who would vote the Republican party line in every case that came before him or her, no matter what the factual or procedural posture. People from both camps were floated as possibilities in the last few weeks.
Bush chose neither. Instead, he picked a reliable conservative, but he also picked a brilliant legal mind. He picked a white male, but he also picked one of the most outstanding attorneys of our generation. He picked a younger man with little judicial experience, but he also picked a congenial, well-respected member of the academic, legal and judicial communities. Maybe he's too smart, and thus too dangerous, and I will regret writing this for the next thirty or forty years if he is able to intellectually guide the Court to the right, crafting rock-solid legal opinions that will take generations to undo. But I hope not, and I expect not. What I expect is that I will disagree with Justice Roberts more than I agree with him. But I also expect that I will respect his opinions, and I will admire the clarity and consistency of the legal thought reflected in them. At the end of the day, if I can say with a clear conscience that he went through a solid judicial methodology, applying a consistent legal philosophy, and reached a result opposite of what I would have reached, I will sleep much more soundly than if I thought he picked a result based on religious or political beliefs and worked backwards to create a false passageway to that result. I presume Roberts will do the former.
This is not something particularly new from me. I have had numerous conversations with friends and colleagues about judges I like and dislike on the Supreme and lower courts, and I have always said that I can accept conservatives, as long as they are smart and consistent, and not outcome-determinative ideologues. Roberts, as far as I know, is not in the latter group.
. . . .
John Roberts is a conservative. But he also is an extremely well qualified nominee for the Supreme Court of the United States. I would guess that most Democrats will not take my position in the upcoming battle, but I wish Judge Roberts well over the rest of the summer.
Kudos to both of you gents. Well said.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 12:21am on Jul. 20, 2005 <strong>Scalia on Roberts</strong>
By feddie
For what it's worth: A few years ago, Justice Scalia said to a friend of mine that he and other Justices thought of John Roberts as far and away the best Supreme Court litigator in the country. I asked the friend why Justice Scalia said that, and (paraphrasing from my memory) the answer was something like this: "No matter how intense the questioning, Roberts is never flustered, and is always able to calmly answer any question whatsoever, while skillfully weaving in the substantive points that he wanted to make in the first place."
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 11:08pm on Jul. 19, 2005 Outing the Left
By carney
What I love about this nomination is that it will out the Left for what they really are, when it comes to these fights--singleminded extremists dedicated to preserving abortion-on-demand. Unless there is some very ugly skeleton in Roberts' closet, the Left will run out of excuses on which to attack him. But Schumer, Kennedy, and the like will have to attack him--their NARAL patrons wouldn't forgive them if they passed on Roberts. So the abortion issue will come to the fore, instead of lurking as the secret motivation for the Left.
Posted in SCOTUS —
Posted at 10:38pm on Jul. 19, 2005 Confirm Judge John Glover Roberts, Jr.
By AndrewHyman
Judge Roberts is a solid nominee who should be easily confirmed, and without need of any help from the blogosphere! He was approved 16-3 by the Senate Judiciary Committee in 2003 with the votes of Senators Grassley, Specter, Kyl, DeWine, Sessions, Graham, Craig, Chambliss, Cornyn, Hatch, Leahy, Biden, Kohl, Feinstein, Feingold, and Edwards. The only negative votes came from Senators Kennedy, Schumer, and Durbin.
Lots of information about Judge Roberts is linked at the upper right of the confirmthem home page. Congratulations to him, and to President Bush for making such an outstanding nomination.
Posted in News —
Posted at 10:36pm on Jul. 19, 2005 <strong>Hatch's direct questioning of Roberts at his SJC hearing</strong>
By feddie
Chairman HATCH. We will call this meeting to order again. I do not see any other Senators here at this time, so I will just start it off with you, Mr. Roberts. I want to ask a few questions of you, and then hopefully, if I have enough time, Justice Cook, I will ask a few of you as well.
We now have this timer, so our poor guy does not have to stand there with a little slip of paper. I felt sorry for him. It seems to me that both Mr. Roberts and Mr. Sutton are being criticized for positions they have taken as attorneys representing
clients. Now, this is patently unfair, and it is inappropriate because attorneys do represent clients, and they should not be judged by who our clients are. Any of us who have tried cases know that sometimes our clients may not be savory, but the case may be a good case, who knows?
Now, attorneys are required to represent their clients, and this is the case whether their client is the U.S. Government, a State Government, a private citizen or a corporation, and this fact is so fundamental that it should go beyond reproach. In any legal matter, the arguments a lawyer makes in the role of a zealous advocate on behalf of a client are no measure of how that lawyer would rule if he were handling the same matter as a neutral and detached judge, and I think it is very unfair to imply that the judgeship nominee would not follow the law. Now, this is because lawyers have an ethical obligation to make all reasonable arguments that will advance their clients interests. According to Rule 3.1 of the ABAââ‚â„¢s model rules of professional conduct, a lawyer may make any argument if, "there is a basis in law
and fact for doing so that is not frivolous, which includes a goodfaith argument for an extension, modification or reversal of existing
law."
Now, lawyers would violate their ethical duties to their client if they made only arguments with which they would agree were they the judge or a judge. Now, Mr. Roberts, although my Democratic colleagues are, and some in the Senate and elsewhere, have tried to paint you as an extremist, the truth is, is that you are a well-respected appellate lawyer, who has represented an extremely diverse group of clients before the courts. In fact, you have often represented clients and what is considered to be the so-called "liberal" position on issues.
I would just like to ask you about a few of these cases. In the case of Barry v. Little, you represented welfare recipients in the District of Columbia, right?
Mr. ROBERTS. That is correct, Mr. Chairman.
Chairman HATCH. You took this case on a pro bono basis; is that
correct?
Mr. ROBERTS. Yes.
Chairman HATCH. Pro bono means that you did not get paid for it.
Mr. ROBERTS. No, I did not.
Chairman HATCH. You voluntarily represented these people and gave services to them.
Mr. ROBERTS. Yes.
Chairman HATCH. Now, in another case, Hudson v. McMillian, you successfully argued before the Supreme Court the claims of a prison inmate who alleged cruel and unusual punishment, did you not?
Mr. ROBERTS. Yes. I was representing the United States in that case. We filed a brief supporting the prisonerââ‚â„¢s claim that his Eighth Amendment rights had been violated by a beating.
Chairman HATCH. In Rice v. Kayatama, you argued on behalf of a wise Democratic attorney general and Governor, both Democrats, in favor of a race-conscious program to benefit Native Hawaiians, right?
Mr. ROBERTS. Thatââ‚â„¢s correct, Mr. Chairman. It is one of several cases that I have found particularly gratifying, where Democratic State attorneys general have retained me to represent their State in the Supreme Court. That has happened on several other occasions as well, and a group of Democratic attorneys general, as well
as a couple of Republican attorneys general, retained me to argue the Microsoft antitrust case in the D.C. Circuit. I found that particularly gratifying because it indicated that they thought my abilities were such that I would be able to represent them effectively, and certainly wouldnââ‚â„¢t be dissuaded in any way by any political
considerations.
Chairman HATCH. Let us talk about the Tahoeââ‚“Sierra Preservation Council v. Tahoe Regional Planning Agency. In that case, you represented a State regulatory agency before the Supreme Court, arguing in favor of limits on property development and in support of protection of the Lake Tahoe area; is that correct?
Mr. ROBERTS. That is correct.
Chairman HATCH. Finally, in the 2001 landmark Microsoft antitrust case, you argued on behalf of the Clinton Justice Department. Who asked you to do that?
Mr. ROBERTS. It was the group of States that had jointly pursued the litigation with the Federal Government. So it was actually the Democratic and Republican attorneys general, representing their States, that retained me to argue for them.
Chairman HATCH. So you argued on behalf of primarily Democratic State attorneys; is that right?
Mr. ROBERTS. Yes, Mr. Chairman.
Chairman HATCH. Well, Mr. Roberts, in a Legal Times article that ran last May described you as "someone who has represented clients on both the conservative side and the liberal side of ideologically charged cases and who has encountered no plausible criticism of his fitness to serve." I think these cases that I have just mentioned there, I have asked you about, illustrate this point perfectly, and I completely agree. I have yet to hear any plausible criticism of your fitness to serve in this very important position.
Posted in SCOTUS —
Posted at 9:50pm on Jul. 19, 2005 <strong>Justice John Roberts</strong>:
By feddie
President Bush certainly came through for judicial conservatives tonight. Roberts is a solid originalist/textualist, and he will make for an incredible justice.
Oh, and he will be confirmed.
My favorite quote of the night, courtesy of 42 U.S.C. 1983 (over at the Greedy Clerks Board):
My God - they're going to put a real lawyer on the bench. This is very, very exciting.
Posted in SCOTUS —
Posted at 9:48pm on Jul. 19, 2005 Nomination Speech in Five Minutes
By AndrewHyman
The speech from the White House can be viewed at C-Span2.
Posted in News —
Posted at 9:43pm on Jul. 19, 2005 "Let the Distortions Ensue"
By feddie
Excellent post by my co-blogger, Adam White, over at Southern Appeal.
Posted in SCOTUS —
Posted at 9:31pm on Jul. 19, 2005 Senator John Warner's introduction of Roberts at the SJC hearing
By feddie
Senator WARNER. â₆. . . [T]he nominee is a member of the firm of Hogan & Hartson, one of the leading firms in the Nationââ‚â„¢s capital. Fifty years ago, I was a member of that firm. And I just reminisced with the nominee. I was the thirty-fourth lawyer in that firm, which was one of the largest in the Nationââ‚â„¢s capital. Today, there are 1,000 members of that law firm, to show you the change in the practice of law in the half-century that I have been a witness to this.
Mr. Chairman, you covered in your opening remarks every single fact that I had hopefully desired to inform the committee. So, again, for that reason you have, most courteously, Mr. Chairman,stated all of the pertinent facts about this extraordinary man, having graduated from Harvard, summa cum laude, in 1976. Three years later, he graduated from Harvard Law School, magna cum laude, where he served as managing editor of the Harvard Law Review. Those of us who have pursued the practice of law, know that few of us could have ever attained that status. Even if I went back
and started all over again, I could not do it. He served as law clerk to Judge Friendly on the usn Court of Appeals for the Second Circuit and worked as a law clerk to the current Chief Justice of the Supreme Court, Judge Rehnquistââ‚â€Justice
Rehnquist.
So I commend the President, I commend this nominee. I am hopeful that the Committee will judiciously and fairly consider this nomination and that the Senate will give its advice and consent for this distinguished American to serve as a part of our Judicial Branch.
I thank the chair and members of the committee
Posted in SCOTUS —
Posted at 9:10pm on Jul. 19, 2005 Senator Orin Hatch's introductory description of John Roberts at his SJC hearing
By feddie
Our final circuit nominee today is Mr. John Roberts, who has been nominated for a seat on the D.C. Circuit Court of Appeals. He is widely considered to be one of the premier appellate litigators of his generation. Most lawyers are held in high esteem if they have the privilege of arguing even one case before the U.S. Supreme Court. Mr. Roberts has argued an astounding 39 cases before the Supreme Court. At least that as the last count I had. It is truly an honor to have such an accomplished litigator before this committee, and one of the most well-recognized and approved appellate litigators in history.
The high esteem in which Mr. Roberts is held is reflected in a letter the Committee recently received urging his confirmation. This letter, which I will submit for the record, was signed by more than 150 members of the D.C. Bar, including such well-respected attorneys as Lloyd Cutler, who was the White House Counsel to both Presidents Carter and Clinton; Boyden Gray, who was the White House Counsel for the first President Bush; and Seth Waxman, who was President Clintonââ‚â„¢s Solicitor General. The letter states, quote: "Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding Federal Court of Appeals Judge and should be confirmed by the United States Senate. He is one of the very best and most highly respected appellate lawyers in the Nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague, both because of his enormous skills and because of his unquestioned integrity and fair-mindedness." This is high praise from a group of lawyers, who themselves have clearly excelled in their profession, who are not easily impressed, and who would not recklessly put their reputations on the line by issuing such a sterling endorsement if they were not 100 percent convinced that John Roberts will be a fair judge who will follow the law regardless of his personal beliefs.
Let me just say a brief word about Mr. Robertsââ‚â„¢ background before turning to Senator Leahy. He graduated from Harvard College summa cum laude in 1976, and received his law degree magna cum laude in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review. Following graduation he served as a law clerk for Second Circuit Judge Henry J. Friendly, and for then Justice William Rehnquist of the Supreme Court. From 1982 to 1986 Roberts served as associate counsel to the President in the White House Counselââ‚â„¢s Office. From 1989 to 1993 he served as Principal Deputy Solicitor General at the U.S. Department of Justice. He now heads the appellate practice group at the prestigious D.C. law firm Hogan & Hartson, and he has received the ABAââ‚â„¢s highest rating of unanimously well qualified. I have to say that this panel represents the best, and I commend President Bush for seeking out such nominees of the highest caliber.
Now, I just have a note here. Let me see what it says, and then I will turn to Senator Leahy. For everybodyââ‚â„¢s information, I have been advised that we can set up in another large room. We will proceed here until the other room is ready for us at which time we will take a short recess and accommodate further the request made yesterday for additional accommodations. So I would prefer that, and even though it is an inconvenience to all of you, letââ‚â„¢s see if we can try and get at least these folks into that room first because they were here first, as well as those persons with disabilities who desire to attend. Anybody know what the room is SDââ‚“G50 will be the room, so apparently we can hold it there.
Posted in SCOTUS —
Posted at 8:53pm on Jul. 19, 2005 More on Roberts
By Erick
White House source (who waited until the last minute, but before Drudge, to tell me who it was) says the White House wanted to keep the pledge to conservatives, have someone who Bush knows, and support Executive powers. Roberts was the only one to fit the bill.
Posted in SCOTUS —
Posted at 8:44pm on Jul. 19, 2005 AP reports Roberts
By Quin
Associated Press says a White House official has confirmed it is Roberts.
Posted in Uncategorized —
Posted at 8:40pm on Jul. 19, 2005 John Roberts
By Erick
He will be the President's nominee unless I'm being burned by a source, which has happened.
But, I'm getting WH confirmations.
Posted in SCOTUS —
Posted at 8:14pm on Jul. 19, 2005 Evening Media Swarm
By Erick
Late this evening the media swarm moved away from Luttig toward John Robert. Here's all we know:
The President today referred to the nominee as a "he." While we should be inclined to say he is using good english, we know better than that.
Media and political types are beginning to email that it is Roberts.
One House staffer emailed and said "everyone" is gathering data on Roberts.
We know the President knows him personally.
We do not know if Roberts is the nominee.
Some people think the White House intentionally pulled everyone off Edith Clement so they could "surprise" us all with her tonight. It was White House intervention that moved the swarm away from Clement, but gave the swarm no where else to go. So, it's just swarming.
Posted in SCOTUS —
Posted at 8:06pm on Jul. 19, 2005 Live blogging Bush's SCOTUS nominee announcement
By feddie
I'll be here for quite some time tonight (and over at my personal blog, Southern Appeal) discussing my thoughts on Bush's choice. So stay tuned.
Running commentary:
Don't ask me why, but I have this weird feeling it's Luttig.
And if it is, then I may just die of happiness on the spot. :)
Posted in News —
Posted at 7:51pm on Jul. 19, 2005 Last post until I know for sure, I promise
By Quin
Has anybody out there ever heard of the double reverse? It's a good play during in-Clement weather. You can't always trust your ABCs.
Posted in Uncategorized —
Posted at 7:08pm on Jul. 19, 2005 The scenario
By Quin
Here's a scenario: Bush goes for Luttig. Impeccable credentials. Figures he can force the Dems' hand with Luttig; either have them roll over, or else he nukes em. Either way, he then clears the way for Jones for CJ whenever the brave and heroic Rehnquist steps down. Totally having fun with guesswork here; I don't know a darn tootin thing more than anybody else does right now. I've been on record for more than two weeks predicting Owen, so that might demonstrate I really have no clue. But the Luttig/Jones scenario is in keeping with this president's "Go for it" style.....
Posted in Uncategorized —
Posted at 6:58pm on Jul. 19, 2005 Late Afternoon Media Swarm
By Erick
The swarm has now headed toward Richmond and Michael Luttig whose wife and kids are dressed up and with him today. As I said over at RedState, late this afternoon I started getting emails from folks wanting to know where Luttig was. He has fallen off the radar better than most who were under the magnifying glass. I'm also hearing absolutely nothing about Luttig, which, given the pattern, might actually be a very good sign for him. Let me just say, I don't think it is Luttig. Take that for what it is worth.
Posted in SCOTUS —
Posted at 6:28pm on Jul. 19, 2005 ABC Says Tune in at 9PM
By AndrewHyman
As Erick mentioned, ABC News is reporting that President Bush will nominate someone tonight for the Supreme Court, other than Judge Clement:
An informed source told ABC News they had spoken with Clement and said she received a phone call from the White House this afternoon. According to the source, Clement was thanked for meeting with the president and sharing her views on the Supreme Court, but that the administration has decided to go in a "different direction." The White House said Bush will announce his selection tonight at 9 p.m. ET.
Meanwhile, Senator Barbara Boxer announced today on Fox News as follows: "The fact that Sandra Day O'Connor stepped down creates an extraordinary circumstance."
UPDATE: We are now seeking clues in the attire of children. Kathryn Jean Lopez reports that, "CNN has shown pictures of the Luttig family in D.C. today. Kids in uncomfortable-for-D.C.-in-July kinda clothes." And over at How Appealing, Howard Bashman is ruling out another hypothetical nominee.
Posted in News —
Posted at 5:02pm on Jul. 19, 2005 Steering Away From Clement (Does Your Head Hurt)
By Erick
What I know for sure is that I don't know who the nominee is going to be. I do know that when the herd all moves in one direction, it most likely is on to something. There is the potential to be wrong, but the probability is that the herd is right and Clement is the nominee.
Here is what I do know. The Democratic Senators are not going to be as nuts with this nominee as their base would like them to be (that also seems to indicate Clement might be it).
What is most important is this -- Karl Rove, shudder the thought, believes, as does the President, that conservative activism related to the judicial nominating process was one of the most significant factors in the incumbent President's party gaining seats in two successive elections, a near unheard of feat. Only security issues take precedence. As a result, the President is not going to appoint Gonzales and the President is not going to appoint someone who is not to the right of O'Connor on life issues. Any nominee will have been thoroughly vetted on the life issues and will be acceptable to conservatives.
Finally, John King at CNN is saying that he is getting "pushback" from "those closely involved in the process" that he should "not go there" on Clement. She is in the final three, but we really will not know who it is until 9pm tonight.
Update [2005-7-19 16:2:29 by Erick]: Within the past hour, staffers on the Senate Judiciary Committee have begun steering people away from Edith Brown Clement.
Update [2005-7-19 16:56:47 by Erick]: The whole lot of people who have been telling me Clement was the pick have gotten cold feet and now are clueless as to who it might be. But, the only name they have still is Clement, who is supposedly in the wilds of Wyoming on vacation.
Update [2005-7-19 17:0:3 by Erick]: ABC News is reporting that it is NOT Edith Brown Clement.
Posted in SCOTUS —
Posted at 2:58pm on Jul. 19, 2005 A Bait and Switch Between Two Ediths
By Erick
Something has happened in the past ten minutes. I've had three five (they keep IM'ing) people from the media and conservative think tanks IM to say we're on a wild goose chase -- the conservative think tank people say its an intentional one. According to them, we should not be looking at Edith Clement, but at her cohort on the Fifth Circuit, Edith H. Jones a/k/a the Female Scalia.
My money is on Clement still, but it is interesting how, by the time I've finished writing this post seven people have IM'ed to say it is Jones, not Clement.
Reminds me of the Novak generated Rehquist retirement frenzy of two weeks ago, but with more credible people participating this time.
Posted in SCOTUS —
Posted at 2:21pm on Jul. 19, 2005 9 PM Tonight
By AndrewHyman
The President will announce a SCOTUS nominee at 9 PM tonight.
Posted in News —
Posted at 12:41pm on Jul. 19, 2005 A Question for Judge Clement
By AndrewHyman
I would like to again point out that, in 1985, all nine justices unanimously acknowledged this:
[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.
So, I hope President Bush will please ask prospective nominees whether they will ever interpret the Constitution in a way that is "suggested neither by its language nor by preconstitutional history." If they say yes, then he should say no.
Posted in SCOTUS —
Posted at 12:08pm on Jul. 19, 2005 The truth on Clement
By Quin
Look, everybody, chill out. Joy Clement is a solid, careful conservative. No, she is NOT a member of a born-again church in Metairie. She is a devout Catholic, and her husband is a devout Eopiscopalian at my home church in New Orleans. She is, by all accounts, a fair jurist, and again, she is conservative -- just not flamboyant in her language, that's all. If she is the choice, she'll be fine.
Posted in Uncategorized —
Posted at 11:29am on Jul. 19, 2005 An Assessment on Clement
By Erick
As we know, there are known knowns. There are things we know we know. We also know there are known unknowns -- that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don't know we don't know.
ââ‚â€Feb. 12, 2002, Donald Rumsfeld, Department of Defense news briefing
“Conservatives do not need to worry about Clement, they need to worry about Justice Kennedy”
First, we know now for sure that it will not be Gonzales. I am fully comfortable with that assessment.
Second, what do we know we know about Clement? We know that Clement had a private meeting at the White House late last week. In fact, the Note is going further and Noting that Clement is the only one to have had a private meeting - so far as anyone has been able to pin down.
Clement is known to be pro-defendant in civil rights cases and is like O'Connor on business issues, which means that conservatives will be pleased with her on those issues. There is no indication that Clement takes an expansive reading of the Commerce Clause and every indication that she does, in fact, take the opposite view.
Sources close to the White House tell me that the pick has been made, but are not giving me the name. Third party sources who would be among the first to know are saying that there is every indication that Clement is the pick. In fact, we are beginning to see conservatives get on board and shift from Edith B. Clement having too thin a papertrail to her being "with us."
No one knows how Clement would vote on the ultimate issue -- is abortion a medical procedure subject to state regulation or a constitutional right. I am told that, with the pressing issues currently headed to the court, i.e. partial birth abortion, parental notification, 24 hour waiting periods, the Solomon Amendment, etc. -- conservatives do not need to worry about Clement, they need to worry about Justice Kennedy and whether he will continue heading left.
I have been told by multiple parties that, though we know little about Judge Clement's leanings on social issues, we should make no mistake that her family background is conservative and that her husband is a "loyal" conservative. Also, I've gotten a few emails and phone calls from a few particular people who would know who all say that we should trust the President on this pick. I also know that lawyers in my home state of Louisiana like Clement and do think she is conservative.
We don't know much else about Edith Clement. What we do know means the President has attempted to address Democratic concerns about replacing O'Connor with someone like O'Connor. We also know that Clement's background is more conservative than O'Connors. We also know that there is a political calculus on having a photogenic female judge without any harsh statements on file, the record of an enigma, and the family pedigree of a rock solid conservative pass through the Senate without the expenditure of an extrordinary amount of political capital.
Lastly, we know that United flight 1898 and US Airways flight 590, from New Orleans to Reagan National, both landed at 8:59am this morning. We do not know, however, if Edith Brown Clement was on board en route to the United States Supreme Court.
Posted in SCOTUS —
Posted at 11:44pm on Jul. 18, 2005 A Tale of Two Ediths
By Erick
Fred Barnes, among other conservative pundits in Washington, is placing bets on one of the Ediths being picked by the President. We know for sure that Edith Brown Clement had a meeting at the White House last week. We are also hearing that she had a phone call today.
Late tonight, to answer Krempasky's question, comes word that Specter was seen at the White House tonight.
People are buzzing that there is a nominee. I have no insider information on who that nominee is, but signs are pointing to one of the Ediths and, of those two, Clement seems to be ahead.
I am told that we don't have to worry about Gonzales. Of course, this came from my numero uno source who said Rehnquist was retiring. Though the source was redeemed with a quick email about O'Connor.
Posted in SCOTUS —
Posted at 11:33pm on Jul. 18, 2005 Rumors and Queries
By krempasky
Hey all you SCOTUS prognosticators and pundits...did the White House have some evening visitors tonight? Discuss amongst yourselves.
Posted in SCOTUS —
Posted at 8:30pm on Jul. 18, 2005 Ginsburg, Jones, and Macbeth
By AndrewHyman
The blog "Reasonably Right" has a question for Senator Specter: ââ‚Å“If Ruth Bader Ginsburg retires, would Bush be forced to nominate a flaming liberal in order to ââ‚Ëœmaintain the balanceââ‚â„¢ on the court?"
Personally, I preferred the balance before Justice Ginsburg replaced Justice White. I liked that balance better than the more recent one Senator Specter's been talking about. The pre-Ginsburg balance could be restored by appointing an originalist/strict constructionist to take Justice O'Connor's place.
Judge Edith Jones is one of many excellent originalist/strict constructionists in the running for SCOTUS. Today, NBCââ‚â„¢s ââ‚Å“First Read" noted that some liberal critics have dubbed Judge Jones the ââ‚Å“Darth Vader of the 5th Circuit." Jones replied, ââ‚Å“At least they could get the sex right and call me Lady MacBeth." Judge Jones has a solid record.
Some people on the liberal side are especially upset about one of Jones's opinions in which she said that a capital defendant did not deserve a new trial merely because the defendant's attorney dozed off at unspecified points during the trial. Here's an interesting law review article about that episode, pointing out that Judge Jones was not alone in that Burdine case: Fifth Circuit Judges Jolly and Barksdale both agreed with her as a matter of law.
More about sleeping attorneys can be found here. If an attorney in a death penalty case nods off for ten seconds during a months-long trial, should that automatically entitle a defendant to a whole new trial? No judge of the Fifth Circuit took that position. So, what's all the fuss? After all, the trial court in the Burdine case did not say that the lawyer was asleep during any substantial portion of the trial.
The other case that some people seem to be upset with Judge Jones about was a sex harassment case in 1989. The thing people need to understand about that case is that it involved sexual harassment by coworkers instead of by a supervisor/employer. All of the judges of the Fifth Circuit agreed that coworkers can sexually harass a person in the most shameful and disgraceful ways, without running afoul of the federal statute, unless the employer "knew or should have known" about it. So, don't be misled by all the gruesome details of the harassment in that case. The issue was whether the employer was responsible.
I'm not saying that Bush should nominate Jones, but she's an excellent judge who deserves to be on the short list. She'd make an excellent Supreme Court Justice. So too, I suspect, would Owen, Batchelder, Corrigan, Estrada, Garza, Cornyn, Cantero, Luttig, Pryor, and others.
Posted in News —
Posted at 2:06pm on Jul. 24, 2005 Roberts Will Get Out of Committee
By AndrewHyman
Senate Judiciary Committee Chairman Arlen Specter has an op/ed today in the New York Times. Among other things, he says this:
I believe that the Constitution requires action by the Senate, rather than having the nominee bottled up in committee --- regardless of the committee's vote.
It therefore appears that the nomination of Judge Roberts will get to the Senate floor, even if a committee majority votes against recommending confirmation. So, that's somewhat good news from Senator Specter. Now for the not-so-good news.
Specter hints that he will not support a nominee who disagrees with him about how to weigh Supreme Court precedent. Here's what Specter says:
[I]t would be appropriate to ask how to weigh the importance of precedent in deciding whether to overrule a Supreme Court decision. Some legal scholars attach special significance to what they call superprecedents, which are decisions like Roe v. Wade that have been reaffirmed in later cases.
I have my handy decoder ring on, so allow me to translate. Specter is talking about the legal principle of "stare decisis" which I discussed recently here at confirmthem. In particular, when Specter uses the term "superprecedent," he undoubtedly is referring to the concept of "super stare decisis" that Judge Luttig wrote about a few years ago:
I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey, to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. [citations omitted].
This quote is from Richmond Medical Center v. Gilmore, 219 F.3d 376. Needless to say, the concept of "super-stare decisis" is extremely controversial, and the Supreme Court's entire abortion regime now rests upon this flawed concept that dates back only to 1992.
Should Judge Roberts explain to the Judiciary Committee how he feels about the doctrine of "super-stare decisis"? Note that Judge Luttig did not explain his own feelings about that new-fangled doctrine, even when Luttig had a case before him on that very subject. Obviously, if Roberts were to say what he thinks of "super-stare decisis" then that would be tantamount to saying how he would rule on abortion.
One thing I can say for sure: if Judge Roberts endorses the concept of "super-stare decisis" either in his committee testimony or in his conversations at the White House, then his nomination ought to be withdrawn. That said, I doubt Judge Roberts would "go there," and it's also very hard to believe that he would endorse the doctrine even if he were to go there.
UPDATE: Ann Althouse has some interesting information about the term "super-stare decisis." She has found that scholars who have used the term in connection with Roe v. Wade have done so in a derogatory way.
Posted in Roberts —
Posted at 5:39pm on Jul. 23, 2005 W's Weekly Radio Address
By AndrewHyman
"Under the Constitution, one of the most consequential decisions a President makes is an appointment to the Supreme Court. This week I was proud to announce my nomination of Judge John Roberts to be the Supreme Court's next Associate Justice.
"Judge Roberts has a stellar record of achievement. He is a man of sound judgment and the highest integrity. He has the qualities Americans expect in a judge â₆experience, wisdom, fairness and civility. He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution and laws, not legislate from the bench.
"Judge Roberts currently serves on the United States Court of Appeals for the District of Columbia Circuit, which is often considered America's second highest court. He has also served as a top lawyer at the Department of Justice, an attorney in the White House for President Ronald Reagan, and a distinguished advocate in private practice. He gained early experience at the Supreme Court as a law clerk to Justice William Rehnquist. He graduated with high honors from both Harvard College and Harvard Law School. And as a young man growing up in Indiana, he captained his high school football team and worked summers in a steel mill to earn money for college.
"One of the highest honors for any lawyer is to argue a case before the Supreme Court. In his extraordinary career, Judge Roberts has argued a remarkable 39 cases before the nation's highest court. He is known by Democrats and Republicans alike as a brilliant thinker, a fair-minded judge, and a decent man. After I nominated Judge Roberts to the Court of Appeals in 2001, a bipartisan group of more than 150 lawyers sent a letter to the Senate Judiciary Committee â₆and here is what they wrote: "Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding federal appeals court judge and should be confirmed by the United States Senate. He is one of the very best and most highly respected appellate lawyers in the nation.
"The next step for Judge Roberts is the Senate confirmation process. The process is off to a good start. Since I announced his nomination, Judge Roberts has met with a number of senators from both parties. Democrats and Republicans have expressed their respect for Judge Roberts' qualifications and intellect, just as they did two years ago when they confirmed him to be a federal appeals court judge by unanimous consent.
"In the weeks ahead, the Senate will have an opportunity to rise above partisanship. I've spoken to Senate Majority Leader Frist and Minority Leader Reid, as well as Chairman and Ranking Member of the Judiciary Committee, Senators Specter and Leahy. These senators share my goal of an orderly and dignified confirmation process, and it is important that Judge Roberts be confirmed before the Court reconvenes on October the 3rd.
"President Clinton's two appointments to the Supreme Court proved that the Senate can conduct a thorough review and vote on a nominee within a reasonable timetable. Justice Ruth Bader Ginsburg was confirmed 42 days after the President submitted her nomination, and Justice Stephen Breyer was confirmed 73 days after his nomination was submitted. In both cases, Democrats and Republicans helped move the process forward promptly and voted to confirm the justices, despite significant philosophical differences.
"America is fortunate to have a man of such wisdom and intellectual strength willing to serve our country. I'm grateful to Judge Roberts' wife, Jane, and their two children, Jack and Josie, and I look forward to the Senate voting to confirm Judge John Roberts as 109th justice of the Supreme Court of the United States.
"Thank you for listening."
I got this text from Fox News.
Posted in News —
Posted at 3:12pm on Jul. 23, 2005 Roberts Reserves Judgment on Cases that May Come Before Him
By AndrewHyman
This funny cartoon is from Roll Call via the blog From the Bleachers. Because Judge Roberts has not advertised how he will decide cases that may come before him, some Democrats are unfortunately attempting to pry into his privileged attorney-client communications. Thus, we have a new word in the lexicon, courtesy of Senator Cornyn's office:
E·stra·di·fy (eh strä d? fI ), v. 1. To obstruct the confirmation of a nominee to the Federal Judiciary by making unreasonable requests for information; including but not limited to privileged documents and statements which would compromise a nominee's ability to maintain the integrity of the position to which they have been nominated. 2. To delay and/or defeat the confirmation of a Presidential nominee by means of procedural gimmicks intended to undermine the will of a bipartisan majority of the United States Senate. [See also: Estrada, Miguel]
Incidentally, National Journal's "Hotline" makes this contribution to the humor department:
Yesterday we asked for alternate names for the "Gang of 14." Here are some of the better ones: Force Catorce . . . Thirteen People Who Want to Be John McCain, and One Who Is . . . The McCain Mafia . . . McCain's Bunch of Boobs . . . Nuclear Reactors . . . Me --------- and, uh, Thirteen Other Guys . . . A Baker's Dozen of Powerful, Important, Influential Senators --------- and Mike DeWine.
Hat Tip: From the Bleachers.
Posted in News —
Posted at 1:12pm on Jul. 23, 2005 Next Time a Supreme Court Justice Retires....
By AndrewHyman
....the retiring Justice ought to set a time limit for remaining on the Court.
In contrast, Justice O'Connor's July 1 resignation letter did a potential favor for obstructionist Democrats, by promising to remain on the Court until "the nomination and confirmation of my successor." She could have added: "but in any event no later than October 3, 2005."
Justice O'Connor has inadvertently given PFAW, Reid, and Leahy an opportunity to crow. Here's what PFAW said on July 12 about O'Connor's letter:
Since Justice Oââ‚â„¢Connor has graciously agreed to serve until her successor is confirmed, the Senate can and should take the time for thorough hearings.
Likewise, here's what Senator Leahy said on July 6, as reported in the Washington Times:
"[W]e should all remember that Justice O'Connor gave everybody a great gift," Mr. Leahy told MSNBC's "Hardball" on July 6. "She said she would serve until her replacement is confirmed," Mr. Leahy said, adding, "So, you don't have a tight, tight time schedule, as you might have otherwise."...Mr. Leahy, however, appeared to be laying the groundwork for delay even in the likelihood of an imminent nomination.
And, joining the chorus, here's what Democratic Minority Leader Reid said, according to the July 12 NY Times:
Mr. Reid said on Monday that Democrats would try to cooperate in complying with the president's request that the seat being vacated by Justice O'Connor be filled by Oct. 1. But he pointed out that Justice O'Connor had agreed to remain on the court until her replacement was confirmed and that only six justices are needed for a quorum. Today, Senator Reid said, "There are no timelines."
Next time a Supreme Court Justice retires, it would be nice to foreclose the possibility of remaining on the Court forever.
UPDATE: By the way, there's some discussion over at Bench Memos regarding whether it's proper for the President to nominate someone when an actual vacancy does not yet exist. I agree with Ed Whelan that it is proper.
Posted in SCOTUS —
Posted at 3:51pm on Jul. 22, 2005 "Mrs. Roberts: Doubly Unfair Game"
By feddie
Over at my blog, Southern Appeal, Adam White, notes that liberal dems and the MSM are already starting to "treat Mrs. Roberts as 'fair game' in their efforts to take down the nomination of Judge Roberts," and then lays the smackdown on them in this most excellent post.
And just when you thought the dems and their ilk couldn't sink any lower.
Posted in SCOTUS —
Posted at 3:35pm on Jul. 22, 2005 Christians go home?
By Ryan K
Are Democrats really going to pull the bankrupt "deeply held beliefs" card and say a Christian cannot impartially interpret the Constitution? Hugh Hewitt already sees it coming. (related posts)
With judicial activism and conservative values being the winning issues in the 2004 election, I fail to see an upside for the Democrats.
...On a similar topic, Edward Whelan thoughtfully explains where Roberts will likely fall on abortion issues - a neutral moderate like Rehnquist, Scalia, and Thomas. A pro-life position would find abortion unconstitutional.
Posted in SCOTUS —
Posted at 12:31pm on Jul. 22, 2005 Whiny WaPo
By AndrewHyman
Robin Givhan of the Washington Post reports in the Style Section that Mr. and Mrs. Roberts didn't dress their children appropriately for a White House visit:
Please select all attire from the commonly accepted styles of this centuryâ₦.[T]he Roberts family went too far.
No, Ms. Givhan, you have gone too far. Can you say, "nitpick"? If the Roberts family had worn sandals to the White House, then that informality might have been disrespectful of the occasion. But the Roberts family looked perfectly respectful. I hesitate to publish this photo, because it's unfair that the sartorial preferences of Mr. and Mrs. Roberts should become an issue. Maybe Ms. Givhan's next target will be the medieval robes worn by judges --- if so, she would be picking her targets much more fairly.
Hat Tip: Bench Memos.
UPDATE: The Post defends itself here.
Posted in News —
Posted at 11:27am on Jul. 22, 2005 My fellow conservatives,
By feddie
I am only going to say this one more time: John Roberts is as solid as they come. He is not, not I repeat, a Souter. As the good folks at RedState note in their recent endorsement of Roberts nomination:
There is much we do not know about John Roberts. There is also much we do not "officially know," but privately are sure of. We at RedState know Judge Roberts is right on life and is right for the Court.
That's exactly right. Roberts is one of us. He will not let us down on Roe or on a whole hosts of other constitutional issues. Some of y'all just need to chill out, take a deep breath, and trust the vast number of legal conservatives who are in a position to know Roberts's judicial philosophy and are thrilled with his nomination.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 11:07am on Jul. 22, 2005 Blame Schumer for Roberts' Thin Record
By Marshall Manson
Echoing a point first made here, the Washington Times observes in an editorial that Schumer is to blame for Roberts' "thin" paper trail.
Posted in Uncategorized —
Posted at 10:29am on Jul. 22, 2005 Roberts' Memos from S.G.'s Office
By Marshall Manson
Yesterday, Andrew Hyman predicted that the Democrats will run the same playbook against Roberts that they ran against Miguel Estrada and John Bolton. Specifically, it appears that the Dems are going to demand confidential and privileged memos about legal strategy that Roberts wrote while working in the Solicitor General's office. They will then try to use the administration's predictable rejection of this request to delay Roberts' confirmation.
This morning, Charles Hurt, writing in the Washington Times, confirmed that's exactly what they plan to do.
Andrew and subsequent comments in the post thoroughly debunked the Democrats' claim that they should get the documents. I particularly commend Dominick's comment (#4) to you. Ed Whelan adds to the debunking over at Bench Memos.
I'll just throw in that yesterday, I heard a senior senate aide say that the response to the Dems request for the S.G. documents would and should be "Not just 'no', but 'hell no'." That's exactly the right answer.
Nevertheless, it's worth reiterating that when we see Democrat requests for documents, these aren't motivated by some idealistic search for the truth. They are a means to obstruction. Plain and simple.
Posted in SCOTUS —
Posted at 9:46am on Jul. 22, 2005 "The High Court and the Anti-Catholic Left"
By feddie
Here's a taste of Michael Reagan's latest opinion piece over at Frontpage Magazine:
John Roberts is a Roman Catholic and as such can expect to be grilled by Durbin and his colleagues on whether he would let his religious beliefs color his opinions on abortion. When Judge William H. Pryor was first nominated to the Court of Appeals, Durbin, who describes himself as a "practicing Catholic," said that "many Catholics who oppose abortion personally do not believe the laws of the land should prohibit abortion for all others in extreme cases involving rape, incest, and the life and health of the mother."
That statement led Denverââ‚â„¢s Archbishop Chaput to scold Durbin for distorting most Catholics' beliefs.
As Ramesh Ponnuru pointed out in the National Review, Pryor's opponents adopted "a viewpoint test...that has the effect of screening out all Catholics faithful to their church's teachings on abortion. The only way a Catholic can pass it is by "ceasing, on the decisive issue, to be Catholic ââ‚“ by breaking from his church's teaching."
Father Richard John Neuhaus put it this way: for the liberal elites, the only "good" Catholic is a bad Catholic.
None of these guys ââ‚“ not Kennedy, not Schumer not Durbin not Leahy ââ‚“ is going to vote to confirm John Roberts, unless he becomes a ââ‚Å“bad Catholic.ââ‚? I donââ‚â„¢t think the rest of us want a ââ‚Å“badââ‚? anybody on the Supreme Court.
Posted in SCOTUS —
Posted at 9:46am on Jul. 22, 2005 Attack Machine Kicks into Gear
By Marshall Manson
The left's attacks on Judge Roberts began in earnest this morning, aided -- natch -- by their friends in the MSM. A front page article in this morning's Washington Post headlined "The Nominee As a Young Pragmatist" describes a number internal memos Judge Roberts wrote while working in the White House Counsel's office under President Reagan. Here's a representative excerpt:
Asked to review legislation that would have prohibited lower federal courts from ordering busing to desegregate public schools, Roberts, now President Bush's nominee to the U.S. Supreme Court, took on no less a conservative legal scholar than Theodore B. Olson, who at the time was an assistant attorney general and later served as the solicitor general under Bush.
Olson had argued that based on his reading of case law, Congress could not flatly prohibit the busing of children to achieve racial balance in public schools. That argument did not impress Roberts, who was two weeks past his 29th birthday.
"I do not agree," Roberts wrote to White House counsel Fred F. Fielding in a memo dated Feb. 15, 1984. Congress has the authority "and can conclude -- the evidence supports this -- that busing promotes segregation rather than remedying it, by precipitating white flight."
But, he added, "Olson's view has already gone forward as the Administration view, and it would probably not be fruitful to reopen the issue at this point."
No doubt the attack dogs on the Left and their puppets in the Senate will soon be spewing sound bites announcing their concern about Judge Roberts' philosophy and attitude toward civil rights. (Of course, they would be spewing sound bites attacking Roberts no matter the day or the issue.)
It's critical to remember -- as it will be every time one of these stories appears -- that Roberts was then serving as a legal advisor to the President of the United States, and his unvarnished, privileged advice was crafted simply to further the best interests of his client. That was his job. And it's certainly not fair or appropriate to draw any conclusions about his judicial philosophy from this sort of attorney work product.
The bottom line is simple: no matter what the Left digs up from Roberts' days representing his clients, Roberts is still a brilliant, well qualified jurist who will make an outstanding addition to the Supreme Court.
Posted in SCOTUS —
Posted at 8:53am on Jul. 22, 2005 'Stealth' nominees and D.C. diversity
By Irishlaw
Very interesting post from Adam at Southern Appeal on why the networking required to make a name for yourself and yet not have a paper trail may eventually lead to an even narrower pool of candidates for the Supreme Court: those who have spent a lot of time inside the Beltway. As one who's just about to step into the world of D.C. lawyering (assuming I survive next week's bar exam) I have to say that it's immediately apparent how removed this world can be from the rest of the country. As Adam notes, it's much easier to meet people here with the "pervasive . . . low-cost networking" that exists at every firm social gathering, cozy party, or interest-group reception. It would be harder to break into that world, while still staying under the radar ideologically, living in Chicago. I would agree that it is a little worrying, though perhaps not something to be too concerned about yet -- and almost certainly not in the case of Judge Roberts.
Posted in SCOTUS —
Posted at 8:55pm on Jul. 21, 2005 Even after Senate confirmation, liberals still want to bash Judge Pryor:
By feddie
And this time Pryor is being criticized for rightly characterizing in a speech Hugo Black's racist/anti-Catholic defense tactics during an infamous Alabama murder trial in the 1920s as "despicable, even evil."
You can read my point-by-point rebuttal of Black-apologist, and third-rate hack, Steve Suitts's pathetic hit piece against Judge Pryor here.
Posted in Circuit Courts —
Posted at 7:53pm on Jul. 21, 2005 Roberts NOT Federalist Society member
By Ryan K
Roberts was never a member of the Federalist Society says the Washington Post. Oops.
Posted in SCOTUS —
Posted at 7:49pm on Jul. 21, 2005 W's Second SCOTUS Nomination
By AndrewHyman
I think Patterico was right, when he wrote this on May 23, 2005:
Democrats will not filibuster Bushââ‚â„¢s first Supreme Court nominee â₆no matter who it is.
They will filibuster his second Supreme Court nominee â₆no matter who it is.
In other words, as I wrote on March 12, 2005:
[I]f the Dems are smart, they will not filibuster President Bushââ‚â„¢s first Supreme Court nominee, and instead will hold their fire until the second. That way, they can advertise how ââ‚Å“reasonableââ‚? they are, and how they only use filibusters as a last resort. The public may fall for it.
If there's going to be a "nuclear" showdown, it probably will be on nominee #2, or on a circuit court nominee.
Posted in News —
Posted at 5:47pm on Jul. 21, 2005 Former law partner on Roberts
By Ryan K
One of John Roberts' law partners at Hogan & Hartson was none other than Sandy "how'd that National Archive doc get in my pants" Berger. When the President announced Roberts as the nominee, Berger was watching in a waiting room with radio host Michael Medved. Medved recalls this private conversation:
Listen: MP3 Audio (2:52 minutes, 1.3 MB)
Berger: My God, my law partner! ... He's one of the most intelligent people I've ever met. Medved: Like off-the-charts kind of intelligence? Berger: Yes. In any meeting he's always the smartest guy there. He's just unbelievably smart. And he's modest about it which makes him very hard to go up against. Medved: What do you think, is he personally conservative, moderately conservative? Berger: Very, very conservative. He'll almost certainly vote to overturn Roe. Medved: Will he be confirmed? Berger: Yes, he will. He is a very unbelievably charming guy, and he'll do great in the confirmation hearings. There will be a fight though. Medved: Why will there be a fight? Berger: Because he's so conservative.
Feel better?
Posted in Roberts —
Posted at 2:09pm on Jul. 21, 2005 Judge John Roberts: Legal Top Gun
By Marshall Manson
In general, Americans aspire to have the best of everything ââ‚• the best food, the best sports, the best military ââ‚• and the best Supreme Court. And to the extent that any American outside the Washington Beltway contemplated what they wanted in a new Supreme Court justice, itââ‚â„¢s a safe bet that they would say: ââ‚Å“the best.ââ‚?
Thatââ‚â„¢s precisely what President Bush has given us with his nomination of Judge John G. Roberts, Jr., to be the next Associate Justice of the Supreme Court....
In short, Judge Roberts is unquestionably among the best Supreme Court advocates. Before joining the federal bench in 2003, Roberts argued 39 cases before the High Court, putting him in the company of a select handful of expert litigators who have routinely stood before the justices. He has argued successfully on behalf of a wide range of clients, from the U.S. government to pro-bono individual clients who needed, but couldnââ‚â„¢t afford, a strong presence before the Supreme Court.
Judge Robertsââ‚â„¢ educational and early experiences laid the groundwork for this success. After graduating summa cum laude from Harvard College in only three years, Roberts excelled at Harvard Law School, earning high honors and serving as an editor of the Harvard Law Review. Following law school, Roberts clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit and later for Justice William Rehnquist on the Supreme Court. He worked in the Reagan administration as a Justice Department attorney and Associate White House Counsel. And he served as Principal Deputy Solicitor General, representing the U.S. government before the Supreme Court, under President George H.W. Bush.
In the first days since his nomination was announced, Judge Roberts has been pronounced, ââ‚Å“brilliant,ââ‚? with ââ‚Å“outstanding legal credentials,ââ‚? and ââ‚Å“superb.ââ‚? Even leading Democrats like Leon Panetta and former Gore campaign chairman Tony Coehlo have praised Judge Roberts ââ‚Å“fair mindednessââ‚? and ââ‚Å“impeccable credentials. Justice Sandra Day Oââ‚â„¢Connor, caught by a reporter while on a fishing trip, called Robertsââ‚â„¢ selection, ââ‚Å“Fabulous. â₦ Heââ‚â„¢s good in every way.ââ‚? And when the Senate Judiciary Committee was considering Robertsââ‚â„¢ confirmation to the U.S. Court of Appeals for the D.C. Circuit, then-Chairman Orin Hatch told the hearing that ââ‚Å“Roberts has been recommended by three Supreme Court justices.ââ‚?
Judge Robertsââ‚â„¢ pre-nomination qualifications compare favorably to several giants of Supreme Court lore: Justices Oliver Wendell Holmes, Benjamin Cardozo, and Louis Brandeis. Each distinguished himself by rising to the top of his profession before ascending to the High Court. Each demonstrated exemplary intellect and insight through the practice of law or scholarship before joining the bench.
Could Judge Roberts become one of the Supreme Courtââ‚â„¢s giants? Only in a far off decade will history be able to judge. But certainly the potential is there. One commentator has favorably compared Judge Robertsââ‚â„¢ persuasiveness and intellect to Justice William Brennanââ‚â„¢s ââ‚• who was renowned for his ability to assemble High Court majorities ââ‚• and suggested that Judge Roberts could be a major intellectual force on the Court. Judge Robertsââ‚â„¢ colleagues have dubbed him a ââ‚Å“lawyerââ‚â„¢s lawyer,ââ‚? the ultimate complement.
Indeed, no matter what criteria one employs, the conclusion is inescapable: Judge Roberts is among the best lawyers of his generation.
For Americans, who want the best of everything, Judge Roberts is precisely the kind of choice we should all celebrate and precisely the kind of nominee that the Senate should confirm without delay.
This piece is cross posted over at the Center for Individual Freedom.
Posted in SCOTUS —
Posted at 1:44pm on Jul. 21, 2005 What Roberts, Bolton and Estrada Have in Common
By AndrewHyman
Two days ago, I predicted that John Roberts will be easily confirmed, without need of any help from the likes of us bloggers. I still think and hope that's true. But if things do descend into a mudfight, the issue will probably be Democratic attempts to get confidential memos that Roberts wrote when he worked in the Justice Department. Winning a fight about the Roberts memos may finally end the kind of unprecedented memo-seeking obstruction that we've seen in the Estrada and Bolton nominations. Today, Opinion Journal made a similar point:
Expect . . . to hear demands for the White House to release the confidential case memorandums written by Judge Roberts during his time in the Solicitor General's office. This is the Democratic delaying tactic du jour, used as an excuse to filibuster Miguel Estrada's nomination for the D.C. Circuit and employed most recently against John Bolton. We hope the White House resists, lest every lawyer in the SG's office starts giving advice not on the merits but based on how it might look at some future confirmation hearing.
The Chicago Tribune is reporting the same kind of thing.
While acknowledging his reputation as a first-rate legal thinker, some Democratic senators have indicated they will seek some of the confidential internal documents and memorandums Roberts wrote as a government lawyer, working for Presidents Ronald Reagan and George H.W. Bush. Those documents, they suggest, could give them vital insight into Roberts' views on abortion and other issues.
That sets up a potentially fiery debate, not initially on Roberts' positions, which remain obscure, but on Congress' right to have access to the confidential papers as it decides whether to grant Roberts an appointment to the Supreme Court.
"The Senate's role will be to establish clearly whose side John Roberts would be on if confirmed to the most powerful court in the land," said Sen. Edward Kennedy (D-Mass.), a senior member of the Senate Judiciary Committee. "Because Judge Roberts has written relatively few opinions in his brief tenure as a judge, his views on a wide variety of vital issues are still unknown."
The fight is likely to center on Roberts' tenure in the Office of the Solicitor General at the Justice Department, which represents the administration before the Supreme Court.
Much more than John Roberts is at stake in the Roberts nomination, including the continued use of excessive document requests to justify obstruction of nominees, as in the Estrada and Bolton filibusters. Senator Kennedy's complaints about the lack of a Roberts paper trail are particularly unpersuasive, as Marshall Manson already noted at this blog, given that Roberts would have a much longer paper trail had his nomination for circuit court not been obstructed for so many years. Past and present Solicitors General will probably take the same position on the Roberts memos that they took on the Estrada Memos, and they were 100% correct.
Posted in Senate Rules —
Posted at 9:25am on Jul. 21, 2005 Liberal Bloggers Caucus
By Marshall Manson
Howard Kurtz has a very interesting story in this morning's Washington Post about liberal bloggers' response to the Roberts nomination. It seems that the "top fifty" liberal bloggers are getting together on conference calls to plot strategy with Democratic pols like Ted Kennedy and Harry Reid. Given their attempt at coordination, the general lack of coherent opposition from the Left is even more surprising. It's also interesting to see how many on the Left are refusing to get on board with the "attack Roberts no matter how silly you'll sound" game plan. In many ways, the Left's inability to mount a straightforward attack on Roberts speaks volumes about his qualifications, temperament and other attributes. There's no question that the Left will hone and ramp up its attacks as the weeks go on, but for now, their collective incoherence is reassuring.
Posted in Uncategorized —
Posted at 9:20am on Jul. 21, 2005 Supporting RedState
By krempasky
If you appreaciate what RedState has been doing this week, I encourage you to step up and support the site. Normally, an extraordinary increase in traffic would come with a related increase in revenue from advertising - but as you know, RedState has given up any advertising. ConfirmThem is a labor of love, if you will.
Consider that Clayton Wagar has been monitoring, tweaking, holding together with paper clips our single dedicated server to keep RedState and ConfirmThem on the air at a time when we smashed our previous traffic record.
Consider that Markos at dKos spent nearly $150,000 last year building and maintaining the dKos technical architecture - and we're limping along with volunteer support.
RedState - if you like how technology is accelerating politics - we're the best investment you can make.
Posted in Administrative —
Posted at 7:03pm on Jul. 20, 2005 predictions
By Quin
A wrap-up of the pre-nomination crystal balling: Okay, for weeks I predicted Owens for SDO, Roberts for Rehnquist, Gonzo for Stevens. Roberts was an obvious choice for Bush... but I never thought he would move him to the O'Connor spot. Bush exceeded my expectations (not all my hopes, because I didn't get my first choices), by refusing to be pigeon-holed and refusing to play identity politics. He chose a first-class intellect with sterling credentials and lots of conservative credibility. That's good stuff.
Next, I was a bit surprised when all the Clement buzz started -- not because she would be a bad pick, but because she wouldn't accomplish much for Bush politically, at least not for this slot. As I did more research on her, though, and had more sources on her than just about anybody (because of multiple mutual New Orleans contacts), I knew she was getting a bum rap by those who said she wouldn't be reliably conservative. On the way off chance she emerges again as a short-listed choice (maybe for Stevens), I urge everybody to, rather than spout off about her lack of paper trail, instead actually do the work of looking up the paper trail she does have -- and also check around with contacts in and around the 5th Circuit/New Orleans legal community, and the Federalist Society, so you'll be better apprised of her record. The over-the-top gnashing of teeth about her, from conservatives, was unseemly. (I'm not, by the way, saying that all the criticism of her was unseemly; Andy Schlafly, for instance, made some highly reasoned arguments. What I'm objecting to were the panic-stricken comments and the harsh attacks.) The point is that principled conservatives should be girding up to battle the left, not battle each other, over potential nominees whose records are solid.
Next, it's worth noting that some of us on the right are truly interested in a nominee's approach to jurisprudence, his reasoning, more than in the results. If a judge approaches the Constitution and statutes from the angle that words have plain meanings that don't change and don't even expand, and refuses to decide results before using inductive reasoning to determine the actual meaning of those who wrote the laws, then we have confidence that the inductive reasoning process will, much more often than not, lead to "conservative" results. I stressed that in several interviews yesterday: I don't NEED to know a nominee's personal views on a particular hot-button issue, because if I know enough about the nominee's analytic approach, I can pretty much figure out where that analysis will lead.
An ideal judge for me, for instance, might be a political liberal who thinks abortions ought to be legal but who will say that Roe v. Wade as legal reasoning is such a crock of **** that it must be overturned. Or a conservative, anti-drug crusader who wants harsher state and local penalties for marijuana use but who thinks Justice Thomas's dissent in the recent medical marijuana case, the one in which he said Congress had exceeded the Commerce Clause and Necessary and Proper Clause, was so on target that it should have been the controlling opinion. I'm not saying those particular political positions are mine; I'm saying I want a judge who can so easily separate whatever her positions are from her jurisprudential approach that she has no problem reaching decisions that contradict her political desires.
In short, I want a judge deferential not always to Congress, not always to state legislatures, not always to the president, but to the clear or most logically defensible interpretations of the meaning of the Constitution and statutes. Where the Constitution mandates a judicial override, in clear language, it is an activist judge who defers to Congress. Where the Constitution is silent, it is an activist judge who does NOT defer to Congress.
Okay, so why all this philosophizing about a subject most readers of this site already believe? Because if WE get caught up in single-issue, result-oriented discussions, we play into the hands of the Schumers who want to do the same thing on the other side. AND we worry ourselves silly picking nits of perfectly good nominees.
I prefer nominees with long, long records, because that way their intellectual consistency can be determined. That's one reason why I am an Alito fan -- he seems to have been intellectually consistent for his whole career.
But the next best thing to a long, long public record is the assurances of solidly conservative people who know the nominee or the nominee's record well. This isn't to say we should accept an unknown like Souter on the basis of assurances from a moderate like Rudman. It is to say that we should accept a well-known person like Roberts based on the recommendations of many fellow Reaganites. And, moreover, that first-hand recommendations from solid Reaganites should help us be confident in people like Joy Clement or others.
Don't even come close to trusting before you verify. But if others whose bona fides have taken the time to verify, then don't distrust them.
Okay, nuff said. Let's go get Roberts confirmed, and then push for Alito or Luttig or Jones or somesuch for the next spot!
Posted in Uncategorized —
Posted at 5:23pm on Jul. 20, 2005 The Ginsburg Precedent
By krempasky
Thanks to Barbara Ledeen at the Republican Conference, we have the Ginsburg Precedent: a roadmap for the confirmation of John Roberts. Ginsburg, remember - was not an unknown. She had clear liberal (and very liberal) views. Yet she was confirmed overwhelmingly after just 4 days of hearings. Now it's time for Democrats to treat Judge Roberts with the same amount of deference and respect.
GINSBURG CONFIRMATION HEARING
ââ‚¢ Ginsburgââ‚â„¢s hearing lasted a total of 4 days.
ââ‚¢ Only one panel of witnesses was permitted to testify against Ginsburg at the hearing.
ââ‚¢ Chairman Joseph Biden established a new practice, effective for ââ‚Å“all Supreme Court nominees,ââ‚? that the Senate Judiciary Committee would review the nomineeââ‚â„¢s FBI file only in confidential, closed session. Chairman Joseph Biden, Ginsburg Hrg. 116 (July 20, 1993). The Committee would also question the nominee about the file in confidential session, no matter how ââ‚Å“seriousââ‚? the subject. Chairman Joseph Biden, Ginsburg Hrg. 369 (July 23, 1993).
ââ‚¢ Ginsburg was not required to discuss her legal views on a host of issues, including
o Abortion
o Civil rights laws
o Gay rights
o Gun-owners rights
o Rights of the disabled
o School vouchers
o Separation of church and state
o Free speech
o Rights of Indian tribes
ââ‚¢ Ginsburg was not required to discuss her personal views on issues such as the death penalty.
ââ‚¢ The fact that Ginsburg had made controversial ideological statements in speeches and law review articles was not considered a disqualifier. For example, before her nomination to the Supreme Court, Ginsburg had argued
o there may be a constitutional right to prostitution
o the age of sexual consent should be lowered to 12
o for an to end single-sex prisons to prepare male prisoners to return to a community in which men and women function as equal partners
ââ‚¢ Even Senators who strongly disagreed with Justice Ginsburgââ‚â„¢s personal political views voted for her confirmation.
ââ‚¢ Even those Senators who eventually voted against Justice Ginsburgââ‚â„¢s confirmation treated her, and spoke of her, with respect.
Posted in SCOTUS —
Posted at 5:03pm on Jul. 20, 2005 Roberts as "least objectionable"
By Ryan K
Law professor Orin Kerr believes that Roberts was on a short list of Democrats' "least objectionable" candidates, along with McConnell and Gonzales. And because Bush picked one of the safe nominees, he'll be rewarded with considerable Democratic support.
I agree with the notion that there was some (unspoken) level of mutual understanding and trust between President Bush and the Democrats in the Roberts pick. Democrats know that if they put forth the same proportion of objection no matter who the nominee, they will lose the little leverage they have in taming future Supreme Court nominations.
Why is Roberts one of the "least objectionable" for Democrats if all indications are he'll be a constitutionalist/textualist like Rehnquist and reach virtually the same conclusions on issues as Brown, Owens, Luttig and Garza? The same complaints of a lack of paper trail is exactly why the Democrats prefer him. And it's not because they think Roberts will morph into a Souter, but partly because they will have a "lack of ammunition" excuse to give the liberal activist groups when their attempts to stop Roberts fail. In fact, some Krazy Kos Kidz admit he'll be confirmed but still claim victory because of his lack of paper trail. If this is a victory for liberals, we should let them win more often 
.
Posted in Judiciary Committee —
Posted at 4:40pm on Jul. 20, 2005 Judiciary Committee Vote
By Marshall Manson
When the U.S. Senate was considering Judge John Robertsââ‚â„¢ confirmation to the U.S. Court of Appeals for the D.C. Circuit, the Senate Judiciary Committee actually recommended his confirmation in two separate votes. Later, the Senate confirmed Roberts to his seat on the D.C. Circuit by unanimous consent.
Below the fold, I've posted how each member of the Judiciary Committee voted...
Judiciary Committee Vote on February 27, 2003:
Democrats Voting For Roberts:
Biden
Kohl
Feinstein
Edwards
Democrats Voting Against Roberts:
Kennedy
Schumer
Durbin
Democrats Abstaining:
Leahy
Feingold
Republicans Voting for Roberts:
Hatch
Grassley
Specter
Kyl
DeWine
Sessions
Graham
Craig
Chambliss
Cornyn
Judiciary Committee Vote on May 8, 2003:
Democrats Voting For Roberts:
Leahy
Biden
Kohl
Feinstein
Feingold
Edwards
Democrats Voting Against Roberts:
Kennedy
Durbin
Democrats Not Voting:
Schumer
Republicans Voting for Roberts:
Hatch
Grassley
Specter
Kyl
DeWine
Sessions
Graham
Craig
Chambliss
Cornyn
Update: Thanks to Andrew who caught my mistake with the date.
Update II: Well, it seems that I got this all bolixed up. Shame on me for relying on the Committee's website. I've corrected the post above to reflect what actually happened.
Posted in SCOTUS —
Posted at 11:30am on Jul. 20, 2005 Ted Kennedy's newest ally in the battle over the Roberts nomination
By feddie
. . . Ann Coulter?
Say it ain't so, Ann.
Although this will probably end up helping Roberts with moderate Republican and dem senators.
Hmmmmm.
Here is Ann's beef with Roberts:
"We donââ‚â„¢t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever... Oh, yeah...we know he's argued cases before the supreme court. big deal; so has Larry Flynt's attorney."
So declares conservative columnist Ann Coulter in a new dispatch set for release.
Coulter declares: It means nothing that Roberts wrote briefs arguing for the repeal of Roe v. Wade when he worked for Republican administrations. He was arguing on behalf of his client, the United States of America. Roberts has specifically disassociated himself from those cases, dropping a footnote to a 1994 law review article that said:
ââ‚Å“In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992-93 Term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States.ââ‚?
This would have been the legal equivalent, after O.J.'s acquittal, of Johnnie Cochran saying, "hey, I never said the guy was innocent. I was just doing my job."
And it makes no difference that conservatives in the White House are assuring us Roberts can be trusted. We got the exact same assurances from officials working for the last president Bush about David Hackett Souter. I believe their exact words were, "Read our lips; Souter's a reliable conservative."
From the theater of the absurd category, the Republican National Committeeââ‚â„¢s ââ‚Å“talking pointsââ‚? on Roberts provide this little tidbit:
ââ‚Å“In the 1995 case of Barry v. Little, Judge Roberts arguedââ‚â€free of chargeââ‚â€before the D.C. Court of Appeals on behalf of a class of the neediest welfare recipients, challenging a termination of benefits under the Districtââ‚â„¢s Public Assistance Act of 1982.ââ‚?
I'm glad to hear the man has a steady work record, but how did this make it to the top of his resume?
Finally, lets ponder the fact that Roberts has gone through 50 years on this planet without ever saying anything controversial. Thatââ‚â„¢s just unnatural.
If a smart and accomplished person goes this long without expressing an opinion, they'd better be pursuing the Miss America title.
Methinks Ann has been out of conservative legal circles for far too long. She's dead wrong on this. Roberts is a solid textualist/originalist. She's not doing the conservative cause any good by recklessly suggesting that Roberts is the next Souter. That's crazy talk. Maybe the libs were right about her after all.
And what exactly is wrong with doing pro bono work, Ms. Coulter?
Geez.
(cross-posted at Southern Appeal)
Posted in News —
Posted at 11:17am on Jul. 20, 2005 Paper Trail Complaints
By Marshall Manson
When liberals complain that Judge Roberts doesn't have a long paper trail, it's worth reminding them that they only have themselves to blame. After all, the reason Roberts' paper trail isn't longer is that Senate Democrats twice obstructed his confirmation to the federal bench. First, when Roberts was nominated to the D.C. Circuit by President George H.W. Bush in 1992, Democrats made sure his nomination never saw the light of day. Then, when President George W. Bush nominated him again to the D.C. Circuit in 2001, Democrats obstructed his nomination for two years. (He was nominated on May 9, 2001 and wasn't confirmed until May 5, 2003.)
Posted in SCOTUS —
Posted at 9:46am on Jul. 20, 2005 JudgeRoberts.com
By krempasky
Hats off to the Progress for America folks for launching JudgeRoberts.com last night. For the record, I've been asked by about 67 people if we'll be releasing a site specific to this nomination. In short, no. What we will do is add more features to ConfirmThem in the next week or so. For now, click here at join our list of activists.
Posted in SCOTUS —
Posted at 9:25am on Jul. 20, 2005 Another similarity
By Irishlaw
...to Justices Scalia and Thomas, as Feddie noted below, is that Roberts is Catholic. One thing I would be very interested to see over time is whether his judicial philosophy is influenced at all by the Catholic legal and philosophical traditions, in the way that Thomas's philosophy has often specifically reflected principles of natural law.
This Tribune article discusses Roberts's background, apparently including Catholic school in Indiana. It gives a nice picture of the man, and (unrelated to the topic of this post) features a great quote from Notre Dame law professor Rick Garnett: "He's kind of the Tiger Woods of the Supreme Court bar."
Posted in Uncategorized —
Posted at 2:30am on Jul. 20, 2005 Background on Roberts
By feddie
FWIW, Roberts is a "practicing Catholic" and his wife apparently served as the executive vice president of Feminists for Life.
Posted in SCOTUS —
Posted at 6:10pm on Jul. 18, 2005 Changing politics and the internet
By krempasky
We interrupt your regularly scheduled SCOTUS blogging for an announcement. ConfirmThem's sponsor site, RedState.org been named one of twenty finalists for the Top Ten Who Are Changing The World of Internet & Politics vote, sponsored by PoliticsOnline and the 6th annual E-Democracy Worldwide Forum.
It's an honor just to be nominated, to be sure...
But we'd also like to win. You can click here and vote! We appreciate your support.
Posted in Administrative —
Posted at 5:54pm on Jul. 18, 2005 Fox Poll
By AndrewHyman
Fox News conducted a poll on July 12-13. Here are a couple of the interesting results:
If Senate Democrats strongly oppose the person President Bush nominates to be the next Supreme Court justice, do you think they should:
Allow an up or down vote on the nominee, even if they might lose - 51%
Draw out the debate to prevent a vote and keep the nominee from being confirmed - 24%
Not sure - 26%
If the person President Bush nominates to the U.S. Supreme Court is a well-qualified strong conservative, do you think Senate Democrats should vote to confirm the nominee?
Yes - 62%
No - 22%
Not sure ââ‚“ 16%
Hat Tip: Jessica Boulanger.
Posted in News —
Posted at 1:47pm on Jul. 18, 2005 Priscilla Owen
By Quin
Two weeks ago, I predicted the order of nominees would be Priscilla Owen, then John Roberts (for Rehnquist), then Gonzales. I still stand by that prediction -- even though Joy Clement remains VERY much in the running, or at least was in the running still late last week. The president personally has asked top Louisiana politicians about Clement, supposedly, and his college roommate is a big booster of hers, supposedly. But here's why I'm predicting Owen and then Roberts and then Gonzo: Bush prizes personal loyalty and also puts high value on having a personal sense of somebody's character (sometimes he's wrong, as with Putin). And there's this quote in an AP story this morning: ââ‚Å“Iââ‚â„¢ve got some people, perhaps in contention, that Iââ‚â„¢ve already spent time with, that I know. In other words, Iââ‚â„¢m familiar with some people that are being speculated about in the press. And so I donââ‚â„¢t need to interview those." To my knowledge, there are only four short-listers who he knows well personally: Owen, Gonzales, Cornyn, and Roberts. (Roberts, apparently, is known to W through Roberts' work in the Bush 41 administration, for which W was the omni-present, unpaid, highly involved enforcer for his father.) Unlike Pryor and J.R. Brown, Owen did quite well on her final cloture vote, and she received, I believe, 58 votes for confirmation. She was endorsed for the 5th Circuit even by the Wash Post. She puts the Dems on the spot on the filibuster, but probably will (barely) avoid one -- and if the Dems DO try to filibuster, I guarantee that McCain, Graham, DeWine and probably Warner and Specter WILL use the constitutional option on her behalf. In short, she is confirmable -- and she's a personal friend of the Bushes, and very very bright.
So she gets on. Then Rehnquist, satisfied, retires -- and Bush rewards him by picking his former clerk, Roberts, who Bush knows and likes, and who is supprters even by Seth Waxman.
I'd still pick Alito, by the way, but I don't get to pick.
Posted in Uncategorized —
Posted at 1:24pm on Jul. 18, 2005 Bush and Bashman on a SCOTUS Nomination
By AndrewHyman
The Washington Post reports some remarks today by President Bush, including these:
ââ‚Å“We have consulted with the Senate. We will continue to consult with the Senate. I, of course, am the person that picks the nominee and they get to decide whether or not the nominee gets confirmed. Thatââ‚â„¢s the way it has worked in the past; thatââ‚â„¢s the way itââ‚â„¢s going to work in this administration.
"And, of course, Iââ‚â„¢m reviewing different candidates. Iââ‚â„¢m reviewing their curriculum vitae, as well as their findings. I will sit down with some and talk to them face to face, those who I have not know already. Iââ‚â„¢ve got some people, perhaps in contention, that Iââ‚â„¢ve already spent time with, that I know. In other words, Iââ‚â„¢m familiar with some of the people that are being speculated about in the press. And so I donââ‚â„¢t need to interview those. But, of course, Iââ‚â„¢m going to take a very thorough approach.
"What theyââ‚â„¢re referring to is a Supreme Court vacancy. And this is a really important decision. And Iââ‚â„¢m going to take my time and I will be thorough and deliberate. But make no mistake: We have heard a lot of suggestions from members of the United States Senate -- a lot. It turns out that many of the senators have got strong opinions one way or the other and, of course, weââ‚â„¢re listening to them.
"But my desire is to get this process moving so that someone will be confirmed -- whoever he or she is will be confirmed by October. And if thatââ‚â„¢s the backstop, weââ‚â„¢re working back to try to accommodate the Senate and their desire. Part of the consultation was to ask the senators, you know, whatââ‚â„¢s it take to get somebody in place by the October session?ââ‚?
Also, Howard Bashman rounds up a bunch of related news stories here.
Posted in News —
Posted at 12:57pm on Jul. 18, 2005 Ben Nelson (D-Neb) on "Extraordinary Circumstances"
By DanCT
From today's Lincoln Journal-Star (July 17, 2005), Ben Nelson almost assured us that ideology is not grounds for claiming "extraordinary circumstances":
...On the retirement of Justice Sandra Day O'Connor, the Los Angeles Times quoted me as saying "If someone was committed to being a judicial activist that would raise the question of extraordinary circumstances." There was a similar quote in the Washington Post. On Fox News Sunday another member of the "Gang of 14," Republican Sen. Lindsey Graham and I concurred that "Based on what we've done in the past, ideological attacks are not an extraordinary circumstance." That position was restated at a news conference in Omaha the day O'Connor announced her retirement.
I will say it once again for Wolff's benefit as he seems to have missed it in the past; philosophical views do not constitute extraordinary circumstances. I would hope Wolff would agree that the Supreme Court is no place for an activist judge.
Hmmm...philosophical views/ideology do not constitute "extraordinary circumstances" but "judicial activism" does? I wonder what he thinks about the philosophical view that the Constitution is a "living document" that can and should be twisted to conform to the latest ideological fashions of the sitting justices...
Would that the GOP had had the will to pull the trigger on the "nuclear option" the last time the issue came up!
Posted in Senate Rules —
Posted at 7:24pm on Jul. 17, 2005 Sunday Nomination News
By AndrewHyman
There was the usual hubbub today about this subject, but none of it seems to signify a whole heck of a lot. Mark Kilmer has a summary of the TV talk shows. Maybe the most significant thing on the Sunday talk shows was Senator Specter saying that if Bush wants a "dignified" hearing, he'd better nominate a moderate like O'Connor. Specter added that the moderate nominee should also be "somebody who's been out in the world and has a more varied background." Senator Specter ought to guarantee a "dignified" proceeding no matter who is nominated.
Many other news items on this subject are listed by Howard Bashman, leading off with a negative piece about Judge Edith Jones (re. a sex harassment case from 1989). The Washington Post has a profile of Judges Luttig (pronounce "LOO-tig") and Roberts. Also, the NY Times has a piece today on a possible Cornyn nomination.
The International Herald Tribune is anticipating a female nominee. I'm still waiting for a good newspaper profile of Alice M. Batchelder. Some info about her is linked over at the right-hand-side of the confirmthem page, under the category "SCOTUS candidates."
UPDATE: One of our commenters points to this interesting article about the Batchelder family. Mr. Batchelder spent 30 years in Ohio's House of Representatives, so Alice Batchelder knows a thing or two about politics.
Posted in News —
Posted at 2:27pm on Jul. 16, 2005 President's Weekly Radio Address
By AndrewHyman
"Good morning. Under the Constitution, I have the responsibility to nominate a successor to Supreme Court Justice Sandra Day O'Connor. This past week I met with Democratic and Republican leaders in the United States Senate and sought their views on the process, and their thoughts on the qualities to look for in a potential nominee. Also, my staff has talked with more than 60 members of the United States Senate. Members of the Senate are receiving a full opportunity to provide their opinions and recommendations, and I appreciate their advice.
"I will be guided by clear principles as I make my decision. My nominee will be a fair-minded individual who represents the mainstream of American law and American values. The nominee will meet the highest standards of intellect, character, and ability, and will pledge to faithfully interpret the Constitution and laws of our country. Our nation deserves, and I will select, a Supreme Court justice that Americans can be proud of.
"The American people also expect a Senate confirmation process that rises above partisanship. When I met with Senate leaders, we discussed our shared goal of making sure that the confirmation process is dignified. The nominee deserves fair treatment, a fair hearing, and a fair vote. I will make my nomination in a timely manner so the nominee can be confirmed before the start of the Court's new term in October. The experiences of the two justices nominated by President Clinton provide useful examples of fair treatment and a reasonable timetable for Senate action. In 1993, the Senate voted on and confirmed Justice Ruth Bader Ginsburg to the Supreme Court 42 days after President Clinton submitted her nomination. And despite the significant philosophical differences many senators had with Justice Ginsburg, she received 96 votes in favor of confirmation.
"The following year, Justice Stephen Breyer was confirmed 73 days after his nomination was submitted, with 87 votes in his favor. Again, Republican senators in large numbers voted for confirmation of Justice Breyer despite significant philosophical differences. These examples show that the thorough consideration of a nominee does not require months of delay...."
Full text here.
Posted in News —
Posted at 4:56am on Jul. 16, 2005 Quizzing Nominees
By AndrewHyman
A bunch of law professors want Supreme Court nominees to answer a bunch of specific questions. These are the questions:
1. Do you believe in employing a canon of construction? If so, is there a particular canon to which you subscribe?
2. Do you believe it is appropriate for the Supreme Court to recognize constitutional principles that were not expressly written in the Constitution or explicitly recognized by the Framers?
3. What rights, if any, do you believe are protected by substantive due process?
4. The Supreme Court has declared that the Constitution contains a right to privacy. Do you believe there is a constitutionally protected right to privacy, and, if so, under what circumstances does it apply?
5. Do you agree with the tiers of review currently employed under Equal Protection jurisprudence and the way they have been applied?
6. What in your view are the limits on the scope of Congressââ‚â„¢ power under the Commerce Clause and section 5 of the Fourteenth Amendment?
7. What do you believe is the appropriate scope of state sovereign immunity and the Eleventh Amendment?
8. Define ââ‚Å“judicial activismââ‚? and describe your views on it.
9. Do you believe there are judicially enforceable limits to the Presidentââ‚â„¢s power as Commander-in-Chief in times of national crisis? If so, what are those limits?
10. What lessons do you believe the Court should draw from Korematsu and the World War II experience?
The Angry Clam offers ten answers, over at Patterico's Pontifications. So does Mike, over at the Crime and Federalism Blog. Professor Paul Horwitz at the PrawfsBlawg says that he "might answer questions 1-2, 5, and 8-10 in broad strokes, and either refuse to answer or give very broad and basically unhelpful answers to questions 3, 4, 6-7, and part of question 9."
Posted in Analysis and Predictions —
Posted at 2:13pm on Jul. 15, 2005 O'Connor's Replacement
By Erick
The Week Magazine has a brief rundown of "the shortlist" for Supreme Court nominees.
Let me just say that I'm increasingly convinced that O'Connor's replacement is not on this list. In fact, in the past twenty-four hours, one name has been heard and discussed more than any other. Meet her here.
Posted in SCOTUS —
Posted at 10:33pm on Jul. 14, 2005 Hail to the Chief Justice
By AndrewHyman
Associated Press reports:
Chief Justice William H. Rehnquist, denying rumors of his retirement, said Thursday he will continue heading the court as long his health permits. "I'm not about to announce my retirement," he said. "I want to put to rest the speculation and unfounded rumors of my imminent retirement," Rehnquist, 80, said in a statement obtained by The Associated Press. "I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits."
Good for Chief Justice Rehnquist.
Hat Tip: Bench Memos.
Posted in News —
Posted at 9:40pm on Jul. 14, 2005 The O'Connor Vacancy
By AndrewHyman
The Supreme Court Nomination Blog (SCtN) has an interesting post today. Allegedly, Judge Edith Jones and perhaps any other potential nominees who have expressed doubts about the Roe v. Wade decision are being taken out of consideration by the White House. Also, Senators Boxer, Landrieu, Collins and Snowe are nominating Justice O'Connor for the not-quite-yet-vacant position of Chief Justice.
If the SCtN entry is accurate, then apparently the White House will not consider any nominee who agrees with 72% of American women that abortion should generally be illegal months before viability. An even larger percentage of Americans believes that a law-abiding husband should have a right to know that his wife has obtained an abortion (the U.S. Supreme Court shredded that right in 1992).
Posted in News —
Posted at 5:04pm on Jul. 14, 2005 Quote of the Week
By AndrewHyman
From Jonah Goldberg:
If Bush wants to appoint a Hispanic, there are some out there (Judge Emilio Garza, for one) who have all the necessary qualifications, save one: He's not buddies with the president.
Judge Garza has a very distinguished record. Nothing against A.G. Gonzales, but Garza seems perfect for the Supreme Court.
UPDATE: Nothing against Garza or Gonzales, but I just linked to some info about Florida Supreme Court Justice Raoul Cantero III. See the links over at the right-hand-side of the confirmthem home page, under the category "SCOTUS candidates." Plus there are new links for Miguel Estrada.
And by the way, the runner-up quote of the week is from former President Clinton: "[T]he people that are your political opponents will politicize anybody you appoint anyway. . . .There's no substitute for appointing someone [who] has convictions that are consistent with yours."
Posted in News —
Posted at 2:26pm on Jul. 14, 2005 Good news!
By Quin
Rehnquist discharged from hospital. May he enjoy long good health!!!
Posted in Uncategorized —
Posted at 1:33pm on Jul. 14, 2005 Hatch, Brooks, Erickson, and <em>USA Today</em> on Nominations
By AndrewHyman
Senator Orrin Hatch has a great piece in National Review about the nomination process. Hatch is giving Senator John Cornyn some stiff competition, as far as who can bring more sanity and wisdom to this whole debate.
And, in the insanity department, David Brooks writes in the NY Times that an excellent way to pick a nominee would be to determine who will best be able to ââ‚Å“shake up law students for generations." Sure. Brooks does make some good points, but that ain't one of 'em.
Erick-Woods Erickson has the latest rumors here. Ramesh Ponnuru says he's hearing mostly the same thing Erick's hearing.
Two of my favorites to replace Justice Oââ‚â„¢Connor are Edith Jones and Priscilla Owen (Ann Coulter would be okay too but perhaps less likely). USA Today has an article that suggests a female nominee is recommended by more than just the First Lady and me:
The latest USA TODAY/CNN/Gallup Poll, taken July 7-10, showed overwhelming support for putting another woman on the court. Three of four favored appointing a woman to replace Sandra Day O'Connor, the first woman to serve on the high court. Two-thirds of those surveyed liked the idea of naming the first Hispanic to the Supreme Court, too. And an equal number didn't want Roe v. Wade, the decision recognizing abortion rights, overturned by the court.
Regarding Roe v. Wade, this is typical slanted media reporting. The fact is that an overwhelming majority of Americans believe abortion should be illegal months before viability. The media rarely reports this fact, which has to qualify as one of the great media coverups of all time.
In a "Times Poll, 65% of respondents said abortions in the second trimester should not be legal. Female respondents feel more strongly about the issue: 72% believe second-trimester abortions should be illegal, compared with 58% of men." Rubin, Americans Narrowing Support for Abortion, L.A. Times, June 18, 2000, at 1. See also Saad, "Americans Walk the Middle Road on Abortion," The Gallup Poll Monthly (April 2000) (The poll question was: "Do you think abortion should generally be legal or generally illegal during the second three months of pregnancy?" 65% said illegal in July of 1996, and 69% said illegal in March of 2000). See also Saad, "Roe v. Wade Has Positive Public Image; Americans want abortion legal in some, but not all, circumstances," Gallup News Service (January 2003)(68% say abortion should generally be illegal in the second trimester, and 25% say legal).
The Chicago Tribune has a good piece about abortion and the Supreme Court, but again there is no mention of any of the statistics cited above (nor any mention of this excellent idea).
Posted in News —
Posted at 9:18pm on Jul. 13, 2005 <strong>A small request</strong>:
By feddie
Dear media types, Bush administration officials, and fellow conservatives: Please stop using the term "strict constructionist" as a means of describing the school of jurisprudential thought to which Justices Scalia and Thomas "belong," or, for that matter, as a means of labeling prospective Bush nominees. It is highly unlikely that President Bush will nominate a strict constructionist to the Supreme Court. Indeed, if the president nominates anybody other than the attorney general, that person will almost certainly be an originalist/textualist. What's the difference you might ask? Well, as Justice Scalia so eloquently notes in his most excellent book, "A Matter of Interpretation":
"I am not a strict constructionist, and no one ought to beââ‚â€though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means."
Got it, folks? Good.
Update: I probably need to clarify that when Justice Scalia says that statutory and constitutional text must be reasonably construed what he means is that words (including common law terms of art) have a reasonable range of meaning and any interpretation of a statute or constitutional provision must take those objectively defined linguistic parameters into account.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 9:16pm on Jul. 13, 2005 <strong>You mean you don't have to be a lawyer to serve as a Supreme Court Justice?</strong>:
By feddie
That's right; and personally I think that's completely insane. I am sorry. Call me a legal snob if you wish, but placing a non-lawyer on the Supreme Court will (IMHO) only serve to further politicize a court that desperately needs to be de-politicized.
Oh, and FYI there is only one office holder in the federal government that actually must be "learned in the law." Do you know which one? If not, click here (and read the third paragraph of the speech in question).
Update: For other views on this topic, see the comments section to this post over at The Volokh Conspiracy.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 9:14pm on Jul. 13, 2005 <strong>"The Supreme Court and Bush's 'Base'"</strong>:
By feddie
In all of the media coverage and discussion over Bush's choice for any Supreme Court Justice(s), one very common theme has been that if Bush picks an originalist Justice who would vote to overturn Roe, he would be doing so to please the demands of his "base."
This isn't the whole picture, not by a long shot. Lots of people who aren't part of Bush's "base" in any meaningful sense voted for Bush precisely because they wanted him to pick Supreme Court Justices who would vote to overturn Roe.
A lot of Catholics, for instance. There were about 32 million Catholics who voted in 2004, and a majority voted for Bush. But more than that, it was only because Bush had improved his standing among Catholics in Ohio in particular that he won Ohio, and thus won the election (as his own advisers have recognized).
Now why did Bush improve his popularity among Catholic voters? Many of them were uncomfortable with the Iraq War, suspicious of Bush's tax and/or environmental policies, and, if anything, would historically have been part of John Kerry's "base." Why did they go for Bush in even stronger numbers than in 2000, even after numerous reasons to be unsatisfied with Bushââ‚â„¢s first term?
One reason: Bushââ‚â„¢s promise to appoint Justices in the model of Thomas and Scalia, compared to Kerryââ‚â„¢s promise to do the opposite. If Bush doesnââ‚â„¢t make good on that promise, it wonââ‚â„¢t be just his ââ‚Å“baseââ‚? that is dissatisfied. He will also drive away any voters who were traditionally Democrats but who voted for Bush mainly because of his philosophy on judicial nominees.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 4:12pm on Jul. 13, 2005 Praise Rehnquist
By Quin
I have been one of the people who publicly suggested that Rehnquist should step down.... but since he has not yet, and since his health is precarious, it stands to reason that he is missing out on the accolades that would come his way if he does step down. For what it's worth, those accolades would be substantial, and well deserved. C.J. Rehnquist has been a fantastic public servant for lo these many decades, and by all accounts is personally charming and gracious. He is a man of forceful intellect and great integrity, and should be seen as one of the true heroes in this nation's history. As we pray for his recovery, let us also pray that he realizes how much he is appreciated, and that he be given the opportunity to hear the very public thanks of a grateful nation.
Posted in Uncategorized —
Posted at 3:51pm on Jul. 13, 2005 Rehnquist Hospitalized
By Lorie Byrd
I hate to be a part of the Rehnquist "health watch," but it is now being reported that he was hospitalized last night with a fever, and this is relevant to the speculation over his retirement. I offer my well wishes to the Chief Justice.
Posted in News —
Posted at 1:05pm on Jul. 13, 2005 Senators Reid and Leahy Prepare
By AndrewHyman
Hat Tip: Laura Dlugacz.
UPDATE: Also, see here.
Posted in SCOTUS —
Posted at 12:15pm on Jul. 13, 2005 Garza Counter-Rumor
By AndrewHyman
Previously, I had a post titled "Garza Rumor" reporting that a reliable anonymous source had said that Judge Emilio Garza's name was off the list due to some unspecified problem. Now comes word from another reliable anonymous source. Yes, that's right. Garza is now rumored to be okay. Birdie #2 says no blemish, and says that the rumor was started by someone wanting to knock Garza out.
I also asked birdie #2 which he thinks are originalist/strict constructionists among Hinojosa, Prado, Boggs, Cabranes, Sotomayor, Cantero, and Martinez. Response from birdie #2: Boggs, Cantero, and Martinez are all great. Anyway, the main reason for this post is to cancel out my previous post "Garza Rumor." If I hear another rumor about Garza being knocked off the list, I'm not posting it, unless Birdie #3 is W.
Posted in News —
Posted at 6:27pm on Jul. 12, 2005 Hinojosa
By Quin
Who knows much about Hinojosa? The Dem senators actually mentioned him this morning as being "acceptable" to them. Reagan appointed him to the district court in 1983. He went to Harvard Law. Bush named him head of the US Sentencing Commission. In short, he sounds (very much on the surface) like a decent prospect -- but why would the Dems push him? Because I've heard his name mentioned as rising (at least slightly) in likelihood in the past few days, this concerns me. What does anybody know about him? Is he conservative? Is there any way to know, from his 22 years on the district bench, if he is a strict constructionist/constitutionalist? If Garza is out and Gonzales is being held for a Stevens retirement (if at all), and if Bush is determined to appoint a Hispanic, Hinojosa seems the most obvious choice. So why would the Dems be so accepting of him? Inquiring minds want to know.....
Posted in Uncategorized —
Posted at 6:10pm on Jul. 12, 2005 My Wish....
By AndrewHyman
is that future Supreme Court justices will one day realize what an outrageous thing has been done to the Due Process Clause of our Constitution. In 1985, all nine justices unanimously acknowledged this:
[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.
It's a tragedy that some of the justices find this kind of thing acceptable. If more Supreme Court justices are chosen who will carry on this subversion of our fundamental law, then they certainly will not deserve to be called "strict constructionists" or "originalists." I've written about this elsewhere.
So, I hope President Bush will please ask prospective nominees whether they will ever interpret the Constitution in a way that is "suggested neither by its language nor by preconstitutional history." If they say yes, then he should say no.
Incidentally, here's another question that every nominee should answer.
Posted in SCOTUS —
Posted at 4:43pm on Jul. 12, 2005 Blogging You Silly
By AndrewHyman
If you take a look over at the right-hand-side of the confirmthem home page, you'll see that we've got a category for "bloggers." This includes the new Washington Post (WaPo) nomination blog. Also, the Committee for Justice (CFJ) is staying on top of the situation.
For the time being, I'm going to ease up on the number of blog posts I write, because other neutral and conservative blogs are doing such great work on this nomination stuff. We'll see if the WaPo blog remains neutral.
Posted in News —
Posted at 3:48am on Jul. 12, 2005 Liberals Are The Real Extremists On The Court
By Lorie Byrd
David Limbaugh has written a couple of columns on the upcoming Supreme Court nominations that are worth a read.
Yes, Let's Have Constitutionalist Judges, Not Ideologues
Posted in SCOTUS —
Posted at 2:04am on Jul. 12, 2005 Miranda Writes About Gonzales
By AndrewHyman
Manuel A. Miranda has a good op/ed in the Washington Times today, and here are a few pieces of it:
I don't want to tick off the president of the United States, but I think nominating Alberto Gonzales to be the first Hispanic on the Supreme Court would be like throwing a party to which few people will come. And, loving this president as I do, I feel it is a duty to tell him so. It is not that the attorney general would not be confirmed, he wouldâ₦.
[H]owever Republican Al Gonzales may be, there is nothing to suggest that he is a jurist like Justices Scalia or Thomas, as the president promised. His record suggests otherwise. It suggests that he is pragmatist, at best like Justice O'Connor, and pragmatists on the bench tend to make law like politicians and not judgesâ₦.
Conservative opposition to Al Gonzalez is not just about how he would rule on certain hot button issues. The hope of the conservative movement is much more principled than that. It is a hope that this president will appoint justices who will reclaim the Constitution itself after decades of unauthorized amendment, corrosion and such distortion that American constitutional law today has little to do with the American Constitution itselfâ₦.
There are, in fact, many qualified Hispanic nominees with a solid record who would unite, and not divide, Republican supporters. A solid Hispanic nominee will also divide Senate Democrats from the special-interest groups that radicalize them.
I don't want to tick of the President either. :-) But Miranda makes some good points. Some miscellaneous background info about A.G. Gonzales is here. Hugh Hewitt was 100% right to say that Gonzales is "a fine public servant with an incredible life story who has been a full participant in the Global War on Terror (GWOT) from its declaration on 9/11." The executive branch needs him far more than the judicial branch.
UPDATE: Miranda's piece is one of many confirmation-related items summarized this morning by Howard Bashman.
Posted in News —
Posted at 1:40am on Jul. 12, 2005 Gonzales and the Senate's Role
By DanCT
President Bush will nominate whomever he thinks is the best choice. Unfortunately, rumors about him considering AG continue to swirl. The problem is that if AG were not a long-time, loyal friend of the President, there is zero chance that he would be perceived by ANYONE as the best choice for the court -- let alone by the President, who has said forcefully and repeatedly that he wants to nominate a true judicial conservative, which AG pretty clearly is not. If he were to nominate AG, how could we conclude anything other than that his judgment had been colored by his personal affection?
In adding the "Advice and Consent" clause to the Constititution, the framers had exactly these circumstances in mind. In the Federalist Papers (#76) Hamilton wrote: "To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President..."
AG's merits as a judge don't appear to be strong enough to overcome the suspicion that he is being considered in large part because of his personal alliance with the President. Unless Senate Republicans can be convinced that AG is demonstrably superior to the other candidates, they really should threaten to reject him and then have the courage to carry through on the threat if necessary.
Why? Hamilton states it eloquently: "The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation...from betraying a spirit of favoritism, or an unbecoming pursuit of popularity...could not fail to operate as a barrier to the one and to the other [viz., cronyism and political motivations]."
Some GOP politicos might argue, "He is the President and leader of our party. Any Republican would be out of his or her mind to vote against Gonzales. In fact, weââ‚â„¢ll all fully support him. "
Hamilton would be spinning in his grave: "...it has been objected that the President, by the influence of the power of nomination, may secure the complaisance of the Senate to his views. This supposition of universal venalty in human nature is little less an error in political reasoning, than the supposition of universal rectitude. The institution of delegated power implies, that there is a portion of virtue and honor among mankind, which may be a reasonable foundation of confidence; and experience justifies the theory. ...Though it might therefore be allowable to suppose that the Executive might occasionally influence some individuals in the Senate, yet the supposition, that he could in general purchase the integrity of the whole body, would be forced and improbable."
[Translation into 21st century English: "You've got to be kidding. Sure, there are some Senators who think like that, but most are too principled to be such pushovers or such suckers for political calculations."]
My goodness, Mr. Hamilton, the times have changed! I don't have your confidence that this Senate's GOP have the virtue or fortitude to stand on their Constitutional prerogative to resist and reject cronyism on the part of the President, but let's hope they do.
Posted in SCOTUS —
Posted at 11:40pm on Jul. 11, 2005 Chuckie And The Dems Continue To Push For Role In Choosing SCOTUS Nominees
By Lorie Byrd
Aaron at Lifelike Pundits takes apart the recent statements by Chuck Schumer, including his call for a Camp David summit. An especially good point is made by comparing the "divisive election" of George Bush, who won 3.5 million more votes than Kerry and 51 percent of the vote, to Bill Clinton's non-divisive election in which he won 42 percent of the vote. (The Clinton picture is pretty amusing, too.)
Posted in SCOTUS —
Posted at 5:37pm on Jul. 11, 2005 Anti-Gonzo blogo-ism
By Quin
The president and his advisors really ought to understand that the opposition to Gonzales A) isn't a personal attack on him and not a smear job and B) is NOT, NOT, NOT "just" coming from the "social" right.
Start with item B. People too often refer to the "base" of the GOP as if it is made up of solely social-issue conservatives or solely the "Christian right." Well, the social right clearly is a large part of the base, and it clearly opposes a Gonzales nomination. But the social right isn't the only part of the base that opposes Gonzo. The problem with Gonzo is that he has shown no inclination to be a strict constitutionalist -- in ANY sense. And he is opposed by hosts of conservatives who would never call themselves part of the "Christian Right." Take me, for example. I agree with social conservatives pretty much right down the line. I am a conservative Christian. But I was a Reaganite before the Christian Right was even a movement in its own mind. On economics, foreign policy and, most importantly, on simple adherence to a strict and consistent method of reading laws and the Constitution, I am a conservative and part of the "base" even WITHOUT considering any of the social issues. In my case, the social issues are also very important, which makes me doubly frustrated by the possibility of Gonzo on the high court.
But the point is that there are HUGE numbers of people who are part of the conservative base without even taking the social issues into account, and they, too, would feel betrayed by a Gonzales nomination. Free-market conservatives don't believe Gonzales would have ruled correctly, for instance, on the Kelo eminent domain case. A Gonzales nomination would knock the wind out of Kemp conservatives, Russell Kirk conservatives.... etc etc etc.
Now, back to point A. Nobody is suggesting that Gonzales is not a fine fellow. Nobody is distorting his record. Nobody is smearing him. Almost nobody on the right objected to having him as AG. But we do object, as Alexander Hamilton did, to the idea of somebody going on the high court by reason of "personal attachment" to the president. When the bench of solid conservative jurists is so, SO, SO deep, as it is today, there is no reason, none whatsoever, to move Gonzales from the AG spot where he seems to be doing well. He's young: If he serves four good years as AG, he'll still have plenty of time for future presidents to nominate him for the Supreme Court -- without it looking like cronyism.
That's why, with all due respect (and much respect IS due, and is given, by me and so many others, both to President Bush and to Gen. Gonzales), the idea of a Gonzales nomination any time within the next year or two is wrong on substance and a huge mistake politically. Candidate Bush promised a Scalia or a Thomas. His "base" should be able to be confident that President Bush is delivering on that promise.
Posted in Uncategorized —
Posted at 3:57pm on Jul. 11, 2005 Cross Reference
By AndrewHyman
Just a brief note to say that Tim has some very good posts up at From the Bleachers.
UPDATE: According to the latest polls, 86% say Senate Dems will attempt to block Bush's nominee for inappropriate political reasons, and 58% say Senate Dems should confirm a qualified conservative.
Posted in News —
Posted at 12:43pm on Jul. 11, 2005 A Post Mortem on the Novak Frenzy
By Erick
After the Robert Novak induced media feeding frenzy cum hysteria of this past Friday, where do we stand with the Supreme Court and William H. Rehnquist?
What I am hearing is that some people really do think Rehnquist retired or intended to retire on Friday. Others, as you can imagine, do not believe it. A friend of mine close to the White House tells me that though the White House had no notice of a retirement, they had a good enough idea of who Novak's source was to believe it accurate. I'm also told that the White House has zipped up as many lips as possible regarding this discussion. Likewise, Novak today is silent on the issue.
My speculation is that Rehnquist has every intention of retiring, but it seems cannot find a convenient time to do so. First O'Connor retired. Then London was bombed. Then Dennis struck the South. Perhaps Christ will return next thereby permanently ending any ability or need to retire. But, I do know that people I trust very much at the Supreme Court, White House, and Senate all expected a Rehnquist resignation and still expect one. "It could come as soon as today, but after hearing Specter and others this weekend, God I hope not," said a White House friend.
Interestingly, the Novak speculation did have one side benefit -- it induced a few Republican Senators, including Arlen Specter, into revealing their cards. Arlen and several members of the Gang of 14 have bought into the notion that the White House, to play civilly, should exchange a O'Connor for a moderate and Rehnquist for a conservative. One Senate source tells me, "if O'Connor and Rehnquist do go at the same time, it will make it more difficult for the White House to push two conservatives at once. They could make it past the Democrats, but I don't know that they could make it past some on our side."
If Rehnquist's retirement is announced before O'Connor's replacement is confirmed, look for Gonzales to be back on the table.
Also, I'm told the White House has begun efforts to expand it's list. Last week I reported on the names that are on the list. Over the weekend I was told the White House and third parties assisting in the effort are looking at other names. The White House fears that the Democrats and Democrat interest groups are digging fast and furiously into the backgrounds of several nominees and it just might pay to have a fall back nominee whose name has not been widely circulated.
Lastly, the Washington Post reports this morning something I think everyone concluded in the past week or two -- the White House intends to delay announcing a nominee. In addition to building a list of alternate names, the White House wants to wait until the last possible moment before hearings begin to get a nominee's name out there. The thinking is that the Dems will be unable to smear the person as badly as if the name were released now.
Says one friend familiar with the White House strategy, "The President intends to win. We all just hope Specter and the Senate Republicans intend to win too."
Posted in SCOTUS —
Posted at 9:27am on Jul. 11, 2005 Understanding <em>Stare Decisis</em>
By AndrewHyman
The Washington Post has an editorial today urging President Bush to choose a nominee who strongly believes in respecting precedent:
[A] nominee who strongly believes in the stability of precedent -- the legal principle of stare decisis -- is far more likely to garner broad support than a nominee who generally regards past decisions as ripe for overturning. Justice Clarence Thomas is more radical than Justice Scalia not because he has a more radical view of how cases should be decided in the first instance but because of his willingness to overturn age-old precedents. It is far easier to support a nominee whose approach to cases is not one's own if that nominee treats decisions of past eras with respect and deference.
But this is simplistic. The doctrine of stare decisis is much more subtle than the Post suggests, and any nominee should understand that. Here's how Justice Louis Brandeis explained it:
Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.... This is strikingly true of cases under the due process clause...
A nominee who agrees with Brandeis would be vastly preferable to a nominee who blindly follows precedent, or a nominee who believes that precedent is more important than the intended meaning of the Constitution. It is worth keeping in mind that the great and historic decision in Brown v. Board of Education overturned a Supreme Court precedent that had stood for 58 years.
The Supreme Court decided in 1992 to create what Chief Justice Rehnquist called a "newly minted variation on stare decisis," in his dissent. Ironically, the Court's opinion in that 1992 case (by Justice O'Connor) discarded the version of stare decisis that had been supported by ancient tradition and precedent, and replaced it with a version more akin to the version advocated today by the Washington Post.
Posted in SCOTUS —
Posted at 12:11am on Jul. 11, 2005 Michael McConnell on Polygamy and Abortion
By AndrewHyman
One of the commenters here at confirmthem suggested today that it's unfair and ignorant to conclude that Judge Michael McConnell would overturn anti-polygamy laws and to conclude that he would not overturn Roe v. Wade. Perhaps it would be helpful for confirmthem readers to read for themselves what now-Judge McConnell said during his confirmation hearing about these two hot-button topics. So, below the fold are relevant excerpts from that hearing. I have placed in bold italics the parts that seem most relevant.
Senator Durbin...Now let's go to the case of Reynolds v. the United States. Here we have a religion which practices polygamy, and a decision by the Court which says that that is against the criminal law of the State in which they are residing, and your writing in publication said that that case was wrongly decided.
You asserted that the man involved, charged with polygamy, a crime in that State, ``asked only that the Government leave him and his wives alone.'' In fact, he was asking for a religious-based exemption from criminal law, was he not?
Mr. McConnell. Yes, he was.
Senator Durbin. And so the criminal law, at least from your point of view, in that case, should or should not have been applied to this man because of his religious belief in favor of polygamy?
Mr. McConnell. Senator, it cannot be the case that every--any provision that any legislature would put into the criminal law is necessarily going to be constitutional under the First Amendment. The United States Supreme Court has struck down any number of applications of criminal law as applied in particular First Amendment circumstances. So, in order to answer a question about criminal law, in general, you simply have to descend to specific cases.
I have talked about Reynolds in a number of different contexts. It is, obviously, in Utah, an old chestnut and something that every class is interested in because of the heritage of the State, and I have thought about it in different ways over time. The position that I recall having stated has not been that Reynolds was incorrect in its day, although I think a lot of scholars do have questions about it, but rather whether the prosecution of someone for having multiple--can we call them partners for just amoment? --when that person has those multiple partners with blessings of clergy, under a circumstance where it would be not illegal for such a person simply to have a bunch of serial relationships outside of marriage, looks like he's being prosecuted not for the multiple relationships, but rather for having gotten those relationships blessed in church, and that seems to me to be a problem......
Senator Durbin. ...The issue of polygamy which came up in the Reynolds case, I thought you said earlier today that you believe that simply adhering to a religious belief does not exempt you from obeying the laws of the land, particularly its criminal laws. And yet in one of your writings and what it would mean to have a First Amendment, you talk about this Reynolds v. United States case, in which a Mormon unsuccessfully asserted the right to marry multiple wives in accordance with the dictates of his religion. The Supreme Court unanimously rejected the claim.
Then you go on to say most interestingly, ``Since many of us believe the Reynolds case was wrongly decided, even if Reynolds had won, a victory would not suggest the State is required to change the contours of its marriage laws.'' You conclude by saying of the defendant, the criminal defendant, "He only asked that the Government leave him and his wives alone.''
Square this with me. Tell me how the criminal laws will apply, even if they are not consistent with a person's religious beliefs and you can conclude that the decision in Reynolds was wrongly decided.
Mr. McConnell. Senator, for well over 100 years, the Supreme Court has grappled with this question. Reynolds was the first case in the Supreme Court raising the question. There have been a number--the Smith case was quite recent. Many of those involve criminal laws. The rule has never been that religious views trump the criminal law, but the rule also has never been that there are no criminal laws which are unconstitutional under the First Amendment.
Some criminal laws are unconstitutional under the First Amendment. For example, had your mother been prosecuted for the crime of carrying that prayer book, she would have had, under our system of freedom of religion, she would have had a trump. She would have been able to say, ``No, it's unconstitutional for the Government to do that to me.''
Senator Durbin. So was this law unconstitutional, the law banning polygamy?
Mr. McConnell It's an extremely common view among legal academics that the law in Reynolds was, in fact, unconstitutional. I've actually gone back and forth on that. I think that there's some justifications for it, but I don't have any problem saying, ultimately, that it was unconstitutional.
....
Mr. McConnell. ...In Roe v. Wade, the Court canvassed several different possible textual bases and said it didn't really much matter which one was the basis.
It was only really in Planned Parenthood v. Casey that the Court finally came down to a single methodology and identified the privacy cases as being rooted in substantive due process under the Fourteenth Amendment.
Chairman Leahy. And you feel that right of privacy is there?
Mr. McConnell. It is certainly well settled, Senator.
Chairman Leahy. But not there.
Mr. McConnell. Well----
Chairman Leahy. I just want to make sure. I'm not trying to split hairs with you. I want to make sure I fully understand your answer. You have no question that there is a Federal right of privacy, yes or no?
Mr. McConnell. I have no hesitation that there are many rights of privacy, yes.
Chairman Leahy. Is there anything in the Constitution that would prevent, for example, Congress from regulating private decisions about family planning made within the confines of a marriage?
Mr. McConnell. Certainly, there have been a whole series of Supreme Court decisions on those [family planning] rights, which, by the way, I have defended and not criticized. Whether I defend them or criticize them, of course, in my academic capacity is somewhat beside the point, since they are the law of the land, whether I would agree with them or not. I happen to agree with them....
[A] lot has happened in the 26/27, however many years it's been since Roe v. Wade. That decision has now, it has been considered, it has been reconsidered and reaffirmed now by justices appointed by Presidents Nixon, Ford, Reagan, Bush, Clinton, after very serious reargument. At the time when Roe v. Wade came down, it was striking down the statutes of at least 45, if not all 50 of the States of the Union. Today it is much more reflective of the consensus of the American people on the subject. I believe that the doctrinal analysis offered in Planned Parenthood v. Casey has connected the right much more persuasively to traditional legal materials, and then the weight of stare decisis simply indicates that this is an issue that is settled. It is as thoroughly settled as any issue in current constitutional law.
Senator Specter. Well, long after it was thoroughly settled, you continued to write about it in a critical way.
Mr. McConnell. Senator----
Senator Specter. That's a professorial prerogative and not indicative of what you do as a judge?
Mr. McConnell. Senator, in my line of work, we're still arguing Marbury v. Madison....
Senator Edwards. ....I want to ask you about an article you wrote, which I know you talked about some already, in 1998 entitled ``Roe v. Wade at 25: Still Illegitimate.'' You called the reasoning of Roe, I am quoting now, ``an embarrassment.'' And then in a 1999 article you said--and this is what I want to focus on--that Roe was one of several cases in which, and I am quoting you now, ``text, history, constitutional tradition, democratic enactments or precedent played no serious role.'' That is using your language....
Mr. McConnell ....I think it's probably accurate to say that among, even among pro-choice scholars, people who support a constitutional right to abortion, most of them also find the Roe opinion to have been analytically quite unsatisfactory, many of them for reasons very similar to what I've said. There's practically a cottage industry among law professors of supplying alternative rationales that might make a little bit more sense of Roe v. Wade, particularly based upon equal protection. Akhil Amar has made a 13th Amendment argument, and there are a whole range of theories of people trying to supply the weakness.
I personally believe that the joint opinion in Planned Parenthood v. Casey did a significantly better job at connecting the right to the constitutional text, to actual practice, and then of course precedent, because Roe v. Wade was already on the books, and so stare decisis played an enormously key role in Planned Parenthood v. Casey....
Senator Hatch....Let me just ask you one question. Professor McConnell, is it not true that many respected liberal judges and professors have criticized the Supreme Court's ruling or reasoning, I should say, in Roe v. Wade, including those who are committed to it as a policy matter and who are committed to abortion rights? I cite, for example, Justice Ruth Bader Ginsburg. She called Roe, "heavy-handed judicial intervention,'' that, "was difficult to justify.'' The Senate confirmed Justice Ginsburg to the Supreme Court 96 to 3. 6 of the 10 Democrats currently on the Committee voted for her.
Another example is former Stanford Dean John Hart Ely, who
strongly----
Mr. McConnell. The Senator is absolutely----
Senator Hatch. Let me just finish, who strongly favors abortion rights, but who has written that Roe ``is not constitutional law and gives almost no sense of an obligation to try to be.'' Archibald Cox was highly critical, although he was favorable to abortion rights. So is it not true that there is a difference between criticizing it and upholding the law as a judge?
Mr. McConnell. Absolutely, and among legal scholars, you know, criticism of Roe v. Wade is not an unusual thing. And again, even among people who support it, a lot of people have the following problem. They may strongly believe that this is, in the interest of society and expands freedom and privacy, but where you have very contentious social issues, moral issues upon which people of goodwill disagree, and the Nation has not had--come to a consensus, to say that a court comes in and decides that taking it out of the hands of Congress or the legislatures, and decides for one side or the other, is very troubling to a lot of people who are committed to democratic--to a basically democratic system of Government, governed by where we have constitutional norms, but where the judges are not appointed to impose their own views. Where there isn't tolerably clear constitutional text precedent, history, et cetera, on the other side, mostly legislatures and Congress get to make these determinations....
Senator Cantwell. In your discussion with Senator Edwards on this, as it related to Griswold, you said you did not find Griswold, and other decisions on the right to be left alone, compelling precedent for Roe because the case did not require balancing of right to privacy with something on the other side of the equation. Are you talking about the right of the fetus; is that what you're----
Mr. McConnell. Yes.
Senator Cantwell. So beyond your academic role. As an activist, you believe that there should be a right.
Mr. McConnell. I've never been an activist, but what I'm--
--
Senator Cantwell. I'm saying articulating in an academic role a point of view.
Mr. McConnell. The question in the case involved whether the State of Texas had an interest in protecting what eeryone may want to call the fetus. There are many entities, creatures, living and not, that the State can extend protection to, where you have to balance interests. We do that with art, we do it with animals, we do it with a lot of things.
The question is whether, and the question in Roe that made it such a hard question, and why people are still debating it in law schools, and around the dinner table, and probably will continue to debate it for quite some time, even though it's settled as a matter of law, is does the State have any interest in protecting the potentiality of life in the womb. I don't think that's an easy and obvious question.
Senator Cantwell. In a statement of pro-life principles, I think it was a 1996 document you signed, and I want to understand if I'm interpreting what you just said correctly, `A constitutional amendment is needed, both reversing the doctrines of Roe and Casey and establishing the right to life protected by the Fifth and Fourteenth Amendments extended to the unborn child.'' Is that what you----
Mr. McConnell. Senator, now that the abortion question is completely settled, the only avenue for any change is through constitutional amendment. This is going to take, what, two-thirds votes of both Houses of Congress, three-quarters of the States. Senator, it is not going to happen.
Senator Cantwell. But do you believe that the fetus should be entitled to protection under the Equal Protection Clause of the Constitution?
Mr. McConnell. I do believe that the State should extend some degree or protection, but I think I've made clear in my writings, and I could identify exactly where, that that does not necessarily entail even criminal protection.
The Supreme Court of the Republic of Germany held that life must be protected from 15 days after conception, but it also held that that protection need not take the form of criminal prohibitions. It just means that the State needs to have some kind of a program to try to reduce and try to extend some degree of legal recognition and protection. That's really what I have in mind, but I'd like to emphasize again that what constitutional amendments I might favor or not really has nothing to do with how I would be able to administer the actual
law of the land.
I am perfectly aware of the fact that constitutional amendments are not there, and my job, as a lower court judge, is to follow and enforce the law. I'm utterly committed to doing that, even for laws where I don't agree with the premise and would like to see them changed.
Posted in SCOTUS —
Posted at 6:26pm on Jul. 10, 2005 Sunday Talk Shows
By AndrewHyman
Mark Kilmer summarizes the Sunday morning talk shows, and here's a secondhand summary of Mark's summary....
On NBC's Meet the Press, Sen. Chuck Schumer declared that he had not declared war on every nominee (despite having been overheard to that effect). Schumer also said that he had to make sure they would not overturn the "privacy right established in Griswold." Note that Senator Durbin previously has threatened a filibuster regarding the Griswold case.
Sen. Pat Leahy, on Face the Nation, declared that those who would overturn Roe v. Wade would also overturn other longstanding decisions like the great civil rights case Brown v. Board of Education, which of course is utter nonsense on Leahy's part (Brown itself overturned Plessy v. Ferguson which had stood for decades). Leahy also says he wants the President to nominate someone who could unite the country, in the model of "Earl Warren."
Sen. Specter got a few shots in at Judge Bork again, and he declared that conservatives who oppose Al Gonzales's possible nomination to the Supreme Court are motivated by a desire to see their names in the paper. Specter also nominated retiring Justice Sandra Day O'Connor to be the next Chief Justice should Rehnquist retire.
Posted in News —
Posted at 4:08pm on Jul. 10, 2005 "Bill Kristol: Alberto Gonzalez Eyed for Chief Justice"
By AndrewHyman
President Bush will nominate Attorney General Alberto Gonzalez to be Chief Justice ... after William Rehnquist joins Justice Sandra Day O'Connor and announces his retirement, Weekly Standard editor Bill Kristol predicted on Sunday.
....
"I think if the president nominates Gonzalez it will be disastrous for the Republican Party," Kristol said. "It will have a bad effect on the Bush administration for the rest of its term."
He contended that a Gonzalez nomination would be "the equivalent of the [1990] budget deal," where Bush's father reneged on his promise not to raise taxes.
More info about A.G. Gonzales is linked over at the right-hand-side of the confirmthem page, under the category "SCOTUS candidates."
UPDATE: I agree with Hugh Hewitt that Attorney General Gonzales is, "a fine public servant with an incredible life story who has been a full participant in the Global War on Terror (GWOT) from its declaration on 9/11." I hope that any criticism here of Gonzales's potential SCOTUS nomination won't detract from the great job he's done in the executive branch. Neverthless, I agree with Kristol about the effects of a Gonzales nomination.
UPDATE #2: Erick-Woods Erickson mentioned previously that A.G. Gonzales has never been on "the list." But, as Erick noted, the President doesn't have to pick from a list. One thing seems pretty clear: President Bush would like to appoint the first Latino Supreme Court Justice, which would be long overdue. There are other candidates besides Gonzales, and besides Miguel Estrada and Emilio Garza (both of whom I thought would be great). Nina Totenberg reported on July 6:
Also mentioned frequently these days... [is] federal district court Judge Ricardo Hinojosa, who chairs the U.S. Sentencing Commission.
And, there's this today about Judge Hinojosa in the Brownsville Herald:
Juliet V. Garcia, president of the University of Texas at Brownsville and Texas Southmost College, said she already has a favorite pick for the appointment. ââ‚Å“McAllen Federal Judge Ricardo Hinojosa needs to be considered,ââ‚? Garcia said. ââ‚Å“He grew up here in the Rio Grande Valley, went to UT-Austin then to Harvard Law, and is now chairman of the sentencing commission. He is a brilliant jurist and an honest man.ââ‚?
Some biographical info about Judge Hinojosa is here. He did an interview last year about sentencing. His Senate hearing to chair the sentencing commission was on March 12, 2003, and the hearing report is available in both text and pdf. However, Hinojosa is known more as a moderate than as a Scalia/Thomas type. There's also been some discussion of Senator Mel Martinez of Florida as a Supreme Court nominee.
Posted in News —
Posted at 3:00am on Jul. 10, 2005 Fred Barnes and John Leo on Nominations
By AndrewHyman
The Weekly Standard has an excellent editorial up titled "Judgment Day," written by Fred Barnes. Here's how it starts out:
PRESIDENT BUSH NEEDS TO KEEP two facts in mind as he looks to replace retiring Supreme Court justice Sandra Day O'Connor (and, should he step down, Chief Justice William Rehnquist). The first is that he can win confirmation of almost any conceivable nominee for the High Court, screams of protest by Democrats and hostile media coverage notwithstanding. The second is that he has a promise to keep. Since he began running for the White House six years ago, he has declared endlessly his intention to select judges who interpret the law rather than create it--in a word, conservatives. On this, he has never equivocated.
I agree with Barnes, and hope President Bush will not be swayed by incessant calls to "be a uniter and not a divider." The fact is that Senate Democrats are refusing to unite with the president unless they get what they want, and it is they who ought to start being uniters. John Leo also has an excellent column up at US News and World Report, titled "A Judge With No Agenda." Here's how it starts and finishes:
Edith Jones, A Fifth Circuit judge and possible Supreme Court choice, argues that the "reigning legal philosophy" is responsible for the bitter politics that surround judicial nominations. Jones charged that legal elites ("mandarins of the law") have long since come to view the courts as agents of social change. Federal judges, and later state judges, caught on to this heightened view of their power. Then, as judge-made law invaded politically sensitive areas, it provoked a political reaction. Jones thinks it will take decades to repair the damage and return to assessing Supreme Court nominees according to their brains and fairness rather than their propensity (or lack of it) for advancing their politics on the bench. According to Jones, writing in the University of Richmond Law Review, "The restoration of more civil and objective selection processes will not occur until the reigning legal philosophy becomes less ambitious and overweening." This will come about, Jones says, only "when the rule of law is again tethered to respect for the executive and legislative branches of government, to traditional legal craftsmanship, to continuity, to moral values, and to limited social aims." Exactly rightâ₦..No "agents of social change," please, on the Supreme Court. We need a modest and nonideological justice who is determined not to impose his or her politics from the bench.
Mr. Leo and Judge Jones are right on target, IMHO.
UPDATE: How Appealing summarizes many more current articles on this subject of Supreme Court vacancies.
Posted in News —
Posted at 7:54pm on Jul. 9, 2005 Danny Way for Supreme Court!
By AndrewHyman
Click here to learn about this 31-year-old skateboarder from Encinitas, California who today became the first person to jump the Great Wall of China. Forget about potential Supreme Court nominees Judge Judy, Lance Ito, Paula Abdul, Andy Card, Judge Wapner, Jenna Bush, and Tom Cruise. Danny Way's our guy for the High Court.
After jumping the Great Wall today, Mr. Way said this:
"I was aware of the dangers and my heart was pumping in my chest the whole time, but I managed to pull it off with the help of my team, and I'm honored to have my visions embraced by the people of China."
A young team player with vision and courage. Need we say more?
Seriously, no law degree is required to be a Supreme Court Justice. The last justice without a law degree was Stanley Reed (1884-1980). Justices who never went to law school include John Jay, John Marshall, Roger Taney, and Salmon P. Chase. Nor is any judicial experience required. People without judicial experience who became Supreme Court justices include William Rehnquist, Louis Brandeis, Lewis Powell, Earl Warren, Byron White, Robert Jackson, William O. Douglas, Felix Frankfurter, and Hugo Black. As Senator Hatch said in 1991, "Out of the 105 Justices serving on the Supreme Court in our Nation's history, 41 had no prior State or Federal judicial experience."
UPDATE: Other contenders include Randy "Macho Man" Savage. Also see here for more on Paula Abdul.
Posted in News —
Posted at 2:55am on Jul. 9, 2005 Power Line on McConnell
By AndrewHyman
Regarding the recent Power Line piece by Scott Johnson, supporting Judge McConnell, I found this statement ironic:
For an excellent essay on the proper understanding of religious liberty that includes a critique of Judge McConnell's views, see Thomas West's "Religious liberty: The view from the Founding."
If you study West's piece, he has a very different understanding of the Free Exercise Clause from McConnell's understanding. West wrote about the Framers' intentions:
Religion could not be used as an excuse to violate the rights of others or to engage in conduct that would undermine the moral foundations of society. Jefferson once wrote to Madison, "The declaration, that religious faith shall be unpunished, does not give impunity to criminal acts dictated by religious error."
In contrast, Judge McConnell believes that generally applicable criminal laws should have exceptions for people who act out of religious conviction. According to an article in Legal Times, "he and Justice Antonin Scalia have dueled in print over McConnell's sharp criticism of Employment Division v. Smith, in which Scalia applied drug laws against a sect that used peyote in its ceremonies."
McConnell wants to carve out exceptions to the generally applicable criminal law, whereas West (and Scalia) do not advocate that. West's piece also takes a completely different position on polygamy from McConnell's position. Here's what West wrote:
[T]he Supreme Court ruled that Mormons were not exempt from the law forbidding multiple wives. Polygamy was made a crime in Utah "because of the evil consequences that were supposed to flow from plural marriages." The Court wrote that . . . . "[P]olygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy." . . . The Supreme Court pointed out, correctly, that polygamy was practiced elsewhere in the world only under despotic governments in Asia and Africa.
Thus, West praised this Supreme Court decision (Reynolds v. U.S.), but Judge McConnell testified at his confirmation hearing that the case was wrongly decided. Indeed, McConnell has written that the polygamist in the Reynolds case, ââ‚Å“asked only that the government leave him and his wives alone." See his article in ââ‚Å“Sexual Orientation & Human Rights in American Religious Discourse."
This position of McConnell, which is contrary to West's position, is nevertheless consistent with McConnell's general belief that the Free Exercise Clause allows people to evade criminal laws if judges are persuaded that sincere religious convictions are involved. In keeping with this general belief, McConnell has also written that abortion should sometimes be legal if religious convictions are involved.
Anyway, more resources about Judge McConnell are available here, including info about his opposition to the Bush v. Gore decision.
UPDATE: Incidentally, McConnell's willingness at his hearing to condemn Reynolds v. U.S. contrasts sharply with his unwillingness to urge reversal of Roe v. Wade (he testified that Roe is as settled as Marbury v. Madison). For more on Judge McConnell and others, see the July 9, 2005 article in Legal Times titled, "Who Do Conservatives Want for the High Court?" by Bethany Broida and Lily Henning. Also, Andy Schlafly has a response to Power Line here.
Posted in SCOTUS —
Posted at 11:12pm on Jul. 8, 2005 "Blogs Seen as Powerful New Tool in U.S. Court Fight"
By AndrewHyman
Donna Smith of Reuters has this report today. Here's a slice:
Carol Darr, director of George Washington University's Institute for politics, democracy and the Internet, said those who read and write blogs aren't "the sad, the mad and the lonely."
I beg to differ. :-)
Posted in News —
Posted at 6:06pm on Jul. 8, 2005 Is He Retired Or Is He Not Retired?
By Erick
Robert Novak and Matt Drudge say the Chief has retired. Two very credible sources tell me the Chief has retired. My White House contacts have gone MIA, which tells me something is happening. Marty Lederman, however, says this is myth. My gut tells me Marty is right. My IMs, emails, and phone calls tell me that the Chief Justice of the United States, William Rehnquist, has retired.
In a separate matter, I am told that the rumor on John Paul Stevens is credible and real. I am told that as of last week there was nothing on the horizon, but in the last week all has changed. Supposedly Justice Stevens has recently taken steps to make arrangements for his personal affairs in such a way that those close to him think he is retiring. I'm also told that his health has begun to deteriorate.
Posted in SCOTUS —
Posted at 5:23pm on Jul. 8, 2005 Feddie on Catholic Answers Live
By feddie
I am the featured guest on tonight's program. We'll be discussing the O'Connor vacancy, possibly a Rehnquist vacancy, and the impact these vacancies will have on the Supreme Court going forward. I hope some of y'all will tune in between 6:00-7:00 p.m. EST; but if you can't listen to the show live, you can always hear it later at this link.
Posted in SCOTUS —
Posted at 2:45pm on Jul. 8, 2005 Rehnquist and Stevens Next?
By AndrewHyman
As speculation continues to mount about further Supreme Court retirements, my prediction is that all of the associate justices will resign before Rehnquist does (just kidding). Anyway, Erick has the latest over at Redstate.
For anyone who would like to get a sense of what a great person the Chief Justice is, click on his 1948 college yearbook photo, to read an interview. One never knows where one's college yearbook photo will turn up.
UPDATE AT 3:30 PM: Word has it that the Chief Justice may have an announcement later today. However, this is disputed.
UPDATE AT 4:30 PM:
Coy, aren't we? Seriously, many things could be going on. For example, it could be that the events in London have led to putting things off.
Posted in News —
Posted at 1:06pm on Jul. 8, 2005 Garza Rumor
By AndrewHyman
Spreading rumors is not my favorite thing, especially if I don't like the rumors. However, a fairly knowledgeable birdie tells me that Judge Emilio Garza is off the list, because not believed to be confirmable. According to the rumor, there is some writing in his past that would cause much difficulty and spending of political capital to get him on. If true, that would leave many other excellent candidates. If not true, I hope Garza is nominated.
Posted in News —
Posted at 11:05am on Jul. 8, 2005 McConnell, Wilkinson, and Gonzales Still Raise Concerns
By AndrewHyman
Today, Scott Johnson over at Power Line defends Judge Michael McConnell against criticism from Andy Schlafly. However, Johnson by no means addresses all of the criticisms by conservatives with regard to Judge McConnell's record. Judge McConnell's positions on things like polygamy, anti-drug laws, and Bush v. Gore remain controversial. As Tony Mauro wrote in Legal Times, "it's hard for many to decide exactly what McConnell is: conservative, liberal, or a perplexing blend of both."
Also today, George Will endorses Judge J. Harvie Wilkinson III for the Supreme Court. However, Will does not address Wilkinson's complete record, including this statement by Wilkinson:
Although lifestyle freedoms are not expressly safeguarded, we believe that the spirit of the Constitution operates to protect them....[J]udicial recognition of lifestyle freedoms as due process liberties better serves the basic purposes of the Constitution than dismissal of them.
Regarding Attorney General Gonzales, the LA Times has a piece today urging that he not be nominated for the Supreme Court. The LA Times is primarily concerned about Gonzales's treatment of issues related to combatants and terrorists, pointing out that Justice Scalia has expressed similar qualms about that treatment. Different concerns about Attorney General Gonzales have been raised here at confirmthem, and also by Wesley Pruden in the Washington Times today, and furthermore at Patterico's Pontifications.
McConnell, Wilkinson, and Gonzales do not appear to be in the tradition of Justices Scalia and Thomas, unlike SCOTUS candidates Edith Jones, Priscilla Owen, Miguel Estrada, and many others (e.g. Samuel Alito and Michael Luttig).
Posted in News —
Posted at 10:32am on Jul. 8, 2005 "Judicial Jeopardy--'Justice Gonzales' supporters fail to make the case
By feddie
At least that is Edward Whelan's view today over at NRO.
Posted in SCOTUS —
Posted at 3:24am on Jul. 8, 2005 Outcomes Over Process -- A Brilliant Strategy
By Lorie Byrd
Patrick Ruffini has a brilliant strategy for presenting Supreme Court nominees to the public using campaign-style arguments that will resonate with the average American.
The linchpin of the new strategy is to emphasize outcomes, not process implicit in the terms "activist" or "constructionist." That's difficult for conservatives who argue that policy outcomes shouldn't matter in Court decisions, but ultimately, the best way to defeat outcome-driven jurisprudence is first to expose the left-wing social agenda that drives it. Our argument should not be against a mode of interpreting the Constitution -- it should be against radicals who want to impose their left-wing dogma through the back door.
For once, let's argue substance. Let's get at the motivations driving Chuck Schumer and Ted Kennedy and Patrick Leahy. If the Democrats want an ideological war over this Supreme Court nominee, bring it on. It's a war we can win...What kind of America do Democrats want by opposing President Bush's judicial nominee? The kind that the judges they prefer are trying to make for us:
An America where your children can't pledge allegiance to the United States of America, Under God (Elk Grove Unified School District v. Newdow)
An America where gay marriage is imposed by judicial fiat (Goodridge v. Department of Public Health), and if the people of your state say no, they are silenced (Citizens for Equal Protection v. Bruning)
An America where wealthy developers can take away your home (Kelo v. City of New London)
A Banana Republic where elections can be manipulated after the fact to produce the desired outcome (Bush v. Gore; the Dino Rossi litigation)
An America where the prisoners in Guantanamo Bay are more likely to be set free, possibly to conduct further attacks.
How do we "strict constructionists" frame our "agenda?" As an anti-agenda. As one that opposes the imposition of any particular worldview through the Courts. As a simple sentiment, animated by faith in the body politic, and borne of 229 years of democracy in America:
Let the people decide.
Conservatives would never aspire to use the courts to ban abortion, or to end gay marriage. To state otherwise is patently false. Only through a Constitutional Amendment requiring overwhelming popular approval could these objectives be achieved nationally. We are committed to a healthy and vigorous debate at the state level in which the people decide, not judges.
"Conservatives" are modest and moderate in their views of the judiciary while liberals are radical and reckless and rigidly ideological. It is often noted that the decisions of the Supreme Court reach into the daily lives of average Americans. We don't believe it should be that way -- the Supreme Court is empowered deal only with matters contained in the Constitution, and last we checked, the words "abortion" and "homosexuality" weren't mentioned in the text. These are matters for the people and their elected representatives, not for the courts.
Now that is a message that people can understand. I argued during the filibuster wars that the arguments of Senate tradition and legalities were not ones that would capture the attention of the average American (including me), but rather the more personal stories of the individual nominees should have been presented. Patrick takes that to a higher level by talking about how conservative judges would rule on the issues that many Americans care about and they are definitely mainstream.
Posted in SCOTUS —
Posted at 1:02am on Jul. 8, 2005 A Novel Approach
By Lorie Byrd
Ace of Spades suggests an approach I have certainly not heard elsewhere to the Supreme Court nomination process in the event that President Bush has three seats to fill.
Posted in SCOTUS —
Posted at 11:20pm on Jul. 7, 2005 One Last Check In for the Evening
By Erick
I've brow beaten sources and I'm told that the rumor is Rehnquist at 10am tomorrow. I'm also told it is a rumor -- there is no activity with the Marshal. The White House has heard the rumor and thinks it is just a rumor While I'll be foregoing billable hours in the morning to figure it all out for you dear readers, I assume it is a rumor unless otherwise IM'd or emailed or called.
Posted in Administrative —
Posted at 8:03pm on Jul. 7, 2005 Senator Specter, <em>PLEASE APOLOGIZE NOW!</em>
By AndrewHyman
The Chairman of the U.S. Senate Judiciary Committee appeared on PBS yesterday (July 6):
[I]deology could come into play if it is very, very, very extreme, and we had the situation with Judge Bork. And when he was for original intent, it seemed to me that that was the most extraordinary view of constitutional interpretation of anybody who had ever been nominated.
For example, when the 14th Amendment "Equal Protection" clause was enacted, the galleries in the United States Senate were segregated, blacks on one side and whites on the other. And that's what those senators meant by their own intent. Well, that kind of an interpretation didn't apply in modern days, and if you have something which is just way off the boards, I think it is possible, but it has to be really off the boards.
Here's what Bork said in his opening statement to the Senate Judiciary Committee:
Times come, of course, when even a venerable precedent can and should be overruled. The primary example of a proper overruling is Brown against the Board of Education, the case which outlawed racial segregation accomplished by government action. Brown overturned the rule of separate but equal laid down 58 years before in Plessy against Ferguson. Yet Brown, delivered with the authority of a unanimous Court, was clearly correct and represents perhaps the greatest moral achievement of our constitutional law.
Senator Specter, please stop acting like a demagoguing Democrat! How can you be trusted to treat nominees fairly, if you continue to distort plain and simple facts? How could an originalist like Antonin Scalia or Clarence Thomas or Robert Bork ever hope to get a fair hearing before your committee if they plainly state their views?
Hat tip to Bench Memos for pointing out the PBS interview. Further explanation by Bork on this subject is at this link. Also, the following testimony is from Bork's Judiciary Committee hearing:
[P]assing [some] historical evidence, which I think casts some doubt on the flat assumption that the 14th Amendment really meant separate but equal, let me say this. [The framers] wrote a clause that does not say anything about separation. They wrote a clause that says ââ‚Å“equal protection of the laws.ââ‚? I think it may well be true . . . that they had an assumption . . . that equality could be achieved with separation. Over the years it became clear that that assumption would not be borne out in reality ever. Separation would never produce equality.
I think when the background assumption proved false, it was entirely proper for the court to say ââ‚Å“we will carry out the rule they wroteââ‚? and if they would have been a little surprised that it worked out this way, that is too bad. That is the rule they wrote and they assumed something that is not true.
And in that way I do not think any damage is doneââ‚â€you can even look at it more severely. You could say suppose they had written a clause that said ââ‚Å“we want equality and that can be achieved by separation and we want that too.ââ‚? By 1954 it was perfectly apparent that you could not have both equality and separation. Now the court has to violate one aspect or the other of that clause, as I have framed it hypothetically. It seems to me that the way the actual amendment was written, it was natural to choose the equality segment, and the court did so. I think it was proper constitutional law, and I think we are all better off for it.
Senator Specter ought to know that Bork said all this. After all, Specter was there.
Posted in News —
Posted at 5:01pm on Jul. 7, 2005 We Know We Don't Know
By Erick
As we know, there are known knowns. There are things we know we know. We also know there are known unknowns -- that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don't know we don't know.
ââ‚â€Feb. 12, 2002, Donald Rumsfeld, Department of Defense news briefing
“ It'll be a cold day in hell before Gonzales gets it.”
I had a very nice conversation a little while ago with someone I will dub "the digest." Based on our conversation, I made a couple of other calls and things really did get interesting. Here now are a few bits to the puzzle over the judicial nominations process. Some is speculation, but most of it is sound.
Alberto Gonzales has never been on the list. The list is generally considered to be Luttig, Roberts, Garza, McConnell, Edith Brown Clements, Edith Jones, Priscilla Owens, and very possibly John Cornyn. "It'll be a cold day in hell before Gonzales gets it," says the digest. Others agree completely. In fact, they all say that the only way Gonzales will get it is if he and the President sit down to review the list and the President just says, "Al, I want you."
The White House has been working under the same assumption for several years -- this year will see three retirements, one at the end of term (O'Connor, though they originally though Rehnquist), one at Labor Day (Rehnquist, but they originally thought O'Connor), and one at Christmas recess (most likely Ginsberg, whose health is said to be worse than even Rehnquist's). It is that third appointment where the digest and all others are unanimous that we will see Gonzales appointed. The President will get two conservatives before Gonzales. Gonzales, being to the right of Ginsberg, will (it is assumed) be palatable at that time.
More interesting is this dynamic first mentioned by the digest and now by others. Senator Frist had a luncheon with members of the Supreme Court and was pulled aside and told that it would be O'Connor retiring and not Rehnquist. Frist chose not to tell the White House, but to instead prepare his office quietly to look like a leader on the issue and redeem himself from what has been widely viewed as a failure of leadership in the filibuster debate. Everyone I spoke to about the incident agreed that the White House did not know until well after Frist knew. The digest says, "We're looking at a bit of gamesmanship here" between Frist and Fred Thompson. A Senate source speculates that the White House is bringing in Thompson to take the lead and knows going into it that Thompson will overshadow the man who served as Thompson's junior in the Senate.
What of Cornyn? There are conflicts about him among the sources. The digest speculates, and Senate sources agree, that the White House wants to put Cornyn in a strong leadership position. They had thought that Hutchenson would leave to run for Governor and Cornyn could be the Senior Senator from Texas. With that not playing out, the digest and others believe the White House is putting Cornyn in a strong position for future leadership. Others still think Cornyn could be the nominee. Several have noted that nothing substantive leaked from Cornyn's private staff meeting last Friday. And, if the White House wants Cornyn to become a leader, why send in Fred Thompson to overshadow Cornyn, unless Thompson will be helping Cornyn.
What to make of all of this? The answer is clear: we have no freaking clue, but the rampant speculation is fun.
One final note. The digest does not think so, but a White House source, a Senate source, and a Supreme Court source all tell me "Rehquist's retirement is imminent." We'll see.
Cross posted at RedState
Posted in SCOTUS —
Posted at 3:13pm on Jul. 7, 2005 London
By AndrewHyman
We all are saddened about what happened in London today.
Recent confirmation news is summarized by Howard Bashman and by the Committee for Justice.
Posted in News —
Posted at 11:41am on Jul. 7, 2005 Rehnquist Resignation Watch
By Erick
To follow up on the Novak column, I just got off a conference call with some insiders in Washington. The buzz up there is not just on the bombings, but also on William Rehnquist. A Supreme Court source says the "writing is on the wall" that the Chief Justice could resign at any time. A White House source and a Senate source concur.
The speculation is that Rehquist is a team player, but he is also the Chief Justice of the United States and head of the third branch of government -- he's not fully prone to waiting for the timing of another branch of government. At the same time, the thinking goes that if the Chief goes now, it throws more confusion into the process and might actually make things a bit easier for the White House, which is something the Chief might be interested in helping facilitate.
Prior to O'Connor resigning, the thought was that Garza would be a possible replacement for O'Connor. The renewed speculation is that Garza is in the mix as is Cornyn. While Gonzales has not been taken off the list, signs are starting to point to Gonzales staying where he is. The President very much wants a Hispanic on the court and Garza makes logical sense. and would send a strong signal if he were picked as Chief Justice. Scalia and Thomas, I'm told, are not even in the running.
Likewise, private polling as well as the Gallup poll indicate that the American people are trending toward the White House on the issue and away from the Democrats who, according to the private polling in particular, are already presumed to be against anyone the President picks -- no matter how credible. I'm told that a private poll is making the rounds that clearly connects the "pledge of allegiance" decision from the 9th Circuit to the types of judges Democrats are more likely to favor and the public in general is least likely to favor.
The White House, by all accounts, is keeping the lid on tight and is also in this to win. If Rehnquist does step down soon, Karl "The Dark Lord" Rove just might be in a strong position to bring order out of chaos and victory out of confusion.
Posted in SCOTUS —
Posted at 8:51am on Jul. 7, 2005 Gonzales: bad since 1788
By krempasky
President Bush said last week, "Al Gonzales is a great friend of mine, when a friend gets attacked, I don't like it."
Oh yeah? Alexander Hamilton saw this coming more than 225 years ago in Federalist No. 76, writing on the appointment power of the President, and specifically - the value of the Senate's check on that power:
"He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
Posted in SCOTUS —
Posted at 7:54am on Jul. 7, 2005 More Rehnquist Rumors
By Lorie Byrd
Robert Novak's court sources tell him "that ailing Chief Justice William Rehnquist also will announce his retirement before the week is over." (HT: Michelle Malkin)
Posted in SCOTUS —
Posted at 12:13am on Jul. 7, 2005 No Denials?
By AndrewHyman
It will be interesting to see if there are any denials regarding this article, which quotes the Attorney General as saying, "The Constitution is what the Supreme Court says it is."
A few months ago, Walter E. Williams wrote a good column that touched on a similar subject:
A federal court appointee who'd say his decisions are guided by the letter and spirit of our Constitution would be tagged by Democrat senators and a few Republican senators, such as Arlen Specter, as an "extremist." They'd prefer justices who share former Chief Justice Charles E. Hughes' vision that, "We live under a Constitution, but the Constitution is what the judges say it is." Translated, that means we don't live under the Constitution; we live under tyrannical judges.
I'll be having some more to say about this quote from Chief Justice Hughes later in this post. By the way, there's a new blog called "confirmation whoppers." Check it out. HT: Hugh Hewitt.
UPDATE: Okay, as promised, here are a few more words about Chief Justice Charles Evans Hughes and his famous quote: "the Constitution is what the judges say it is." First of all, it's important to realize that the Hughes quote was a kind of modification of something that John Marshall wrote in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is (also see Fletcher v. Peck where Marshall wrote that it is "the peculiar province of the legislature to prescribe general rules for the government of society").
Obviously, there is a huge difference between a judiciary that says what the law is, and a judiciary that insists what it says is the law. The latter is the essence of tyrannical rule, whereas the former is the essence of the rule of law.
Chief Justice Hughes made his statement in a speech in Elmira, New York in 1907, while he was Governor of that state (i.e. before he became a Supreme Court justice). The context for the quote is explained in The Autobiographical Notes of Charles Evans Hughes (edited by David Danelski and Joseph Tulchin, c. 1973, p. 144).
Hughes was speaking extemporaneously, and was arguing for limiting the courts' jurisdiction, in order to return power to elected officials (i.e. because citizens "insist on having administration by officers directly accountable to them.," as Hughes put it). Thus, Hughes was urging that power be taken away from the courts. He was urging that it's the legislature's job to prescribe general rules for the government of society, rather than the job of unaccountable judges.
In his Autobiographical Notes, Hughes insisted that he did not mean to portray "constitutional interpretation by the courts as a matter of judicial caprice." But, in 1937, FDR correctly cited the Hughes quote (i.e. "the Constitution is what the judges say it is") in connection with improper behavior by the courts. I had a previous post here at confirmthem discusing FDR and his speech of March 9, 1937:
[A]s Chief Justice Hughes has said, ââ‚Å“We are under a Constitution, but the Constitution is what the judges say it is." The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third House of the Congress â₆a superlegislature, as one of the justices has called it â₆reading into the Constitution words and implications which are not there and which were never intended to be there.
A few days later, on March 29, 1937, the Supreme Court overturned its notorious decision in Lochner v. New York, and upheld a Washington state minimum wage law for women. Writing for the majority in West Coast Hotel Co. v. Parish, Chief Justice Hughes said, ââ‚Å“The Constitution does not speak of freedom of contract," and adding that ââ‚Å“the legislature is entitled to its judgment."
It can rightly be said that Chief Justice Hughes, in that great decision, implicitly attacked the notion that "the Constitution is what the judges say it is." It would be great if Attorney General Gonzales would attack that notion too, instead of endorsing it.
UPDATE #2: Looks like there will be no denials. "Justice Department spokesman Kevin Madden said Gonzales would not comment on Willke's account or any other issues related to the Supreme Court nomination process."
Posted in News —
Posted at 5:52pm on Jul. 6, 2005 "Demoralizing the base"
By feddie
My man Krempasky has an exceptional post up today over at RedState re: the possibility of a Gonzales nomination to SCOTUS. Here's a taste:
Let me be clear: we have given the President MANY a pass almost SOLELY because of his judicial appointments. We have given our time, our money, our reputations among friends.
Nominating Alberto Gonzales puts the lie to our belief that if we just keep our mouths shut and get in line, we'll at least have good solid courts to show for it.
But on the other hand, we understand that the President is a loyal man. We understand that Gonzales is his friend - and even respect that. However, the President has a real opportunity here. For if he does not nominate his friend - it will be the first time he has actually done something he did not already want to do in order to satisfy conservatives.
Well said, sir.
Posted in SCOTUS —
Posted at 4:23pm on Jul. 6, 2005 Ponnuru to Bush: Quit your whining
By feddie
Bush said of Alberto Gonzales: "All of a sudden this fellow, who is a good public servant and a really fine person, is under fire. I don't like it at all." He has also said: "Al Gonzales is a great friend of mine. When a friend gets attacked, I don't like it."
Most of the "attacks" on Gonzales have been pretty respectful. Look, the guy is a public official with a track record, and people can't very well be expected not to express opinions about that record or his suitability for an important government post just because he's a friend of the president. If the president wants to shield his pals from such scrutiny, he can leave them in the private sector.
Spot on, brother.
Posted in SCOTUS —
Posted at 1:53pm on Jul. 6, 2005 "SEN. SCHUMER CAUGHT ON CELLPHONE: 'WE ARE GOING TO WAR' OVER SUPREME COURT"
By feddie
Well, this should come as no surprise to anyone, but it's interesting nonetheless:
Senate Judiciary Committee member Chuck Schumer got busy plotting away on the cellphone aboard a Washington, DC-New York Amtrak -- plotting Democrat strategy for the upcoming Supreme Court battle.
Schumer promised a fight over whoever the Presidentââ‚â„¢s nominee was: ââ‚Å“It's not about an individual judgeâ₦ It's about how it affects the overall makeup of the court.ââ‚?
The chairman of the Democratic Senatorial Campaign Committee was overheard on a long cellphone conversation with an unknown political ally, and the DRUDGE REPORT was there!
Schumer proudly declared: ââ‚Å“We are contemplating how we are going to go to war over this.ââ‚?
Schumer went on to say how hard it was to predict how a Supreme Court justice would turn out: ââ‚Å“Even William Rehnquist is more moderate than they expected. The only ones that resulted how they predicted were [Antonin] Scalia and [Ruth Bader] Ginsburg. So most of the time they've gotten their picks wrong, and that's what we want to do to them again.ââ‚?
Schumer later went on to mock the ââ‚Å“Gang of 14ââ‚? judicial filibuster deal and said it wasnââ‚â„¢t relevant in the Supreme Court debate.
ââ‚Å“A Priscilla Owen or Janice Rogers Brown style appointment may not have been extraordinary to the appellate court but may be extraordinary to the Supreme Court.ââ‚?
By the time the train hit New Jersey, Schumer shifted gears and called his friend and ââ‚Å“Gang of 14ââ‚? member, Republican Sen. Lindsey Graham.
The two talked in a very friendly manner about doing an event sometime this week together.
Developingâ₦
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 12:20pm on Jul. 6, 2005 Delays worry me
By Quin
Once again, I think delays are bad, bad news. Just as with the constitutional option, the longer it takes to name a nominee, the more chance there is that something could go wrong. I really don't understand why the White House wasn't ready, in advance, to come out guns blazing, with a battle plan and a nominee already determined, and just overwhelm the Left from the very moment that the O'Connor resignation was announced. The president's allies were ready to go. The time was ripe and right. Now, though, we'll all have to wait.... and wait.... and wait some more. And already there are fractures showing up on the right, as in the truly idiotic business opposition (if true -- and I can't believe it is really widespread) to Luttig. The longer the process goes, the more chance there will be that we end up with a Lowest Common Denominator nominee, one who is least politically objectionable to all groups, rather than the one who is the most excellent, intellectually gifted and rigorous, and with the most intellectual integrity and commitment to strict constitutionalism. This IS the fight -- I hope the first of three or four fights -- that is the one most true conservatives (i.e. Madisonians) have been waiting for and working for. More than any other reason, the court fight is why so many people broke their backs for this president AND for a GOP Senate. Betrayal or, just as bad in this case, a fumbling, ineffective effort, resulting in a nominee like Gonzales who has no record independent of the president's personal sponsorship of him, or some other nominee who is just a cipher, would amount to the biggest evisceration of one's own supporters that I have ever seen or can ever imagine any major politician doing. I'm not saying I expect Bush to do so, but I think the long, drawn-out process of even settling on a nominee makes it more likely that events will conspire toward this unfortunate and unacceptable end.
Posted in Uncategorized —
Posted at 11:48am on Jul. 6, 2005 "'Extraordinary' filibuster deal puts the squeeze on Democrats"
By feddie
Here's an interesting op-ed by Jules Witcover of the Baltimore Sun.
Posted in SCOTUS —
Posted at 11:47am on Jul. 6, 2005 Mel Martinez for SCOTUS?
By feddie
I received this email today, and thought I'd pass it along to y'all with the thoughts that follow:
Feddie:
I am surprised I have not heard more about Senator Reid's comments regarding Mel Martinez for SCOTUS. He is Hispanic (Cuban), the same age as Garza (58), and devoutly pro-life (his wife as given an award by a crisis pregnancy center if I remember correctly). He also backed the marriage amendment and is against the government use of racial classifications. Most importantly, POTUS is comfortable with him and likes his life story.
Jeb! would be able to pick an attractive replacement. I like Cornyn better (Fund's WSJ article) but I am surprised I have not heard more since Reid made his comments in support of him. What am I missing?
Preston C. Came
That's a good question, and I am not sure that my answer is altogether reasonable. I guess my hesitancy with a Martinez nomination--or a Cornyn or Hatch nomination, for that matter--is that he is a professional politician. I realize, of course, that almost every federal judge has some political background. Indeed, Judge Pryor was Alabama's attorney general before being tapped for the federal bench. But once someone becomes a pol on the national stage that tends to transform a person's thinking in a way that, in my view, is probably best suited for something other than service as a federal judge. I realize that this view may be misguided, unfair, and based on a strong preference for those who have long, distinguished legal backgrounds; but it is, nevertheless, how I feel at this point in time. I am certainly open to being persuaded otherwise.
(cross-posted at Southern Appeal)
Posted in SCOTUS —
Posted at 11:39am on Jul. 6, 2005 Sign Up Today
By krempasky
ConfirmThem is finally rolling out our activist tools, thanks to the good people at Right Internet, Inc. The first thing you can do is click here and join our activist update list. We'll be sending out some regular updates - and action items for you to make a difference.
Posted in Uncategorized —
Posted at 3:37am on Jul. 6, 2005 Rove + Freud = Gonzales
By AndrewHyman
Today, the Washington Post reports a possibly Freudian slip by Karl Rove:
[I]n a luncheon interview with Washington Post reporters and editors . . . Rove did not comment on the chances of a Gonzales nomination but at one point referred to him as "Justice Gonzales," provoking laughter. He quickly added that he used the honorific because of the attorney general's former tenure on the Texas Supreme Court, but among Bush aides he is typically referred to as "Judge Gonzales."
This sure sounds like Attorney General Gonzales is the leading contender. Background info from confirmthem about Attorney General Gonzales is here. Also, the Dallas Morning News has an article today that concludes with these two paragraphs:
Mr. Bush is widely known to want to place the first Hispanic justice on the Supreme Court. Great ââ‚“ so what's wrong with San Antonio's Emilio Garza, a reliably conservative short-lister who has almost 20 years on the federal bench?
Despite all this, Mr. Bush places tremendous stock in personal loyalty, and Mr. Gonzales has been the president's faithful friend for over a decade. If Mr. Bush wants to put Al Gonzales on the high court, few will be able to dissuade him from trying. It would prove a fateful decision, one that a president striving to maintain his second-term agenda would be wise to shun.
USA Today has an article today that includes this:
Social conservatives who have said they would oppose or withhold support from Attorney General Alberto Gonzales as a Supreme Court nominee stuck to their positions Tuesday, despite President Bush's displeasure with the criticism of his "great friend."
Bill Quick at the Daily Pundit comments: "I ... expect that if Bush does nominate Gonzales and is successful in pushing him through the confirmation process before October, he will seal the biggest election setback for the Republicans in decades." That would be unfortunate, especially when other outstanding nominees (like Emilio Garza and Miguel Estrada) would not cause any such problem.
UPDATE: Terry Eastland has a piece at the Weekly Standard urging the A.G. to pull out of contention for SCOTUS. Also, Human Events reprints an email referenced by the NY Times regarding A.G. Gonzales (the email is worrisome if accurate).
Posted in News —
Posted at 11:22pm on Jul. 5, 2005 Borking Bork Some More
By AndrewHyman
I recently reported that Senator Specter continues to bork Bork, and suggested that Specter should apologize. Now Time Magazine is doing it too.
Challenging what? Here is an excerpt from Bork's opening statement to the Senate Judiciary Committee:
[C]onstitutional lawâ₦ will evolve as judges modify doctrine to meet new circumstances and new technologies. Thus, today we apply the First Amendment's guarantee of the freedom of the press to radio and television, and we apply to electronic surveillance the Fourth Amendment's guarantee of privacy for the individual against unreasonable searches of his or her home.
HT: Bench Memos.
UPDATE: Click here, and you'll see that Time has slightly modified the image above.
Posted in News —
Posted at 9:51pm on Jul. 5, 2005 Business Interests Set to Oppose Luttig
By Erick
Well placed sources are telling RedState that various business interests are lining up in opposition to Michael Luttig as a possible appointment to the Supreme Court.
According to the sources, Luttig tacks too much to the Scalia position when it comes to government regulation. The source says that business interests are concerned that Judge Luttig might be too willing to accept government regulation -- more so than the business community would like. Luttig, it seems, sees eye to eye with Scalia on the United States v. Mead Corporation decision and would give, in the opinion of certain business interests, too much deference to an adminstrative body's regulations arising from ambiguous legislation under a Chevron analysis.
In the words of Matt Drudge, "Developing . . . "
Posted in SCOTUS —
Posted at 7:53pm on Jul. 5, 2005 Misinformation From Senator Boxer
By AndrewHyman
Associated Press reports:
Boxer called a threat to legalized abortion an "extraordinary circumstance."
"It means a minimum of 5,000 women a year will die. So all options are on the table," she said.
That is baloney. First of all, overturning Roe v. Wade would be impossible if merely one vote is switched on the Supreme Court. At least two switched votes would be needed, because Justices Stevens, Souter, Ginsberg, Breyer, and Kennedy are all on record as being pro-Roe.
Even if Roe were overturned, that would not make abortion illegal. It would simply turn the decision over to state legislatures and to the people of each state. Senator Boxer's state would very probably not alter the status quo.
Moreover, it is possible that the Supreme Court could overturn Roe while at the same time protecting womenââ‚â„¢s lives and health. As I have written elsewhere, the Court could allow subsequent penalties only. That way, abortion would be safe, illegal, and much rarer. Fathers and mothers who do that kind of thing could be punished after the fact, but women would not be seized beforehand so as to prevent them from getting an abortion.
I have to say that Senator Boxer overlooks another extraordinary circumstance. In her home state of California, if someone kicks a woman in order to kill the womanââ‚â„¢s unborn child against the womanââ‚â„¢s will, then that is considered ââ‚Å“murder" according to California law, provided the unborn child has progressed more than 8 weeks after conception. See People v. Davis, 7 Cal. 4th 797 (1994). At the 8-week mark, an ââ‚Å“embryo" becomes a ââ‚Å“fetus,"" and 45% of all abortions in the United States occur after that 8-week mark (totalling more than a half million fetal abortions per year). That seems like an extraordinary circumstance to me. Dr. Jerome Lejeune explained some of the biological facts:
At two months of age, the human being is less than one thumb's length from the head to the rump. He would fit at ease in a nutshell, but everything is there: hands, feet, head, organs, brain, all are in place. His heart has been beating for a month already . . . . With a good magnifier the fingerprints could be detected.
72% of women in the United States believe ââ‚Å“second-trimester abortions should be illegal." Rubin, Americans Narrowing Support for Abortion, L.A. Times, June 18, 2000, at 1. It's an extremely extraordinary circumstance that the U.S. Supreme Court has insisted otherwise for the past 32 years. It's even more extraordinary that the Supreme Court has done so without a shred of real support in the Constitution.
President Bush has promised that there will be no litmus tests for his nominees, beyond a faithful, strict constructionist reading of the Constitution. In my view, that would require a faithful reading of the Due Process Clause, as opposed to the twisted, distorted, hallucinatory reading that the Court has used to justify Roe v. Wade.
Posted in News —
Posted at 2:49pm on Jul. 5, 2005 Advice for President Bush re: Gonzales
By feddie
Erick Erickson reports over at RedStates that Judge John Roberts's (D.C. Circuit) stock is rising. But the most interesting aspect of his post IMHO is this line:
Most troubling for conservatives, sources close to the White House tell me that while the President is out of the country the White House will be feeling out conservatives of the breath and depth of ramifications should Alberto Gonzales be nominated.
Well, I actually think it's a positive sign that the WH is going to take the conservative base's pulse before nominating Gonzales; because if the WH actually does this it will soon find out just how devastating a Gonzales nomination will be to the Republican Party. But conservatives should (indeed must) keep up the pressure on their respective senators (and even congressmen), and let them know (in no uncertain terms) that a Gonzales nomination is unacceptable.
As far as President Bush's statement that he doesn't like it when his friends are attacked, to that I say: Tough beans, Mr. President. You promised us (social and judicial conservatives) in two separate presidential campaigns that you would appoint judges/justices "like Scalia and Thomas," and the time has come for you to honor your word. To be honest with you, I am already furious with you for even considering Gonzales. You know all too well, Mr. President, that Gonzales's judicial philosophy isn't even close to Scalia and Thomas's originalism/textualism, and yet Gonzales is (from all appearances) your first choice.
Look, I understand that Attorney General Gonzales is your friend, Mr. President, and I admire your loyalty to him. But understand this: I don't like being played or lied to. And if you nominate Gonzales over all the other fine originalist (and much more qualified) candidates on your short list, that is exactly what you will have done to the judicial and social conservatives who supported you so strongly during the last two presidential campaigns (many of whom supported you for no other reason than your ability to place originalists on the Supreme Court--if you doubt what I am saying is true, you need only conduct a poll of Federalist Society members for confirmation).
In sum, Mr. President, both you and the Republican Party will pay an enormous political price for your friendship with Gonzales (Geez, wasn't making him attorney general enough!). If you truly care about having the political support you so desperately need from your base during this second term, or the long term health of the Republican Party, then I suggest you get your priorities straight in a hurry and nominate originalists for any and all Supreme Court vacancies that arise during the remainder of your presidency. If you don't, you will deeply regret the decision not to heed this advice in future years; of that, you can rest assured.
BTW, let me make this clear: No one who knows me or has read my blog, Southern Appeal, for any extended period of time can question my steadfast loyalty to this president. I was with him from the very beginning (i.e., gave money to his presidential exploratory committee). Indeed, I came out and supported President Bush for the 2000 Republican presidential nomination in early 1998 (long before the vast majority of the social conservative base was on board); and I have been a loyal supporter and soldier for him ever since.
But every man has a hill that he is willing to die on; and the future composition of the Supreme Court is my hill. And the president is going to learn (perhaps the hard way), that I am in good company in this fight.
(cross-posted, in part, over at Southern Appeal)
Posted in SCOTUS —
Posted at 1:46pm on Jul. 5, 2005 Reviewing <em>National Review</em>
By AndrewHyman
National Review Online has a bunch of articles up today related to the nomination confrontation.
* Andrew McCarthy suspects that Ted Kennedy might not be the best spokesperson for the Framers of the Constitution, expecially compared to Robert Bork.
* Senator John Cornyn patiently explains yet again that the Senate has no constitutional right to meddle in the nomination process (see here for prior discussion of this issue at confirmthem).
* An NR editorial contends that Justice Oââ‚â„¢Connor is not a model to be emulated.
* Byron York tells the tale of how Clinton nominated Ginsberg (York says Babbitt and Cuomo would not have been nominated regardless of what Hatch recommended to Clinton).
* Gleaves Whitney points out that, "As recently as 1949 Truman's nominee, Sherman Minton, refused to appear before the Senate Judiciary Committee when summoned to do so" (we previously noted at confirmthem that nominees only began appearing at Senate hearings in 1925).
* Robert Alt has a piece urging Rehnquist to step down.
* Mark Levin reviews internal Democratic memoranda from a couple years ago.
* Heather McDonald criticizes Dahlia Lithwick's view that a female judge should decide cases based upon emotion.
If that's not enough for you, check out NR's Bench Memos and the Corner.
Posted in News —
Posted at 10:56am on Jul. 5, 2005 The Rehnquist Retirement Saga
By Erick
I have been following up leads with sources over Rehnquist's retirement. The media speculation of a Supreme Court retirement was rampant shortly before the O'Connor retirement and all eyes were on the Chief Justice.
According to multiple sources inside and outside the White House, Chief Justice William Rehnquist does intend to retire from the Supreme Court prior to the new court term in October. One source I've spoken with said that the Chief would like to retire so that a new Chief Justice could start the term, but given O'Connor's retirement he recognizes that might not be possible.
A source close to the White House tells me that the Chief Justice and President did have a private conversation, though there are few details available. Nonetheless, this White House is still working under the assumption that the Chief Justice will not be on the Court this October.
Posted in SCOTUS —
Posted at 1:36am on Jul. 5, 2005 President Says Nomination Will Occur in a "Few Weeks"
By AndrewHyman
President Bush did an interview Monday with USA Today. He said it will be a "few weeks" before a nomination is submitted to the Senate. Bush also emphasized that he's interested in diversity on the Court. Questions and answers are below the fold.
Q: Do you want to move the Supreme Court in a more conservative direction?
A: This is a responsibility I take very seriously, and I have indicated in the course of two campaigns that I intend to nominate a person with great integrity and intellect and experience who will faithfully interpret the Constitution.
Q: Do you believe the court is not conservative enough?
A: I'm making the pick based upon the criterion I just outlined. I'm looking at a wide range of candidates, people from different walks of life. I will begin to hone in on a handful of candidates over the course of the next few weeks and then will submit my nomination. But I am looking for an individual able to do the job, of course, who will bring great judgment to the bench and one who has the philosophy that I just outlined.
Q: Are you considering waiting until August to announce your choice so opponents don't have a full month to attack while Congress is recessed?
A: I have reached out to members of the Senate and will continue to do so. And then there will be a period of time in which I myself will sit down with the prospective nominees. But I was very serious when I said we need to have this person on the bench prior to the beginning of the next session.
Q: Would you like the Senate to return in August to deal with the nomination?
A: Part of the consultative process with the Senate, of course, will be to determine how best to get a speedy resolution to the nomination. I look forward to consulting with the Senate to make sure that the dialogue and tone of the debate is one that will bring credit to the country. This is a good opportunity for the Senate to get rid of the bitterness and rancor that seem to have been prevalent in a lot of the recent debates.
Q: Should the Senate's agreement not to block votes on judicial nominees except under "extraordinary circumstances" apply?
A: I think all my judges should get an up or down vote on the floor of the Senate. I think there ought to be a good, fair hearing. I know there will be. I hope the language and tone of the debate is one that is uplifting. I would hope that the groups involved in this process â₆the special-interest groups â₆will help tone down the heated rhetoric and focus on the nominee's credentials and philosophy.
Q: You said Friday that you want a dignified process, but already interest groups are working hard to pressure you.
A: I feel no pressure except the pressure to put somebody on the bench who will bring dignity to the office, somebody who's got the intellect necessary to do the job, somebody of great integrity and somebody who will faithfully interpret the Constitution and laws of the country.
Q: What do you make of the tone of the dialogue already and in particular the attacks on Attorney General Alberto Gonzales, who's considered a possible nominee?
A: My call to the senators who will be leading the debate on either side is to help elevate this rhetoric so that the country will take a prideful look at the process, recognize there will be differences of opinion but that we can step back after it's over and say, "That's the way we ought to conduct a debate on something as serious as a Supreme Court nominee."
Q: Do you think the attacks on Gonzales are out of line?
A: Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it. We're lucky to have him as the attorney general, and I'm lucky to have him as a friend.
Q: How many people are on your list? Does it include women and minorities?
A: I'm considering a pretty good-sized group of people right now, and of course, there's a diverse group of citizens.
Q: Do you feel any obligation to appoint a woman?
A: I feel an obligation to make sure I reach out to all our society, to people from different parts of our society. It's very important for the people to know that I'm interested in diversity on the court, and I'm also interested in making sure that the person I pick, regardless of who he or she is and regardless of the background of that person, is a person of great integrity, somebody who can do the job.
Q: You have said the American people are not ready for a change in Roe v. Wade. Do you still believe that, or is this your chance to overturn it?
A: As I have repeatedly said, I do not believe in a litmus test for my judges.
Posted in News —
Posted at 2:42pm on Jul. 4, 2005 Specter Attacks Originalist Interpretation of Constitution
By AndrewHyman
U.S. Senate Judiciary Committee Chairman Arlen Specter said the following on CNN's Late Edition yesterday (July 3):
He [Judge Bork] had original intent, and if his original intent stood, we'd still be segregating the United States Senate with African Americans on one side and Caucasians on the other side.
Bork spoke later on the same show:
I know Specter and the truth is not in him. I have written --- and he must know it --- that Brown against Board of Education, the case that ended segregation, was a correct decision. So he knows that, and I don't know why he's making a claim like this at this time.
Here's what Bork wrote about Brown v. Board of Education, in his book "The Tempting of America" (page 82):
By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.
At the least, Senator Specter owes Judge Bork an apology. The New York Times reports about Specter's remarks here.
Posted in News —
Posted at 1:31am on Jul. 4, 2005
By AndrewHyman
IN CONGRESS, July 4, 1776.
The unanimous Declaration of the thirteen united States of America,
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Georgia:
Button Gwinnett
Lyman Hall
George Walton
North Carolina:
William Hooper
Joseph Hewes
John Penn
South Carolina:
Edward Rutledge
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton
Massachusetts:
John Hancock
Maryland:
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton
Virginia:
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton
Pennsylvania:
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross
Delaware:
Caesar Rodney
George Read
Thomas McKean
New York:
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris
New Jersey:
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark
New Hampshire:
Josiah Bartlett
William Whipple
Massachusetts:
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry
Rhode Island:
Stephen Hopkins
William Ellery
Connecticut:
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott
New Hampshire:
Matthew Thornton
Posted in Images —
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