Roberts' Nomination to USSC

Off Topic Politics & World Issues
21

[quote]BostonBarrister wrote:
rainjack,

I actually think it will be pretty smooth – not without any bumps, but a lot smoother than Janice Rogers Brown would have been.

At any rate, the NARAL crowd doesn’t have much to hang its hat on. I think the most they’ve got is that Roberts’ wife is pro-Life and Roberts was the sixth attorney to sign a brief, when he was a lawyer for the Bush 41 legal dept., that in a footnote argued that Roe v. Wade was bad law. Not only was it not his position (it was the administration’s), but he wasn’t even the lead lawyer.

Also, if he takes a firm stand on not answering questions on how he would hypoethetically rule on hypoethetical cases, which is pretty clearly against judicial ethics (judges are supposed to look at the facts of the individual cases before them, and not base their judgments on their own previously held opinions), which has been the position of all the previous USSC nominees I can recall, he should be fine.

There won’t be a filibuster – at least not unless they really want to see the nuclear option. Even McCain was saying Roberts was a good choice whom he expected to fly through confirmation.[/quote]

Not only that, but Roberts can also pull the “I’ll follow accepted law of the land” card, as he did in his psuedo-recant of the brief he had to sing for Bush V 4.1.

Easy confirmation. Smart move by bush.

22

[quote]doogie wrote:
When Rehnquist quits after Roberts is confirmed, will any Democrat have the nerve to oppose the first black, female chief justice?[/quote]

They would have a fit if Janice Rogers Brown were nominated for Chief.

Personally, I hope it’s Luttig or McConnell who gets nominated – they can nominate someone else for Stevens. He’s older than Rehnquist, and he’s a consistent liberal vote. Replacing him with someone who actually believes the Constitution was written to limit the government and separate powers between the branches would be a wonderful thing.

23

A typically good WSJ editorial on Roberts today:

Roberts Rules
July 21, 2005; Page A10

Within minutes of President Bush’s nomination of John Roberts to the Supreme Court, the folks at People for the American Way sent out their all-points bulletin: “Sparse Record Raises Serious Concerns.” In other words, they don’t know how in the world they’re going to assault this guy, but they’ll try like mad to come up with something.

We doubt they’ll succeed. While it’s always possible that opponents will simply make something up, Judge Roberts is a judicial conservative who is no easy political target. He deserves to be confirmed easily and soon, and he probably will be.

Even liberals are conceding Mr. Bush’s description that the 50-year-old federal judge is “one of the best legal minds of his generation.” He’s served as Associate White House Counsel to President Reagan, principal deputy Solicitor General under Ken Starr in the administration of the first President Bush, prominent appellate litigator who’s argued 39 cases before the Supreme Court, and two years on the D.C. Circuit. That’s a resume.

One irony is that both liberals and some social conservatives wish Mr. Roberts had spent a few more years on the D.C. Circuit, to see more of his philosophy emerge in more opinions. But what we know suggests a jurist in the mold of Chief Justice William Rehnquist, for whom Mr. Roberts clerked.

He gives every sign of being a careful constitutionalist – for example, as a believer in federalism and the Lopez line of cases. One signal on this point is his 2003 dissent in Rancho Viejo, in which he questioned a Fish & Wildlife Service order to a developer to move a fence from its own property in order to accommodate an endangered toad.

“The hapless toad,” he wrote, “for reasons of its own, lives its entire life in California” and thus could not affect interstate commerce. This implies a less expansive view of the Commerce Clause than the current Supreme Court majority, and suggests he would have joined the four dissenters in Raich, the Supreme Court’s recent decision to let the federal government overrule state laws on regulating medical marijuana.

Also in the Rehnquist tradition is the deference to executive war powers that Judge Roberts showed in joining last week’s unanimous D.C. Circuit ruling on Guantanamo that cleared the way for enemy combatants to be tried in military commissions.

It’s possible that the nominee might not be as willing to overturn precedent as Justices Antonin Scalia or Clarence Thomas, but he seems to be someone with deeper roots in the original Constitution than either Justice Sandra Day O’Connor or Justice Anthony Kennedy. While we won’t agree with every Roberts opinion, it’s impossible to see him making the law up as he goes along. And if confirmed he is thus likely to move the High Court marginally, but importantly, back toward where it was before Justice Ruth Bader Ginsburg replaced Byron White in 1993.

Liberals also know this, which is why they are now demanding that Mr. Roberts answer “all” of their questions, so they can trip him up on this or that issue. But they are likely to be frustrated, as Judge Roberts follows the Ginsburg-Stephen Breyer rule of not commenting on cases that might come before the Supreme Court.

Expect to hear responses along the lines of “I must avoid giving an advisory opinion on any specific scenario, because … that scenario might come before me,” which was how Justice Ginsburg put it during her confirmation hearing. If Mr. Roberts isn’t more expansive, Democrats have only themselves to blame because nominees know that anything they say can and will be used against them.

Expect, too, 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.

Inevitably, abortion will come up, but this too is a red herring. Opponents will raise his anti-Roe advocacy when he was in the Solicitor General’s office, but Mr. Roberts was doing so as a hired lawyer for the government – one of several whose names appear on the brief – required to express the Administration’s position. As a judge, Mr. Roberts has not decided any cases involving abortion. In any event, Roe has a 6-3 majority on the current Court and isn’t in jeopardy even if he would vote to overturn it. But abortion rights wouldn’t vanish even if Roe were overturned. They’d merely revert to state legislatures to determine.

All in all, Mr. Bush seems to have made a shrewd choice, one that moves the Court back toward the center while denying opponents easy attack lines. The list of the three Democrats who voted against Mr. Roberts in committee for the appeals court – Ted Kennedy, Richard Durbin and Chuck Schumer – tells us who is really in the judicial “mainstream.”

We’ll still get a noisy battle, because the MoveOn.org crowd can’t help themselves, but unless they can dig up some mud we aren’t now aware of, the left is about to discover that losing Presidential elections has judicial consequences.

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Ed Whelan, a lawyer, legal writer for the National Review and a former USSC clerk to Judge Scalia, has provided a series of posts that effect a dissection of the People For the American Way’s attack on Roberts, an attack shrill, desperate, and expected:

http://bench.nationalreview.com/archives/070163.asp

People for the (Un)American Way?s predictable attack on John Roberts ( http://media.pfaw.org/roberts.pdf ) is remarkable for its feebleness. Once you get past the breathless adjectives that PFAW was ready to invoke against anyone the President would have nominated, PFAW leads with four briefs that Roberts co-authored as Deputy Solicitor General in President George H.W. Bush?s administration.

The American people fully understand that a lawyer is obligated to advocate the positions of his client. That is exactly what Roberts did.

PFAW’s characterization of the government’s briefs is also amusingly disingenuous. For example, PFAW claims that the government?s brief in Lee v. Weisman, which argued that the Establishment Clause should be construed in a manner that is faithful to American traditions (imagine that!) was “radical”. It is, of course, groups like PFAW, who seek to have the courts strip “under God” out of the Pledge of Allegiance and wipe out the American tradition of promoting respect for religion generally, that are the real radicals.

Don?t expect these inane attacks to stop, as PFAW needs to try to justify its existence and raise money.

http://bench.nationalreview.com/archives/070178.asp

Responding to the lies that the Left will sling at John Roberts would be a full-time job for an army of lawyers. Here?s my account of the first judicial opinion (out of a grand total of five) that I?ve looked at in PFAW?s hit job ( http://media.pfaw.org/roberts.pdf ):

PFAW attacks Judge Roberts for his unanimous opinion in Hedgepeth. D.C. had in place a policy that provided that minors who committed offenses in Metrorail stations be taken into custody. D.C. did not have a similar policy for adults. D.C. police applied the policy to a 12-year-old girl who ate a french fry in a Metro station. In a straightforward application of Supreme Court precedent, the district court, which described the policy as “foolish,” ruled that it did not violate the Constitution, and all three appellate judges agreed. (D.C., incidentally, had changed the policy even before the case was filed.)

Judge Roberts?s opinion in this case clearly illustrates that he understands the role of a judge. PFAW?s highly selective quotations fail to include the following:

“The question before us ? is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution.”

“The district court had and we too may have thoughts on the wisdom of this policy choice?it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears?but it is not our place to second-guess such legislative judgments.”

PFAW gives the reader the mistaken impression that Roberts states that the police merely made the child cry. But as Roberts states in the opening paragraph (and elaborates elsewhere), the child “was booked fingerprinted, and detained until released to her mother some three hours later?all for eating a French fry in a Metrorail station. The child was frightened, embarrassed, and crying through the ordeal.”

Thus, PFAW?s charge that “Roberts appeared dismissive of the serious concerns” raised by the case is simply ridiculous.

http://bench.nationalreview.com/archives/070227.asp

Another of the grand total of five judicial opinions of Judge Roberts that PFAW attacks is his ruling in Taucher v. Brown-Hruska that denied an award of attorney?s fees to plaintiffs in a case brought against the Commodity Futures Trading Commission. You?ll have to try really hard to stay awake as I describe the severe threat to American liberties that PFAW pretends to see in this case.

In order to combat fraudulent practices affecting the commodity futures market, Congress enacted the Commodity Exchange Act. That Act makes it unlawful for any commodity trading adviser to use any means of interstate commerce in connection with its business unless it first registers under the Act. Certain publishers who were commodity trading advisers challenged the registration requirement as violative of the First Amendment. Reasoning from a 1945 concurring opinion by Justice Jackson and a 1985 concurring opinion by Justice White, the district court determined that the registration requirement was a regulation of the publishers’ speech rather than a regulation of professional practice and that it was an unconstitutional prior restraint.

After the CFTC abandoned its appeal, the plaintiff publishers sought to recover attorney’s fees under a statute that awards attorney’s fees to a party prevailing against the government unless the government?s losing legal position is “substantially justified.” A magistrate determined that it was “so self-evident and obvious” that the registration requirement was not regulation of professional practice that the CFTC’s position was not “substantially justified.” It therefore awarded attorney?s fees.

Judge Roberts’s majority opinion rejected the magistrate?s determination that the CFTC’s position was not “substantially justified.” Judge Roberts noted, among other things, that the district court’s merits ruling had relied on two concurring opinions (as opposed to established Supreme Court precedent) and that the discussions in those very opinions belied the magistrate?s assertion that the issue was “self-evident and obvious.” Judge Edwards, in dissent, believed that the abuse-of-discretion standard applicable to review of the fee award required that the majority defer to the magistrate’s determination.

From this highly factbound dispute over the proper application of the abuse-of-discretion standard, PFAW would evidently have us believe that Judge Roberts’ ruling somehow undermines a fee award statute that “is important in opening access to the courts to persons who might otherwise not be able to challenge unlawful or unconstitutional government action.” Americans may sleep safely tonight knowing that PFAW?s contention is hogwash.

http://bench.nationalreview.com/archives/070253.asp

I?ve just read the third of the five judicial opinions of Judge Roberts that PFAW attacks, and PFAW?s batting average remains at .000.

In objecting to Judge Roberts?s majority opinion in United States ex rel. Totten v. Bombardier Corp. PFAW professes a concern for “protecting the federal Treasury.” This concern appears to be newfound, as it obviously did not animate PFAW’s immediately preceding discussion of the Taucher case. Nor is there any evidence that this has previously been a concern of PFAW’s. A cynic might be pardoned for thinking PFAW’s concern insincere and contrived.

In any event, PFAW’s reading of this case is highly distorted. Judge Roberts, joined by Clinton appointee Judith Rogers, ruled that a provision of the False Claims Act that provides that imposes liability on any person who submits a false claim “to an officer or employee of the United States Government” means, lo and behold, that liability attaches only if a false claim is submitted “to an officer or employee of the United States Government,” not if it is submitted to Amtrak. Applying Supreme Court precedent, Roberts “adhere[d] to the plain language of the statute, rather than invoke the legislative history to embrace a reading at odds with the statute.”

Judge Garland, in dissent, did not dispute the majority’s reading of this provision but instead would have relied on a different provision of the False Claims Act (subsection (a)(2)) to reach a different result. Judge Roberts pointed out that in the six-year history of the case none of the parties had ever argued that subsection (a)(2) was applicable and that arguments not made on appeal are ordinarily deemed waived. Judge Roberts (again, joined in the entirety of his opinion by Judge Rogers) further interpreted subsection (a)(2), which attaches liability where a person makes a false statement to get a false claim “paid or approved by the Government,” to require, believe it or not, that the claim have been paid or approved by the Government.

http://bench.nationalreview.com/archives/070254.asp

PFAW also attacks Judge Roberts?s dissent from the denial of rehearing en banc in Rancho Viejo v. Norton, which presented the question whether the Endangered Species Act could apply to (in Roberts?s witty phrasing) “the taking of a hapless toad that, for reasons of its own, lives its entire life in California.” Roberts pointed out how the panel’s opinion “seem[ed] inconsistent” with the Supreme Court’s Commerce Clause decisions in Lopez and Morrison. He explained that en banc review was appropriate because the panel?s approach conflicted with a Fifth Circuit opinion. He also pointed out that en banc review would “afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.”

None of the above is evident from PFAW?s tendentious account. In claiming that Roberts?s dissent “strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case,” PFAW completely ignores Roberts?s suggestion that alternative grounds might well be available. Rather than present, much less address, Roberts’ arguments, PFAW claims that Roberts’ opinion indicates that he would “severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.” Apart from the fact that most ordinary Americans, last I checked, are not arroyo toads, PFAW?s real dispute is with the Supreme Court’s decisions in Lopez and Morrison (opinions that O’Connor joined). PFAW cannot fairly fault a circuit judge for seeking to ensure that his circuit follows Supreme Court precedent, and PFAW would surely fault a circuit judge for failing to do so when PFAW favored the applicable precedent.

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[quote]hoosierdaddy wrote:
Not only that, but Roberts can also pull the “I’ll follow accepted law of the land” card, as he did in his psuedo-recant of the brief he had to sing for Bush V 4.1.

Easy confirmation. Smart move by bush.
[/quote]

I would dearly love to be wrong on this. But my gut tells me not to believe a word coming out of the left. They are not to be trusted. Period. I think the right should Teddy Roosevelt’s words: “Walk softly and carry a big stick”.

26

WSJ had a page 1 article on Roberts today:

History Lesson
In Re Judge Roberts: Question
Of ‘Originalism’ Looms Large

His Record Shows Affinity
To Scalia’s Strict Doctrine
But Also More Flexibility
Law-and-Order Conservative
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL
July 21, 2005; Page A1

WASHINGTON ? When George W. Bush ran for president in 2000, he said his favorite Supreme Court justices were Antonin Scalia and Clarence Thomas. Those jurists argue that many modern legal precedents – including the 1973 Roe v. Wade decision that recognized abortion rights – improperly disregard the original intent of the Constitution’s authors.

The big question now is whether Mr. Bush’s first pick for the high court, John G. Roberts Jr., fits that mold. His record and personal history suggest that he leans in the same direction. What is uncertain is how far. Much of the confirmation debate in coming weeks will focus on trying to find an answer.

Unlike Justice Scalia – and some of the other candidates the White House considered as replacements for Justice Sandra Day O’Connor – Judge Roberts is not a leader of the movement known as originalism. He has held influential posts in the Reagan and George H.W. Bush administrations where he helped craft government legal arguments on a slew of issues, including a brief that contended that Roe should be overturned.

But when Republicans were out of power, Judge Roberts chose the pragmatic world of corporate law, rather than pushing a legal ideology in a university or think-tank. In 2003, at the Senate confirmation hearing for his current seat on the federal appeals court in Washington, he brushed aside attempts to label him with a specific school of constitutional thought. “I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy,” he said.

Judge Roberts has spent much of his professional life working around advocates of originalism, and he is skilled at deploying arguments invoking the intent of the Constitution’s framers. As principal deputy solicitor general under the first President Bush, he helped write a brief defending prayer at public-school graduations. “We looked at some of the ceremonial invocations that went back as far as George Washington,” said John McGinnis, a Justice Department colleague of Judge Roberts who is now a law professor at Northwestern University. “We tried to give some of the original understanding life.” Justice Scalia made a similar argument in a recent case defending public displays of the Ten Commandments.

But all savvy attorneys and judges rely to some degree on original intent when they think it supports their position, and there is evidence in his legal work that Judge Roberts might turn out to be a more practical conservative in the mold of Chief Justice William Rehnquist, for whom he clerked.

In the noisy clash between activists on the left and right, the debate over the Supreme Court centers around bumper-sticker issues like abortion and the environment. But there is a deeper and more complex argument that has been raging for years among legal scholars that the Roberts nomination now brings to center stage: whether constitutional provisions should be interpreted in light of “the evolving standards of decency that mark the progress of a maturing society,” as the late Chief Justice Earl Warren wrote in a 1958 opinion on punishing military deserters.

Under the living-Constitution banner, the Supreme Court has in recent decades concluded that Americans have “privacy rights,” even though the document doesn’t explicitly say so. The court derived from those rights the Roe decision on abortion, as well as other rulings ending government restrictions on contraception and, more recently, homosexual sodomy. The Warren Court and its followers used evolving interpretations to limit libel suits by public figures and curb execution of juveniles and the mentally retarded.

Those decisions triggered a backlash among conservatives. Four decades ago, Richard Nixon gave voice to their frustration, pledging to remake the high court with “strict constructionists.” His Republican successors echoed that vow, sometimes succeeding in placing justices who have loyally followed that rule – such as Justices Scalia and Thomas – but sometimes failing, as with Mr. Reagan’s appointment of Justice O’Connor or the first President Bush’s choice of David Souter. Some conservatives have had great hope that the younger Mr. Bush would amplify the voice of originalism on the Supreme Court.

For that goal, Judge Roberts is the perfect pick – according to Edwin Meese III. As President Reagan’s attorney general, Mr. Meese helped popularize originalism, especially in a widely reported 1985 speech to the American Bar Association. In recent months, he has been advising social conservatives as they have tried to influence the White House on filling any high-court vacancies.

“Everything he has done has been consistent with” originalism, says Mr. Meese, who worked with Judge Roberts in the Reagan White House. “The president is convinced that he is a constitutionalist in the same way that Scalia and Thomas are,” Mr. Meese adds.

But Shannen Coffin, a lawyer who worked with Judge Roberts in the Justice Department of the elder Mr. Bush’s administration, cautions that “originalism has many faces.” While he expects that Judge Roberts “would look to the meaning of the text of the Constitution first,” he couldn’t predict how closely the nominee would resemble Justices Scalia or Thomas.

Prof. McGinnis says that much of Judge Roberts’s approach can be understood as “generational” as well as philosophical. In recent years, “there’s been a lot of interest on all sides” of legal scholarship – liberal and conservative alike – in putting “the text under its original understanding at the center of constitutional law.”

Originalism’s most determined adherents insist that it can be used to reach both liberal and conservative ends. Justice Scalia likes to note in speeches that he has found laws banning flag-burning unconstitutional, much as he disapproved personally of the conduct. Justice Thomas argued in an opinion just this past term that the First Amendment might not prevent states from establishing their own official religions.

Some observers say that rather than being a true originalist, Judge Roberts more resembles a traditional law-and-order conservative – indeed, that he comes across much like Chief Justice Rehnquist, for whom Judge Roberts clerked in 1980-1981.

The chief justice has applied different methods of constitutional interpretation to reach results that in general favor prosecutors over criminal defendants and limit federal regulatory authority over states.

When Judge Roberts clerked for him, then-Justice Rehnquist issued opinions that have echoed a generation later in Judge Roberts’s rulings on the appeals court in Washington, says Supreme Court scholar Peter Irons, a professor emeritus at the University of California, San Diego.

Fourth Amendment

During Judge Roberts’s clerkship, Justice Rehnquist advocated a narrow view of the Fourth Amendment protection against “unreasonable” search and seizure, suggesting that the court overturn the so-called exclusionary rule it had created to bar prosecutors from using evidence obtained illegally by the police. Judge Roberts, too, has rejected Fourth Amendment-based claims, in one case upholding the arrest of a 12-year-old girl for eating a French fry in a subway station. In another case, he turned away an objection to a police officer’s search of a car trunk without “probable cause” to suspect a crime.

In another 1980 case, Justice Rehnquist upheld draft registration of men only, rejecting a Fifth Amendment claim that a single-sex conscription plan violated the Constitution’s guarantee of “equal protection.” Last week, Judge Roberts joined a unanimous three-judge panel that found that so-called enemy combatants could be prosecuted before military commissions without the protection of constitutional due-process rights. With more military and terrorism-related cases expected at the high court, Prof. Irons says it’s likely that Judge Roberts “will follow Rehnquist in probably total deference to executive power.”

It is unclear whether as a law clerk Judge Roberts contributed to those specific Rehnquist opinions. But some legal observers predict that as a justice, Judge Roberts would follow his old mentor’s lead, rather than that of the more doctrinaire originalists such as Justices Scalia and Thomas.

In a 1999 interview on National Public Radio, Judge Roberts suggested that originalism was his starting point. Looking at an issue “the way it was in 1789 is not a bad [approach] when you’re talking about construing the Constitution,” he said.

That comment prompted questions at his 2003 confirmation hearing for the appeals court. Sen. Patrick Leahy, a Vermont Democrat, noted that “the Constitution in 1789 did not have the Bill of Rights,” which was adopted two years later and that other compromises struck in the 18th century allowed slavery and “limited state power to make or enforce laws to deny equal protection to people. So the originalist’s concept can’t be an exact one, can it?”

Varying Approaches

Judge Roberts took pains to separate himself from a rigid approach and suggested that all judges were originalists to some extent. “I think we are all literal textualists when it comes to a provision in the Constitution that says it takes a two-thirds vote to do something,” Judge Roberts said. “On the other hand, there are certain areas where literalism along those lines obviously doesn’t work,” he said. “I think different approaches are appropriate in different types of constitutional provisions.” He cited the broadly worded Fourth Amendment as an area where “the text is only going to get you so far.”

Keith Whittington, a visiting professor at the University of Texas law school and author of books on constitutional interpretation, says, “Like most conservatives, he’s probably going to be sympathetic to originalism and use it when it seems useful. But if you read his opinions, there isn’t a big trace of it.”

Prof. Whittington notes that often there are different ways to reach the same result. In opinions conservatives have applauded limiting congressional power under the Constitution’s Commerce Clause, Chief Justice Rehnquist has often cited prior Supreme Court precedents to buttress his conclusion. “By contrast, Thomas is very happy in the Commerce Clause cases to jump directly to original intent,” Prof. Whittington says.

Mr. Whittington, who considers himself an originalist, says that flexibility may make Judge Roberts a more effective conservative leader on the court. A rigid approach “makes it more difficult to cobble together five votes” for a majority, he points out. “Not every justice has to have a strong philosophical bent to achieve what a conservative administration wants to accomplish on the court,” he says.

In the public-relations war touched off by the Tuesday-night nomination announcement, supporters of President Bush issued statements trying to minimize Judge Roberts’s originalist tendencies. The goal: to make him more palatable to a broader audience. Talking points distributed by the pro-Bush Committee for Justice said that liberals would attack the nominee as being “in the mold of Scalia and Thomas.” To rebut that argument, the group highlighted a 2002 property-rights case Judge Roberts won in the Supreme Court. Justices Scalia and Thomas dissented to vote against his client.

Winning Arguments

As a litigator, Judge Roberts focused on constructing arguments that would win. In his brief tenure on the appeals court, his primary duty was applying settled precedent. But should he be confirmed as a Supreme Court justice, he will have the authority to follow or overrule prior cases.

The court’s next term is already loaded with disputes that touch on core rights. One case concerns the First Amendment rights of public employees; another, whether states have immunity from lawsuits. A third involves the right of colleges to exclude military recruiters while receiving federal aid. Yet another case on the docket involves a central Warren Court precedent derided by originalists: the 1966 opinion that created the famous Miranda warnings for criminal suspects.

Write to Jess Bravin at jess.bravin@wsj.com

27

For the legal geeks, here’s a press release from Chuck Schumer going over the questions he plans to ask Judge Roberts during the confirmation hearings. Besides looking like a poorly written law-school exam (and one that no one could finish in the time allotment), I definitely think many, if not most, of these go too far in asking Roberts to essentially pre-try issues that may come before him – I suspect Roberts will answer a lot of these essentially with the non-answer that it would be improper to answer them.

Schumer press release from yesterday:

SCHUMER MEETS JUDGE ROBERTS, HANDS HIM LIST OF QUESTIONS HE WILL ASK AT JUDICIARY COMMITTEE HEARINGS

Senator’s Questions Touch Major Issues From the First Amendment to the Commerce Clause

Schumer Reaffirms Belief That Ideology and Legal Convictions Are More Important Than Personal Life In Evaluating Supreme Court Nominees

Today U.S. Senator Charles E. Schumer met with Supreme Court nominee John G. Roberts and presented him with a number of questions on his judicial philosophy ranging from the First Amendment to the Commerce Clause to the environment. Schumer, the ranking Democrat on the Judiciary Subcommittee on the Courts, re-iterated his belief that questioning judicial nominees is a duty and not a privilege, which he first suggested that a nominee’s views and philosophy should be known in an opinion piece in the New York Times in 2001.

Schumer said that he believed a court nominees’ ideology and philosophy is fair game for questioning in a Supreme Court nomination hearing. “I have long believed that federal court candidates - who serve for life - should explain their judicial philosophy and their method of legal reasoning. They should be prepared to explain their views of the Constitution, of decided cases, of federalism, and a host of other issues relevant to that lifetime post.”

Schumer said there is a difference between asking about a particular case with particular facts, but asking broad questions about particular issues is acceptable. “I have always said that one should not ask a question specifically about Enron, because there are particular facts and parties involved, but one can certainly ask a question about a nominee’s views on corporate responsibility and the proper role of the federal Government in enforcing it.”

SCHUMER’S QUESTIONS FOR JUDGE ROBERTS

  1. First Amendment and Freedom of Expression:

What, if any, are the limitations on the freedoms guaranteed by the First Amendment to the Constitution?

! When can Government regulate public speech by individuals?

! When does speech cross the line between Constitutionally protected free expression and slander?

! In what ways does the First Amendment protect the spending and raising of money by individuals in politics?

! Can Government regulate hate speech? What about sexually explicit materials?

Specifically:

! Do you agree with the landmark decision in NY Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? Who do you believe constitutes a public figure under this standard?

! Do you believe the Supreme Court was correct to strike down the Communications Decency Act in Reno v. ACLU (1997) on the grounds that pornography on the Internet is protected by the First Amendment?

! What is your view on the distinction the Supreme Court drew in Buckley v. Valeo (1976) and McConnell v. FEC (2003) between contributions and expenditures in the course of political campaigns? Do you believe that it is legitimate to construe campaign expenditures as protected speech but not donations by individuals?

  1. First Amendment and the Establishment Clause:

Under the Establishment Clause, what, if any, is the appropriate role of religion in Government?

! Must the Government avoid involvement with religion as a whole, or is the prohibition just on Government involvement with any specific religion?

! Is there a difference between religious expression in Government buildings, documents, and institutions and Government spending on private, faith-based initiatives?

! What do you see as the Constitutionally protected or limited role of faith-based groups in Government-funded activity? In Government institutions?

Specifically:
! In the two cases the Supreme Court decided on the Ten Commandments recently, a display of the Commandments inside a Courthouse was found unconstitutional, while a statue of the Commandments on the grounds of a state capitol was deemed acceptable. Do you agree with the distinction the Court drew between Van Orden v. Perry and McCreary Country v. ACLU (2005)? In your view, are these decisions consistent with each other?

! What is your view of the Supreme Court’s opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game?

  1. Commerce Clause:

Beginning in 1937, when it upheld the National Labor Relations Act, the Supreme Court has granted Congress great latitude in passing laws under the Commerce Clause. The Court has upheld a wide range of federal laws, including those that regulate labor standards, personal consumption of produce, racial discrimination in public accommodations, and crime. In the last ten years, however, the Supreme Court has shifted course, doing something it had not done in sixty years: striking down acts of Congress on Commerce Clause grounds.

! Do you agree with the trend towards striking down laws on this basis?

! What do you believe is the extent of Congress’s authority to legislate under the Commerce Clause?

! Can Congress regulate local trade in a product that is used nationally?

! Can Congress regulate labor standards for states and cities under its Commerce Clause power?

! How closely connected must the regulated action be to interstate commerce for Congress to have the authority to legislate?

! Where would you look for evidence that Congress is properly legislating under its Commerce Clause authority? Do you rely exclusively on the text of the legislation? Do you look at the legislative history? Do you consider the nature of the regulated activity?

! What is the extent of the limitations imposed on state regulation by the Commerce Clause?

Specifically:

! Do you agree with the Court’s decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act because education is traditionally local? Is there any circumstance under which Congress could regulate activities in and around schools using its Commerce Clause authority?

! Do you agree that it is the Commerce Clause that allows Congress to prohibit racial discrimination in public accommodations, as the Court held in Heart of Atlanta Hotel v. United States (1964)?

  1. Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent, upon which Americans have come to rely?

! Does your answer depend at all on the length of time that the precedent has been on the books?

! Does your answer depend at all on how widely criticized or accepted the precedent is?

! What if you agree with the result but believe the legal reasoning was seriously flawed? Does that make a difference?

! Does it matter if the precedent was 5-4 in deciding whether to overturn it? Does it matter if was a unanimous decision?

Specifically:

! Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat’l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not?

! Do you agree with the 1989 decision in which the Supreme Court held that it was constitutional to execute minors (Stanford v. Kentucky), or do you agree with the later 2005 decision, which held that it was unconstitutional (Roper v. Simmons). Was the Court right to overturn its precedent 16 years later? Why or why not?

! Do you agree with the 1986 decision in which the Supreme Court held that states could criminalize private sex acts between consenting adults (Bowers v. Hardwick), or do you agree with the later 2003 decision, which held that the states could not (Lawrence v. Texas)? Was the Court right to overturn its precedent 17 years later? Why or why not?

  1. Under what circumstances should the Supreme Court invalidate a law duly passed by the Congress?

! What amount of deference should the court give to Congressional action?

! Should the Court err on the side of upholding a law?

! Do certain types of laws deserve greater deference than others? Regulatory laws? Criminal laws?

! How closely tied must a law be to an enumerated right of Congress under Article I for it to be upheld?

Let me ask you about a few cases in which the Supreme Court has struck down federal laws:

! Do you agree with the Supreme Court’s decision to strike down the Gun-Free School Zones Act at issue in United States v. Lopez (1995)? Why or why not?

! Do you agree with the Supreme Court’s decision to strike down provisions of the Violence Against Women Act in United States v. Morrison (2000)? Why or why not?

  1. Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?

! The word “privacy” is not mentioned anywhere in the Constitution. In your view, does that mean it is wrong for the Supreme Court to interpret the Constitution as conferring such a right?

! Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?

Specifically:

! Do you agree with the reasoning in Griswold v. Connecticut (1965), which held that the right to privacy in the Constitution protects the right of married couples to purchase and use contraception?

! Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?

! Once the right to privacy has been found - as in Griswold and Roe - under what circumstances should the Supreme Court revisit that right?

  1. What is the proper role of the federal government in enacting laws to protect the environment?

! Does the Constitution provide any instruction on how Congress should balance the interests of industry against environmental interests?

! Under the Constitution, how far can Congress go in imposing restrictions on people and businesses to protect the air and water?

! Under the Constitution, how far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject?

Let me put this in the context of specific cases:

! Do you believe that the Supreme Court correctly decided that the EPA has the authority to pursue industrial polluters in a state where the local authority has declined to do so, as in Alaska Department of Environmental Conservation v. EPA (2004)?

! Can the Clean Air Act preempt local emissions regulations, as the Court held in Engine Manufacturers Association v. South Coast Air Quality Management (2004)?

  1. What is the proper role of the federal government in enacting laws to protect the rights of the disabled?

! Does the Constitution provide any instruction on how Congress should balance the costs to business against the government’s interest in creating equal access to facilities for disabled persons?

! Should federal laws mandating access to buildings for disabled people apply to both public and private buildings?

! For example, do you believe that the Americans with Disabilities Act requires state buildings to be accessible to the disabled, as the Supreme Court held in Tennessee v. Lane, or do you think that sovereign immunity exempts the states?

  1. What is the proper Constitutional role of Government in enacting laws to regulate education?

! How far can the Government go under the Constitution to ensure equal treatment for all students?

! How far can the Court go to protect speech and/or prohibit violations of the establishment clause in the schools? For example, do you believe that Santa Fe Independent School Dist. v. Doe (2000) was decided correctly?

! Does the Constitution guarantee parents the right to choose their children’s education, as established in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)?

  1. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.

! Is the “activist” label limited to more liberal-leaning judges, or can there be conservative activist judges? Can you cite any examples of conservative judicial activism?

! In cases where federal law and state law may be in conflict, who is the activist - the judge who voted to limit the federal law or the judge who limited the state law?

! Do you believe that the Supreme Court was engaging in judicial activism when it struck down provisions of the Gun-Free School Zones Act (United States v. Lopez) or the Violence Against Women Act (United States v. Morrison), both of which had been passed by Congress?

! Was the Supreme Court engaging in judicial activism in:
Brown v. Board of Education?
Miranda v. Arizona?
Dred Scott v. Sandford?
The Civil Rights Cases of 1883?
Lochner v. New York?
Furman v. Georgia?
Bush v. Gore?

! What distinguishes one case from the other?

  1. Do you describe yourself as falling into any particular school of judicial philosophy?

! What is your view of “strict constructionism”?

! What is your view of the notion of “original intent”? “Original meaning”?

! How do you square the notion of respecting “original intent” with the acceptance of the institution of slavery at the time the Constitution was adopted?

  1. What in your view are the limits on the scope of Congress’ power under the Equal Protection and Due Process clauses of the 14th Amendment?

! Does a law violate the Equal Protection Clause if it affects different groups differently, or must there be a discriminatory intent?

! Do you agree that, under the Equal Protection Clause, disparate impact alone does not render a law unconstitutional, as the Court held in Washington v. Davis (1976)?

! Do parents have a Due Process right to make decisions concerning the care, custody, and control of their children, as the Supreme Court held in Troxel v. Granville (2000)?

  1. Where is the line between civil rights questions that are political and questions that are appropriate for a court to decide?

! Do you agree with the reasoning in Powell v. McCormack? Why or why not?

! Do you agree with the reasoning in Baker v. Carr? Why or why not?

! Do you agree with the reasoning in Bush v. Gore? Why or why not?

? What power does the Supreme Court have to intervene in state election laws (as in Bush v. Gore)?

! What role should the Supreme Court be playing in disputed elections?

  1. Which Supreme Court Justice do you believe your jurisprudence most closely resembles and why?

  2. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia’s opinions, or Justice Ginsburg’s?

  3. 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?

28

I forgot to mention that Schumer’s questions are worded so broadly, and on such intricate issues, that one could write 100-page law-review articles in response to just about each of them…

29

From the Washington Wire in todays WSJ:

Roberts’s Reception Leads
Democrats to Focus on Rove

By JOHN HARWOOD
Staff Reporter of THE WALL STREET JOURNAL
July 22, 2005; Page A4

ROBERTS’S RECEPTION leads U.S. Democrats to renew focus on Rove.

Party strategists conclude Bush’s court pick may be unstoppable, and look to maintain earlier momentum from CIA leak case and other issues. Barring an unexpected revelation about the judge’s background, “Our strategy now is to essentially let Roberts go…then get back on Rove, Social Security and the Iraq war,” says a senior Congressional aide.

30

Good stuff from a Roberts’ dissent that was published today:

http://bench.nationalreview.com/archives/070502.asp

Roberts in Action
[Shannen W. Coffin 07/22 04:16 PM]
Great quote from a John Roberts’s dissent in a case issued today. The majority had reversed a trial court’s decision not to suppress evidence of a handgun found in a trunk because the court concluded that there was no probable cause to search the trunk. Roberts dissented, reasoning that where a car stopped for a non-working license plate light, that ended up having stolen tags and no registration, there might just be reason to search the trunk because maybe, just maybe, there would be some indication in the trunk that the car was stolen (something identifying the owners or the real license plates).

So it is reasonable for police to search the trunk, says Roberts, when in their past experience, they’ve found such contraband there before. The criminal defendant told the cops that the car was his girlfriend’s, which drew this line from Roberts: “Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the drivers friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.”

Another great quote same case: “I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment’s place among our most prized freedoms. But sentiments do not decide cases; facts and the law do.”

31

[quote]BostonBarrister wrote:
From the Washington Wire in todays WSJ:

Roberts’s Reception Leads
Democrats to Focus on Rove

By JOHN HARWOOD
Staff Reporter of THE WALL STREET JOURNAL
July 22, 2005; Page A4

ROBERTS’S RECEPTION leads U.S. Democrats to renew focus on Rove.

Party strategists conclude Bush’s court pick may be unstoppable, and look to maintain earlier momentum from CIA leak case and other issues. Barring an unexpected revelation about the judge’s background, “Our strategy now is to essentially let Roberts go…then get back on Rove, Social Security and the Iraq war,” says a senior Congressional aide.

[/quote]

And of course offer no alternatives…just continued and endless whining.

I really hope my former Senator Mr. Schumer goes on the attack. We can use the boost for the mid-terms.

Schumer’s and Teddy’s act only plays well in NY and Mass. everywhere else people are repulsed by them.

32

From Drudge. Hillary is better then Madonna at reinventing herself. She will be a candidate in 2008.

HILLARY CLINTON TO SUPPORT BUSH COURT NOMINEE Exclusive Senator Hillary Clinton has confided to associates that she intends to vote FOR Bush Supreme Court nominee John Roberts, the DRUDGE REPORT has learned. Unless some unforeseen development occurs around Roberts, Clinton will throw her support behind confirmation, says a top source. “Look, we’re not thrilled President Bush is in office and gets to make these choices,” said a top Hillary source, “but we have to make the best of the situation until the next election!” With her support of Roberts, Clinton ignores pressure from the reactionary-activist wing of the Democrat party. “She is simply doing what is right for the country, not MOVEON.ORG,” the Clinton insider explained.

33

I definitely agree with the position of the editorial – no documents should have been released.

Wall Street Journal Editorial
The Roberts Docu-Drama
July 28, 2005; Page A10

The Senate response to the White House’s unprecedented decision to release 75,000 pages of documents relating to John Roberts’s tenure in the Reagan administration gives new meaning to the adage that no good deed goes unpunished.

At about the time the first batch of documents was being delivered to Capitol Hill Tuesday afternoon, the eight Democrats on the Judiciary Committee sent a thank you letter to President Bush that began with the words, “We are disappointed,” and went on to label as “ill-advised” the administration’s decision not to release Judge Robert’s papers from his years as Deputy Solicitor General under the first President Bush.

Just to be helpful, they also attached a list of 35 subject areas in which they are interested – including “Abortion” and “Death Squads Investigation.” Ted Kennedy issued a separate statement demanding the release of the Solicitor General papers and asserting: “There is no privilege, there is no rule, and there is no logic that would bar us from getting these documents.”

The Senator from Massachusetts is wrong about privilege, but he has a point about White House logic. By authorizing the release of documents from Judge Roberts’s work in the Reagan Justice Department and White House Counsel’s office, the Bush administration had made it that much harder to refuse Democratic demands for his later work product from the Solicitor General’s office. More important, it makes it harder for the White House to defend the vital constitutional principle of executive privilege.

This is not some fine legal matter. It is essential for the workings of government that decision-makers hear the candid views of the people who work for them. That won’t happen if they believe Dick Durbin might one day be reading from their memos on the Senate floor. Or, as Clinton White House Counsel Jack Quinn put it the other day, if the public has unfettered access to the advice that Presidents get, “Presidents won’t get very good advice.”

In 2002, when Democrats demanded the documents that appeals-court nominee Miguel Estrada had worked on when he was in the Office of the Solicitor General, every living former SG signed a letter of protest. “Our decisionmaking process required the unbridled, open exchange of ideas – an exchange that simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure,” they wrote. The seven signers served Presidents Kennedy, Nixon, Reagan, George H.W. Bush and Clinton.

In releasing the papers from Judge Roberts’s days on the Attorney General’s staff (1981-82) and in the White House Counsel’s office (1982-86), the White House acted unilaterally, without waiting for a formal request from the Senate Judiciary Committee. We can understand making public the earlier documents, which had been cleared for release by the Clinton administration in 1998. But the decision to release the White House documents is harder to justify.

A President needs confidential advice from his White House lawyers as much as he needs it from his Justice Department. Advice from lawyers working in both offices is part of the deliberative process and is covered both by attorney-client privilege and the broader doctrine of executive privilege. When President Clinton nominated Stephen Breyer for the High Court, Republicans didn’t demand documents relating to his work in the Attorney General’s office or for the Watergate prosecution. The Roberts precedent sets a new standard, making it harder for Presidents to say no to document demands on future nominees.

The Reagan White House released some documents during Chief Justice William Rehnquist’s confirmation in 1986 relating to his previous work at the Justice Department’s Office of Legal Counsel. That was in response to a narrow request for information and related primarily to questions involving appropriate conduct of office; the documents were not sought for the purpose of determining judicial philosophy and went only to the Judiciary Committee (though were later leaked to the press). Similarly, in the case of former Solicitor General Robert Bork, who was nominated to the Supreme Court in 1987, some documents pertaining to questions involving appropriate conduct of office were released to Judiciary.

As for the 75,000 pages, Senate staffers and reporters are dissecting them, looking for material to use at the coming confirmation hearings. Writings on civil rights and school prayer are already being mentioned as possible “trouble” areas, and they will certainly be taken out of their historical context. No thanks to the White House document dump, Judge Roberts’s confirmation may now be harder than it should have been.

34

It’s going to get ugly. Watch and see if the press doesn’t start crucifying Roberts.

I hate to say I told you so, and hopefully this is premature. But it looks as if the Dems are back to running out of their old playbook.

35

Agreed. No need to release these documents. You watch, there will be an ambiguous sentence here and there that the democrats will jump on. It will be all about Roe v Wade.

The upside to the democrats acting like 10 year olds, is that these hearings will be national news. People will be completely sickened by the far left.

That can only improve the outlook for 2006 and hasten the demise of the democrats once and for all.

hillary forever!!!

JeffR

36

Well,

There’s definitely been nothing to the general moaning and groaning we’ve heard so far, other than some pretty blatant misrepresentations of Roberts’ opinions that most people are ignoring.

However, I agree with Jeff that if they can find something ambiguous they will definitely latch on to it.

Worse, they could find something not abiguous on its face, but that needs to be viewed in relation to the circumstances in which it was produced. Specifically, I am sure he was directed to write persuasive memoranda in support of pre-determined administration positions. So, if the Dems don’t like the old Reagan Administration positions on something like abortion (what are the odds of that?) I’m sure they will find something they will find “highly troubling” amongst any persuasive memos Roberts was instructed to produce on the topic.

37

I’m not sure it really makes any difference. He would never be nominated or confirmed if he couldn’t be counted on to cover-up for the crimes of both parties and the corporations who own them.

38

Also,

Let’s think this through for a second. I actually think the WORST-case scenario, in terms of going-forward strategy, would have been Roberts’ getting confirmed 99-0, or by some other large amount. That would have been a clever strategy by the Democrats – they would have roundly praised Roberts, and set themselves up with an argument for next time around to the effect of “It’s not US being shrill, it’s Bush who has put up an extremist – just look how well we treated Roberts.” Assuming Bush will have one more vacancy (at least) to fill (likely Rehnquist), this would have been clever.

However, now they just come off as shrill obstructionists. They’re the weenies who cry “extremist,” just like the boy who cried wolf. And that just makes it all the more likely that they’ll get ignored next time around – well, except by the liberal media, which has its own dog in the fight. Media sympathy is the only reason the national Democratic party hasn’t lost even more ground over the past few election cycles.

So basically I think if the Dems pitch a fit, they look bad, and the next nominee Bush puts up can be even more conservative, and then Bush can point back and say, “Look how they treated Roberts; it’s not nominee who’s extreme, it’s these silly obstructionist Dems.”

This is an interesting post from the Bench Memo’s blog on The National Review:

http://bench.nationalreview.com/archives/071203.asp

No illusions
[Sean Rushton 07/28 02:39 PM]

The conventional wisdom has it Roberts will be confirmed without much of a fight. In Roll Call this week, GOP pollster David Winston says don’t bet on it ( http://www.rollcall.com/pub/winston/ )[sub required]. Two weeks before John Roberts was named, one shrewd conservative laid out the “stages of battle” to come no matter the nominee:

  1. Nominee is named. Dems say they will be open-minded and fair but have important questions. (Honeymoon period.)

  2. Dems express concern over “issues that have been raised.”

  3. There will be a personal accusation, at first anonymous; Dems say the charge must be investigated and taken seriously.

  4. First Dem senators will state they cannot support nominee.

  5. On substance nominee is labeled “extreme,” with media and Hollywood now in full-throated opposition.

  6. Dem senators say they need more time and information.

  7. Leftwing groups demand filibuster.

The Left (correctly) sees this confirmation as about not only John Roberts, but about the next nomination, the one after that, the 2006 senate elections, and 2008. No way they step out of the way like good sports.

39

Look out he’s a white Christian middle aged man with a family! AHHHHHH ANOTHER REPUBLICAN EXTREMEST!! get him!

LOL

40

[quote]JeffR wrote:
That can only improve the outlook for 2006 and hasten the demise of the democrats [/quote]once and for all.[quote]
JeffR[/quote]

Are you advocating a single party system? No 4 year terms, no elections, just a lifetime president with hereditary succession? (Republican, of course.)