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July 20th, 2005, 10:42 AM
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July 20, 2005
Bush's Supreme Court Choice Is a Judge Anchored in Modern Law

By LINDA GREENHOUSE (http://query.nytimes.com/search/query?ppds=bylL&v1=LINDA%20GREENHOUSE&fdq=19960101&td=sysdate&sort=newest&ac=LINDA%20GREENHOUSE&inline=nyt-per)
WASHINGTON, July 19 - Standing at the president's side Tuesday night, Judge John G. Roberts, a veteran of 39 arguments before the Supreme Court, spoke of his "profound appreciation" and "deep regard" for it.

"I always got a lump in my throat whenever I walked up those marble steps," he said.

Carefully chosen as they undoubtedly were, these were the words of someone deeply anchored in the trajectory of modern constitutional law, not of someone who felt himself on the sidelines throwing brickbats, nor of someone who felt called to a mission to change the status quo.

There are others, potential nominees whom the president might have chosen, who probably also feel a lump in the throat when they think about the Supreme Court, but it is caused by anger rather than reverence. That is not to say that Justices Antonin Scalia and Clarence Thomas, whom President Bush had offered as his models for a Supreme Court selection, do not respect the institution, but their stance is one of opposition to many currents of modern legal thought that the court's decisions reflect.

Now the question is whether Judge Roberts, if confirmed, will, like those two justices, commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers or whether, like the justice he would succeed, he finds himself comfortably in the middle rather than at the margin.

His résumé suggests the latter, as does his almost complete lack of a paper trail. There are no flame-throwing articles or speeches, no judicial opinions that threaten established precedent, no visible hard edges.

To the extent that as a judge he has expressed a limited view of federal power, that is consistent with the views of Justice Sandra Day O'Connor, whom he is being named to succeed, and would not change the balance on the court. He signed briefs as a Justice Department lawyer conveying the anti-abortion position of the first Bush administration, but he has given no indication of his personal or judicial views on abortion.

Democratic senators and liberal advocacy groups were wary Tuesday night, vowing to probe beneath the smooth surface.

"Let's be clear: Judge Roberts is not a stealth nominee, because the president's inner circle knows his views well, even if Americans do not," Nan Aron, president of the Alliance for Justice, said in a statement issued moments after the nomination was announced.

And indeed, the nominee's network of associations suggests a firm identification on the conservative side of the legal spectrum: not only his involvement with the Federalist Society, but his service, before he became a judge, on the legal advisory council of the National Legal Center for the Public Interest, a group here that describes its goal as promoting "free enterprise, private ownership of property, balanced use of private and public resources, limited government, and a fair and efficient judiciary." It is a group that attracts support from many prominent conservatives.

But the recent history of the Supreme Court indicates that these sorts of biographical details are less important over the long run of a justice's career than is an internal compass, not easily reduced to a paper record or elicited by questions at a confirmation hearing.

Justice O'Connor moved indisputably to the left during her 24 years on the court, not in every area of its docket but in some of the most important ones, like affirmative action and abortion. Justices Scalia and Thomas have, by contrast, scarcely changed at all. What accounts for the difference, and what might be the experience of Judge Roberts, who, now age 50, would be likely to serve for 25 years or more?

There is no conclusive answer. But observation suggests that the answer begins with how a justice feels when entering the building each morning (typically not by walking up marble steps but by driving into an underground garage). Is that justice entering a battleground, or coming home?

Copyright 2005 (http://www.nytimes.com/ref/membercenter/help/copyright.html) The New York Times Company (http://www.nytco.com/)

July 27th, 2005, 06:57 AM
July 27, 2005
Files From 80's Lay Out Stances of Bush Nominee

By DAVID E. ROSENBAUM (http://query.nytimes.com/search/query?ppds=bylL&v1=DAVID E. ROSENBAUM&fdq=19960101&td=sysdate&sort=newest&ac=DAVID E. ROSENBAUM&inline=nyt-per)

COLLEGE PARK, Md., July 26 - As a young lawyer in the Justice Department at the beginning of Ronald Reagan's presidency, John G. Roberts advocated judicial restraint on the issues of the day, many of which are still topical, documents released Tuesday by the National Archives show.

He defended, for instance, the constitutionality of proposed legislation to restrict the ability of federal courts to order busing to desegregate schools.

On other civil rights issues, he encouraged a cautious approach by courts and federal agencies in enforcing laws against discrimination.

Judge Roberts, now on the federal court of appeals for the District of Columbia Circuit, also argued that Congress had the constitutional power "to divest the lower federal courts of jurisdiction over school prayer cases."

In another memorandum, he maintained that the Supreme Court, to which he is now nominated, overreached when it denied states the authority to impose residency requirements for welfare recipients.

This was an example, he wrote, of the court's tendency to find fundamental rights, like the right to travel between states, for which there was no explicit basis in the Constitution. "It's that very attitude which we are trying to resist," he wrote.

The documents released on Tuesday were the files, about 14,000 pages in all, that Judge Roberts kept from September 1981 to November 1982, when he was special assistant to Attorney General William French Smith. Judge Roberts was 26 when he took the position, his first job after working as a clerk for William H. Rehnquist, then an associate justice on the Supreme Court.

In a memorandum, Judge Roberts noted that he had spent his first day at the Justice Department helping Sandra Day O'Connor prepare for her confirmation hearings. In a line that will perhaps resonate as his own Supreme Court confirmation hearings draw near, he wrote: "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."

David J. Mengel, a supervisor at the Archives, said the Justice Department reviewed the files over the weekend and copied some but did not remove any. He said the archivists deleted some personal information like home addresses and removed two documents altogether to protect grand jury secrecy and personal privacy. These files were cleared for release by the Clinton administration, but had received little attention before Judge Roberts's nomination to the Supreme Court one week ago.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, received copies of the files from those years on Tuesday. Republicans and Democrats on the panel are at an impasse over the timetable for the confirmation hearings, and over access to other documents pertaining to Judge Roberts's government service.

Although Judge Roberts's stint at the Justice Department was brief, the new Republican administration was rethinking and changing many of the policies that had been established in the Carter administration and earlier. Judge Roberts then moved to the White House counsel's office, where he stayed until 1986. About 4,000 pages of Judge Roberts's files those years are available at the Ronald Reagan Presidential Library in Simi Valley, Calif. Judge Roberts's duties seemed to cut across many of the hottest matters before the Justice Department. He addressed a wide variety of issues in his memorandums and quoted the views of legal scholars ranging from Chief Justice John Marshall to Antonin Scalia, a law professor at the time who is now an associate justice on the Supreme Court.

In one handwritten memorandum, Judge Roberts suggested his view of how the Constitution should be interpreted, saying, "real courage would be to read the Constitution as it should be read," without attention to what outside commentators were writing.

On the matter of proposed legislation limiting the power of courts to order school busing, such a restriction would not have "an invidious discriminatory purpose," he wrote in a memorandum to Mr. Smith. "Indeed," he said, "the bill would protect all students from transportation to schools distant from their homes, irrespective of their race."

"We do not believe busing is necessary" to ensure equal educational opportunity, he declared.

Judge Roberts's views on abortion are not laid out in what he wrote in these years. But in October 1981, he attended a conference at the American Enterprise Institute on judicial power and observed that most of the participants "recognized a serious problem in the current exercise of judicial power" as illustrated "by what is broadly perceived to be the unprincipled jurisprudence of Roe v. Wade."

On civil rights laws, Judge Roberts recommended against an expansive approach to enforcement.

In December 1981, the United States Commission on Civil Rights issued a report broadly defending affirmative action as a way to combat pervasive discrimination. Judge Roberts wrote a blistering critique, saying the "obvious reason" affirmative action programs had failed was that they "required the recruiting of inadequately prepared candidates."

In a memorandum to the attorney general in August 1982, he expressed support for a federal district court decision limiting the reach of a law against sex discrimination in educational institutions receiving federal aid. Judge Roberts said the law, called Title IX, applied only to specific programs that received federal aid, not to the entire university that maintained the programs.

"Under Title IX federal investigators cannot rummage willy-nilly through institutions but can only go as far as the federal funds go," he wrote.

Such restraint is a theme that ran through much of Judge Roberts's work and was evident in some of his comments on judicial reasoning. In reviewing the decisions of one judge, for example, Judge Roberts criticized a tendency to decide issues that were ultimately irrelevant to the case.

Judge Roberts also worried about the ability of courts to cope with an ever-rising number of cases unworthy of judicial attention. In one memorandum, he strongly criticized what he called the overuse of the writ of habeas corpus, a legal procedure often employed to challenge criminal convictions.

He argued that the writs overwhelmed the courts, were "frequently frivolous" and made "a mockery of the entire criminal justice system." In later years, Congress did set limits on the use of habeas corpus.

In several memorandums, Judge Roberts displayed a shrewd understanding of how Washington works. Responding to a letter from the American Jewish Committee in 1981, he asked a supervisor, "Is this draft response O.K. - i.e., does it succeed in saying nothing at all?"

Robert Pear, Jonathan D. Glater, Glen Justice and Kristen Lee contributed reporting for this article.

Copyright 2005 (http://www.nytimes.com/ref/membercenter/help/copyright.html) The New York Times Company (http://www.nytco.com/)

September 5th, 2005, 09:12 AM
Now that Bush has nominated Roberts to replace Chief Justice Rehnquist this seemed to be the appropriate thread for this posting:

Telling the Truth About Chief Justice Rehnquist (http://www.huffingtonpost.com/alan-dershowitz/telling-the-truth-about-c_b_6844.html)

Alan Dershowitz

My mother always told me that when a person dies, one should not say anything bad about him. My mother was wrong. History requires truth, not puffery or silence, especially about powerful governmental figures. And obituaries are a first draft of history.

So here’s the truth about Chief Justice Rehnquist you won’t hear on Fox News or from politicians. Chief Justice William Rehnquist set back liberty, equality, and human rights perhaps more than any American judge of this generation. His rise to power speaks volumes about the current state of American values.

Let’s begin at the beginning. Rehnquist bragged about being first in his class at Stanford Law School. Today Stanford is a great law school with a diverse student body, but in the late 1940s and early 1950s, it discriminated against Jews and other minorities, both in the admission of students and in the selection of faculty. Justice Stephen Breyer recalled an earlier period of Stanford’s history: “When my father was at Stanford, he could not join any of the social organizations because he was Jewish, and those organizations, at that time, did not accept Jews.” Rehnquist not only benefited in his class ranking from this discrimination; he was also part of that bigotry. When he was nominated to be an associate justice in 1971, I learned from several sources who had known him as a student that he had outraged Jewish classmates by goose-stepping and heil-Hitlering with brown-shirted friends in front of a dormitory that housed the school’s few Jewish students. He also was infamous for telling racist and anti-Semitic jokes.

As a law clerk, Rehnquist wrote a memorandum for Justice Jackson while the court was considering several school desegregation cases, including Brown v. Board of Education. Rehnquist’s memo, entitled “A Random Thought on the Segregation Cases,” defended the separate-but-equal doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson. Rehnquist concluded the Plessy “was right and should be reaffirmed.” When questioned about the memos by the Senate Judiciary Committee in both 1971 and 1986, Rehnquist blamed his defense of segregation on the dead Justice, stating – under oath – that his memo was meant to reflect the views of Justice Jackson. But Justice Jackson voted in Brown, along with a unanimous Court, to strike down school segregation. According to historian Mark Tushnet, Justice Jackson’s longtime legal secretary called Rehnquist’s Senate testimony an attempt to “smear the reputation of a great justice.” Rehnquist later admitted to defending Plessy in arguments with fellow law clerks. He did not acknowledge that he committed perjury in front of the Judiciary Committee to get his job.

The young Rehnquist began his legal career as a Republican functionary by obstructing African-American and Hispanic voting at Phoenix polling locations (“Operation Eagle Eye”). As Richard Cohen of The Washington Post wrote, “[H]e helped challenge the voting qualifications of Arizona blacks and Hispanics. He was entitled to do so. But even if he did not personally harass potential voters, as witnesses allege, he clearly was a brass-knuckle partisan, someone who would deny the ballot to fellow citizens for trivial political reasons -- and who made his selection on the basis of race or ethnicity.” In a word, he started out his political career as a Republican thug.

Rehnquist later bought a home in Vermont with a restrictive covenant that barred sale of the property to ''any member of the Hebrew race.”

Rehnquist’s judicial philosophy was result-oriented, activist, and authoritarian. He sometimes moderated his views for prudential or pragmatic reasons, but his vote could almost always be predicted based on who the parties were, not what the legal issues happened to be. He generally opposed the rights of gays, women, blacks, aliens, and religious minorities. He was a friend of corporations, polluters, right wing Republicans, religious fundamentalists, homophobes, and other bigots.

Rehnquist served on the Supreme Court for thirty-three years and as chief justice for nineteen. Yet no opinion comes to mind which will be remembered as brilliant, innovative, or memorable. He will be remembered not for the quality of his opinions but rather for the outcomes decided by his votes, especially Bush v. Gore, in which he accepted an Equal Protection claim that was totally inconsistent with his prior views on that clause. He will also be remembered as a Chief Justice who fought for the independence and authority of the judiciary. This is his only positive contribution to an otherwise regressive career.

Within moments of Rehnquist’s death, Fox News called and asked for my comments, presumably aware that I was a longtime critic of the late Chief Justice. After making several of these points to Alan Colmes (who was supposed to be interviewing me), Sean Hannity intruded, and when he didn’t like my answers, he cut me off and terminated the interview. Only after I was off the air and could not respond did the attack against me begin, which is typical of Hannity’s bullying ambush style. He is afraid to attack when there’s someone there to respond. Since the interview, I’ve received dozens of e-mail hate messages, some of which are overtly anti-Semitic. One writer called me “a jew prick that takes it in the a** from ruth ginzburg [sic].” Another said I am “an ignorant socialist left-wing political hack …. You’re like a little Heinrich Himmler! (even the resemblance is uncanny!).” Yet another informed me that I “personally make us all lament the defeat of the Nazis!” A more restrained viewer found me to be “a disgrace to the Law, to Harvard, and to humanity.”

All this, for refusing to put a deceptive gloss on a man who made his career undermining the rights and liberties of American citizens.

My mother would want me to remain silent, but I think my father would have wanted me to tell the truth. My father was right.

Alan Dershowitz is a professor of law at Harvard. His latest book is The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved (Wiley, 2005).

September 5th, 2005, 12:07 PM
I guess Scalia's propensity for group sex and Thomas' fondness of practical jokes involving body hairs doomed them. What a shame.

TLOZ Link5
September 5th, 2005, 01:38 PM
For the time being, at least, John Paul Stevens will be running things.

September 15th, 2005, 03:59 PM
What I Have Learned From Listening to Judge Roberts (http://www.huffingtonpost.com/alan-dershowitz/what-i-have-learned-from-_b_7385.html)

Alan Dershowitz


Although several days of questioning of senators have proved primarily that Judge John Roberts is brilliantly adept at not answering questions, I think I have learned a few things from his non-answers. I am even prepared to put them in the form of predictions, on the record, so that people can go back and check them against his actual performance on the Court.

So here are my Roberts predictions:

1. He will not overrule Roe v. Wade, though he will not extend it beyond current Supreme Court holdings.

2. He will dramatically lower the wall of separation between church and state, and be a reliable vote with Justices Scalia and Thomas on this critical issue.

3. He will uphold the death penalty against both substantive and procedural challenges and will narrow the opportunity of death row inmates to challenge their convictions.

4. He will recognize the President’s broad power to fight terrorism though he will apply literal restrictions on that power that are explicit in the Bill of Rights. In this respect, he will be more like Justice Scalia than Chief Justice Rehnquist.

5. He will not overrule existing gay rights decisions, but he will probably not expand them. In this respect he may be closer to Justice Kennedy than to Chief Justice Rehnquist.

6. He will defer to precedent more than Justice Scalia does, but will not be reluctant to overrule decisions that have not become settled law or that remain controversial within the Court. This will be most evident in his church-state decisions.

7. He will read civil rights statutes enacted by Congress quite narrowly, but if Congress is clear, he will be reluctant to strike down Congressional enactments.

8. He will not become part of the right-wing trend toward striking down federal statutes under a restrictive reading of the Commerce Clause, though in clear cases he will do so.

9. He would not have joined the Equal Protection opinion in Bush v. Gore, but he would have joined the Article 2 decision. In the unlikely event that another Bush v. Gore were to come to the Court, he would vote for the Republican candidate, but only if there were a plausible legal argument in his favor. He would – whether consciously or unconsciously - find the same argument more plausible if made by a Republican candidate than if made by a Democratic candidate.

10. Finally, he will move away from the imperial chief justiceship established by his mentor Rehnquist and will rule the court with less of an iron hand. I won't try to predict whether he will remove those ridiculous Gilbert and Sullivan stripes that Rehnquist sported. I think he will be of two minds on that issue. His personal predilection would be against wearing the stripes, but he will not want to suggest criticism of his former boss by removing them immediately.

TLOZ Link5
September 15th, 2005, 05:09 PM
Center/right of center would be better than anyone along the lines of Rehnquist or Scalia. I'll give Roberts the benefit of the doubt...if only for now. His wife could use a few fashion pointers, though. Way too DC and way too much tweed.

...hey, I gotta complain about something.

September 16th, 2005, 06:08 PM
Some info on Judiciary Committee member Oklahoma Republican Senator Tom Coburn:

The Many Faces of Dr. Coburn

Max Blumenthal
posted September 15, 2005 (web only)


On the first day of hearings on Judge John G. Roberts Jr.'s nomination to Chief Justice of the US Supreme Court, before a Russell Senate Office Building Caucus Room overflowing with members of the media and Congressional staffers, with klieg lights shining and flashbulbs popping all around, and with seventeen other members of the Senate Judiciary Committee arrayed beside him, Oklahoma Republican Senator Tom Coburn busied himself with a crossword puzzle.

On April 7, five months prior to this hearing, Michael Schwartz, Coburn's chief of staff, told me, "Tom doesn't know anything about this judiciary stuff, so I'm feeding him piles and piles of memos every day." Though Schwartz didn't specify the nature of his memos to Coburn, I assumed they were made up of primers on legal jargon and history, not word games, puzzles or other such brainteasers.

I met Schwartz outside a downtown Washington hotel, where a gathering of Christian-right activists called "Confronting the Judicial War on Faith" was taking place. In a speech earlier that day, Schwartz told conference attendees he favored "the mass impeachment of judges" and denounced the Supreme Court for giving Americans "the right to commit buggery." Later, while a think tank researcher and I accompanied him to the Dupont Circle subway station, coincidentally located in the heart of one of America's most vibrant gay neighborhoods, Schwartz held forth with his vision for the judiciary.

At the very beginning of our conversation, before I could even introduce myself, Schwartz exclaimed, "I'm a radical! I'm a real extremist. I don't want to impeach judges. I want to impale them!"

Schwartz struck a slightly more even-tempered tone when discussing Senator Arlen Specter, a socially moderate Republican who had become the bete noire of the Christian right since assuming the chairmanship of the Judiciary Committee. "Specter is the Great Satan, of course," Schwartz remarked. "But still, I'd rather have him as committee chair than [Utah Republican Senator] Orrin Hatch, because Specter knows how to terrorize the opposition."

Schwartz expressed dismay over a former colleague, Tom Jipping (http://www.cwfa.org/articledisplay.asp?id=3042&department=CWA&categoryid =), who has become one of the Christian right's point men in the judicial nomination battles. "Tom's great," he said, recalling their days together at right-wing think tanks the Free Congress Foundation and Concerned Women for America. "But he's wrong about judges. He just wants better judges," Schwartz said mockingly.

So what kind of judges did Schwartz want? Borrowing a common right-wing analogy Roberts would later use in his opening remarks before the Judiciary Committee, I asked him if he wanted judges to behave like umpires, ruling on cases like balls and strikes. "I don't want umpires," he declared with a dismissive wave of his hand. "I want to get them out of the way."

Schwartz's positions may seem extreme, but they are by no means unique in his political milieu. Schwartz earned high praise at the "Confronting the Judicial War on Faith" conference from Catholic-right activist Austin Ruse for being one of the first organizers for Operation Rescue, the antiabortion group that often employed violent tactics in its vain attempt during the 1980s and '90s to end the practice of abortion. In 1987, while working at the Free Congress Foundation for right-wing master strategist Paul Weyrich, Schwartz co-wrote Gays, AIDS, and You, a book alleging that homosexuals were "using the AIDS crisis to pursue [their] political agenda." With his reputation established, Schwartz was tapped as chief of staff by Coburn, a family practitioner/obstetrician and political neophyte elected to the House in 1994.

Immediately after seizing a majority in the House, the GOP leadership found itself under sustained pressure from Christian-right leader James Dobson to tack harder against abortion and gay rights. In response, Schwartz helped organize the creation of the Values Action Team, an off-the-record caucus bringing together Washington-based Christian-right lobbyists and conservative members of Congress to coordinate legislative strategy. In 2002 Schwartz walked through the revolving door he helped build, becoming Concerned Women for America's vice president of governmental affairs. Two years later, while managing Coburn's erratic Senate campaign, rumors swirled that Schwartz was fired for failing to deflect a steady stream of bad press, including revelations that the stridently antiabortion Coburn had forcibly sterilized (http://www.salon.com/news/feature/2004/09/13/coburn/index.html) a female patient. Despite a brief, unexplained break from the campaign, Schwartz moved up to the Senate after Coburn defeated his Democratic opponent, Brad Carson, with the help of Christian-right grassroots muscle and a last-minute, race-baiting ad blitz.

Schwartz may have salvaged his job, but he hasn't kept in Coburn's good graces. His comments about "impaling" judges, which I reported (http://www.thenation.com/doc/20050425/blumenthal) for this magazine, and which were subsequently carried by Newsweek (http://www.msnbc.msn.com/id/7528827/site/newsweek/) and on Oklahoma Public Television, landed him back in the doghouse. According to filmmaker John Buchanan, who told me he interviewed Schwartz in May for a documentary, Schwartz said he was nearly fired by Coburn for his impolitic statements at the "Judicial War on Faith" conference, which he attended without his boss's permission. "I hurt Senator Coburn by what I did," Schwartz told Buchanan.

Yet with the sudden arrival of the first confirmation hearings in nineteen years for a new Supreme Court Chief Justice, it appears Schwartz has become indispensable to a Senator known mainly for his lack of political accomplishments and his personal eccentricity. Indeed, during nearly a decade of public life, Coburn has distinguished himself with posturing ranging from the weird (in 1997 he denounced (http://www.writing.upenn.edu/~afilreis/Holocaust/schindler-on-tv.%20html) NBC's showing of Schindler's List as "an all-time low, with full-frontal nudity"; seven years later, he invoked the specter of "rampant" lesbianism (http://www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2004/10/11/ politics2023EDT0704.DTL) in Oklahoma public high school bathrooms) to the seemingly pointless (at the risk of censure, he has rebuked (http://www.kotv.com/main/home/stories.asp?whichpage=1&id=88712) a Senate Ethics Committee demand to quit practicing medicine). Most recently, Coburn hosted a "Revenge of the STDs" slideshow in the Capitol basement this May depicting "the ravaging effects" of sexually transmitted diseases.

"A free pizza lunch will be served but attendees should be advised that some slides contain graphic images," Coburn's press release (http://coburn.senate.gov/index.cfm?FuseAction=News.PressReleases& month=5&year=2005&id=18) warned.

Usually, when a senator's chief of staff speaks in public, he or she does so on behalf of that senator. With Schwartz, however, it's hard to know what his dissonant dynamic with his boss will produce. Which Tom Coburn will show up at John Roberts's confirmation hearing and those to follow for the next nominee? Will it be the freshman senator weaned on a steady diet of memos by a veteran right-wing operative who wants to "impale" judges? Or the clueless physician-cum-political hobbyist described by his underling as someone who "doesn't know anything"?

In his opening statement, Coburn struggled to hold back tears as he exclaimed in a trembling voice, "My heart aches for less divisiveness, less polarization, less finger-pointing, less bitterness, less partisanship." On this day, at least, the kindly Dr. Coburn was in. But his other self may turn up at any moment.

Copyright © 2005 The Nation

September 17th, 2005, 11:35 AM
Great new ad about John Roberts "Silence" (http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=104x4782146)


QuickTime: http://www.supremecourtwatch.org/silence.mov (http://www.supremecourtwatch.org/silence.mov)
Win Media: http://www.supremecourtwatch.org/silence.wmv (http://www.supremecourtwatch.org/silence.wmv)

September 22nd, 2005, 12:40 AM
Specter Urges Delay in Replacement of O'Connor at Supreme Court


Sept. 21 (Bloomberg) -- The chairman of the Senate Judiciary Committee said he urged President George W. Bush today to delay nominating a replacement for retiring Justice Sandra Day O'Connor.

Senator Arlen Specter, Republican of Pennsylvania, said he talked to Justice O'Connor about staying on the high court. ``She's prepared to do that'' through the court's term ending in June, Specter said. The president ``was noncommittal,'' Specter said. ``The body language was not very positive,'' Specter said.

Specter said the delay would give Congress and the rest of America more time to know John Roberts as chief justice. ``When we know a little more about Judge Roberts it's going to be easier with the next'' nomination, Specter said.

Senate Majority Leader Bill Frist of Tennessee said he urged Bush to submit a name to the Senate promptly. ``I feel we should proceed with the nomination as anticipated,'' Frist said. If so, the confirmation process could be completed ``around Thanksgiving.''

O'Connor, 75, often a key swing vote on the Supreme Court, announced on July 1 that she is retiring and agreed to stay on until her replacement is confirmed. She has said she wants to help care for her husband, John O'Connor, who is suffering from Alzheimer's disease.

Specter and Frist, together with Senate Democratic leader Harry Reid of Nevada and Patrick Leahy of Vermont, ranking Democrat on the Judiciary Committee, spoke with reporters at the White House after meeting with Bush over breakfast.

©2005 Bloomberg L.P.

TLOZ Link5
September 22nd, 2005, 02:05 PM
Consider the benefit of the doubt nonexistent as of now.

TLOZ Link5
September 29th, 2005, 07:22 PM
John Roberts Sworn In as Chief Justice
'Judging Is Different From Politics,' He Says in a Brief Speech

WASHINGTON (Sept. 29) - John G. Roberts Jr., a conservative protege of the late William H. Rehnquist, succeeded him Thursday and became the nation's youngest chief justice in two centuries, winning support from more than three-fourths of the Senate after promising he would be no ideologue.

Roberts, at 50, becomes the 17th chief justice, presiding over a Supreme Court that seems as divided as the nation over abortion and other tumultuous social issues. The court opens a new term on Monday.

"The Senate has confirmed a man with an astute mind and kind heart," President Bush said just before Roberts was sworn in by acting Chief Justice John Paul Stevens. "All Americans can be confident that the 17th chief justice of the United States will be prudent in exercising judicial power, firm in defending judicial independence and above all a faithful guardian of the Constitution."

Bush is expected to make his second Supreme Court nomination within days, one that conservatives hope will move the court to the right. Replacing Rehnquist with Roberts keeps the court's current balance, but replacing the moderate Justice Sandra Day O'Connor with a conservative could tilt it rightward.

Roberts called the Senate's 78-22 bipartisan vote for him "confirmation of what is for me a bedrock principle, that judging is different from politics." All of the Senate's 55 Republicans, independent James Jeffords of Vermont and half of the 44 Democrats supported him.

He said he would try to "pass on to my children's generation a charter of self-government as strong and as vibrant as the one that Chief Justice Rehnquist passed on to us."

"What Daniel Webster termed the miracle of our Constitution is not something that happens in every generation, but every generation in its turn must accept the responsibility of supporting and defending the Constitution and bearing true faith and allegiance to it," Roberts said.

A crowd including seven of the eight sitting justices, Roberts' parents, Rosemary and John Sr., children John and Josephine, Senate supporters and White House well-wishers erupted stood and applauded as Roberts kissed his wife and shook Stevens' hand. The audience also included Attorney General Alberto Gonzales and White House counsel Harriet Miers, both of whom have been mentioned as candidates for O'Connor's seat.

O'Connor, a moderate voice on the Supreme Court and one of only two women, is leaving after 24 years. It is the first time in 34 years that a president has had simultaneous high court openings.

The president originally named Roberts to succeed O'Connor in July. Rehnquist's death led to the switch to Roberts for the chief justice on Sept. 6. O'Connor remains on the court until the president selects a replacement and that person is confirmed by the Republican-controlled Senate.

The only justice not at the White House was Antonin Scalia. He had a previous engagement that could not be broken, a court spokeswoman said. According the Federalist Society Web site, he was leading a two-day seminar on the separation of powers in Avon, Colo.

Not since John Marshall, confirmed in 1801 at 45, has there been a younger chief. Roberts is the first new Supreme Court justice since 1994.

Before becoming a federal appeals court judge, he was one of the nation's best appellate lawyers, arguing 39 cases - many in front of the same eight justices he will now lead as chief. He won 25 of those cases.

Under Roberts, the court will tackle such issues as assisted suicide, campaign finance law and abortion this year, with questions about religion, same-sex marriage, the government's war on terrorism and human cloning looming in the future.

Said Senate Majority Leader Bill Frist, R-Tenn: "For many years to come, long after many of us have left public service, the Roberts court will be deliberating on some of the most difficult and fundamental questions of U.S. law."

Twenty-two Democrats opposed Roberts, saying he could turn out to be as conservative as Scalia and Clarence Thomas, the Supreme Court anchors on the right.

"At the end of the day, I have too many unanswered questions about the nominee to justify confirming him to this lifetime seat," said Democratic leader Harry Reid of Nevada.

Anti-abortion and abortion rights activists both have their hopes pinned on Roberts, a former government lawyer in the Reagan and first Bush administrations. While Roberts is solidly conservative and his wife, Jane, volunteers for Feminists for Life, both sides were eager to see how he would vote on abortion cases.

Roberts told senators during his confirmation hearings that past Supreme Court rulings carry weight, including the Roe v. Wade decision that legalized abortion in 1973. He also said he agreed with the 1965 Supreme Court ruling in Griswold v. Connecticut that established the right of privacy in the sale and use of contraceptives.

But he tempered that by saying Supreme Court justices can overturn rulings.

"If the Constitution says that the little guy should win, then the little guy's going to win in the court before me," Roberts told senators. "But if the Constitution says that the big guy should win, well then the big guy's going to win because my obligation is to the Constitution."

Over and over, he has assured lawmakers his rulings would be guided by his understanding of the facts of cases, the law and the Constitution, not by his personal views. "My faith and my religious beliefs do not play a role," said Roberts, who is Catholic.

09/29/05 17:17 EDT

Copyright 2005 The Associated Press.

September 29th, 2005, 09:19 PM
I don't know this is one guy I just can't form an opinion on. I have very close friends who are long-time family friends with his wife. They say he is a great guy and has been primed all his life for this. I just hope he turns out to be a David Souter type.

He does have young kids, so I hope he is a bit more forward looking in as much as Rehnquist was clawing for 1850 again.

September 30th, 2005, 12:16 AM
I'm not too upset with Roberts being confirmed ONLY BECAUSE he is replacing Rehnquist and this won't alter the balance of the Supreme Court (otherwise I think he'll turn out to be a kinder and gentler Scalia). However, the Democrats should not defected in such large numbers because if Bush nominates someone similar to Roberts for O'Connor's seat, then they will have a tough time argueing against his/her confirmation.

September 30th, 2005, 10:04 AM
Rehnquist was easily one of the worst chief justices this country has seen. He was forever trying to move the country backwards and, if ever there was an "activist judge" he was it.

I still think the fact that Roberts has young children is to the country's advantage.

April 30th, 2009, 10:23 PM
NPR: Justice Souter to Retire

TPM (http://tpmcafe.talkingpointsmemo.com/talk/blogs/astral66/2009/04/npr-justice-souter-to-retire.php?ref=reccafe)
April 30, 2009, 10:05PM

Looks like Obama will be making a Supreme Court pick. NPR is reporting:

NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the court's current term.

The court has completed hearing oral arguments for the year and will be issuing rulings and opinions until the end of June.

Souter is expected to remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the court reconvenes in October.

At 69, Souter is nowhere near the oldest member of the court, but he has made clear to friends for some time now that he wanted to leave Washington, a city he has never liked, and to return to his native New Hampshire.

Now, according to reliable sources he has decided to take the plunge and has informed the White House of his decision.

Any guesses on who will be on the short list? The article surmises:

Souter's retirement would give President Obama his first appointment to the high court, and most observers expect that he will appoint a woman.

The court currently has one female justice -- Ruth Bader Ginsburg, who is recovering from cancer surgery.

Copyright 2009 TPM Media LLC. All Rights Reserved.

May 1st, 2009, 08:57 AM
The thing is, I don't see why he should be pressured into appointing ANYONE of any race, creed, color or sex.

If he can find someone qualified, it should not matter that there is only 1 woman on the court. It also shoul not matter than there has never been a Hispanic justice.

I wish people would just close their eyes to that shmidt for a while and focus on the stuff that matters.

Like what clothes they wear for Christ's sake!!! :rolleyes:

May 3rd, 2009, 12:25 PM
For your consideration: Ted Olsen, former Solicitor-General.

May 3rd, 2009, 12:49 PM
Not a chance.

If no no other reason, Ted Olsen represented George W Bush before the Supreme Court in Bush v. Gore. Souter was one of the dissenting votes, and it was said...
Toughened, or coarsened, by their worldly lives, the other dissenters could shrug and move on, but Souter couldn’t. His whole life was being a judge. He came from a tradition where the independence of the judiciary was the foundation of the rule of law. And Souter believed Bush v. Gore mocked that tradition. His colleagues’ actions were so transparently, so crudely partisan that Souter thought he might not be able to serve with them anymore.

Souter seriously considered resigning. For many months, it was not at all clear whether he would remain as a justice. That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same. There were times when David Souter thought of Bush v. Gore and wept.

Jeffrey Toobin The Nine

It's widely believed that Souter wanted to retire and leave DC some time ago, but remained until Bush was out of office. An Olsen nomination would be regarded as a slap in the face.

May 3rd, 2009, 03:02 PM
I wish people would just close their eyes ... for a while and focus on the stuff that matters.
What matters is their favorite brand of beer.

May 3rd, 2009, 11:42 PM
The next nominees should include an Asian, a Muslim and a Hispanic -- preferably a female Asian, Muslim and Hispanic. Sotomayor is the best choice for this round in my view.

May 5th, 2009, 12:17 PM
Pretty sure Obama's pick will be a woman, but I think it'll be from acedemia.

Possibly Kathleen Sullivan.

June 30th, 2009, 05:55 PM
The Supreme Court
Causing a stir
Jun 29th 2009
From Economist.com

A controversial ruling by America's Supreme Court


IN ITS most closely watched case this year, America’s Supreme Court ruled on Monday June 29th that the authorities in New Haven, Connecticut, were wrong to deny promotion to white firemen because no blacks had scored high enough marks in an exam to warrant advancement. The case, Ricci v DeStefano, was brought by white (and Hispanic) firemen who had taken a test in 2003 to determine their suitability for promotion to lieutenant or captain. They accused New Haven of discrimination when it refused, fearing litigation, to certify the results. With no blacks succeeding, the exam had become a politically contentious issue in the city.

In a 5-4 decision, the Supreme Court held that New Haven’s actions violated the 1964 Civil Rights Act. It found that the firemen's test was job-related, and that there was no obvious alternative test that more blacks would have passed. The city had rejected the test because it feared being sued by black firefighters over its “disparate impact”. But the court ruled that such a suit should fail. Writing for the majority, Justice Anthony Kennedy concluded that the firemen had studied for months at considerable personal expense, and so the injury caused by New Haven’s “reliance on raw racial statistics at the end of the process was all the more severe”.

The Court was split along ideological lines, with Mr Kennedy providing the decisive vote. Summing up for the dissenters, Justice Ruth Bader Ginsburg argued that the white firemen “had no vested right to promotion”. She reasoned that in largely black New Haven “minorities are rarely seen in command positions” and that other cities had designed tests with “less racially skewed outcomes”.

As well as its potential impact on employment law, the case attracted interest because one of the judges on the appeals-court panel that sided with New Haven’s position was Sonia Sotomayor, Barack Obama’s nominee for the Supreme Court to replace the retiring David Souter.

The decision in Ricci provides some embarrassment for Mr Obama, so close to the start of Ms Sotomayor’s Senate confirmation hearings on July 13th. The White House’s view is that Ms Sotomayor is a centrist judge, a pragmatist with solid rulings in hundreds of cases during her time as a district judge and on the court of appeals. She would also be the first Hispanic on the Court, a fact noticed by a Republican Party that had once hoped to make great gains among that group at the polling booth. Democrats are confident that Ms Sotomayor will sail through.

So far, the public has responded positively to her nomination, although most know little about her. One poll in mid-June found that 58% of people were “undecided” or had “not heard enough” about Ms Sotomayor to say whether or not they favoured her nomination. The same poll also found that 74% said it was important that the Court reflect the gender, racial and ethnic make-up of the country.

The Republicans have recently started to push against her nomination. Orrin Hatch, a senator from Utah and a member of the Judiciary Committee, says it is critical to find out if Ms Sotomayor endorses the “restrained view” of judicial power or the “activist view”. Conservatives are also making noises about Ms Sotomayor’s time on the board of directors at the Puerto Rican Legal Defence and Education Fund, a civil-rights group that some Republican senators believe is “outside the mainstream”.

What could be more troubling for Ms Sotomayor is her remark in a speech in 2001 that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life”. Jeff Sessions, the senior Republican senator on the Judiciary Committee, has attacked Mr Obama’s notion that judges should have “empathy”, a characteristic the president says he looks for in members of the judiciary. “When there is empathy toward one, is it not prejudice against the other?”, argues Mr Sessions, who thinks Ms Sotomayor may “look outside the law and evidence”.

Although Democrats are convinced Republicans will get nowhere by attacking the “empathy” of a judge, such judicial underpinnings were raised in the Supreme Court’s Ricci decision. The dissenters noted that the white firemen had attracted the court’s “sympathy”. Justice Samuel Alito disagreed, saying that the petitioners had no right to sympathy, but they did have a right to “even-handed enforcement of the law” and not to be discriminated against.

July 1st, 2009, 11:12 AM
You know something, I have heard enough about this.

Has anyone taken a look at the exam? Has anyone been able to point out WHAT things in there would somehow be magically known by a white man and not a black man?

Is there something I am missing here? From what I have seen, the only things not known between races is usually cultural, not academic, ESPECIALLY once exposed to the professional field and then examined on it in areas concerning it.

And although I respect Ginsberg, simply siting the lack of minority contribution to the forces officers may be a sign of discrimination, or it may be a sign of the lack of qualified applicants in that particular geographic area within that demographic. There may be a shortage of qualified minorities for those positions based on poor education in certain neighborhoods and the like, but since when are we obligated to get unqualified workers based on prior discrimination.

"OK, you never learned how to do this-and-that because of the poor public schools in your area when you grew up, but we will ignore what you don't know because of this, even if it matters in the performance of your position".

I think these candidates that DID NOT pass should be offered review courses to study for the test, and have them try again another time.

Seems to me everyone is focusing on race rather than academics. If these guys passed the test but were not promoted, we would have a case, but not like this.

Not until someone points out how this test could be discriminatory and how the areas that were not known by the failing examinees would NOT be pertinent to the performance of their duties.

July 1st, 2009, 11:21 AM
Well stated.

July 1st, 2009, 08:50 PM
This one really hits home, for me. An immediate family member is one of the New Haven 20 who recently won at the U.S. Supreme Court. Obviously, I am pleased at the Court's decision, and am looking forward to carefully reading the entire decision online. My expectation was for a 5-4 split along typical ideological lines, and that was exactly the outcome. Nonetheless, I feel that justice was served in this case. This was not a "controversial" decision by the Court. It was a correct decision.

July 1st, 2009, 09:16 PM
SCOTUS knocked down a law of the city of New Haven, which the Court of Appeals had upheld as within the right of the city / state to put into effect.

In no way is this a repudiation of Sotomayor or the other C of A Justices -- who found in favor of the city of New haven based upon CT State Law.

July 2nd, 2009, 08:56 AM
So this law says holding up the careers of more than a few individuals on the suspicion of bias when there is no other proof is a fair and equitable law?

I am serious whan I say forgive my ignorance, but what exactly does this law say, and how does it make it right to punish the people today for things they, and even their ancestors were not guilty of yesterday?

Again, what was in these tests that could even remotely be considered discrimnatory and therefore subject to dismissal in court/by law?

July 2nd, 2009, 11:28 AM
Over the past 45 years it has been held that results of tests which displayed poor showings by specific racial groups were suspect in regards to the possibility of discriminatory content in the questions / tests.

As NH has pointed out:

... the only things not known between races is usually cultural, not academic ...

The tricky question becomes: Were such possibly discriminatory tests designed with an intent to keep out those who were not wanted? Or: Were the tests in question inherently unfair due to bias which was so instilled that the creators of the tests inadvertently structured them in a way that led to discriminatory results?

Anyone with any knowledge of US history knows that such practices, with the goal to hold tight to the status quo, existed in the past. The intent of the CT law which ahs been knocked down by SCOTUS was to assure that tests were fairly applied.

It seems that the majority of SCOTUS now believes that the USA has sufficiently cleansed itself of any such bias and therefore the playing field should be deemed fair unless, perhaps, a plaintiff can show & prove that a specific test is discriminatory and in violation of the '64 CRA.

July 2nd, 2009, 12:13 PM
It seems that the majority of SCOTUS now believes that the USA has sufficiently cleansed itself of any such bias and therefore the playing field should be deemed fair unless, perhaps, a plaintiff can show & prove that a specific test is discriminatory and in violation of the '64 CRA.

I am also assuming that this is the case, as no questions in particular have come to light. If they were addressing more the actual calidity of the test rather than the validity of the decision made concerning it, I would be more in favor of discussion, but this seems odd.

An investigation into he questions on the test, an assertation of whether race was one OF the questions/pieces of info on the test, or even whether or not the NAMES of the individuals passing/failing had anything to do with it should be looked into.

But the mere fact that we did not hear anything about unfair practice until AFTER the results makes me feel a bit weird, and the fact that we have been hearing more about race and individual rights rather than the meat and potatoes of the case involved mekes me much more speculative of what actually happened and what is being decided.

Proof of discrimination should be necessary to invoke these procedures. That being said, impedence of obtaining that proof (such as disclosure of the test given or release of the actual tests taken) should not be tolerated.

You can't enforce the good by automatic opposition to an unproven evil. Find the problem and correct it, don't try to correct problems that don't exist or you may end up creating some where there were none.

July 3rd, 2009, 10:53 AM
More on the Ricci case, the law and Sotomayor :

Much Ado about Ricci

The Daily Voice (http://thedailyvoice.com/voice/2009/06/much-ado-about-ricci-001982.php)
Christopher J. Metzler

Despite a long and varied legal career, stellar educational credentials and service as an appellate court judge, Sonia Sotomayor's qualifications to serve on the Supreme Court of the United States are being reduced to a single case, Ricci v. DeStefano. If you believe her opponents, Judge Sotomayor, as a member of the majority in this case ignored the law and simply decided the case based on the fact that she hates White men.

The fact is that Judge Sotomayor was part of a three judge panel that ruled on the case. The entire panel (en banc) of the 2nd Circuit had an opportunity to rehear they case and they declined to do so. Does this mean that the entire panel is racist? The truth is that the panel's ruling simply followed existing precedent. In theory, this should delight, not dismay the band of constitutional purists that play the talk circuit. Oh the hypocrisy! They should also admit that by selecting this case as their main line of attack, they are stoking naked racial animus.

First, so many of the judge's critics claim that she is a judicial activist and thus she disregards existing law. The problem with this argument specifically in the Ricci case is that anti-discrimination law allows for an employer to be held liable for both intentional (disparate treatment) and unintentional (disparate impact) discrimination. Thus, an employer such as the city of New Haven cannot ignore racial outcomes on a promotional exam. This is the current state of the law; so why haven't the "legal purists" among the judge's critics called on Congress to change the law? Or is their argument that a judge may legislate from the bench only where the judge agrees with "solid conservative principles"?

Second, the case raises the issue of equal protection. The equal protection clause of the Fourteenth Amendment provides that "No State shall deny to any person the equal protection of the laws." Although precisely what this means has never been definitively answered by the Courts, we have heard quite a bit about the intent of the framers in this debate. As to the 14th Amendment, the historical intent is clear. The amendment was passed post-Civil War in an attempt to protect Blacks from state sanctioned oppression and discrimination. Of course, the text of the equal protection clause does not limit protection to only Blacks, and I am not suggesting that the text of the equal protection clause reads that equal protection is exclusively for Blacks. I am suggesting that in this debate, we analyze all sides of the issue not just those that support our world views.

The reality is that efforts to protect Blacks from discrimination in the United States have a particular and specific historical context whether critics choose to acknowledge that context or not. Despite this frame, in the employment context, the courts have expanded that protection to other targets of discrimination.

Which leads to the question of how constitutional purists in strict constructionists' clothing could expand a clause that was originally and historically intended to protect only Blacks to other groups without being activists? Could it be that the Supremes do in fact make policy? Could it be that Judge Sotomayor and her colleagues are the purists here? Could it be that "intent" is determined not by some detached, disembodied, judicial intellectual avatar but by warm blooded human beings?

The theory of discrimination at work in the Ricci case was that even though the promotional test was "neutral" in that all had to take it to be eligible for promotion, the results had a different (and worse) impact on Black firefighters. Under a theory of disparate impact, the City of New Haven had to consider race to the extent that its selection tool (the test) affected Blacks differently and worse than Whites. To be sure, the City would have been sued regardless of the decision that it made. Given the current state of the law, the court's decision was reasonable and not racial profiling as some would have us see it. I do agree that the court should have written a more extensive opinion about its reasoning. However, there is nothing that requires the Court to do so. Thus any argument that Judge Sotomayor and her colleagues made a decision solely on the basis on race is cretinous.

Third, this is not the only opinion Judge Sotomayor has written. So why have her opponents chosen to amplify this one? The answer is simple. For all of the talk about moving beyond race and judging people based on merit, avoiding identity politics and the like, America still has unresolved issues with race. Thus, the brawn of race as a political, cultural and wedge issue cannot be ignored. The Ricci case strikes a nerve with many who want the courts to rule that White men are the victims of discrimination in the same way that Blacks have historically been in America thus giving them legal and political cover to play the race card. So, why haven't her critics simply said so? Because they live in racial glass houses from which they throw stones.

Moreover, on the issue of race, "original intent" is powerful code that has been effectively employed to change the conversation. The fact is that anti-discrimination laws were originally enacted to protect Blacks from discrimination by Whites. The 14th Amendment's Equal Protection's clause was enacted to protect Blacks from state sanctioned discrimination at the hands of Whites. This is the original intent. However on the issue of race, Roberts, Scalia, Thomas and Alito have made law rather than interpreted it by ruling, for example, that affirmative action is unconstitutional even though the framers never envisioned affirmative action. So, who are the judicial activists here?

Finally, opponents of Judge Sotomayor by selecting the Ricci case as their main line of attack against her have proven what I have written all along. The term "post-racial America" is an oxymoron.

Dr. Christopher J. Metzler is associate dean at Georgetown University and the author of The Construction and Rearticulation of Race in a Post-Racial America.

Copyright © 2008, TheDailyVoice.com, Inc.