Wednesday, July 20, 2005

"Partisan hack"

I've seen the phrase "partisan hack" used quite a bit in the last 12 hours to describe John Roberts and it really bothers me. I have to say I think calling someone who edited the Law Review at Harvard and argued 39 cases in front of the Supreme Court before the age of 48 a "hack" makes you look ridiculous, makes Democrats look ridiculous, and does nothing to advance the Democratic agenda. He may be partisan, but he is not Clarence Thomas, he is well repsected by everyone (Dems and Republican's) who have worked with him and opposed him. He is accomplished and bright, yes he is conservative but what did you expect? Bush was reelected, there's a Republican Senate, of course Bush nominated a hard conservative. It really could be much worse, he could have picked a Clarence Thomas type.

I'm open to specific critcisms of the man, but to call people "hacks" just makes the Dems looks petty.

Money quote from the 2003 confirmation hearing

"There's no role for advocacy with respect to personal beliefs or views on the part of a judge. The judge is bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it, and bound to apply the rule of law in cases whether there's applicable Supreme Court precedent or not. Personal views, personal ideology, those have no role to play whatever."

Tuesday, July 19, 2005

Highlights from the 2003 confirmation hearing of Roberts - Part II

Durbin questions Roberts views on racial profiling and mandatory minimums,
"It is an observation which was made several years ago, relative to the issue of racial profiling. I know if I asked you what your position is on racial profiling what you would say, what we would all say. We are opposed to it. It is not just, it is not fair. We certainly do not want it in America.

But I came across some statistics which trouble me, and I have asked virtually every nominee at all sorts of levels, Department of Justice and Judiciary, for a reaction and what they think we should do about the following. I want to make sure I get these numbers right as I give them to you. I am just trying to remember them off the top of my head.

But we have a situation in America today where 12 percent of our population are African-Americans. The Drug Enforcement Administration believes that 11 percent of the drug users in America are African-American, but 35 percent of those arrested for drug violations are African-American, 53 percent of those convicted in State Courts for drug felonies are African-American, and 58 percent of those currently incarcerated in State prison for drug felony are African-Americans.

I would like your reaction to that. You are asking for a major position in the administration of justice, and if we are honest about our opposition to racial profiling, what do these numbers mean in terms of our system of justice, in general terms, and in specific terms, the whole question of minimum mandatory sentencing."


Roberts response,
"I think that sort of statistical disparity ought to spark further inquiry. I mean, it sort of points out we may have a potential problem here, and I think you want to find out what is behind the numbers because any statistical grouping that shows that kind of disparity would suggest that there may be a problem not treating people as individuals, and that is sort of at the core of our constitutional liberties, that we don't group people according to characteristics and say, well, you share this characteristic, and so you must be like this, this and this. We treat people as individuals.

No matter how compelling the statistical evidence may be, it shows that whatever group it is, and 99-whatever percent here is, that's not what due process means, that's not what liberty means, that's not what the various protections of the Bill of Rights mean; that you're part of a group that more often than not is subject to this or does this, and therefore we're going to treat you as a member of a group, rather than an individual.

So that type of disparity, I think, is one that ought to concern people, and spark interest, and call people to look to see what's behind the numbers and why that's the case."

Senator Leahy asks Roberts about the holes in the strict-constructionist approach,
"And you have told NPR you support and originalist approach to constitutional interpretation, saying the reason that that is the way it was in 1789 is not a bad one when you are talking about construing the Constitution. Of course, the Constitution in 1789 did not have the Bill of Rights. To get it ratified--you couldn't have gotten it ratified, States wouldn't have ratified it without that. It allowed African-Americans to be enslaved back then. We had the Civil War amendments, like the 14th, which limited State power to make or enforce laws to deny equal protection to people. So the originalist concept can't be an exact one, can it?"


Roberts reply,
"Well, I think I'd have to say that I don't have an overarching, uniform philosophy. To take a very simple example to make the point, I think we're all literal textualists when it comes to a provision of the Constitution that says it takes a two-thirds vote to do something. You don't look at what was the intent behind that, and, you know, given that intent, one-half ought to be enough.

On the other hand, there are certain areas where literalism along those lines obviously doesn't work. If you are dealing with the Fourth Amendment, is something an unreasonable search and seizure, the text is only going to get you so far. And in those situations--"


Leahy briefly interrupts before Roberts continues,
"even basic concepts like commerce, didn't have to deal with air travel and things of that sort. That doesn't mean they're not covered by the Commerce Clause. Our Constitution is flexible enough to accommodate technological changes of that sort. And I think in some areas--for example, the Supreme Court's jurisprudence on the jury trial right, I argued a case in favor of the jury trial right in the Supreme Court, and I learned more history than I thought I'd ever see again after being a history major in college, because what the Supreme Court has said is you look at what happened at common law at the point in time when the Seventh Amendment was adopted. And if it was on the equity side, you don't get the jury. If it was on the law side, you do. So you read a lot of old history. That doesn't mean that that same approach is going to make sense when you're dealing with other provisions of the Constitution.

So I think I'd have to say that I don't have an overarching, guiding way of reading the Constitution. I think different approaches are appropriate in different types of constitutional provisions."

And that's about it, none of the Senators really paid much attention to Roberts at the hearing, they seemed much more focused on his fellow nominee's. Nonetheless I think these excerpts give a nice overview of how the hearing went previously for Roberts. Obviously a Supreme Court confirmantion hearing will be much more probative and contentious.

Highlights from the 2003 confirmation hearing of Roberts - Part I

From Senator Kennedy's opening remarks,
"I am concerned about Mr. Roberts' efforts to limit reproductive rights as a Government lawyer, his advocacy against affirmative action, and Federal Environmental Protection Laws in his efforts to shield states from individual suits, and to limit Congress's ability to pass legislation regulating state conduct in the name of the states' rights."
Senator Hatch opens the afternoon session of the hearing himself and goes right too Roberts and makes a few points that we will hear repeated quite frequently in the next few days about the positions attorneys take on behalf of clients. This is basically going to be the defense for Roberts position on Roe while he was working for the Solicitor General's office ,
"It seems to me that both Mr. Roberts and Mr. Sutton are being criticized for positions they have taken as attorneys representing clients. Now, this is patently unfair, and it is inappropriate because attorneys do represent clients, and they should not be judged by who our clients are. Any of us who have tried cases know that sometimes our clients may not be savory, but the case may be a good case, who knows?

Now, attorneys are required to represent their clients, and this is the case whether their client is the U.S. Government, a State Government, a private citizen or a corporation, and this fact is so fundamental that it should go beyond reproach. In any legal matter, the arguments a lawyer makes in the role of a zealous advocate on behalf of a client are no measure of how that lawyer would rule if he were handling the same matter as a neutral and detached judge, and I think it is very unfair to imply that the judgeship nominee would not follow the law.

Now, this is because lawyers have an ethical obligation to make all reasonable arguments that will advance their clients interests. According to Rule 3.1 of the ABA's model rules of professional conduct, a lawyer may make any argument if, ``there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law.''

Now, lawyers would violate their ethical duties to their client if they made only arguments with which they would agree were they the judge or a judge.

Now, Mr. Roberts, although my Democratic colleagues are, and some in the Senate and elsewhere, have tried to paint you as an extremist, the truth is, is that you are a well-respected appellate lawyer, who has represented an extremely diverse group of clients before the courts. In fact, you have often represented clients and what is considered to be the so-called ``liberal'' position on issues. I would just like to ask you about a few of these cases."

Hatch goes on to highlight some of Roberts more liberal moments as an attorney, he mentions a few cases including his participation on behalf of the Clinton Justice Department's anti-trust case against Microsoft.

Senator Kohl asked about anti-trust,
"Last question. One of my priorities on this Committee is my role on the Antitrust Subcommittee. Strong antitrust enforcement is essential to ensuring that competitive flourishes throughout our country which benefits consumers through lower prices and better-quality products and services. Federal courts are essential to the firm enforcement of our antitrust laws and to ensuring that anti-competitive conduct is sanctioned.

Many antitrust questions are decided under what is known as the rule of reason in which the harm caused by the business conduct at issue is balanced against full competitive justifications. This document gives a great deal of discretion to the courts to determine whether or not the antitrust laws have been violated.

What would be your approach to deciding antitrust issues under the rule of reason? More generally, please give us your views regarding the role of the judiciary with respect to the enforcement of antitrust law."

and here is Roberts response (Kohl did not follow up),
"As a private lawyer, I have actually represented probably more plaintiffs and enforcement interests in antitrust actions than defendants. I represented the State Attorneys General in the Microsoft case and represented several private plaintiffs in antitrust appeals as well, handled some antitrust cases when I was in the Solicitor General's office.
I've also represented corporations accused of antitrust violations, and I think that balanced perspective is something that's valuable for a judge. I certainly think a lawyer coming into court, if I were to be confirmed, representing a plaintiff in an antitrust action should take some comfort in the fact that I've done that. And a lawyer representing a defendant should take some comfort in the fact that I have done that as well and I have the perspective of the issue from both sides.

So, again, obviously as judge, I'd follow the binding Supreme Court precedent and the precedent in my circuit. But I would hope that in doing so, I would have some added perspective from having been on both sides, both the plaintiff side and the defendant side, in antitrust enforcement actions."

The last portion about following Supreme Court precedent sounds nice but really means nothing now, as member of the Supreme Court he would no longer be required to follow Supreme Court precedent. Nonetheless I'm sure we'll see that quote and similiar quotes trotted out by the Republican's as some sort of demonstration to the left that Roberts as a moderate.

This comes from an exchange with Senator Sessions concerning criticism of nominees for the Judicial branch over their personal political beliefs. Sessions suggested that such attacks were unwarranted because ultimately the nominees are qualified and will uphold the rule of law. Roberts answer,
"if it all came down to just politics in the judicial branch, that would be very frustrating for lawyers who worked very hard to try to advocate their position and present the precedents and present the arguments. They expect the judges to work justified. And if the judge is going to rule one way or the other, regardless of the arguments, well, he could save everybody a lot of work, but the rule of law would suffer... And I know as an advocate, I never liked it when I had a political judge, when I was in front of a political judge, because, again, you put a lot of work into presenting the case, and you want to see that same work returned. And the theory is that that will help everybody reach the right result, and I think that's correct."



To be continued....

Leahy's opening remarks on Roberts in 2003

They seem basically inconsecuential but I'll include them anyway,

"Today's nominees to the D.C. Circuit, John Roberts, worked in the Reagan Justice Department, in the Reagan White House, was an associate of former Solicitor General Kenneth Starr. It is obvious the Bush administration feels far more comfortable with him.

Also, home-State Senators I understand have not been consulted in these. We have certainly not received any ``blue slips'' back. What we are doing is we are appointing people to the highest courts in the land, with little more attention and scrutiny than we would pay to appoint these for a temporary Federal commission. It is a disservice to the American people.

The American people can be excused for sensing that there is the smell of an ink pad in the air, rubber stamps already out of the drawer.

Thank you, Mr. Chairman."

Sen. Hatch at the 2003 hearings

Allow me to quote at length, here are Senator Hatch's opening statements about John Roberts at his 2003 confirmation hearing,

"Our final circuit nominee today is Mr. John Roberts, who has been nominated for a seat on the D.C. Circuit Court of Appeals. He is widely considered to be one of the premier appellate litigators of his generation. Most lawyers are held in high esteem if they have the privilege of arguing even one case before the U.S. Supreme Court. Mr. Roberts has argued an astounding 39 cases before the Supreme Court. At least that as the last count I had. It is truly an honor to have such an accomplished litigator before this committee, and one of the most well-recognized and approved appellate litigators in history.

The high esteem in which Mr. Roberts is held is reflected in a letter the Committee recently received urging his confirmation. This letter, which I will submit for the record, was signed by more than 150 members of the D.C. Bar, including such well-respected attorneys as Lloyd Cutler, who was the White House Counsel to both Presidents Carter and Clinton; Boyden Gray, who was the White House Counsel for the first President Bush; and Seth Waxman, who was President Clinton's Solicitor General. The letter states, quote: ``Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding Federal Court of Appeals Judge and should be confirmed by the United States Senate. He is one of the very best and most highly respected appellate lawyers in the Nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague, both because of his enormous skills and because of his unquestioned integrity and fair-mindedness.'' This is high praise from a group of lawyers, who themselves have clearly excelled in their profession, who are not easily impressed, and who would not recklessly put their reputations on the line by issuing such a sterling endorsement if they were not 100 percent convinced that John Roberts will be a fair judge who will follow the law regardless of his personal beliefs.

Let me just say a brief word about Mr. Roberts' background before turning to Senator Leahy. He graduated from Harvard College summa cum laude in 1976, and received his law degree magna cum laude in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review. Following graduation he served as a law clerk for Second Circuit Judge Henry J. Friendly, and for then Justice William Rehnquist of the Supreme Court. From 1982 to 1986 Roberts served as associate counsel to the President in the White House Counsel's Office. From 1989 to 1993 he served as Principal Deputy Solicitor General at the U.S. Department of Justice. He now heads the appellate practice group at the prestigious D.C. law firm Hogan & Hartson, and he has received the ABA's highest rating of unanimously well qualified.

I have to say that this panel represents the best, and I commend President Bush for seeking out such nominees of the highest caliber."

I have to commend the President for picking someone of such intellectual prowess, what we see of the man's record right now it doesn't appear that there is anyway he will not be confirmed.

Roberts approved in 2001 by 16-3 vote

I'll post more in depth thoughts on Justice Roberts later, in the meantime I found this article from a blog last May. Interesting reading in hinsight, the fact that he was previously confirmed 16-3 by the Senate Judiciary Committee in 2003 for the D.C. Circuit. That's pretty impressive support.

Good article on Roberts...

Good article from law.com, interesting that he worked for Hogan & Hartson...

I found this part to be particularly enlightening,

"...Roberts, with 20 months on the D.C. Circuit, has few opinions or other writings that have attracted enemies. As a result, some conservatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the 1st Circuit before being appointed in 1990 by President George H.W. Bush failed to reveal Souter's moderate-to-liberal leanings on some issues.

Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson. "He is as conservative as you can get," one friend puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas. "
I am personally less concerned about abortion rollbacks than the possible rollback of New Deal era regulations. Remember though that conservatives referred to Justice Kennedy as a "Backdoor Bork" when he was nominated, they have been confident of the conservative credentials of their nominees in the past but without a thorough written record you just never know...

SCOTUS nomination to come tonight

"President Bush has made his decision about whom he plans to nominate to take Sandra Day O'Connor's place on the Supreme Court and will announce his pick to the nation in a prime-time address Tuesday night."

Tancredo is sticking by his guns...

Rep. Tancredo seems to lurch farther and farther out into the fringe with each passing day. Yesterday Tancredo's publicist tried to walk the nuking mecca story back a bit, but the Congressman refuses to back down. From today's Denver Post,

"'I'm not suggesting we do it. I have nothing to apologize for in that respect,' Tancredo said. 'I'm simply saying to have a good discussion on this issue, a thorough discussion on what is perhaps the most serious kind of possible situation we could face as a civilization, that you cannot simply take things off the table because they are uncomfortable to talk about.'"


Mr. Congressman people are not upset because this is "uncomfortable" to talk about. We're upset because it is irrational and illogical and it is unimaginable that someone in your position would even mention the possibility of bombing Mecca and Medina. If we were attacked by nuclear weapons I hope that the United States would move quickly and decisively to bring justice to those repsonsible. What you are suggesting is that we indiscriminately bomb the holiest sites in Islam which are located in the borders of a sovereign nation. Your statements embarass the state of Colorado and they embarass the nation.

Let's revist what Tancredo had to say in the wake of Dick Durbin's recent gulag comments
,

"It is no wonder that the global 'hate-America' crowd continues to gain momentum around the world when people like Dick Durbin are shouting their half-baked hyperbole through megaphones on the floor of the U.S. Senate right here in Washington, DC."


Well sir, congratulations you have now contributed your own half-baked hyperbole.

Monday, July 18, 2005

Gonzalez is definitely out...

Not really a suprise but it's the first time I have seen anything this concrete. From The Hill,

"White House officials have assured select conservative leaders that they will not nominate Attorney General Alberto Gonzales to the Supreme Court to replace retiring Associate Justice Sandra Day O’Connor, according to a conservative familiar with the behind-the-scenes discussions."

Bush's declining credibility...

This new ABC News/Washington Post poll is pretty bad for Bush...

The administration has completely botched their handling of this scandal. They see these numbers, they see the American people are turning so why wouldn't they just come clean and provide some details that might diffuse this situation? I have to believe it's because the complete and unfettered truth would be more damaging than their spin has been...
"Skepticism about the administration's cooperation has jumped. As the initial investigation began in September 2003, nearly half the public, 47 percent, believed the White House was fully cooperating. That fell to 39 percent a few weeks later, and it's lower still, 25 percent, in this new ABC News poll."

"75 percent say Rove should lose his job if the investigation finds he leaked classified information. That includes sizable majorities of Republicans, independents and Democrats alike — 71, 74 and 83 percent, respectively."

Tancredo embarrasses Colorado.... again

The Congressman is now threatening to "take out" Islam's holy sites if the US is attacked with nuclear weapons.

"Talk show host Pat Campbell asked the Littleton Republican how the country should respond if terrorists struck several U.S. cities with nuclear weapons.

'Well, what if you said something like -- if this happens in the United States, and we determine that it is the result of extremist, fundamentalist Muslims, you know, you could take out their holy sites,' Tancredo answered.

'You're talking about bombing Mecca,' Campbell said.

'Yeah,' Tancredo responded."