ConfirmThem

Posted at 6:39pm on Jul. 30, 2007 Chief Justice Suffered Seizure

By aurel

Chief Justice John Roberts suffered a seizure at his summer home in Maine on Monday, causing a fall that resulted in minor scrapes, Supreme Court spokeswoman Kathy Arberg said.

Roberts underwent a "thorough neurological evaluation, which revealed no cause for concern," Arberg said in a statement.

According to MainCoastNow.com, "St. George Ambulance responded to a call at about 2 p.m. Monday of a man who had fallen 5 to 10 feet and landed on a dock, hitting the back of his head. The patient was ashen and was foaming at the mouth."

According to a Bloomberg report, "Roberts suffered a seizure while golfing in January 1993, Newsweek magazine reported in August 2005, quoting Justice Department colleague Larry Robbins. ``It was stunning and out of the blue and inexplicable,'' Robbins said, according to the magazine. Roberts wasn't allowed to drive for several months after the seizure, Newsweek said, adding that doctors never found the reason for it, though stress can be a cause."

Chief Justice John Roberts, 52, is the youngest member of the Supreme Court. He will be in our thoughts and prayers.

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Posted at 12:28pm on Jan. 7, 2007 Judicial Pay: A Problem, Not a Constitutional Crisis

By Curt Levey

The LA Times editorial page doesn't often get it right, while Chief Justice Roberts rarely gets it wrong, but this week's debate on federal judicial pay – spurred by Roberts' annual report on the judiciary – is an exception. In its editorial today, the Times takes a moderate and sensible approach to the topic. It agrees that "federal judges have been ill-treated by a 1989 law that links their cost-of-living raises to those of members of Congress" and concedes that "Roberts' frustration is understandable" given the decline in judicial pay after adjustment for inflation. But the Times correctly concludes – as have others – that while "Al Gore's refusal to accept the Supreme Court's decision in Bush vs. Gore would have been a constitutional crisis," the judicial pay problem simply doesn't rise to that level, notwithstanding the Chief Justice's assertion to the contrary.

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Posted at 12:59am on Sep. 25, 2006 LA Times: Roberts is No Umpire

By Curt Levey

For the latest attempt by liberals – as part of their "so are you" strategy – to redefine judicial activism, see yesterday's Los Angeles Times. In the Times article, judicial activism is defined by the paper's Supreme Court reporter as the striking down of statutes and regulations. Just the usual sophistry there. But this article adds a twist. It would have us believe that when Chief Justice Roberts – during his confirmation hearing last year – used an umpire analogy to describe the proper role of a judge, he had the Times's definition of activism in mind. Of course, that is not the definition that Roberts intended nor followed during his first term on the Court. The article's conclusion: Roberts's first term decisions reveal that he is no umpire.

UPDATE: For additional thoughts on this article, see the posts by Matthew Franck and Ed Whelan over at Bench Memos.

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Posted at 8:19pm on Nov. 12, 2005 A Test of Character

By Carol Platt Liebau

The Maternal Optimist passes along a revealing anecdote about the character of Chief Justice Roberts.

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Posted at 12:56pm on Sep. 22, 2005 Committee Recommends Roberts Confirmation 13-5

By Marshall Manson

All Republicans plus Leahy, Kohl and Feingold vote yes.
Democrats voting no were Kennedy, Biden, Feinstein, Schumer, and Durbin.

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Posted at 12:41pm on Sep. 20, 2005 Roberts on Roe

By Marshall Manson

There has been much discussion in this forum and elsewhere about Judge Roberts' answers at his hearing last week regarding Griswold, Roe and the issue of precedent. Some commenters have challenged me and others to defend Roberts' statements on the issue. While I have refused (f0r reasons that I have explained here and here), that doesn't mean others aren't on the case.

Over at National Review, Ed Whelan has an outstanding commentary addressing this subject in detail. It's a must-read.

Here's the central point:

It is a testament to Roberts's skills as an advocate that his remarks at his confirmation hearing on abortion and stare decisis have been understood by Specter and many other supporters of Roe as suggesting that he would not vote to overrule Roe. What seems not to have been noticed is that Roberts in fact deftly repudiated Specter's notion that Roe is some sort of "super-duper precedent" entitled to "super stare decisis." In so doing, he marked the path for the eventual overruling of Roe.

Specter's "super stare decisis" notion implies that there is an especially high wall that would need to be surmounted to overrule Roe. But Roberts reconceived this single high wall as two successive hurdles that would have to be cleared: first, the precedent in Planned Parenthood v. Casey on whether or not to revisit Roe, and second, the precedent in Roe, as modified by Casey, on what abortion regulations are permissible and on the standard of review to be applied to them. Roberts's phrasing cleverly obscured the point that it is far easier to go over two hurdles in succession than over a wall that is the height of the two hurdles combined.

Roberts's statement that Casey is "settled as a precedent of the Court, entitled to respect under principles of stare decisis" is definitional boilerplate in Roberts's usage. As Roberts employs the terms, anything that qualifies as "precedent" is "settled," and all precedents of the Court are "entitled to respect." In Roberts's words, Casey is "entitled to respect like any other precedent of the Court."

Roberts stated in his hearing that "it's vitally important that nominees, to use Justice Ginsburg's words, [give] no hints, no forecasts, no previews" of issues that are likely to come before them. Unlike some who think he was trying to telegraph his position on Roe, I think that he was steadfastly adhering to this standard.

That said, those like me who believe that the issue of regulating abortion must be restored to the democratic processes should take comfort in Roberts's analytical framework.

Read the whole thing.

Let me also just add that Whelan has been on top of all of the issues and discussions surrounding the Roberts' confirmation better than anyone else. His insight has been crucial for non-lawyers like me trying to understand the details.

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Posted at 4:28pm on Sep. 19, 2005 What Will The Vote Be

By Erick

From David Broder comes this:

The question of whether Judge John Roberts is qualified to be chief justice of the United States has been rendered moot by his performance in the Senate Judiciary Committee hearings. He is so obviously -- ridiculously -- well-equipped to lead government's third branch that it is hard to imagine how any Democrats can justify a vote against his confirmation.

Notwithstanding the WaPo editorial and the "Dean" of the Washington Press Corp going to bat for Roberts (which we know will make some conservatives nervous), I hear that the vote will not be a landslide for Roberts. In fact, I have gotten word that some Democrats are going to vote against Roberts, knowing he will pass and being inclined to support him, because they are fearful of "the base," which wants Roberts to be opposed. My sources echo Robert Novak's and are touting the number 65.

Ironically, I've been told late today of a new movement being kicked around by several Democrat Senators, including some members of the Filibuster Gang, that if the majority of Democrat Senators vote for Roberts, they will have a greater argument to oppose Bush's O'Connor replacement. The feeling is that polls already show the public expects the Dems to oppose anyone the President picks. By not vociferiously opposing Roberts, the Dems will be in a much better position with the public when they actively oppose the next nominee, which I'm told they have every intention of doing.

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Posted at 7:44pm on Sep. 17, 2005 The Left Will Have A Bad Sunday

By Erick

In tomorrow's Washington Post.

JOHN G. ROBERTS JR. should be confirmed as chief justice of the United States. He is overwhelmingly well-qualified, possesses an unusually keen legal mind and practices a collegiality of the type an effective chief justice must have. He shows every sign of commitment to restraint and impartiality. Nominees of comparable quality have, after rigorous hearings, been confirmed nearly unanimously. We hope Judge Roberts will similarly be approved by a large bipartisan vote.

A lot of lefties will be burning their copies of the Post tomorrow and then marching off to torch John Philip Sousa's house.

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Posted at 10:45am on Sep. 15, 2005 No Penumbras for Roberts

By Erick

[Editor's Note]: This post is dedicated to Feddie whose young son can tell you that Justice Souter wouldn't know a penumbra if it came out of his butt.

I caught a clip of John Roberts's testimony from Day Two of the hearings and found this statement a bit interesting:

I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.

My educated guess is that the inaudible part was the word penumbras Editor's Note: several folks have verified that it was "penumbras" that the transcript as as inaudible. What is interesting about this is that, as Roberts goes on to say in so many word, he agrees with the conclusion of Griswold, but not the rationale behind Justice Douglas's opinion, which relied, in part, on emanating penumbras from the 9th Amendment.

That Roberts seems to reject that foundational bit of 9th Amendment doctrine should be refreshing to conservatives. In fact, as Roberts points out, he prefers using the "liberty interest protected under the due process clause" as opposed to those alleged rights emanating from the 9th Amendment.

Roberts does not answer the question of how expansive he sees the liberty interest, and we are left guessing. But, that he seems to have not bought into the penumbras of the ninth amendment is reassuring.

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Posted at 8:34am on Sep. 15, 2005 Witness List

By Marshall Manson

This morning, the Judiciary Committee will complete its questionning of Judge Roberts. We expect questionning from a few more Democrats but no Republicans. After that's completed, the committee will hold a brief, routine executive session to discuss the FBI's background check. And then, after lunch, we get the outside witnesses. The list is below the fold. The afternoon session should be full of fireworks.

Panel 1
* Steve Tober, Chairman, ABA Standing Committee on the Federal Judiciary
* Tom Hayward, past-Chairman, ABA Standing Committee
* Pamela Bresnahan, ABA DC Circuit Representative/Investigator

Panel 2
* Dick Thornburgh, Counsel, Kirkpatrick & Lockhart, and former United States Attorney General
* Congressman John Lewis (D-Ga.)
* Jennifer Braceras, Commissioner, U.S. Commission on Civil Rights, and Visiting Fellow at the Independent Women’s Forum
* Carol M. Browner, The Albright Group, Former Administrator, U.S. Environmental Protection Agency
* Bruce Botelho, Mayor of Juneau, Alaska
* Judge Nathaniel Jones, 6th U.S. Circuit Court of Appeals (retired)

Panel 3
* Catherine Stetson, Partner, Hogan & Hartson
* Coach Roderick Jackson, Birmingham, AL
* Elsa Cole, General Counsel, NCAA
* Beverly Jones, Lafayette, TN
* Maureen Mahoney, Partner, Latham & Watkins
* Reginald Turner, President, National Bar Association

Panel 4
* Judge Denise Lindberg, Third District of the Utah State Court
* Wade Henderson, Executive Director, Leadership Conference on Civil Rights
* Peter Kirsanow, partner, Benesch, Friedlander, Coplan & Aronoff, and Commissioner, U.S. Commission on Civil Rights
* Marcia Greenberger, President, National Women’s Law Center
* Diana Furchtgott-Roth, Senior Fellow, Hudson Institute
* Robert Reich, Professor, Brandeis University

Panel 5
* Charles Fried, Professor, Harvard Law
* Judith Resnik, Professor, Yale Law School
* Christopher Yoo, Professor, Vanderbilt Law
* David Strauss, Professor, Chicago Law School
* Patricia Bellia, Professor, Notre Dame Law
* Peter Edelman, Professor, Georgetown Law

Panel 6
* Henrietta Wright, Of Counsel, Goldberg, Godles, Wiener and Wright, and Chairman of the Board, Dallas Children's Advocacy
* Karen Pearl, Interim President, Planned Parenthood
* Rabbi Dale Polakoff, President, Rabbinical Council of America
* Susan Thistlethwaite, President, Chicago Theological Seminary
* John Engler, President, National Association of Manufacturers and former Governor of Michigan
* Anne Marie Tallman, President and General Counsel, Mexican American Legal Defense and Education Fund

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Posted at 10:02pm on Sep. 14, 2005 Reflections on the Roberts Hearing Thus Far

By Marshall Manson

A few reflections:

(1) First, I want to apologize to all of the Confirm Them readers for my haste in posting over the last few days. As many of you know, I am involved in the effort to support Judge Roberts, so I'm posting very quickly whenever I have the chance. This has yielded more than a couple of posts that were not as clear and articulate as I would normally prefer. It has also yielded more than a couple of posts with typos and other distracting mistakes. I assume that our readers are interested in the flow of information that I'm attempting to pass on, so I appreciate your indulgence of my haste for another day or two.

(2) I also wanted to complement our commenters. I'm not sure there's a better informed, more articulate bunch of commenters anywhere. The various discussions have been universally well-reasoned and arguments have been well supported and well articulated. Please...keep commenting.

With those house-keeping thoughts out of the way, let me turn to the hearings.

(3) I have said before, and I continue to believe, that Judge Roberts's performance has been extraordinary. In the last three days, he has demonstrated his brilliance while showing just what a bunch of dolts many of the Senators questioning him truly are. If the practical criteria for confirmation were what they should be, there would be no need for any additional discussion.

(4) A couple of Senators asked Judge Roberts his views on allowing cameras in Supreme Court proceedings. Judge Roberts indicated he was undecided. I am not. Allowing cameras in the High Court is a terrible idea. And the best evidence is the current hearing. If Charles Schumer or Joe Biden played any harder for the cameras, they would injure themselves. And the cameras certainly aren't adding anything to the discourse.

(5) As the hearing continues, the Democrats and their puppet masters on the Left grow more and more panicked and irrational. Today, in one stakeout, someone from one of the liberal groups spent five minutes ranting to reporters about the difficulty of obtaining tickets, and tried to turn use this as a vehicle to attack the Republican leadership. There were any number of problems with this lunacy. Not the least of which was that anyone who wanted a ticket could obtain one as per the instructions provided by the committee (or by asking for assistance from just about anyone on Capitol Hill). There were plenty of seats any no one was turned away.

This desperation was also manifested in other ways. This morning, we heard that several liberal leaders were seen loudly berating Senator Schumer in the hallway last night over the lack of pop in his questioning. Needless to say, he was more aggressive today. But the substance was no more compelling.

If nothing else, the hearing has exposed the complete lack of substance or significance behind the Left's attacks. So expect lots of shrill, irrational hand-wringing from their witnesses on Thursday. No distortion will be out-of-bounds; no attack too frivolous.

(6) Having said that, the Democrats clearly haven't gotten the obstructionist DNA out of their system. And we should expect that whoever the President nominates next, the Left will urge -- and some Senate Democrats will endorse -- a filibuster.

(7) I think the thing that has bothered me most is the degree to which the Democrats want to make this confirmation process nothing more than a political event. The federal judiciary needs, deserves, and demands better. Senators shouldn't be politicizing the judiciary, yet that's been the Democrats' major accomplishment this week. As someone who is involved in politics for a living, I never really expected anything else. But part of me remembers that Justice Breyer and Ginsberg both got more than 90 votes in Republican-controlled Senates.

(8) Which brings me to my prediction. I believe that Judge Roberts will be approved by the Judiciary Committee by a straight party line vote of 10-8. And that in the final vote on the Senate floor, he will not attract support from more than a handful of Democrats. This doesn't send any sort of message about Judge Roberts. Indeed, Judge Roberts has established that he is an ideal selection for the Supreme Court. Instead, it sends a clear message about the band of partisan hacks who are opposing him. And, as I've said before, Americans are watching.

(9) I wouldn't want to be the next nominee. The Left has largely held its fire for now, knowing that there was another fight coming. Get set folks. It's going to be ugly.

I'll be back posting tomorrow. In the meantime, sound off.

(P.S. -- Did any of this make any sense? Time to get a little sleep.)

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Posted at 5:46pm on Sep. 14, 2005 Durbin's Question

By Marshall Manson

Once again, Durbin's question about the HMOs case reveals that Dems are looking for judges who agree with them on particular outcomes. It really is pathetic.

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Posted at 4:30pm on Sep. 14, 2005 CFJ on Biden

By Marshall Manson

From the Committee for Justice:

“Nothing captures the essence of the current debate over Judge Roberts than the exchange between him and Sen. Biden (D – Del.) earlier today. It revealed the huge divide between those – like Sen. Biden and most of his Democratic Senate colleagues – who believe that the Constitution means what it ought to mean and those – like Judge Roberts – who believe that a judge’s personal or policy views should have no bearing on his rulings.

Specifically, Biden asked Judge Roberts about his personal view on the right to die and whether Roberts believes it is a fundamental constitutional right. Frustrated when Roberts declined to answer, Biden analogized judicial nominees to politicians who have to ‘express[] broadly and sometimes specifically to our public what we believe’ in order to get elected.

Biden’s analogy is the kind of comment one would expect from a layman, not an attorney, no less a U.S. senator. The genius of our nation’s independent judicial branch depends on the fact that judges are not supposed to be like politicians. They are supposed to interpret the nation’s Constitution and laws without regard to their personal views and without having to promise in advance what positions they will take on certain issues. In fact, unlike politicians, judges are supposed to rule on the specific set of facts presented by a case, rather than taking sweeping positions on issues.

Sen. Biden’s distorted view of the role of the judiciary is certainly not unique among his Democratic colleagues. Witness Sen. Feinstein’s (D – Cal.) reply yesterday – after Roberts declined to say whether there is a constitutional right to abortion – that she would find it very hard to vote for a Supreme Court nominee who did not pledge to uphold Roe v. Wade. I fully understand the frustration of Sens. Biden and Feinstein and their liberal activist allies, who have genuinely lost sight of the proper role of the judiciary. From their point of view, it must be maddening when Judge Roberts refuses to make ‘campaign’ promises.

Sen. Biden suggested today that it is not enough for Roberts to be 'a decent, bright, honorable man. Sen. Biden, that is exactly what we should require our judges to be.�

– Curt Levey, General Counsel, Committee for Justice

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Posted at 4:24pm on Sep. 14, 2005 Schumer and Obstruction

By Marshall Manson

Senator Schumer is not interested in getting answers to his questions. He seeks only to justify his calls for delay and obstruction. Senator Schumer’s record of obstruction is unsurpassed, and it will not come as a surprise to anyone that he is now setting the table to call for even more delay.

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Posted at 2:08pm on Sep. 14, 2005 Kohl Questionning

By Marshall Manson

Another missive from Reid Cox:

I cannot keep myself from cynically commenting that the Democrats push — like Senator Kohl’s now —to politicize the judiciary is not preventing them from opposing the egregious anti-property rights decision that was issued this past term in Kelo v. City of New London. But that’s not because the Democrats believe in protecting property rights, it’s because they see political points to score. To understand this, ask yourself the following question: Would the Democrats be opposed to the outcome in the Kelo decision — namely, that the government can take private property for development —- if the land in question was owned by a multinational corporation rather than families?

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Posted at 12:50pm on Sep. 14, 2005 CFIF Statement from Midday

By Marshall Manson

CFIF Praises Roberts’ Performance
Urges Democrats to Reject Partisanship, Support Clearly Outstanding Nominee

Jeff Mazzella, President of the Center for Individual Freedom, made the following statement:

“Judge Roberts’ performance has been extraordinary. He has exhibited brilliance, eloquence and thorough knowledge of the law. He has articulated an appropriate and proper view of the role of a Judge in our Constitutional system.

“Unfortunately, at this point, all indications are that Democratic members of the committee will stand on partisanship and oppose his nomination. That would be a huge mistake.

“Should the Democrats vote in a partisan block against Judge Roberts, they will put politics first yet again. They should know better. Judicial selection shouldn’t be about scoring political points.

“The President has obviously nominated the best person to be the next Chief Justice. There’s no reason for any Senator to oppose his confirmation.�

The Center for Individual Freedom (www.cfif.org/supremecourt) is a non-profit, non-partisan Constitutional and free-market advocacy organization dedicated to protecting individual freedom and rights in the legal, legislative and educational arenas. For nearly four years, the Center has been a leader in pushing the Senate to hold up-or-down votes on judicial nominations.

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Posted at 12:10pm on Sep. 14, 2005 Biden Shows His Liberal Hand

By Marshall Manson

From Reid Cox:

Senator Biden is now asking Judge Roberts what he personally feels about end of life issues. Here Senator Biden has tacitly admitted that he and the other Democrats and their liberal puppetmasters believe that judges should make decisions based on their personal beliefs and not what the law says. After all, why would Judge Roberts’ personal views be relevant if judges should not let their personal views affect their decisions. To his credit, Judge Roberts is telling Senator Biden that his personal views don’t matter.

Lots More from Reid below the fold.

Senator Biden now makes the analogy that Senators, Presidents and Congressmen have to answer to the public what their views are. Yes they do, they are elected representatives that make the law. But Judge Roberts is a judge. He is not elected. He is not supposed to be accountable to the people. He is supposed to be accountable to upholding the Constitution and laws that “We the People� establish through our elected representatives like Senator Biden. Yes, Senator Biden, you have to tell your constituents what you believe because they are entrusting you with making the laws that will govern all of us. Judge Roberts cannot do the same because he must remain impartial and unbiased in determining whether everyone gets a fair shake under those laws.

One more from Reid on Biden:

I know I keep going on about this, but Senator Biden really brought into black-and-white relief the differences in our views between what judges should and are empowered to do. Senator Biden believes a judge’s personal beliefs are entirely relevant, and ultimately determinative, because he believes that judges are bound by absolutely nothing. In the end, Senator Biden, and the other liberals, believe that judging is itself kabuki theatre, because the liberals believe that judges only have to cite law to sound legitimate while imposing their own personal views as the law. On the other hand, the rest of us, including the founders, believe that judges serve a very different purpose — to safeguard the law and ensure that everyone is subject to the same laws that are legitimate because they were enacted by the people’s representatives. For us, the personal views of judges are irrelevant because understanding the rules that others have enacted has nothing to do with the personal beliefs of the judge.

UPDATE: An apt quote from CNN's Jeff Greenfield: "[Biden] feels compelled to ask the same question five different times and then complain he's run out of time."

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Posted at 10:37am on Sep. 14, 2005 PFAW Statement on Privacy

By Marshall Manson

I thought many of our readers might be interested in statement below the fold from the liberal group People for the American Way. (And most will know that PFAW is one of the leaders of the Left's effort to derail Judge Roberts and any other conservative nominee that they can.)

The following statement was released today by People For the American Way:

After yesterday's bobbing and weaving from Chief Justice nominee John Roberts, you might think Roberts told senators that the Constitution protects rights Americans have come to expect -- reproductive choice for women, a right to privacy in our own bedrooms, and the right to make intensely personal medical decisions, such as refusing unwanted medical treatment, without government interference.

You'd be wrong. While Roberts said he believed in a right to privacy under the Constitution, he immediately added that every member of the Supreme Court does, "to some extent or another."

By saying that he believes in a constitutional right to privacy the way every member of the Court does, Roberts is essentially saying that he would provide virtually no real protection for the right to privacy. Every member of the Court, of course, includes Justices Antonin Scalia and Clarence Thomas. According to their view, any right to privacy does not encompass a woman's right to reproductive choice, and both have argued that Roe v. Wade should be overruled. According to their view, any right to privacy apparently does not include the right of consenting adults to be free from criminal prosecution for what they do in the privacy of their own bedrooms, as reflected in their dissents in Lawrence v. Texas. And according to Scalia's view, the right of privacy does not give even a fully competent adult the right to refuse unwanted medical treatment, as reflected in Scalia's opinion in Cruzan v. Missouri Dept. of Health.

To what extent does Roberts believe in a right to privacy? Beyond the right of married couples to use contraception, recognized in the Griswold decision, Roberts refused to divulge whether he believed a constitutional right to privacy included reproductive choice or end-of-life decisions. Right-wing leaders are apparently comfortable concluding that Roberts "provide(d a) basis for reversing Roe v. Wade," as one LifeNews headline put it. Pat Robertson's Christian Broadcasting Network reported that Roberts "may vote (to) overturn Roe v. Wade," and that "(p)ro-life groups were happy to hear" his answers on when it is appropriate to overturn settled law. According to a posting on confirmthem.com, a prominent anti-Roe attorney applauded Roberts' evasion, saying "Roberts' answer was carefully framed to provide a basis for revisiting and overturning Roe in the future."

"Judge Roberts' answer is too clever by half," said People For the American Way President Ralph G. Neas. "With one breath, he gives false reassurance to Americans who are concerned that a Roberts Court would endanger privacy rights. With the next breath, he signals the far right wing that he could well join Scalia and Thomas in trying to take those rights away."

Neas said Roberts's comments are "eerily similar" to the words Clarence Thomas used 14 years ago to respond to the similar questions. A transcript of Roberts' answers on Tuesday and Thomas's answers from 1991 are below.

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Posted at 10:16am on Sep. 14, 2005 Specter's Final Question

By Marshall Manson

Specter just asked about Roberts' ability to bring together coalitions of justices and reduce the instances of proliferate opinions and worthless dicta. This, to me, is one of the most important opportunities for Judge Roberts. And it's also one of his best assets. I believe he will be able to bring the Court together in a way not seen since Justice Brennan or Chief Justice Warren. I believe he will move the court. And this will be his legacy.

UPDATE: Oh, for heaven's sake... I wasn't saying that Roberts views on the issues or the Constitution would be like Warren's. But history certainly makes it clear that Warren was a talented and able chief who was able to persuade people to join or his position. Brennan was famous for the same thing. But I'm not saying Roberts shares Brennan's views either. I'm fine with a vigorous back and forth here, but please don't distort what I'm writing.

Update III: Matt in #18 has me exactly right. And apologize that I am writing so quickly. I believe -- strongly -- that Justice Roberts will be the kind of persuasive justice that can move the Court decidely in the direction that conservatives prefer. Indeed, I have predicted to friends that with Roberts making the case to his colleagues as Chief, we might see Justices Kennedy, Breyer and Souter drifting more to the right (from their currently liberal positions) under his leadership.

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Posted at 10:07am on Sep. 14, 2005 Catholics Respond to Feinstein Questionning on Religion

By Marshall Manson

Fidelis Levels Criticism Over Religion Question

In separate letters to Senators Arlen Specter and Diane Feinstein, Fidelis leveled criticism over the repeated questioning of Judge Roberts’ Catholic faith. The letters address Chairman Specter’s early question about Roberts’ “personal views� which set the stage for Senator Feinstein to unnecessarily revisit the sensitive topic later in the hearing.

The letters ask for a more respectful tone during the second day of questioning and request that Senator Feinstein refrain from such further questioning and apologize for her intolerant and offensive words.

In their letter sent early Wednesday to Senator Arlen Specter, Fidelis expressed concern that Specter’s question opened the door for further inquiry about Roberts’ faith. Fidelis called on him to apologize and appealed to him to preserve the integrity of the process and not allow unnecessary questioning of his religion to continue.

The Feinstein letter expressed Fidelis’ deep concern over describing the teachings of the Catholic Church as “dictates,� revisiting the topic of then presidential candidate John F. Kennedy who was repeatedly dogged by questions concerning the perceived conflict between his Catholic faith and his role as a public servant.

Fidelis President Joseph Cella commented, “Of the two Senators remarks, Senator Feinstein’s were the most disturbing because she referred to the Catholic faith as ‘dictates.’ It shows her callous insensitivity and ignorance of the teachings of the Catholic faith.�

Cella continued: “Forty-five years since JFK faced similar questions about his Catholic faith, we continue to have Senators asking questions about the apparent conflict between their Catholic faith and public service in this country. It is unfortunate that the issue of his religious faith arose. This question has no place or bearing on his confirmation. We hope we have seen the end of it.�

Senator Specter began Tuesday’s hearing by asking Roberts whether his faith would present a problem in serving as Chief Justice. Roberts firmly responded that he agreed with Specter’s reference to JFK’s statement in 1960 when he said, “I do not speak for my church on public matters -- and the church does not speak for me."

Later in the day Senator Feinstein chose to revisit the issue asking Roberts whether he agreed with JFK when he described his belief in “an America where the separation of church and state is absolute.�

Cella continued, “The fact that Senator Feinstein again raised doubts about Roberts’ Catholicism is deeply troubling. Roberts had already successfully answered the question about his faith and any possible conflict, and yet Senator Feinstein returned to the issue. Senator Feinstein’s question pointed directly to an era in American politics where the evil undercurrent of anti-Catholic bigotry was widespread.�

“I would hope that we can move beyond the anti-Catholic prejudices of the past. Senator Specter must extend his excellent management of these hearings to include a rebuke of any Senator who continues to demand answers to questions about Roberts’ faith.�

Fidelis is a Catholic-based advocacy organization working with people of faith across the country to defend and promote the sanctity of life, traditional marriage, and the right to religious liberty by electing pro-life, pro-family and pro-religious liberty candidates, supporting the confirmation of judges, and promoting and defending laws consistent with the Founding principles of the United States.

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Posted at 9:28am on Sep. 14, 2005 Brownback Questionning

By Marshall Manson

Reid Cox writes about Sen. Brownback's questionning on property rights:

The questioning by Senator Brownback on the 5th Amendment’s Taking Clause, which is supposed to protect private property is extremely important, especially since the High Court’s Kelo decision this past term. In fact, in a split 5-4 decision this past term, the Supreme Court ruled that the government can “take� private property — people’s homes — simply for the purpose of economic development. I should point out this issue is only getting worse. Word came today in an Associated Press story that appeared in the Washington Post that the City in Connecticut that sparked the Kelo court battle is not even willing to wait to see if the state is going to enact greater protections for private property. Instead, they have apparently told the homeowners they must give up their homes before the state legislature even can try to enact a law to protect their private property.

Obviously, just like in any other area, Judge Roberts can’t give “hints� or “previews� of how he would rule in this area, but it is interesting and reassuring to note that he told Senator Brownback that “public use� requirement is seen to impose a restriction on when the government can take property.

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Posted at 8:51am on Sep. 14, 2005 Promoting from the Comments

By Marshall Manson

The author of this comment is sitting across from me this moring, and he pointed out this comment, which I thought would be of interest to readers:

There is way too much Conservative hand-wringing over Roberts’ response concerning Griswold!

Democratic Senator Herb Kohl asked Roberts: “The Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?� One way Supreme Court justices are able to expand precedent is by phrasing the holdings of prior cases in general terms. Roberts reeled the Senator’s statement back in: “I agree with the Griswold court’s conclusion that *marital* privacy extends to contraception . . . The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

Kohl announced that he was “delighted� with Roberts’ answer because “many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you’ve essentially accepted . . . the basis for the court’s reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.� Roberts declined Kohl’s invitation to comment, but there is a strong argument that Kohl’s unnamed scholars are wrong.

The precise issue before the Court in Griswold in 1965 was whether a Connecticut law that forbid the use of contraceptives invaded the privacy of married individuals. The case centered on the sanctity of marriage and its fundamental values. Justice Douglas in the majority opinion asked: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.� Justice Goldberg in his concurring opinion wrote: “Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection.�

Griswold was more about marriage than it was about sexual privacy. Or so the state of Massachusetts thought until the Supreme Court, in the 1972 case Eisenstadt v. Baird, struck down a similarly hardly-ever-enforced law against contraceptives that applied only to unmarried people.

The Court majority admitted that Griswold had been based on the unique marriage relationship, but then, like sly Senators, it spun the case from there: “[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.� At that moment, the Court leapt into new territory that laid the foundation for the Roe decision the following year. Eisenstadt is the key evolutionary link between Griswold and Roe.

In sum, Roberts carefully limited himself to the specific holding of the Griswold case, said nothing about Eisenstadt in this context, and left himself a jurisprudential exit if the issue of reconsidering Roe should ever come before him.

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Posted at 6:22pm on Sep. 13, 2005 Catholics Speak Out

By Marshall Manson

Fidelis: Roberts’ Faith Abused For Political Ends

WASHINGTON — During today’s hearings attempts were made by some to drive a wedge between Judge Roberts’ faith and his potential role as Chief Justice.

Liberal groups have attacked Judge Roberts for not being their kind of Catholic, while some members on the Committee questioned whether his faith would be an obstacle in acting impartially on the bench.

Fidelis President Joseph Cella said: “Both sides are sorely misguided. Judge Roberts said clearly that his faith and religion do not play a role in his judging. Unlike a politician, he is not formulating public policy, or passing new laws.�

Cella stated: “Liberal Catholic groups opposed to John Roberts’ confirmation have argued that Roberts must espouse their own policy preferences informed by their misguided views of Catholic teaching. Catholics shouldn’t take seriously liberal groups who oppose the fundamental teachings of the Church. These people pledge more fidelity to their liberal political agenda than to the Church’s teachings,� Cella said.

“Fidelis has consulted with Catholic legal scholars across the country who concluded there is nothing in John Roberts’ record that conflicts with the teachings of the Catholic Church or his ability to serve as Chief Justice,� Cella said.

Cella concluded: “Some in the U.S. Senate and their liberal allies are attempting to protect their own public policy preferences, and are using Judge Roberts’ faith as a political tool. This is dangerous territory that demonstrates a gross misunderstanding of the role of a judge on the Supreme Court.�

To learn more, log onto www.Fidelis.org.

Fidelis is a Catholic-based advocacy organization working with people of faith across the country to defend and promote the sanctity of life, traditional marriage, and the right to religious liberty by electing pro-life, pro-family, and pro-religious liberty candidates, supporting the confirmation of judges, and promoting and defending laws faithful to the Constitution of the United States.

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Posted at 5:12pm on Sep. 13, 2005 Feinstein's Questions

By Marshall Manson

“While questioning Judge Roberts, Sen. Feinstein stated that, in the last decade, the Supreme Court had struck down three dozen federal statutes under the Commerce Clause. In reality, U.S. v. Lopez (1995) and U.S. v. Morrison (2000) are the only two instances since the New Deal in which the Court invalidated legislation – involving the quintessentially local issues of gun possession near schools and gender-motivated violence respectively – on grounds that it was not a regulation of interstate commerce.

Sen. Feinstein is not alone. To hear Senators Kennedy, Schumer and their colleagues fret, you would think the Rehnquist Court had been striking down federal statutes under the Commerce Clause right and left. The truth is that the Court did so only when even a generous stretching of the constitutional authority to ‘regulate Commerce . . . among the several States’ could not accommodate the statute at issue.�

– Curt Levey, General Counsel, Committee for Justice

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Posted at 4:49pm on Sep. 13, 2005 Roberts on Griswold

By Marshall Manson

I don't have the transcript yet (I'll try to update this post later), but I am reliably informed that Judge Roberts' answer on Griswold was nearly verbatim to Justice Thomas'. And, indeed, Roberts went further by rejecting the notion of penumbras. That's a position that Justice Thomas did not articulate in answer to the same question.

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Posted at 4:31pm on Sep. 13, 2005 Life News on Roberts and Roe

By Marshall Manson

In another thread, a commenter says I've been posting material from "mainstream" organizations. Those labels don't work in this discussion, so I'm going to let that go. But let me add this communication I just got from Life News. And it would be hard to argue that they are a bunch of moderates. I'll also add that the view expressed below is the view that I've heard all day from legal experts and top experts on the issue.

The bottom line is this: the key in looking at Roberts' answers today is not to look at what Roberts is saying. You must look at what he's not saying. He's providing careful answers that will be viewed as non-controversial by the general public and the Senators considering his confirmation. But he's also carefully leaving critical openings on nearly every issue.

John Roberts Provides Basis for Reversing Roe v. Wade Abortion Case

LIFE NEWS.com
By Steven Ertelt
September 13, 2005

Washington, DC (LifeNews.com) -- The first question out of the box in the Senate Judiciary Committee came from the panel's chairman, Arlen Specter. Media reports of Roberts' answers have focused on his admission that Roe v. Wade is a long-standing precedent, but they have not focused on his comments setting up reasons for overturning the 1973 decision.

During his questioning, Specter sought to lay the groundwork for regarding Roe v. Wade as a Supreme Court decision that shouldn't be overturned because a generation of Americans have come to regard it as part of their lives.

"People have ordered their thinking and living around Roe," Specter said. "For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion."

"Would you agree with that," Specter asked?

Roberts didn't take the bait. He said that, while precedent is important, new facts and information could provide a basis for the Supreme Court to overturn a bad precedent-setting decision like Roe.

"Whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision had been eroded by subsequent developments," Roberts said.

"For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent," Roberts explained.

Specter, who backs abortion, then tried to trap Roberts by getting him to say new facts and information hasn't made the Roe precedent one that should be reversed.

"I feel the need to stay away from a discussion of particular cases," Roberts said.

Again, Specter asked, "Well, do you see any erosion of precedent as to Roe?"

Roberts declined the trapping question a second time: "Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again."

Later, Roberts said providing a "jolt" to the court is sometimes necessary when a bad decision has stood for too long.

Printed from: http://www.lifenews.com/nat1612.html

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Posted at 3:36pm on Sep. 13, 2005 Family Research Council on Roberts and Roe

By Marshall Manson

Just got this statement from the Family Research Council:

FRC Applauds John Roberts' Roe v. Wade Response
September 13, 2005

Washington, D.C. - Cathy Cleaver Ruse, Family Research Council's Senior Legal Fellow and former Chief Counsel to the House Subcommittee on the Constitution, released the following statement today at a Capitol Hill news conference sponsored by "Women for Roberts."

"Judge John Roberts is to be congratulated on a masterful beginning to his week of testimony before the Senate Judiciary Committee. Under tough questioning from Republicans and Democrats, Judge Roberts showed the world why he has the makings of an exemplary Chief Justice of the Supreme Court.

"I served formerly as the Chief Counsel to the House Subcommittee on the Constitution and I was particularly impressed with how clearly and eloquently Judge Roberts articulated the appropriate role of the judiciary within the Constitutional framework of separation of powers. This morning's testimony can be used in law school classes on how to understand constitutional issues and the role of the judiciary in our system of government.

"On several occasions Judge Roberts quite properly refused to answer questions calling him to pre-judge possible future cases. Specifically we were pleased with Judge Roberts' answers about Roe v. Wade. Judge Roberts refused to give hints or projections about how he might evaluate a future abortion case before the Court, but carefully stated what the law is on the matter of stare decisis and repeatedly pledged to follow the rule of law. Also, in questions about the issue of privacy, Judge Roberts explained that the Constitution in numerous areas addresses protections for privacy.

"Unfortunately, Judge Roberts' religion has already been brought up on this first day of hearings. Judge Roberts testified that nothing in his personal views based on faith or other sources would prevent him from applying the law faithfully. This should be the end of the matter, for any interrogation into Judge Roberts' faith would be tantamount to an unconstitutional religious test."

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Posted at 2:40pm on Sep. 13, 2005 2 Good Discussion on Roberts' Roe Answers

By Marshall Manson

1) Ron Cass — -former Dean, Boston University Law School: "Judge Roberts showed a commitment to the rule of law and an understanding that not all precedents are created equal. Some are wrong when decided and grow weaker over time. So when Brown v. Board of Education overruled Plessy v. Ferguson, that changed the law but made it more coherent. Other precedents, even if on doubtful ground when decided, became stronger over time, as Chief Justice Rehnquist concluded occurred with Miranda v. Arizona. Roberts rightly said precedents vary in strength and overruling them on occasion is merited despite its disruption of the law.

"Judge Roberts specifically said that privacy interests are protected under specific constitutional provisions such as the 1st Amendment & 3rd Amendment, and 4th Amendment, which secure private worship, private thought, and private property against particular government intrusions - and also are protected as part of the liberty safeguarded by the due process clause."

2) Leonard Leo, Executive Vice President, Federalist Society (on leave):
"Judge Roberts did exactly what any nominee before the committee should do in addressing Roe vs. Wade. Like Ruth Ginsburg, he refused to offer any hints or forecasts on how he would address the live issue of abortion. When pressed on whether he would treat Roe as binding precedent, he also did the right thing by declining to fall into that backdoor question about Roe.

"On the question of binding precedent, Roberts correctly noted that there are times when you reverse precedent and accept a jolt in the legal system, as with Brown v Board's reversal of Plessy and the Supreme Court's reversal of the Lochner 'liberty of contract' cases."

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Posted at 1:03pm on Sep. 13, 2005 Biden's Attack

By Marshall Manson

Biden's questionning will likely be the low point of the hearing. So much for civility. And so much for dignity. Imagine a lawyer standing in front of federal judge and accusing the judge of making misleading statements. He would go to jail. No one expected anything different, but the pathetic state of the Senate is on display for all to see today. And its poster child is Joe Biden.

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Posted at 12:59pm on Sep. 13, 2005 Biden Manipulates the Ginsburg Rule

By Marshall Manson

From Reid Cox:

Senator Biden’s gotcha game with his conception of the “Ginsburg Rule� misses the whole point. Judge Roberts and any other nominee should not give any hints or previews as to how he would rule on contested issues because judges are charged with deciding cases which have underlying facts and circumstances. In other words, it would be a huge disservice to litigants and everyone else to make a broad policy pronouncement based on abstracts and assumptions when a later case that may come up may present very different facts and circumstances.

Moreover, let’s think a little bit about the logic of Senators being able to pin judicial nominees down on specific issues… If a nominee should be required to pronounce his advance judgment on any number of legal issues before the Senate can decide whether to confirm him/her, then that is a tacit admission that the judiciary is just another political branch of the government. If the judiciary is just another political branch of the government, then why did the Founders not want judges to be elected like the other political branches (President and Congress)? The Founders did not want the judiciary elected because they believed the judiciary needed to be independent from the popular political will, and hence apolitical, in order to be an adequate check in protecting the Constitution.

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