Supreme Court Confirmation
stcynic | September 18, 2005I had lunch on Saturday with my friend Dan Ray, a frequent commenter here and a con law teacher, and we had an interesting discussion about John Roberts and the issue of the level of abstraction at which you view a given claim when it comes before the court. This was an issue during his confirmation hearings, though I'm sure a lot of people missed the significance of it. Sen. Biden questioned Roberts about this issue and the exchange went as follows:
BIDEN: I asked Justice Ginsburg a question about . . . the Michael H. [v. Gerald D.] case. . . . You and I both know how you determine history…
stcynic | September 16, 2005Much has been made during the hearings about whether Roberts is an "ideologue" or not, but I don't think that tells us much either way. Roberts himself said bluntly that he is not an ideologue and has no single ideology or judicial philosophy, and that he doesn't think ideologues should be on the court. Several of the Democratic senators have said or implied that they will vote for Roberts if they believe he will be like Rehnquist but not if they think he'll be like Scalia or Thomas, the implication being that the latter two are "ideologues" and the former is not. In a sense that's true, but…
stcynic | September 16, 2005The Senate Judiciary Committee completed their confirmation hearings for the Roberts nomination today. They are expected to vote in committee on the nomination next Thursday, the 22nd. That will send it to the full Senate, which will likely begin deliberations on Monday the 26th and a final vote sometime that week. That should mean Roberts will be seated as Chief Justice by the traditional beginning of the new Supreme Court term on the first Monday in October. After the final vote on Roberts, you can expect the White House to nominate someone to fill the vacant associate justice position.
stcynic | September 13, 2005I just watched this fascinating exchange between Arlen Specter and John Roberts in the hearings. I don't have an actual transcript, however, so this is paraphrased. Specter began by asking Roberts if he recognized that there is a right to privacy in the Constitution, noting a 1981 memo that Roberts wrote to the then-Attorney General where he referred to the "so-called" right to privacy as an "amorphous right" that was not found in the Constitution. Roberts gave, in my view, an excellent answer.
Roberts said that this memo was in reference to a speech given by a law school dean who did take…
stcynic | September 12, 2005The hearings on the nomination of John Roberts as Chief Justice began at noon today. I've watched a few of the opening statements from the judiciary committee members and found much to laugh at. I'm hoping the full text of those remarks will be available in the next couple days so I can go over them in more detail. Senator Kyl of Arizona tried his best to make the argument that Roberts should not answer any questions about any cases or potential controversies that he might hear later on the court, but that is an absurd position.
Kyl argued that it is unfair for a lawyer to come before the…
stcynic | September 6, 2005A commenter on In The Agora pointed out that Judge Garza is not actually from New Orleans, but from Texas. His office is in Texas, he himself is from Texas, but the 5th Circuit that he sits on is headquartered in New Orleans. Edith Clement, on the other hand, is a judge on the same circuit but she is actually from New Orleans. She was in private practice in New Orleands for nearly 20 years before being nominated as a Federal judge. And remember that Clement was the one everyone thought was the nominee the night before and the morning of the John Roberts announcement, so she is obviously on…
stcynic | September 5, 2005This morning, President Bush nominated John Roberts for the Chief Justice position directly. It's probably a smart move politically, since it appears that Roberts is set to sail through the confirmation process easily, but as I said yesterday I don't like the idea of imposing a CJ from outside the court. I think that's especially true when the court is highly divided, as it is now. I think one of the primary reasons why Rehnquist was so effective as CJ was that he had 14 years on the court by the time he was nominated. He knew how the court worked from the inside, knew the egos and intellects…
stcynic | September 4, 2005I've been so busy with unpacking that I didn't know until today that Chief Justice Rehnquist had died. It's certainly not a surprise, given his battle against thyroid cancer, but the timing is almost surreal. Not only does it follow on the heels of the disaster in the gulf coast area, but it is 3 days before the confirmation hearings for his former clerk, John Roberts, are set to begin. Don't be surprised if those hearings are postponed so that the White House may decide how to proceed. And they have a lot of options to consider.
The first question is whether they want two confirmation…
stcynic | August 11, 2005Joining the growing chorus of wingnuts objecting to the nomination of John Roberts to the Supreme Court because he doesn't think gays are evil and should be imprisoned is Don Feder, moonbat extraordinaire. He writes:
When the nomination was announced, the White House breathlessly informed us that when Roberts was tapped for the DC Circuit Court, 152 members of the DC Bar - prominent Democrats as well as Republicans - sang his praises to the Senate Judiciary Committee. Never trust a man who's universally loved. Real conservatives are despised by the left.
Before last week's revelations, it…
stcynic | August 10, 2005The Worldnutdaily is reporting that Howard Phillips is publicly opposing the nomination of John Roberts to the Supreme Court because he once did pro bono work on a landmark gay rights case:
Continued Phillips: "Judge Roberts apparently had no moral objection to using his skills to advance the homosexual agenda. It suggests an absence of an understanding by Mr. Roberts that homosexual conduct is sinful and ought to be discouraged."
Phillips says it's now clear Roberts would not use "biblical morality in determining his position in particular cases."
And this from the founder of the…
stcynic | August 10, 2005Senate Judiciary Chairman Arlen Specter sent a letter to court nominee John Roberts in which he indicated that Congress was angry at the fact that the Supreme Court had limited the authority of Congress in the Lopez and Morrison decisions. The letter includes this astonishing statement:
In addition to the commentary of scholars and others about the Supreme Court's judicial activism and the Court's usurping Congressional authority, members of Congress are irate about the Court's denigrating and, really, disrespectful statements about Congress' competence.
It seems to me that the Court has a…
stcynic | August 4, 2005Thanks to Jon Rowe for pointing me to this article about Supreme Court nominee John Roberts' involvement in the Romer v Evans decision in 1996. This was a very important gay rights decision that overturned a Colorado law that forbid "all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their 'homosexual, lesbian or bisexual orientation, conduct, practices or relationships.'" Both the Colorado and federal Supreme Courts struck down this law as violating the equal protection clause. And John Roberts was not…
stcynic | July 29, 2005The White House released some 75,000 documents from John Roberts' early work in the Reagan Department of Justice, which has his opponents pouring over them looking for something to use against him during the nomination. I haven't seen any of them, of course, but I really like this quote from one memo he wrote when a Congressman suggested to President Reagan that they hold a "conference on power sharing" between the branches of government:
"There already has, of course, been a 'Conference on Power Sharing. It took place in Philadelphia's Constitution Hall in 1787, and someone should tell […
stcynic | July 22, 2005Carnival of the Vanities (COTV) is one of those cool blog compilation things that circulates among different blogs every week and includes links that other people submit to increase readership. I hosted COTV #87 myself sometime last year when I was a blog toddler of sorts. One of the traditions of the COTV is to try and come up with some unique and charming way of organizing the links, something I failed at miserably when I hosted it. As I wrote then:
Welcome back my friends to the show that never ends, we're so glad you could attend, come inside, come inside.
I thought about coming up with…
stcynic | July 21, 2005Jack Balkin has a commentary on John Roberts' nomination for the court in Newsday. He predicts that Roe v Wade will remain intact, but that many state restrictions such as waiting periods, parental notification and bans on late term abortions will be upheld in court. I agree with him on that, and I would also note that this would be right in line with public opinion pretty much all the way. He also writes this very prescient paragraph:
Some conservatives hope (and some liberals fear) that Roberts will help bring back the so-called Constitution in Exile that would overturn the New Deal. That'…
stcynic | July 20, 2005Randy Barnett, my favorite legal scholar, has written an interesting essay on John Roberts and what his nomination says about the entire process. His take:
But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the…
stcynic | July 20, 2005Given a night to sleep on it and a bit more research, here are my initial thoughts on the nomination of John Roberts for the Supreme Court. First, let me note that there are different meanings to the word "conservative" in this context. Robert Bork, Antonin Scalia, Clarence Thomas, Michael McConnell and Alan Keyes are all labelled "conservatives", yet there are wide differences among them on such basic issues as the role of the Declaration of Independence in constitutional interpretation, the importance of stare decisis, and whether legislative history is relevant to interpreting a statute.…
stcynic | July 20, 2005I said yesterday that John Roberts had issued an opinion in the Hamdi case in which he argued for giving the President virtually unchecked authority in terms of treating American citizens as "enemy combatants". That was a mistake. I was confusing Roberts with Judge Harvie Wilkinson. Hamdi's case was heard in the 4th circuit, not the DC circuit, so Judge Roberts did not rule on it in any capacity. Sorry for the confusion.
stcynic | July 19, 2005Fox News is reporting that the nominee is not Clement, but rather John Roberts of the D.C. Circuit. SCOTUSblog's profile of him can be found here. If Roberts is indeed the choice, then it's obvious that the White House has likely been sending out fake trial balloons to keep people guessing. Roberts was thought to be on the short list of potential nominees (along with McConnell, Alito, Luttig and a couple others) from the very start until all the recent speculation that they were looking at a woman. You can find the SCOTUSblog's profile of Roberts here. Pro-choice groups will undoubtely be…
stcynic | July 19, 2005ABC News is reporting that Edith Clement is not Bush's choice to replace O'Connor:
Judge Edith Clement -- perceived by many observers as a potential frontrunner for the Supreme Court seat vacated by Justice Sandra Day O'Connor -- is not President Bush's choice for the high court.
An informed source told ABC News they had spoken with Clement and said she received a phone call from the White House this afternoon. According to the source, Clement was thanked for meeting with the president and sharing her views on the Supreme Court, but that the administration has decided to go in a "different…