http://www.cnsnews.com/ViewPolitics.asp?Pa...L20050913a.html
Dancing Around Roe v Wade, Iraq War
By Susan Jones
CNSNews.com Senior Editor
September 13, 2005
(CNSNews.com) - There it was, moments after John Roberts' second day of confirmation hearings got underway in Washington at 9:30 a.m. EDT: Senate Judiciary Chairman Arlen Specter (R-Pa.), the first to question Roberts, raised "the issue of a woman's right to choose and Roe versus Wade."
Specter also raised the legal concept of stare decisis , which literally means to stand on what has been decided -- the concept that "settled law" (such as Roe v Wade) must be upheld.
"The importance of settled expectations in the application of stare decisis is a very important consideration," Roberts replied. But it's not the only consideration, he added:
"The principles of stare decisis look at a number of factors," Roberts elaborated, including "settled expectations. Whether or not particular precedents have proven to be unworkable is another consideration on the other side; whether the doctrinal bases of a decision have been eroded by subsequent developments."
"There's no doctrinal-basis erosion in Roe, is there?" Specter asked. (In other words, is there some new development that would form the basis for the Supreme Court overturning its 1973 ruling that legalized abortion?)
Roberts replied that he would stay away from the discussion of particular cases.
"I'm happy to discuss the principles of stare decisis ," Roberts said, noting that the courts have decided a number of cases on how precedent should be applied.
"Do you believe today that the right to privacy does exist in the Constitution?" Specter asked Roberts a short time later.
Roberts replied that he does believe that right to privacy is protected under the first, third and fourth amendments. In addition, he said, the court has -- through a series of decisions -- "recognized that personal privacy is a component of liberty protected by the due process clause" (14th Amendment).
Next up, Sen. Patrick Leahy (D-Vt.) was intent on getting Roberts to answer the question, does Congress have the power to terminate a war?
Roberts said he would not address issues that might come before the court; he said he believes "very strongly" in the separation of powers; and he said that in his work for previous presidents, he naturally defended the power of the executive branch, just as attorneys working for the Senate and the House are intent on defending the power of Congress.
Leahy appeared to be miffed by Roberts' suggestion that Leahy was "overreading" one of Roberts' memos dating back 20 or more years.
Roberts said the memo to which Leahy referred had nothing to do with terminating hostilities -- it had to do with the eligibility for certain pension benefits.
Full Version: The Roberts Confirmation Hearings
Common Ground Common Sense > Issues that Affect Our Lives > Judicial System > Judicial System Issues Archive
Posted at 12:00 PM ET, 09/13/2005
Sen. Grassley
Sen. Charles Grassley (R-Iowa) said it is important that non-lawyers like him and those in the general public understand the limits on judicial power, that judges don't apply their own values to their legal decisions.
Grassley asked Roberts's view of the role of judges.
"I think ... judges ... are confined by the law.... We don't turn a matter over to a judge because we want his view of what the best idea is, what the best solution is.... They are constrained by the words you choose... and by the Constitution," Roberts said.
"So long as they are confined by the laws, by the Constitution, by precedents, then [a judge is] more comfortable that you are exercising a judicial function ... when you don't have anything to look to is when you worry," Robert said.
"That is why judges wear black robes, because it doesn't matter who they are," he said.
"I have said it is not the job of the court to solve society's problems and I believe that," Roberts said.
But there are times when the court becomes the ultimate arbiter of those problems, he acknowledged. "Sometimes cases are broad and judges have to decide them.
Roberts said Brown v. Board was an example where it was appropriate for the court to reach beyond what the two other branches of government had done.
"Other branches of society weren't just slow to act, they weren't acting," Roberts said.
Other times, the courts are put in the position, Robert said, of figuring out a problem that Congress "deliberately" left unanswered.
By miranda spivack | Permalink* | Comments (0)
Posted at 11:36 AM ET, 09/13/2005
Sen. Kennedy Clashes with Roberts
Sen. Edward M. Kennedy (D-Mass.) launches the most aggressive questioning of Roberts so far, saying that if his views in the 1980s had prevailed, numerous civil rights protections would have suffered serious setbacks. Roberts, in turn, produced his most aggressive response.
Roberts said that a)Kennedy was not accurately portraying the memos; and b)that Roberts, at the time, was representing the policy views of the Reagan administration, rather than his own views and c)that the memos involved legitimate disagreements between the administration and the Congress and that there were no questions about his committments to laws enacted by Congress and to civil rights for all Americans.
"You have not accurately represented my position," Roberts said at one point. "Senator, you did not accurately represent my position."
Kennedy started with Brown v. Board of Education of Topeka, and asked whether the court was right to examine the reality of segregated education rather than merely at abstractions of law. Kennedy worked his way from Brown to the voting rights legislation enacted by Congress along with laws banning housing discrimination and discrimination in employment.
Do you agree, Kennedy asked Roberts, that these laws are constitutional?
"I'm not aware of any questions that have been raised concerning that," says Roberts, noting that he needed to "exercise caution" on the Voting Rights Act because extensions of that law are likely to come before the court.
Kennedy elicited similar answers with regard to the law banning housing discrimination.
Kennedy noted that he is "deeply troubled" by some of the memos written by Roberts in the past, particularly by the "narrow, cramped and sometimes mean-spirited" tone of some of them, particularly with regard to voting rights and Title IX, the law prohibiting discrimination in educational institutions receiving federal funds.
Kennedy: "I am concerned...that at the time you were writing" these memos, "you simply did not grasp the seriousness of the impact" of those laws on the country.
Roberts: "I was a staff lawyer....It was the view of the administration for which I worked...."
Specter warned Kennedy several times to "stop interrupting" Roberts.
By Fred Barbash | Permalink* | Comments (3)
Posted at 11:00 AM ET, 09/13/2005
Roberts Is Calm and Confident
John G. Roberts answers senators' questions Tuesday. (REUTERS/Kevin Lamarque) John Roberts, as expected, has looked relaxed throughout the questioning so far, answering without hesitation and without resorting to notes. He has responded directly, but not defensively, to questions about controversial memos he wrote as a young lawyer.
By Fred Barbash | Permalink* | Comments (3)
Posted at 10:57 AM ET, 09/13/2005
Sen. Hatch on Role of Judges vs. Legislators
Hatch asked Roberts to address his views on the role of "unelected judges," eliciting from Roberts standard statements from Marbury v. Madison and elsewhere about the role of the judiciary and the importance for judges not to resort to their own "personal" or "policy" preferences when deciding cases.
He got Roberts to agree with numerous Supreme Court decisions on the relative importance of precedent in constitutional cases versus statutory cases.
"The court has frequently explained," said Roberts, agreeing with Hatch, "that stare decisis is strongest when you're dealing with statutory cases" because if the court gets it wrong, Congress can fix it in statutory cases; whereas Congress cannot overturn a constitutional ruling, short of amending the document itself.
Most judges know "when they're going too far," Roberts said in response to an earlier Hatch question. Certainly there are "hard cases" but then you need to focus on "questions of legitimacy, and make sure" the question is "something you should be deciding rather than somebody else."
"The fact that it's difficult to draw the line doesn't relieve the judge of the obligation to draw the line," he said. But "in most cases you can see where the line is and you do know where judges" are exceeding their authority by "going into the legislative area."
"All judges are acutely aware that millions and millions of people have voted for you and not one has voted for us," he said. "We have to consider cases" on the constitutionality of legislation but "we cannot substitute ourselves" for the policy choices Congress has made.
By Fred Barbash | Permalink* | Comments (0)
Posted at 10:34 AM ET, 09/13/2005
Sen. Leahy's Questions Continue
The question of standing in environmental cases and an article in the Duke Law Journal written by John Roberts also were discussed. The discussion was about who had standing; "could someone halfway across the country" be a party to a local environmental case? Roberts said.
Watch video excerpts of Leahy's exchange with Roberts.
Editor: Jonathan Forsythe / washingtonpost.com
In a gender discrimination case, Roberts had argued at the high court that a young woman who had been abused did not have the right to collect damages. The high court unanimously disagreed with Roberts in the Franklin case, in an opinion written by Justice Byron White. The issue, Roberts said, was not the substance of the harm, but what the remedies should be because Congress had not addressed the issue.
The girl was taken out of class by a teacher, "basically raped," Leahy said. Justice White made it very clear that she had an implied right to sue "because of that abuse," Leahy, a former prosecutor, said.
Was the court's opinion based on sound reasoning? Leahy asked. "It was unclear whether Congress had intended a particular remedy," Robert said, that of back pay.
But Leahy pursued the question further. "Are we balancing angels on the head of a pin? What kind of back pay was this teenager seeking? I just wonder are we saying we will put up a block for people who have justifiable reasons to be in court?
Roberts said he found the teacher's behavior "abhorrent then. I find it abhorrent now."
But the legal issue arose because Congress had not spelled out if there was a right of action in the first place or what that should be, Robert said.
-- Miranda S. Spivack
By Fred Barbash | Permalink* | Comments (0)
Posted at 10:23 AM ET, 09/13/2005
Sen. Leahy
Leahy and Roberts continued to discuss war powers and presidential authority, especially the president's role as commander in chief.
Citing Rehnquist in the justice's recent book, Leahy said at time of war, the former chief justice believed that law may "speak with a different voice."
Discussing Japanese detention camps during World War ll and the high court's ruling in Koramatsu, Leahy called the case "one of the greatest failings in the court's history."
Responding to a question from Leahy, Robert said he would be surprised if there were any arguments that could support internment of an entire ethnic group. "The Bill of Rights remains the same, and the obligation of the court to protect those liberties, in times of peace, in times of war ... that doesn't change."
-- Miranda S. Spivack
By Fred Barbash | Permalink* | Comments (1)
Posted at 10:15 AM ET, 09/13/2005
Leahy Questions Roberts on Congress's War Powers
Sen. Patrick Leahy (Vt.), the leading Democrat on the committee, questioned Roberts at length concerning memos he had written during the Reagan administration about Congress's power to determine when "hostilities" come to an end. He tried to pin him down on his views now on that power.
(Read Roberts' 1984 memo on war powers in Lebanon.)
Leahy: "Does Congress have the power to stop a war?"
Roberts: "Congress certainly has the power of the purse" and that's the way to stop a war.
Leahy: "The power of the purse ... we've cut off money and the wars keep going." Can Congress stop a war?
Roberts: "That's not a question that can be answered in the abstract ... There's an argument for the executive and an argument for the legislature ... It's not something that can be answered in the abstract."
Leahy asked him whether the president was bound by the laws banning the use of torture.
"Senator, I believe no one is above the law and that includes the president," Roberts said. But, he noted, there are often conflicts over asserted executive authority.
By Fred Barbash | Permalink* | Comments (0)
Posted at 10:10 AM ET, 09/13/2005
Roberts on Abortion and Privacy
Specter confronted Roberts about Roe v. Wade and abortion, pressing him not on his views on the case itself but on the circumstances under which that case, or any case, can be overturned under principles of stare decisis (which require courts to stand by precedent).
He elicited from Roberts a number of important statements, including a comment that his views on the "so-called right to privacy" as expressed in a 1981 memo were not indeed his views, but rather a description of the views of Erwin Griswold as expressed in a Griswold article he was sending to the attorney general.
Watch excerpts of Specter's exchange with Roberts.
Editor: Jonathan Forsythe / washingtonpost.com
1. He said nothing in his personal views, including his faith, would interfere with his respect for precedent.
2. He said that his interpretation of Casey v. Planned Parenthood, which reaffirmed Roe, was that it reinforced Roe and stood as an important precedent. The Casey decision, Roberts said, "is itself a precedent entitled to respect and that would be the body of law that any judge" would begin with, not simply the precedent of Roe but its reaffirmation in Casey. "That would be where any judge" considering this issue would begin."
3. He stressed the importance of limiting the circumstances under which precedents are overruled. "The importance of settled expectations" is important, Roberts said. In the case of abortion, Casey is the law. Casey, he said, "would be entitled to respect" under stare decisis.
4. He said "I do think it is a jolt to the legal system when you overrule a precedent ... It is not enough that you may think the prior decision was wrongly decided ... If an overruling of a prior precedent is a jolt to the legal system it is inconsistent with the principle of stability." Sometimes that's a "price that has to be paid" as with Brown, which overruled Plessy, Roberts said.
But "it's not enough that you think the precedent is flawed."
Do you believe today that the right to privacy does exist in the Constitution? Specter asked.
"The right to privacy is protected by the Constitution in various ways," by the Fourth Amendment, by the First Amendment's free exercise and establishment clauses; by the framers in "areas of concern to them," such as the Third Amendment and, in a series of decsions, where the "court has recognized that the right to privacy" is a component of the liberty protected by the due process clause, not "just procedurally but substantively as well," Roberts said.
Specter: So the views that you expressed in 1981 would not be the views you'd express today?
"Those views reflected the Dean's speech ... which were skeptical ... I was transmitting the Dean's speech to the attorney general."
So they aren't your views now? Specter asks.
"That's fair. Yes," responded Roberts.
Continue reading "Roberts on Abortion and Privacy"
By Fred Barbash | Permalink* | Comments (0)
Posted at 09:50 AM ET, 09/13/2005
Hearings Begin
John G. Roberts began answering senators' questions this morning as the hearing on his nomination to be chief justice of the Supreme Court got underway at 9:30 a.m. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) was the first questioner. Roberts acknowledged that the concept of legal precedent is a "very important consideration" when questioned about the Supreme Court's Roe v. Wade decision.
By Lexie Verdon | Permalink* | Comments (0)
Posted at 05:19 AM ET, 09/13/2005
Specter Preview
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) will presumably lead off the questioning of Roberts today.
While he said yesterday he would not ask Roberts's view on Roe v. Wade, he promised to ask "whether you think the Constitution has a right of privacy," likely citing an early Roberts memo calling it a "so-called" right of privacy, as set forth in Griswold v. Connecticut, the 1965 decision striking down a law that interfered with a couple's access to information and counseling regarding the use of contraceptives. Griswold served as a foundation to Roe.
In Griswold, Justice William O. Douglas, writing for the court, cited a number of cases suggesting that:
... Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Continue reading "Specter Preview"
By Fred Barbash | Permalink* | Comments (1)
Posted at 04:38 AM ET, 09/13/2005
The Morning Papers
Good morning. The coverage of the Roberts hearings this morning generally reflects the view that Roberts's performance was masterful, intimating much while saying little; that the debate was really among senators, rather than between Roberts and senators; and that it is all merely a rehearsal for a potentially greater confrontation with the next Bush appointee.
Return to this site at 9.30 for play by play coverage.
Dan Balz in The Post:
The first day of confirmation hearings for Judge John G. Roberts Jr. to become the 17th chief justice of the United States proved to be a tepid opening to what once was billed as a battle of monumental proportions between left and right ...
The confirmation hearings are now only partly about Roberts and what he thinks about the law. Instead, they have become a prelude to the coming battle over President Bush's as-yet-unnamed successor to Justice Sandra Day O'Connor and a forum with broader political implications for a debate about deep philosophical differences between Republicans and Democrats over the role of government and the courts in American society.
Tony Mauro and T.R. Goldman at Legal Times:
If Monday was any indication of what is to come, Roberts will have a relatively easy path toward Senate confirmation. Senate Democrats, while warning they will have tough questions for him on Tuesday and Wednesday, praised Roberts' intellect and outward qualifications for the job. Even Nan Aron, president of the liberal Alliance for Justice, said after the hearing Monday that Roberts had given a "masterful performance -- and short." She also said, "He's like an actor in a show, and he's done a first-rate job."
... The friction before Roberts spoke was largely between senators themselves as they clashed over what the nominee should address.
Linda Greenhouse in the NYT:
Nowhere in his statement did Judge Roberts say "I have changed." But his self-description as humble, grateful and open-minded countered the cocky and caustic image that some of his early writings conveyed, without disavowing the positions that those documents embraced.
In the senators' opening statements, one of the most vivid images was provided by Senator Charles E. Schumer, Democrat of New York, who told the nominee: "We have seen maybe 10 percent of you, just the visible tip of the iceberg. And we all know that it is the ice beneath the surface that can sink the ship."
Judge Roberts did not address that statement either, but he did not have to. He simply topped it with his own imagery, taken from his youth in Indiana. "I recall those endless fields with their promise of infinite possibilities," he said, although as the suburb-raised, prep-school-educated son of a steel executive, his encounters with "an isolated silo or a barn" may have been somewhat fleeting.
David Savage in the LA Times:
He spoke directly to the senators and without notes. And he used the baseball analogy to convey his view that the nation's highest court should play a more modest role in American government.
That echoed a theme that had been voiced by the committee's 10 Republican senators. They complained that the Supreme Court had become a "super-legislature" in recent decades, regularly deciding the most controversial political questions of the day. They said the hard political questions should be decided by elected officials, and Roberts indicated that he agreed with them.
Continue reading "The Morning Papers"
By Fred Barbash | Permalink* | Comments (1)
Posted at 03:54 PM ET, 09/12/2005
Roberts Statement
Here is a transcript of John Roberts's opening statement:
Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.
Let me begin by thanking Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me. I'm humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me.
Let me also thank you, Mr. Chairman, and the members of the committee for the many courtesies you've extended to me and my family over the past eight weeks.
I'm particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent.
I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues -- many of whom are here today.
Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year, and I was glad to hear from them that he was not a particularly good patient. He chafed at the limitations they tried to impose.
His dedication to duty over the past year was an inspiration to me and, I know, to many others.
I will miss him.
My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.
Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme Court.
I always found it very moving to stand before the justices and say, "I speak for my country."
But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.
Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.
That is a remarkable thing.
It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.
President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.
Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.
Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain, from the days of our youth, certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land.
Growing up, I never imagined that I would be here, in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.
If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.
Thank you, Mr. Chairman.
Thank you, members of the committee.
I look forward to your questions.
You can watch Roberts's statement below:
Editor: Alexandra Garcia / washingtonpost.com
By Fred Barbash | Permalink* | Comments (12)
Posted at 03:37 PM ET, 09/12/2005
Roberts's Opening Statement
Roberts was sworn in at 3:25 p.m. after more than three hours of opening statements by the Senate Judiciary Committee. Specter complimented him on his patience.
Roberts thanked those who introduced him and President Bush for nominating him. He said he hoped to be "worthy of the high trust he has placed in me."Members of the Judiciary Committee, he said, have been very accommodating in their meetings with him and he said he found those meetings "useful."
He spoke of his family, mentors and friends, including Chief Justice William H. Rehnquist, who died earlier this month. He said he was pleased to hear Rehnquist "was not a good patient."
Roberts then began his views of the role of the court and the law.
"A certain humility should characterize the judicial role," he said. "Judges are servants of the law. They are like umpires. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ball game to see the umpire." Judges have to recognize ... precedent, and must be open to the considered views of their colleagues on the bench. When I worked in the Department of Justice in the office of the solicitor general, I always found it very moving to stand before the justices and say, 'I speak for my country.'"
Democrats have promised to examine his writings while he was in the Solicitor General's office during the Reagan administration. Roberts appeared to launch a preemptive strike against that effort, saying he had evolved in his thinking about the law after leaving government.
As he began arguing cases against the government, he said, he came to fully appreciate "the importance of the Supreme Court and our constitutional system.
"Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.
"That is a remarkable thing.
"It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless. ..."
-- By Miranda S. Spivack
By miranda spivack | Permalink* | Comments (14)
Posted at 03:09 PM ET, 09/12/2005
Sen. Coburn
Sen. Tom Coburn (R-Okla.), following Sen. Brownback, choked back tears as he gave his statement.
My heart aches for less divisiveness," he said, his voice quavering, "less polarization, less finger-pointing, less bitterness, less partisanship."
He said his concern was primarily about "judicial activism" which has "created these huge rifts in the social fabric of the country ... It's a tension pulling us apart" rather than bringing us together.
I believe it's time that it's stopped."
Coburn said he was "deeply heartened" by statements by Roberts about "a more proper role for the judiciary."
Our family structures have declined. Our dependence on government has grown ... We are all Americans. We all want the greatest future for Americans to come ... Most of all we want an America that will live on as a beacon for hope ..."
Continue reading "Sen. Coburn"
By Fred Barbash | Permalink* | Comments (36)
Posted at 03:00 PM ET, 09/12/2005
Sen. Brownback
Sen. Sam Brownback (R-Kan.), following Sen. Durbin, echoed many of his fellow Republicans in saying that the current high court, whose majority was nominated by Republican presidents, has gone into the "terrain" of making policy. The court should instead "defer to the political branches," on policy matters, instead of becoming "embroiled in the passions of the day." That is the purview of Congress, Brownback said." He said the court had exercised "raw political power" in Roe v. Wade and Doe v. Bolton, which "invented the constitutional right to abortion" Since those twin rulings in 1973, he said, "nearly 40 million children have been aborted in America ... beautiful innocent faces that could bless our existence."
If Roberts is confirmed, Brownback said, he is likely to rule on another abortion case. "Your court will decide if there's a constitutional right to partially deliver a late-term child and then destroy it. Partial-birth abortion is making its way to the Supreme Court," he said.
By miranda spivack | Permalink* | Comments (4)
Posted at 02:57 PM ET, 09/12/2005
Sen. Durbin
"Judge Roberts ... Will you restrict the personal freedoms we enjoy as Americans or will you expand them?" asked Sen. Richard Durbin (D-Ill.), following Sen. Cornyn.
Roberts's memos, Durbin said, "have raised some concerns on where you stand" on civil rights and women's rights, among many other issues.
"So it's important for you to answer" our questions and "tell us where you stand ... We can't assume that time or maturity has changed" your views.
Durbin suggested he would vote against Roberts if he failed to answer questions fully.
Durbin specifically mentioned Griswold v. Connecticut, which struck down a law banning contraceptive and established the right to privacy underlying Roe v. Wade.
"You referred to this right to privacy as an abstraction," Durbin said. "We need to know" what you think.
By Fred Barbash | Permalink* | Comments (10)
Posted at 02:48 PM ET, 09/12/2005
Sen. Cornyn
Sen. Cornyn (R-Tex.), following Sen. Shumer, revived the discussion about the questions Roberts should and should not answer, saying that he was not obligated to satisfy the senators' curiosity.
"Don't take the bait," he said.
He also cautioned against using the court to supersede the legislative branch."This ideal of the Surpeme Court as a super legislature is not a view that I share. Nor did those who wrote and ratified the Constitution ... It doesn't guarantee everything that is good or prohibit everything that was bad."
It has some restrictions, but "leaves the rest to be sorted out by the democratic process."
He said the court has increasingly shown hostility to the practice of religion.
The justices have "erected extraconstitutional and contradictory standards," that have led to "hostility" to religion in public life. As an example, he said, he finds it "baffling" that the court issued two different rulings on the public display of the Ten Commandments.
He said changing membership on the court has changed the interpretation of cases, even though the Constitution had not changed.
"I share with all of my colleagues a desire and a curiosity to know what you think ... doesn't mean our curiosity will be satisfied." Roberts should not signal his views of potential future cases, Cornyn said. If he did, "how can parties to future cases possibly feel they will ever have a fair day in court?"
"Don't take the bait ... decline to answer any questions that you feel could compromise your abiity to do the job." The majority of the Senate, he said, won't "punish you."
Read Cornyn's remarks here.
By miranda spivack | Permalink* | Comments (4)
Posted at 02:35 PM ET, 09/12/2005
Sen. Schumer
Sen. Charles Schumer (D-N.Y.), who is among the most outspoken skeptics of the Roberts nomination, followed Sen. Graham and said the committee has an "obligation" to ascertain Roberts's views.
"The first criterion on which I will base my vote is whether you will answer questions fully and forthrightly," he said.
"You should be prepared to explain your views" on the First Amendment, women's rights, civil rights and "a whole host of issues."
"If you refuse to talk about decided cases, the burden, sir, is on you" to show us what sort of justice you will be, he told Roberts. Schumer said he expects a conservative nominee from President Bush, but not someone who will lead the court to the "extreme right."
"Are you within the mainstream, albeit the conservative mainstream?" he asked, looking at Roberts, "Or are you an ideologue, who will impose his views" upon us?
Continue reading "Sen. Schumer"
By Fred Barbash | Permalink* | Comments (12)
Posted at 02:27 PM ET, 09/12/2005
Sen. Graham
Sen. Lindsey Graham (R-S.C.), following Sen. Feingold's comments and a break in the hearing, continued to pursue the notion that his fellow Republicans also have raised, that fairness is an issue in how the hearings will be conducted. He also questioned "whether the Senate will allow President Bush" to keep to a campaign promise to put a "strict constructionist" on the high court.
"Elections matter," he said. "We are not hear to talk about liberal philosophy versus conservative philosophy. ... We are here to talk about you."
Roberts's memos "reflect a conservative lawyer, advising a conservative president about conservative policies." Conservatives have "a different view" about a lot of issues. "The elections determine how that shakes out," Graham said.
Roberts's nomination is the first since the Senate made an agreement in the spring about limiting filibusters, Graham noted. The Senate, he said, "was in chaos. We were at each other's throats." But the Judiciary Committee, he said, now "has a chance to start over." Public opinion polls show senators held in low esteem, he said.
"The question is whether we can rise to the occasion," Graham said.
He also spoke about Roe v. Wade and what he said was a divisive impact the case has had.
Still, he said most Americans "would like to see it stand," even though there is disagreement about the propriety of abortion. He said questions about abortion divide along party lines in the Senate.
"Let's get back to the days where the Ginsburgs and the Scalias can be pushed and pressed and can be honored for their commitment to the law," he said. "The good old days," he called them.
"The law represents a quiet place in American discourse ... where the weak can challenge the strong and the unpopular can be heard."
"I know you will be a judge we can proud of," Graham told Roberts.
-- Miranda S. Spivack
Continue reading "Sen. Graham"
By miranda spivack | Permalink* | Comments (0)
Posted at 02:17 PM ET, 09/12/2005
At the Break
So far, the opening statements of Republicans and Democrats have separated roughly along party lines, as they have in previous confirmation hearings and in the pre-hearing combat among senators and interest groups.
Supreme Court Chief Justice nominee John G. Roberts Jr. listens to opening statements by various senators on the first day of confirmation hearings. (Getty Images) Republicans, one by one, have tried to build the case that a nominee should not, indeed, cannot, answer questions about specific cases or issues that might come before the court, citing various canons of ethics, codes of judicial conduct and prior statements in prior hearings by Senate colleagues on opposite sides of the aisle.
Democrats, meanwhile, have insisted that it is crucial to get specific answers and that there is nothing unethical about providing them.
It's been noted by senators of both parties, however, that Judge Roberts will answer, or not answer, as he pleases.
© 2005 The Washington Post Company
Sen. Grassley
Sen. Charles Grassley (R-Iowa) said it is important that non-lawyers like him and those in the general public understand the limits on judicial power, that judges don't apply their own values to their legal decisions.
Grassley asked Roberts's view of the role of judges.
"I think ... judges ... are confined by the law.... We don't turn a matter over to a judge because we want his view of what the best idea is, what the best solution is.... They are constrained by the words you choose... and by the Constitution," Roberts said.
"So long as they are confined by the laws, by the Constitution, by precedents, then [a judge is] more comfortable that you are exercising a judicial function ... when you don't have anything to look to is when you worry," Robert said.
"That is why judges wear black robes, because it doesn't matter who they are," he said.
"I have said it is not the job of the court to solve society's problems and I believe that," Roberts said.
But there are times when the court becomes the ultimate arbiter of those problems, he acknowledged. "Sometimes cases are broad and judges have to decide them.
Roberts said Brown v. Board was an example where it was appropriate for the court to reach beyond what the two other branches of government had done.
"Other branches of society weren't just slow to act, they weren't acting," Roberts said.
Other times, the courts are put in the position, Robert said, of figuring out a problem that Congress "deliberately" left unanswered.
By miranda spivack | Permalink* | Comments (0)
Posted at 11:36 AM ET, 09/13/2005
Sen. Kennedy Clashes with Roberts
Sen. Edward M. Kennedy (D-Mass.) launches the most aggressive questioning of Roberts so far, saying that if his views in the 1980s had prevailed, numerous civil rights protections would have suffered serious setbacks. Roberts, in turn, produced his most aggressive response.
Roberts said that a)Kennedy was not accurately portraying the memos; and b)that Roberts, at the time, was representing the policy views of the Reagan administration, rather than his own views and c)that the memos involved legitimate disagreements between the administration and the Congress and that there were no questions about his committments to laws enacted by Congress and to civil rights for all Americans.
"You have not accurately represented my position," Roberts said at one point. "Senator, you did not accurately represent my position."
Kennedy started with Brown v. Board of Education of Topeka, and asked whether the court was right to examine the reality of segregated education rather than merely at abstractions of law. Kennedy worked his way from Brown to the voting rights legislation enacted by Congress along with laws banning housing discrimination and discrimination in employment.
Do you agree, Kennedy asked Roberts, that these laws are constitutional?
"I'm not aware of any questions that have been raised concerning that," says Roberts, noting that he needed to "exercise caution" on the Voting Rights Act because extensions of that law are likely to come before the court.
Kennedy elicited similar answers with regard to the law banning housing discrimination.
Kennedy noted that he is "deeply troubled" by some of the memos written by Roberts in the past, particularly by the "narrow, cramped and sometimes mean-spirited" tone of some of them, particularly with regard to voting rights and Title IX, the law prohibiting discrimination in educational institutions receiving federal funds.
Kennedy: "I am concerned...that at the time you were writing" these memos, "you simply did not grasp the seriousness of the impact" of those laws on the country.
Roberts: "I was a staff lawyer....It was the view of the administration for which I worked...."
Specter warned Kennedy several times to "stop interrupting" Roberts.
By Fred Barbash | Permalink* | Comments (3)
Posted at 11:00 AM ET, 09/13/2005
Roberts Is Calm and Confident
John G. Roberts answers senators' questions Tuesday. (REUTERS/Kevin Lamarque) John Roberts, as expected, has looked relaxed throughout the questioning so far, answering without hesitation and without resorting to notes. He has responded directly, but not defensively, to questions about controversial memos he wrote as a young lawyer.
By Fred Barbash | Permalink* | Comments (3)
Posted at 10:57 AM ET, 09/13/2005
Sen. Hatch on Role of Judges vs. Legislators
Hatch asked Roberts to address his views on the role of "unelected judges," eliciting from Roberts standard statements from Marbury v. Madison and elsewhere about the role of the judiciary and the importance for judges not to resort to their own "personal" or "policy" preferences when deciding cases.
He got Roberts to agree with numerous Supreme Court decisions on the relative importance of precedent in constitutional cases versus statutory cases.
"The court has frequently explained," said Roberts, agreeing with Hatch, "that stare decisis is strongest when you're dealing with statutory cases" because if the court gets it wrong, Congress can fix it in statutory cases; whereas Congress cannot overturn a constitutional ruling, short of amending the document itself.
Most judges know "when they're going too far," Roberts said in response to an earlier Hatch question. Certainly there are "hard cases" but then you need to focus on "questions of legitimacy, and make sure" the question is "something you should be deciding rather than somebody else."
"The fact that it's difficult to draw the line doesn't relieve the judge of the obligation to draw the line," he said. But "in most cases you can see where the line is and you do know where judges" are exceeding their authority by "going into the legislative area."
"All judges are acutely aware that millions and millions of people have voted for you and not one has voted for us," he said. "We have to consider cases" on the constitutionality of legislation but "we cannot substitute ourselves" for the policy choices Congress has made.
By Fred Barbash | Permalink* | Comments (0)
Posted at 10:34 AM ET, 09/13/2005
Sen. Leahy's Questions Continue
The question of standing in environmental cases and an article in the Duke Law Journal written by John Roberts also were discussed. The discussion was about who had standing; "could someone halfway across the country" be a party to a local environmental case? Roberts said.
Watch video excerpts of Leahy's exchange with Roberts.
Editor: Jonathan Forsythe / washingtonpost.com
In a gender discrimination case, Roberts had argued at the high court that a young woman who had been abused did not have the right to collect damages. The high court unanimously disagreed with Roberts in the Franklin case, in an opinion written by Justice Byron White. The issue, Roberts said, was not the substance of the harm, but what the remedies should be because Congress had not addressed the issue.
The girl was taken out of class by a teacher, "basically raped," Leahy said. Justice White made it very clear that she had an implied right to sue "because of that abuse," Leahy, a former prosecutor, said.
Was the court's opinion based on sound reasoning? Leahy asked. "It was unclear whether Congress had intended a particular remedy," Robert said, that of back pay.
But Leahy pursued the question further. "Are we balancing angels on the head of a pin? What kind of back pay was this teenager seeking? I just wonder are we saying we will put up a block for people who have justifiable reasons to be in court?
Roberts said he found the teacher's behavior "abhorrent then. I find it abhorrent now."
But the legal issue arose because Congress had not spelled out if there was a right of action in the first place or what that should be, Robert said.
-- Miranda S. Spivack
By Fred Barbash | Permalink* | Comments (0)
Posted at 10:23 AM ET, 09/13/2005
Sen. Leahy
Leahy and Roberts continued to discuss war powers and presidential authority, especially the president's role as commander in chief.
Citing Rehnquist in the justice's recent book, Leahy said at time of war, the former chief justice believed that law may "speak with a different voice."
Discussing Japanese detention camps during World War ll and the high court's ruling in Koramatsu, Leahy called the case "one of the greatest failings in the court's history."
Responding to a question from Leahy, Robert said he would be surprised if there were any arguments that could support internment of an entire ethnic group. "The Bill of Rights remains the same, and the obligation of the court to protect those liberties, in times of peace, in times of war ... that doesn't change."
-- Miranda S. Spivack
By Fred Barbash | Permalink* | Comments (1)
Posted at 10:15 AM ET, 09/13/2005
Leahy Questions Roberts on Congress's War Powers
Sen. Patrick Leahy (Vt.), the leading Democrat on the committee, questioned Roberts at length concerning memos he had written during the Reagan administration about Congress's power to determine when "hostilities" come to an end. He tried to pin him down on his views now on that power.
(Read Roberts' 1984 memo on war powers in Lebanon.)
Leahy: "Does Congress have the power to stop a war?"
Roberts: "Congress certainly has the power of the purse" and that's the way to stop a war.
Leahy: "The power of the purse ... we've cut off money and the wars keep going." Can Congress stop a war?
Roberts: "That's not a question that can be answered in the abstract ... There's an argument for the executive and an argument for the legislature ... It's not something that can be answered in the abstract."
Leahy asked him whether the president was bound by the laws banning the use of torture.
"Senator, I believe no one is above the law and that includes the president," Roberts said. But, he noted, there are often conflicts over asserted executive authority.
By Fred Barbash | Permalink* | Comments (0)
Posted at 10:10 AM ET, 09/13/2005
Roberts on Abortion and Privacy
Specter confronted Roberts about Roe v. Wade and abortion, pressing him not on his views on the case itself but on the circumstances under which that case, or any case, can be overturned under principles of stare decisis (which require courts to stand by precedent).
He elicited from Roberts a number of important statements, including a comment that his views on the "so-called right to privacy" as expressed in a 1981 memo were not indeed his views, but rather a description of the views of Erwin Griswold as expressed in a Griswold article he was sending to the attorney general.
Watch excerpts of Specter's exchange with Roberts.
Editor: Jonathan Forsythe / washingtonpost.com
1. He said nothing in his personal views, including his faith, would interfere with his respect for precedent.
2. He said that his interpretation of Casey v. Planned Parenthood, which reaffirmed Roe, was that it reinforced Roe and stood as an important precedent. The Casey decision, Roberts said, "is itself a precedent entitled to respect and that would be the body of law that any judge" would begin with, not simply the precedent of Roe but its reaffirmation in Casey. "That would be where any judge" considering this issue would begin."
3. He stressed the importance of limiting the circumstances under which precedents are overruled. "The importance of settled expectations" is important, Roberts said. In the case of abortion, Casey is the law. Casey, he said, "would be entitled to respect" under stare decisis.
4. He said "I do think it is a jolt to the legal system when you overrule a precedent ... It is not enough that you may think the prior decision was wrongly decided ... If an overruling of a prior precedent is a jolt to the legal system it is inconsistent with the principle of stability." Sometimes that's a "price that has to be paid" as with Brown, which overruled Plessy, Roberts said.
But "it's not enough that you think the precedent is flawed."
Do you believe today that the right to privacy does exist in the Constitution? Specter asked.
"The right to privacy is protected by the Constitution in various ways," by the Fourth Amendment, by the First Amendment's free exercise and establishment clauses; by the framers in "areas of concern to them," such as the Third Amendment and, in a series of decsions, where the "court has recognized that the right to privacy" is a component of the liberty protected by the due process clause, not "just procedurally but substantively as well," Roberts said.
Specter: So the views that you expressed in 1981 would not be the views you'd express today?
"Those views reflected the Dean's speech ... which were skeptical ... I was transmitting the Dean's speech to the attorney general."
So they aren't your views now? Specter asks.
"That's fair. Yes," responded Roberts.
Continue reading "Roberts on Abortion and Privacy"
By Fred Barbash | Permalink* | Comments (0)
Posted at 09:50 AM ET, 09/13/2005
Hearings Begin
John G. Roberts began answering senators' questions this morning as the hearing on his nomination to be chief justice of the Supreme Court got underway at 9:30 a.m. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) was the first questioner. Roberts acknowledged that the concept of legal precedent is a "very important consideration" when questioned about the Supreme Court's Roe v. Wade decision.
By Lexie Verdon | Permalink* | Comments (0)
Posted at 05:19 AM ET, 09/13/2005
Specter Preview
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) will presumably lead off the questioning of Roberts today.
While he said yesterday he would not ask Roberts's view on Roe v. Wade, he promised to ask "whether you think the Constitution has a right of privacy," likely citing an early Roberts memo calling it a "so-called" right of privacy, as set forth in Griswold v. Connecticut, the 1965 decision striking down a law that interfered with a couple's access to information and counseling regarding the use of contraceptives. Griswold served as a foundation to Roe.
In Griswold, Justice William O. Douglas, writing for the court, cited a number of cases suggesting that:
... Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Continue reading "Specter Preview"
By Fred Barbash | Permalink* | Comments (1)
Posted at 04:38 AM ET, 09/13/2005
The Morning Papers
Good morning. The coverage of the Roberts hearings this morning generally reflects the view that Roberts's performance was masterful, intimating much while saying little; that the debate was really among senators, rather than between Roberts and senators; and that it is all merely a rehearsal for a potentially greater confrontation with the next Bush appointee.
Return to this site at 9.30 for play by play coverage.
Dan Balz in The Post:
The first day of confirmation hearings for Judge John G. Roberts Jr. to become the 17th chief justice of the United States proved to be a tepid opening to what once was billed as a battle of monumental proportions between left and right ...
The confirmation hearings are now only partly about Roberts and what he thinks about the law. Instead, they have become a prelude to the coming battle over President Bush's as-yet-unnamed successor to Justice Sandra Day O'Connor and a forum with broader political implications for a debate about deep philosophical differences between Republicans and Democrats over the role of government and the courts in American society.
Tony Mauro and T.R. Goldman at Legal Times:
If Monday was any indication of what is to come, Roberts will have a relatively easy path toward Senate confirmation. Senate Democrats, while warning they will have tough questions for him on Tuesday and Wednesday, praised Roberts' intellect and outward qualifications for the job. Even Nan Aron, president of the liberal Alliance for Justice, said after the hearing Monday that Roberts had given a "masterful performance -- and short." She also said, "He's like an actor in a show, and he's done a first-rate job."
... The friction before Roberts spoke was largely between senators themselves as they clashed over what the nominee should address.
Linda Greenhouse in the NYT:
Nowhere in his statement did Judge Roberts say "I have changed." But his self-description as humble, grateful and open-minded countered the cocky and caustic image that some of his early writings conveyed, without disavowing the positions that those documents embraced.
In the senators' opening statements, one of the most vivid images was provided by Senator Charles E. Schumer, Democrat of New York, who told the nominee: "We have seen maybe 10 percent of you, just the visible tip of the iceberg. And we all know that it is the ice beneath the surface that can sink the ship."
Judge Roberts did not address that statement either, but he did not have to. He simply topped it with his own imagery, taken from his youth in Indiana. "I recall those endless fields with their promise of infinite possibilities," he said, although as the suburb-raised, prep-school-educated son of a steel executive, his encounters with "an isolated silo or a barn" may have been somewhat fleeting.
David Savage in the LA Times:
He spoke directly to the senators and without notes. And he used the baseball analogy to convey his view that the nation's highest court should play a more modest role in American government.
That echoed a theme that had been voiced by the committee's 10 Republican senators. They complained that the Supreme Court had become a "super-legislature" in recent decades, regularly deciding the most controversial political questions of the day. They said the hard political questions should be decided by elected officials, and Roberts indicated that he agreed with them.
Continue reading "The Morning Papers"
By Fred Barbash | Permalink* | Comments (1)
Posted at 03:54 PM ET, 09/12/2005
Roberts Statement
Here is a transcript of John Roberts's opening statement:
Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.
Let me begin by thanking Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me. I'm humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me.
Let me also thank you, Mr. Chairman, and the members of the committee for the many courtesies you've extended to me and my family over the past eight weeks.
I'm particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent.
I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues -- many of whom are here today.
Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year, and I was glad to hear from them that he was not a particularly good patient. He chafed at the limitations they tried to impose.
His dedication to duty over the past year was an inspiration to me and, I know, to many others.
I will miss him.
My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.
Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme Court.
I always found it very moving to stand before the justices and say, "I speak for my country."
But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.
Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.
That is a remarkable thing.
It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.
President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.
Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.
Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain, from the days of our youth, certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land.
Growing up, I never imagined that I would be here, in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.
If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.
Thank you, Mr. Chairman.
Thank you, members of the committee.
I look forward to your questions.
You can watch Roberts's statement below:
Editor: Alexandra Garcia / washingtonpost.com
By Fred Barbash | Permalink* | Comments (12)
Posted at 03:37 PM ET, 09/12/2005
Roberts's Opening Statement
Roberts was sworn in at 3:25 p.m. after more than three hours of opening statements by the Senate Judiciary Committee. Specter complimented him on his patience.
Roberts thanked those who introduced him and President Bush for nominating him. He said he hoped to be "worthy of the high trust he has placed in me."Members of the Judiciary Committee, he said, have been very accommodating in their meetings with him and he said he found those meetings "useful."
He spoke of his family, mentors and friends, including Chief Justice William H. Rehnquist, who died earlier this month. He said he was pleased to hear Rehnquist "was not a good patient."
Roberts then began his views of the role of the court and the law.
"A certain humility should characterize the judicial role," he said. "Judges are servants of the law. They are like umpires. They make sure everybody plays by the rules but it is a limited role. Nobody ever went to a ball game to see the umpire." Judges have to recognize ... precedent, and must be open to the considered views of their colleagues on the bench. When I worked in the Department of Justice in the office of the solicitor general, I always found it very moving to stand before the justices and say, 'I speak for my country.'"
Democrats have promised to examine his writings while he was in the Solicitor General's office during the Reagan administration. Roberts appeared to launch a preemptive strike against that effort, saying he had evolved in his thinking about the law after leaving government.
As he began arguing cases against the government, he said, he came to fully appreciate "the importance of the Supreme Court and our constitutional system.
"Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.
"That is a remarkable thing.
"It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless. ..."
-- By Miranda S. Spivack
By miranda spivack | Permalink* | Comments (14)
Posted at 03:09 PM ET, 09/12/2005
Sen. Coburn
Sen. Tom Coburn (R-Okla.), following Sen. Brownback, choked back tears as he gave his statement.
My heart aches for less divisiveness," he said, his voice quavering, "less polarization, less finger-pointing, less bitterness, less partisanship."
He said his concern was primarily about "judicial activism" which has "created these huge rifts in the social fabric of the country ... It's a tension pulling us apart" rather than bringing us together.
I believe it's time that it's stopped."
Coburn said he was "deeply heartened" by statements by Roberts about "a more proper role for the judiciary."
Our family structures have declined. Our dependence on government has grown ... We are all Americans. We all want the greatest future for Americans to come ... Most of all we want an America that will live on as a beacon for hope ..."
Continue reading "Sen. Coburn"
By Fred Barbash | Permalink* | Comments (36)
Posted at 03:00 PM ET, 09/12/2005
Sen. Brownback
Sen. Sam Brownback (R-Kan.), following Sen. Durbin, echoed many of his fellow Republicans in saying that the current high court, whose majority was nominated by Republican presidents, has gone into the "terrain" of making policy. The court should instead "defer to the political branches," on policy matters, instead of becoming "embroiled in the passions of the day." That is the purview of Congress, Brownback said." He said the court had exercised "raw political power" in Roe v. Wade and Doe v. Bolton, which "invented the constitutional right to abortion" Since those twin rulings in 1973, he said, "nearly 40 million children have been aborted in America ... beautiful innocent faces that could bless our existence."
If Roberts is confirmed, Brownback said, he is likely to rule on another abortion case. "Your court will decide if there's a constitutional right to partially deliver a late-term child and then destroy it. Partial-birth abortion is making its way to the Supreme Court," he said.
By miranda spivack | Permalink* | Comments (4)
Posted at 02:57 PM ET, 09/12/2005
Sen. Durbin
"Judge Roberts ... Will you restrict the personal freedoms we enjoy as Americans or will you expand them?" asked Sen. Richard Durbin (D-Ill.), following Sen. Cornyn.
Roberts's memos, Durbin said, "have raised some concerns on where you stand" on civil rights and women's rights, among many other issues.
"So it's important for you to answer" our questions and "tell us where you stand ... We can't assume that time or maturity has changed" your views.
Durbin suggested he would vote against Roberts if he failed to answer questions fully.
Durbin specifically mentioned Griswold v. Connecticut, which struck down a law banning contraceptive and established the right to privacy underlying Roe v. Wade.
"You referred to this right to privacy as an abstraction," Durbin said. "We need to know" what you think.
By Fred Barbash | Permalink* | Comments (10)
Posted at 02:48 PM ET, 09/12/2005
Sen. Cornyn
Sen. Cornyn (R-Tex.), following Sen. Shumer, revived the discussion about the questions Roberts should and should not answer, saying that he was not obligated to satisfy the senators' curiosity.
"Don't take the bait," he said.
He also cautioned against using the court to supersede the legislative branch."This ideal of the Surpeme Court as a super legislature is not a view that I share. Nor did those who wrote and ratified the Constitution ... It doesn't guarantee everything that is good or prohibit everything that was bad."
It has some restrictions, but "leaves the rest to be sorted out by the democratic process."
He said the court has increasingly shown hostility to the practice of religion.
The justices have "erected extraconstitutional and contradictory standards," that have led to "hostility" to religion in public life. As an example, he said, he finds it "baffling" that the court issued two different rulings on the public display of the Ten Commandments.
He said changing membership on the court has changed the interpretation of cases, even though the Constitution had not changed.
"I share with all of my colleagues a desire and a curiosity to know what you think ... doesn't mean our curiosity will be satisfied." Roberts should not signal his views of potential future cases, Cornyn said. If he did, "how can parties to future cases possibly feel they will ever have a fair day in court?"
"Don't take the bait ... decline to answer any questions that you feel could compromise your abiity to do the job." The majority of the Senate, he said, won't "punish you."
Read Cornyn's remarks here.
By miranda spivack | Permalink* | Comments (4)
Posted at 02:35 PM ET, 09/12/2005
Sen. Schumer
Sen. Charles Schumer (D-N.Y.), who is among the most outspoken skeptics of the Roberts nomination, followed Sen. Graham and said the committee has an "obligation" to ascertain Roberts's views.
"The first criterion on which I will base my vote is whether you will answer questions fully and forthrightly," he said.
"You should be prepared to explain your views" on the First Amendment, women's rights, civil rights and "a whole host of issues."
"If you refuse to talk about decided cases, the burden, sir, is on you" to show us what sort of justice you will be, he told Roberts. Schumer said he expects a conservative nominee from President Bush, but not someone who will lead the court to the "extreme right."
"Are you within the mainstream, albeit the conservative mainstream?" he asked, looking at Roberts, "Or are you an ideologue, who will impose his views" upon us?
Continue reading "Sen. Schumer"
By Fred Barbash | Permalink* | Comments (12)
Posted at 02:27 PM ET, 09/12/2005
Sen. Graham
Sen. Lindsey Graham (R-S.C.), following Sen. Feingold's comments and a break in the hearing, continued to pursue the notion that his fellow Republicans also have raised, that fairness is an issue in how the hearings will be conducted. He also questioned "whether the Senate will allow President Bush" to keep to a campaign promise to put a "strict constructionist" on the high court.
"Elections matter," he said. "We are not hear to talk about liberal philosophy versus conservative philosophy. ... We are here to talk about you."
Roberts's memos "reflect a conservative lawyer, advising a conservative president about conservative policies." Conservatives have "a different view" about a lot of issues. "The elections determine how that shakes out," Graham said.
Roberts's nomination is the first since the Senate made an agreement in the spring about limiting filibusters, Graham noted. The Senate, he said, "was in chaos. We were at each other's throats." But the Judiciary Committee, he said, now "has a chance to start over." Public opinion polls show senators held in low esteem, he said.
"The question is whether we can rise to the occasion," Graham said.
He also spoke about Roe v. Wade and what he said was a divisive impact the case has had.
Still, he said most Americans "would like to see it stand," even though there is disagreement about the propriety of abortion. He said questions about abortion divide along party lines in the Senate.
"Let's get back to the days where the Ginsburgs and the Scalias can be pushed and pressed and can be honored for their commitment to the law," he said. "The good old days," he called them.
"The law represents a quiet place in American discourse ... where the weak can challenge the strong and the unpopular can be heard."
"I know you will be a judge we can proud of," Graham told Roberts.
-- Miranda S. Spivack
Continue reading "Sen. Graham"
By miranda spivack | Permalink* | Comments (0)
Posted at 02:17 PM ET, 09/12/2005
At the Break
So far, the opening statements of Republicans and Democrats have separated roughly along party lines, as they have in previous confirmation hearings and in the pre-hearing combat among senators and interest groups.
Supreme Court Chief Justice nominee John G. Roberts Jr. listens to opening statements by various senators on the first day of confirmation hearings. (Getty Images) Republicans, one by one, have tried to build the case that a nominee should not, indeed, cannot, answer questions about specific cases or issues that might come before the court, citing various canons of ethics, codes of judicial conduct and prior statements in prior hearings by Senate colleagues on opposite sides of the aisle.
Democrats, meanwhile, have insisted that it is crucial to get specific answers and that there is nothing unethical about providing them.
It's been noted by senators of both parties, however, that Judge Roberts will answer, or not answer, as he pleases.
© 2005 The Washington Post Company
Sen. Kennedy Clashes with Roberts
Sen. Edward M. Kennedy (D-Mass.) launches the most aggressive questioning of Roberts so far, saying that if his views in the 1980s had prevailed, numerous civil rights protections would have suffered serious setbacks. Roberts, in turn, produced his most aggressive response.
Roberts said that a)Kennedy was not accurately portraying the memos; and b)that Roberts, at the time, was representing the policy views of the Reagan administration, rather than his own views and c)that the memos involved legitimate disagreements between the administration and the Congress and that there were no questions about his committments to laws enacted by Congress and to civil rights for all Americans.
"You have not accurately represented my position," Roberts said at one point. "Senator, you did not accurately represent my position."
Kennedy started with Brown v. Board of Education of Topeka, and asked whether the court was right to examine the reality of segregated education rather than merely at abstractions of law. Kennedy worked his way from Brown to the voting rights legislation enacted by Congress along with laws banning housing discrimination and discrimination in employment.
Do you agree, Kennedy asked Roberts, that these laws are constitutional?
"I'm not aware of any questions that have been raised concerning that," says Roberts, noting that he needed to "exercise caution" on the Voting Rights Act because extensions of that law are likely to come before the court.
Kennedy elicited similar answers with regard to the law banning housing discrimination.
Kennedy noted that he is "deeply troubled" by some of the memos written by Roberts in the past, particularly by the "narrow, cramped and sometimes mean-spirited" tone of some of them, particularly with regard to voting rights and Title IX, the law prohibiting discrimination in educational institutions receiving federal funds.
Kennedy: "I am concerned...that at the time you were writing" these memos, "you simply did not grasp the seriousness of the impact" of those laws on the country.
Roberts: "I was a staff lawyer....It was the view of the administration for which I worked...."
Specter warned Kennedy several times to "stop interrupting" Roberts.
Sen. Edward M. Kennedy (D-Mass.) launches the most aggressive questioning of Roberts so far, saying that if his views in the 1980s had prevailed, numerous civil rights protections would have suffered serious setbacks. Roberts, in turn, produced his most aggressive response.
Roberts said that a)Kennedy was not accurately portraying the memos; and b)that Roberts, at the time, was representing the policy views of the Reagan administration, rather than his own views and c)that the memos involved legitimate disagreements between the administration and the Congress and that there were no questions about his committments to laws enacted by Congress and to civil rights for all Americans.
"You have not accurately represented my position," Roberts said at one point. "Senator, you did not accurately represent my position."
Kennedy started with Brown v. Board of Education of Topeka, and asked whether the court was right to examine the reality of segregated education rather than merely at abstractions of law. Kennedy worked his way from Brown to the voting rights legislation enacted by Congress along with laws banning housing discrimination and discrimination in employment.
Do you agree, Kennedy asked Roberts, that these laws are constitutional?
"I'm not aware of any questions that have been raised concerning that," says Roberts, noting that he needed to "exercise caution" on the Voting Rights Act because extensions of that law are likely to come before the court.
Kennedy elicited similar answers with regard to the law banning housing discrimination.
Kennedy noted that he is "deeply troubled" by some of the memos written by Roberts in the past, particularly by the "narrow, cramped and sometimes mean-spirited" tone of some of them, particularly with regard to voting rights and Title IX, the law prohibiting discrimination in educational institutions receiving federal funds.
Kennedy: "I am concerned...that at the time you were writing" these memos, "you simply did not grasp the seriousness of the impact" of those laws on the country.
Roberts: "I was a staff lawyer....It was the view of the administration for which I worked...."
Specter warned Kennedy several times to "stop interrupting" Roberts.
Posted at 12:09 PM ET, 09/13/2005
Roberts reluctant to touch precedents on property rights
Grassley asked Roberts to further discuss his view of stare decisis. He elicited an approach that showed Roberts' reluctance to particularly tamper with previous cases involving property rights.
"No judge gets up every morning with a clean slate and says 'what should the Constitution look like today,' " Robert said. Precedents become "part of the rule of law" that judges must apply. But there are limits to his veneration for precedents, he said.
If some precedents prove to be unworkable, are difficult to apply, or have been eroded by other cases, that may give a judge cause to re-think them.
Decisions regarding private property are particularly sacrosanct, he said.
"Property decisions are less likely to be reconsidered because of the expectations that have grown up around them," he said.
"You do have to look at whter the decision has led to workable rules...settled expectations that should not be disrupted, whether the bases of the precedent has been eroded," Robert said.
Roberts reluctant to touch precedents on property rights
Grassley asked Roberts to further discuss his view of stare decisis. He elicited an approach that showed Roberts' reluctance to particularly tamper with previous cases involving property rights.
"No judge gets up every morning with a clean slate and says 'what should the Constitution look like today,' " Robert said. Precedents become "part of the rule of law" that judges must apply. But there are limits to his veneration for precedents, he said.
If some precedents prove to be unworkable, are difficult to apply, or have been eroded by other cases, that may give a judge cause to re-think them.
Decisions regarding private property are particularly sacrosanct, he said.
"Property decisions are less likely to be reconsidered because of the expectations that have grown up around them," he said.
"You do have to look at whter the decision has led to workable rules...settled expectations that should not be disrupted, whether the bases of the precedent has been eroded," Robert said.
Hearings Begin With Questions About Abortion
By William Branigin
John G. Roberts Jr., appearing before a Senate panel considering his nomination to be the new chief justice, immediately ran into questioning today about the Supreme Court's landmark decision on abortion and said he considers it not only "settled law" but a precedent worthy of respect.
Answering questions from Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, Roberts also said he believes the U.S. Constitution protects a right to privacy and repudiated a view expressed more than two decades ago in a memo in which he referred to a "so-called" right to privacy in the charter.
The comments came a day after Roberts delivered an opening statement in which he declared that "judges are not politicians" and vowed to approach any cases brought before the court with an open mind. He described a humble view of the court's role, likening it to that of a baseball umpire, rather than a political player.
Roberts, 50, was nominated by President Bush to replace Chief Justice William H. Rehnquist, who died of cancer Sept. 3 at the age of 80. If confirmed, Roberts would be the youngest chief justice in more than 200 years.
He was originally nominated to succeed Justice Sandra Day O'Connor, who announced in July that she was retiring. But Bush decided to make Roberts his nominee for chief justice and to replace O'Connor, the first woman named to the Supreme Court, at a later date. The aim, in part, is to have a full nine-member court in place by the time it begins its new session Oct. 3. O'Connor has said she would stay on until her successor is confirmed.
Much of the initial questioning by Specter, who supports abortion rights, involved the principle of stare decisis, or respect for precedent, especially as applied to Roe v. Wade , the 1973 Supreme Court decision that legalized abortion.
Roberts refused to say whether he sees any erosion of precedent regarding that decision, explaining that he did not want to get into the application of legal principles to a particular case that might come before the court. But he noted that "the central holding" in Roe v. Wade was reaffirmed by a 1992 Supreme Court decision, Planned Parenthood v. Casey , which "is itself a precedent that would be entitled to respect under stare decisis ."
Roberts said, "I do think it is a jolt to the legal system when you overrule a precedent" and that "it is not enough that you may think a prior decision was wrongly decided." Other factors must be considered, he said, including stability, the predictability of the court and whether the precedent had been eroded by subsequent developments.
Sometimes, he said, overturning precedent is "a price that has to be paid," such as the in the 1954 Brown v. Board of Education ruling against racial discrimination.
Roberts was asked about his statement in a 2003 Senate hearing, when he was seeking confirmation as a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit and said he regarded Roe v. Wade as "the settled law of the land."
"Well beyond that, it is settled as a precedent of the court entitled to respect under the principle of stare decisis ," Roberts said.
Asked about whether his personal views or his religious faith-- Roberts is a Roman Catholic--would play any role in his approach, Roberts concurred with Specter's quotation from John F. Kennedy, when he was running for president in 1960 and said, "I do not speak for my church on public matters, and my church does not speak for me."
"I agree with that, senator, yes," Roberts said. "There is nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court fairly under the principle of stare decisis ."
Roberts said he agrees that "the right to privacy is protected under the Constitution in various ways." He said it was "fair" to say he does not hold the view today that was reflected in a 1981 memo, when he was a young lawyer in the Reagan administration and skeptically referred to a "so-called" right to privacy.
Under questioning by the ranking Democrat on the committee, Sen. Patrick Leahy of Vermont, Roberts said, "I believe very strongly in the separation of powers" among the three branches of government." Further, he said, "I believe that no one is above the law in our system, and that includes the president."
Regarding his approach to the federal bench, he said, "I prefer to be known as a modest judge."
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
By William Branigin
John G. Roberts Jr., appearing before a Senate panel considering his nomination to be the new chief justice, immediately ran into questioning today about the Supreme Court's landmark decision on abortion and said he considers it not only "settled law" but a precedent worthy of respect.
Answering questions from Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, Roberts also said he believes the U.S. Constitution protects a right to privacy and repudiated a view expressed more than two decades ago in a memo in which he referred to a "so-called" right to privacy in the charter.
The comments came a day after Roberts delivered an opening statement in which he declared that "judges are not politicians" and vowed to approach any cases brought before the court with an open mind. He described a humble view of the court's role, likening it to that of a baseball umpire, rather than a political player.
Roberts, 50, was nominated by President Bush to replace Chief Justice William H. Rehnquist, who died of cancer Sept. 3 at the age of 80. If confirmed, Roberts would be the youngest chief justice in more than 200 years.
He was originally nominated to succeed Justice Sandra Day O'Connor, who announced in July that she was retiring. But Bush decided to make Roberts his nominee for chief justice and to replace O'Connor, the first woman named to the Supreme Court, at a later date. The aim, in part, is to have a full nine-member court in place by the time it begins its new session Oct. 3. O'Connor has said she would stay on until her successor is confirmed.
Much of the initial questioning by Specter, who supports abortion rights, involved the principle of stare decisis, or respect for precedent, especially as applied to Roe v. Wade , the 1973 Supreme Court decision that legalized abortion.
Roberts refused to say whether he sees any erosion of precedent regarding that decision, explaining that he did not want to get into the application of legal principles to a particular case that might come before the court. But he noted that "the central holding" in Roe v. Wade was reaffirmed by a 1992 Supreme Court decision, Planned Parenthood v. Casey , which "is itself a precedent that would be entitled to respect under stare decisis ."
Roberts said, "I do think it is a jolt to the legal system when you overrule a precedent" and that "it is not enough that you may think a prior decision was wrongly decided." Other factors must be considered, he said, including stability, the predictability of the court and whether the precedent had been eroded by subsequent developments.
Sometimes, he said, overturning precedent is "a price that has to be paid," such as the in the 1954 Brown v. Board of Education ruling against racial discrimination.
Roberts was asked about his statement in a 2003 Senate hearing, when he was seeking confirmation as a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit and said he regarded Roe v. Wade as "the settled law of the land."
"Well beyond that, it is settled as a precedent of the court entitled to respect under the principle of stare decisis ," Roberts said.
Asked about whether his personal views or his religious faith-- Roberts is a Roman Catholic--would play any role in his approach, Roberts concurred with Specter's quotation from John F. Kennedy, when he was running for president in 1960 and said, "I do not speak for my church on public matters, and my church does not speak for me."
"I agree with that, senator, yes," Roberts said. "There is nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court fairly under the principle of stare decisis ."
Roberts said he agrees that "the right to privacy is protected under the Constitution in various ways." He said it was "fair" to say he does not hold the view today that was reflected in a 1981 memo, when he was a young lawyer in the Reagan administration and skeptically referred to a "so-called" right to privacy.
Under questioning by the ranking Democrat on the committee, Sen. Patrick Leahy of Vermont, Roberts said, "I believe very strongly in the separation of powers" among the three branches of government." Further, he said, "I believe that no one is above the law in our system, and that includes the president."
Regarding his approach to the federal bench, he said, "I prefer to be known as a modest judge."
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
Watching the Hearings Through a Partisan Lens
By Terry M. Neal
The ideologues on opposite sides of the partisan divide have been going at it for weeks, firing off e-mails to lists of reporters, attempting to influence the debate and public perception over the John Roberts Supreme Court nomination.
Today, I begin monitoring the chatter coming from the various interests groups on both sides of the aisle. Be prepared for an onslaught of outrage, finger wagging and righteous indignation. The people we quote here approach life with the same sort of absolute certainty and moral clarity as the fury critters in "Animal Farm," whose motto was succinct and direct -- "Four legs good. Two legs bad."
Translated for the current debate -- "Us good. Them bad."
If you're on either of the ideological extremes, there will be stuff here every day that will both send you into that lullaby land of rhetorical bliss and paroxysms of spittle-inducing rage.
If you are among the multitude of Americans in the vast middle of the partisan divide -- the people who reject dogmatic thinking and partisan orthodoxy, who have the audacity to think for themselves and find the knee-jerk partisanship of Washington mind-numbingly boring -- you might think there's nothing here for you. You're probably right.
But read it anyway!
Seriously though, it's a valuable exercise to monitor what the interests groups are saying, because they have significant ability to influence the debate and bring to bear the power of various constituencies.
So with that, we begin.
Even after a relatively subdued first day with muted attacks from the Democrats, the right was hot under the collar.
Creative Response Concept, a mighty and talented public relations outfit situated in the Northern Virginia suburbs (they flacked last year for the Swift Boat people who did much to undermine John Kerry's war record), blasted me the first response only minutes after the opening day hearing ended.
They're no dummies over there. CRC had a number of conservative legal analysts on call for instant reaction, and helpfully provided reporters with their quotes.
In a response that could have easily been written before the hearing even began, Ron Cass, former dean of Boston University Law School, who was at the hearing, said: "As I sat in the hearing room today and listened to Senator Kennedy's opening statement, I felt like I was at a Democrat campaign rally in New Hampshire, not a Senate hearing to review the record and qualifications of Judge Roberts. In his opening remarks today, Senator Kennedy demonstrated that he is more interested in representing the interests of liberal special interest groups like People for the American Way, rather than we the people."
Another rapid responder, Shannen Coffin, former deputy assistant attorney general under President Bush, raised the issue of the Judiciary Committee Democrats' mentioning of Hurricane Katrina.
"As someone raised in Louisiana and educated in New Orleans, I was appalled -- although hardly surprised -- that many Senate Judiciary Committee Democrats exploited the horrible aftermath of the Hurricane and her victims for partisan political purposes," Coffin said. "Their attempt to play on this tragedy to score political points debases the confirmation process and is an insult to the good people of Louisiana, especially the many victims of Katrina, who deserve better than to be treated as political props."
Around the same time came an e-mail from Sean Rushton of the Committee for Justice, a group organized at the behest of Karl Rove and Sen. Trent Lott (R-Miss.) to promote Bush's judicial nominees. Ruston took Sen. Richard J. Durbin (D-Ill.) to task for his comments about justices using their power to expand freedom.
"Does that include economic freedom?" Rushton asked rhetorically. "How about expanding freedom by limiting government's power under the Commerce Clause? Freedom to criticize politicians at election time? The Boy Scouts' freedom of association? Gun ownership? Not to be judged by the color of one's skin? Enquiring minds want to know."
And Wendy Long of the conservative Judicial Confirmation Network evoked the "L" word. And no, we don't mean "love."
"In their opening statements today, every Democrat on the Committee read through a litany of liberal policy issues they feel the Supreme Court should impose," she said. "Liberal Democrats see the judiciary as a means to achieve their liberal policy agenda -- as nothing more than another player in the national political power struggle. But Republicans see the courts as an independent institution, with a specific task under the Constitution: to be neutral as to policy and to faithfully apply the law, not make it."
At 5:15 p.m. on Monday, an ominous sounding e-mail reached my inbox. It was from a group called independentcourt.org. Great! Independents were getting in on the act, too! Just what I needed, a dose of common sense from the middle. But something smelled fishy even before I opened the e-mail.
"The Republican Conspiracy of Silence: What Are They Hiding?" read the note in the subject line.
Well, who doesn't like a good conspiracy? My fingers clacked at the keyboards in breathless anticipation ... Hmmm. These independents weren't very happy with the rhetoric coming from the Republicans on opening day of the Roberts hearing.
"Republican members, sticking to the White House talking points, spent the afternoon enumerating the answers Roberts shouldn't offer Americans, rather than the answers he should feel obliged to offer...What is President Bush and the Republican senate trying to hide?"
Just who are these angry independents, I wondered? So I went to their Web site and looked. The coalition, it seems, is led by the usual suspects. People for the American Way, Alliance for Justice, Leadership Conference on Civil Rights. Many of the folks involved in this group bragged of their involvement deep-sixing Reagan Supreme Court nominee Robert Bork back in the 1980s.
Well, not exactly the kind of folks who one might expect to be advocating for an "independent" judiciary. But then again, independence is in the eye of the beholder. The right-wingers, like the left-wingers, are convinced that they are pursuing an independent judiciary. So the name of this organization was more than anything else a PR move, an attempt to win the rhetorical battle even before the first shot had been fired.
... Speaking of the Alliance for Justice, the liberal group is offering real-time blogging and podcasts and other interactive goodies for the starving masses of the left.
Here's an excerpt from a blog posting about Sen. Diane Feinstein (D-Calif.), who spoke yesterday about her unwillingness to vote for a nominee who would vote to overturn Roe v. Wade:
"Senator Feinstein just made a very powerful statement one what the true impact of Roe v. Wade was on society, with a chilling vision of what women faced -- from morbidity to imprisonment -- before Roe became law of the land. That is why it is critical senators ask a nominee their views on issues like privacy and unremunerated rights -- we must protect the march of progress this country has made."
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
By Terry M. Neal
The ideologues on opposite sides of the partisan divide have been going at it for weeks, firing off e-mails to lists of reporters, attempting to influence the debate and public perception over the John Roberts Supreme Court nomination.
Today, I begin monitoring the chatter coming from the various interests groups on both sides of the aisle. Be prepared for an onslaught of outrage, finger wagging and righteous indignation. The people we quote here approach life with the same sort of absolute certainty and moral clarity as the fury critters in "Animal Farm," whose motto was succinct and direct -- "Four legs good. Two legs bad."
Translated for the current debate -- "Us good. Them bad."
If you're on either of the ideological extremes, there will be stuff here every day that will both send you into that lullaby land of rhetorical bliss and paroxysms of spittle-inducing rage.
If you are among the multitude of Americans in the vast middle of the partisan divide -- the people who reject dogmatic thinking and partisan orthodoxy, who have the audacity to think for themselves and find the knee-jerk partisanship of Washington mind-numbingly boring -- you might think there's nothing here for you. You're probably right.
But read it anyway!
Seriously though, it's a valuable exercise to monitor what the interests groups are saying, because they have significant ability to influence the debate and bring to bear the power of various constituencies.
So with that, we begin.
Even after a relatively subdued first day with muted attacks from the Democrats, the right was hot under the collar.
Creative Response Concept, a mighty and talented public relations outfit situated in the Northern Virginia suburbs (they flacked last year for the Swift Boat people who did much to undermine John Kerry's war record), blasted me the first response only minutes after the opening day hearing ended.
They're no dummies over there. CRC had a number of conservative legal analysts on call for instant reaction, and helpfully provided reporters with their quotes.
In a response that could have easily been written before the hearing even began, Ron Cass, former dean of Boston University Law School, who was at the hearing, said: "As I sat in the hearing room today and listened to Senator Kennedy's opening statement, I felt like I was at a Democrat campaign rally in New Hampshire, not a Senate hearing to review the record and qualifications of Judge Roberts. In his opening remarks today, Senator Kennedy demonstrated that he is more interested in representing the interests of liberal special interest groups like People for the American Way, rather than we the people."
Another rapid responder, Shannen Coffin, former deputy assistant attorney general under President Bush, raised the issue of the Judiciary Committee Democrats' mentioning of Hurricane Katrina.
"As someone raised in Louisiana and educated in New Orleans, I was appalled -- although hardly surprised -- that many Senate Judiciary Committee Democrats exploited the horrible aftermath of the Hurricane and her victims for partisan political purposes," Coffin said. "Their attempt to play on this tragedy to score political points debases the confirmation process and is an insult to the good people of Louisiana, especially the many victims of Katrina, who deserve better than to be treated as political props."
Around the same time came an e-mail from Sean Rushton of the Committee for Justice, a group organized at the behest of Karl Rove and Sen. Trent Lott (R-Miss.) to promote Bush's judicial nominees. Ruston took Sen. Richard J. Durbin (D-Ill.) to task for his comments about justices using their power to expand freedom.
"Does that include economic freedom?" Rushton asked rhetorically. "How about expanding freedom by limiting government's power under the Commerce Clause? Freedom to criticize politicians at election time? The Boy Scouts' freedom of association? Gun ownership? Not to be judged by the color of one's skin? Enquiring minds want to know."
And Wendy Long of the conservative Judicial Confirmation Network evoked the "L" word. And no, we don't mean "love."
"In their opening statements today, every Democrat on the Committee read through a litany of liberal policy issues they feel the Supreme Court should impose," she said. "Liberal Democrats see the judiciary as a means to achieve their liberal policy agenda -- as nothing more than another player in the national political power struggle. But Republicans see the courts as an independent institution, with a specific task under the Constitution: to be neutral as to policy and to faithfully apply the law, not make it."
At 5:15 p.m. on Monday, an ominous sounding e-mail reached my inbox. It was from a group called independentcourt.org. Great! Independents were getting in on the act, too! Just what I needed, a dose of common sense from the middle. But something smelled fishy even before I opened the e-mail.
"The Republican Conspiracy of Silence: What Are They Hiding?" read the note in the subject line.
Well, who doesn't like a good conspiracy? My fingers clacked at the keyboards in breathless anticipation ... Hmmm. These independents weren't very happy with the rhetoric coming from the Republicans on opening day of the Roberts hearing.
"Republican members, sticking to the White House talking points, spent the afternoon enumerating the answers Roberts shouldn't offer Americans, rather than the answers he should feel obliged to offer...What is President Bush and the Republican senate trying to hide?"
Just who are these angry independents, I wondered? So I went to their Web site and looked. The coalition, it seems, is led by the usual suspects. People for the American Way, Alliance for Justice, Leadership Conference on Civil Rights. Many of the folks involved in this group bragged of their involvement deep-sixing Reagan Supreme Court nominee Robert Bork back in the 1980s.
Well, not exactly the kind of folks who one might expect to be advocating for an "independent" judiciary. But then again, independence is in the eye of the beholder. The right-wingers, like the left-wingers, are convinced that they are pursuing an independent judiciary. So the name of this organization was more than anything else a PR move, an attempt to win the rhetorical battle even before the first shot had been fired.
... Speaking of the Alliance for Justice, the liberal group is offering real-time blogging and podcasts and other interactive goodies for the starving masses of the left.
Here's an excerpt from a blog posting about Sen. Diane Feinstein (D-Calif.), who spoke yesterday about her unwillingness to vote for a nominee who would vote to overturn Roe v. Wade:
"Senator Feinstein just made a very powerful statement one what the true impact of Roe v. Wade was on society, with a chilling vision of what women faced -- from morbidity to imprisonment -- before Roe became law of the land. That is why it is critical senators ask a nominee their views on issues like privacy and unremunerated rights -- we must protect the march of progress this country has made."
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
The Senate Judiciary Committee
The Senate Judiciary Committee convened on Monday, Sept. 12, to consider the nomination of Judge John G. Roberts Jr. to be the next chief justice of the Supreme Court. Made up of 10 Republicans and eight Democrats, the committee will question Roberts and other witnesses before voting to send his name to the full Senate for confirmation.
The committee members are:
Chairman: Arlen Specter (Pa.)
Specter, a moderate Republican, will chair the confirmation hearings for Judge John G. Roberts to be associate justice of the Supreme Court.
The five-term Republican has a history of upsetting certain constituencies. In a moment of candor that almost cost him the chairmanship, Specter angered conservatives after his re-election last year by saying anti-abortion judges would have difficulty winning Senate confirmation.
Specter sent a letter to Roberts after his nomination warning him that lawmakers are angry about the Supreme Court's perceived denigration of Congress. Specter said he plans to question Roberts closely about this issue during the nomination hearings.
He has been sympathetic to Democrats who want more documents Roberts wrote when he worked in the administrations of presidents George H.W. Bush and Ronald Reagan, saying they should be released "without delay."
Specter is battling Hodgkin's disease and the chemotherapy treatment has taken a toll; he has lost his hair.
Orrin G. Hatch (Utah)
Hatch, a senior committee member and former chairman, said Roberts is "a brilliant constitutional lawyer with unquestioned integrity. He's the kind of judge that all of us want -- someone committed to applying the law impartially rather than legislating from the bench."
Hatch urged his Judiciary Committee colleagues to refrain from asking political questions that would require Roberts to prejudge cases. Hatch, who has served on the committee for the confirmation of eight of the nine sitting justices, said senators should instead focus on the nominee's overall judicial approach.
"We have neither desire, need, nor right to know most of Judge Roberts's views on most imaginable subjects," he said. Hatch suggested using the "Ginsberg Rule" in reference to Associate Justice Ruth Bader Ginsburg's confirmation hearings: "No hints, no forecasts, no previews."
Hatch is a strong supporter of President Bush's judicial nominees and an abortion opponent. But, he has shown bipartisanship with liberal stalwart Sen. Edward M. Kennedy, including on legislation to pay for poor children's health care by increasing cigarette taxes.
Charles E. Grassley (Iowa)
Grassley is one of the few non-lawyers on the committee; he is a farmer.
The five-term Republican noted the unpredictable nature of the nomination process when he said that the seven sitting justices appointed by Republican presidents have behaved unexpectedly on the court. "We ended up with two liberals, two moderates and three conservatives," he said.
When he met with Roberts, Grassley said he gave the judge some advice: "It seems like the less [nominees] say to the committee, the better off they are."
Grassley is a social conservative who opposes abortion and gun control and has voted before to confirm conservative judges.
Jon Kyl (Ariz.)
Kyl chairs the Senate Republican Policy Committee, which released a statement in July that said "no judicial nominee should be compelled to answer any question that would force him or her to prejudge or signal future conclusions regarding any case or issue."
The statement criticizes Senate Democrats for demanding Roberts announce his positions on "questions that the Supreme Court will be deciding after he is confirmed."
Kyl met with Roberts in late July and said the nominee was "very impressive and clearly has the background, temperament and potential to be a solid addition to the Supreme Court."
This will be Kyl's first vote on a Supreme Court nominee as either a member of the committee or a senator.
Mike DeWine (Ohio)
Following Roberts's nomination, DeWine commended President Bush for "sending a very well qualified nominee to the Senate for its consideration."
The two-term senator was one of the so-called "Gang of 14'' - seven Republicans and seven Democrats - who averted a Senate showdown over Bush's nominees to the lower courts.
There was early speculation that Bush's pick for the Supreme Court could test the bipartisan agreement on filibustering judicial nominees. DeWine said a filibuster of Roberts' nomination would be highly unlikely because his resume doesn't show the "extraordinary circumstances" that would meet a threshold for a Democratic filibuster.
Jeff Sessions (Ala.)
Sessions was nominated in 1986 to be a federal district judge in Alabama and was rejected after civil rights groups claimed he had made racially insensitive statements and pursued politically motivated prosecutions of civil rights activists. He now serves with some of the same senators that voted against his nomination.
Sessions said Roberts should not be pressed to answer some of the questions on abortion that Democrats indicate they will ask because "he shouldn't be committing to case after case."
"I don't know what his views are [about Roe v. Wade], but groups have raised a lot of money to oppose this nominee," Sessions said. "It is incumbent on these senators not to let these groups decide it, and listen to what he says. He has been exceptional in every way."
Sessions threatened to push for curbs on use of filibusters if Democrats continued to block Bush's judicial nominations.
Lindsey Graham (S.C.)
An attorney, Graham is a former Air Force lawyer and the only senator serving in the National Guard or Reserves. He was a member of the "Gang of 14'' - seven Republicans and seven Democrats - who averted a Senate showdown over Bush's nominees to the lower courts.
Graham said he expects the Judiciary Committee will aggressively question Roberts, "but I do not expect him to say how he would vote on any particular case," the South Carolinian said after meeting with the nominee in July.
"Questions asking the nominee to do this in advance of hearing a case should be out-of-bounds," Graham said. "The same goes for requests for documents protected under attorney-client privilege."
Graham also said it would be "improper to use a client's position against the nominee" because of the unfairness of judging the lawyer, who gives legal advice, by the actions and desires of the client.
John Cornyn (Tex.)
Cornyn is a former judge on the state court in San Antonio and Texas Supreme Court in Austin. The freshman senator is also a former Texas attorney general.
Cornyn, considered by some court watchers and journalists to be a possible Supreme Court nominee himself, said the committee should be careful with the questions it asks Roberts. "America deserves a nominee who reveres the law, not one whose service on the bench is conditioned on political promises."
Insisting on specific questions about whether a case like Roe v. Wade was correctly decided "will undoubtedly force [Roberts] to prejudge a case that is currently pending on the court's docket."
Sam Brownback (Kan.)
Brownback, a possible presidential candidate in 2008, is the committee's youngest member. He is involved in social issues important to social conservatives. He is an abortion opponent and against embryonic stem cell research.
He called the question of when life begins "the central issue of our day" and one that the hearings will spotlight.
He said the hearings would be a chance to have "a really important discussion with the country on what is the role of the courts in America today. Are they going to be courts or are they much broader based entities?"
Tom Coburn (Okla.)
Coburn, who listed Antonin Scalia and Clarence Thomas as model justices, said, "If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation."
"I am looking for somebody who is not going to make that mistake again in any other area of life," said Coburn, who is antiabortion.
In their meeting Roberts declined to answer Coburn's question about how his Catholic faith affects his life and work. "He said, 'I'm very uncomfortable talking about that,"' Coburn said.
Coburn is a physician by training and is the newest member of the Judiciary Committee.
For more information about the Republican members of the Senate Judiciary Committee, visit the committee's Web site at http://judiciary.senate.gov/.
Ranking Member: Patrick J. Leahy (Vt.)
Leahy has been vociferous in requesting documents Roberts wrote when he worked for presidents George H.W. Bush and Ronald Reagan that could provide "a practical sense of how, when and why politics and the law intersect for him."
He said the White House's refusal to release some of those documents is part of the administration's pattern of "stonewalling the Senate and the public." Leahy said that his party's request is "a carefully crafted and narrow request for a few documents that might illuminate Judge Roberts's views on important issues of concern to all Americans -- civil rights, privacy and access to justice."
Leahy has serves as the committee's ranking Democratic member and twice served as committee chairman, briefly in 2002 and once in 2000. Has led the party through several high-profile confirmation battles, from the 1991 Thomas hearings to former Sen. John Ashcroft's nomination to be attorney general in 2001.
Edward M. Kennedy (Mass.)
Kennedy led the effort against Robert Bork, whose Supreme Court nomination was rejected in 1987. He is the committee's Democratic elder statesman, having served seven full terms in the Senate.
Kennedy said Roberts's responses to questions at his confirmation hearing next month will be key to the committee's decision.
"The only way to know whether nominees have an activist judicial philosophy," he said in a recent speech, "is to find out what their judicial philosophy is. . . . A résumé is no substitute for answering questions about whether the nominee respects the basic rights and freedoms on which the nation was founded."
Kennedy was one of three Democrats to vote against Roberts in his 2003 confirmation to the U.S. Court of Appeals for the District of Columbia Circuit.
Joseph R. Biden Jr. (Del.)
Biden, a who has been open about aiming for the White House in 2008, said some senators' presidential ambitions could come into play in the Roberts hearing and confirmation.
"Whether or not that is the motivation of anyone voting on Roberts or asking questions about Roberts, I'm sure it'll be phrased in that context," he said.
Biden disagreed with the Bush administration's reluctance to release some documents Roberts wrote when he worked in the administrations of George H.W. Bush and Ronald Reagan.
"That's a big mistake," he said. "There's precedent for these kinds of documents being released in the past. And why are they always looking for a fight?"
Biden was committee chairman from 1987-1995, handling confirmation hearings for Supreme Court Justices Anthony Kennedy, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer, and defeated nominee Robert Bork.
Herbert Kohl (Wis.)
Kohl, a moderate Democrat, cautioned not to read anything into his vote to confirm Roberts to a seat on the U.S. Court of Appeals for the District of Columbia in 2003.
"I'm not going to let myself get pushed in one direction or another until our hearings are complete," he said after a short meeting with Roberts last month.
Kohl is a self-made millionaire (and owner of the NBA's Milwaukee Bucks). He was one of a dozen Democrats to vote for Bush's $1.35 trillion tax cut in 2001.
Dianne Feinstein (Calif.)
Feinstein is the first and remains the only woman on committee. The three-term senator and former mayor of San Francisco is a supporter of abortion rights.
Feinstein has joined the Democrats' call for the White House to release more of the documents Roberts wrote when he worked in the administrations of George H.W. Bush and Ronald Reagan.
"I think it's fair to be able to look at these papers," she said.
Russell D. Feingold (Wis.)
Feingold's questioning at Roberts's 2003 confirmation hearings for the U.S. Court of Appeals for the District of Columbia Circuit elicited the most comprehensive response on the nominee's views of the death penalty.
Roberts did not directly address the issue of whether or not the death penalty was fair, but he did question whether or not long delays undermine any deterrent effect the death penalty might have. The legal appeals process is "not certain, it's not definite, and there doesn't seem to be any reasonable time limitation," Roberts said.
In July Feingold said: "Before voting to confirm anyone to this most important post, I must be satisfied that the nominee will approach the difficult and controversial issues that the court is called upon to resolve with an open mind, not a preset ideological disposition."
Feingold was a member of the same Harvard Law School class (1979) as Roberts, but did not know him.
Charles E. Schumer (N.Y.)
Schumer, a leader in the opposition to Bush's judicial nominees, has said the public's desire for meaningful answers from nominees ebbs and flows, but now Roberts's responses are especially important.
"The time in history, and Sandra Day O'Connor's removal, means the focus on real questions will be greater than it has ever been, because she was a swing nominee at a time of a divided court and a divided country," he said.
Schumer said he has told Roberts he will ask whether Roe v. Wade "was correctly decided." In his 2003 confirmation hearings to the U.S. Court of Appeals for the District of Columbia Circuit, Roberts called Roe "the settled law of the land." Schumer was one of three Democrats to vote against Roberts in that confirmation.
Richard J. Durbin (Ill.)
Durbin was one of three liberal Democrats on the committee who voted against Roberts when he was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit.
Durbin said Roberts sidestepped too many questions in those hearings and has urged the nominee to be more forthcoming in confirmation hearing in September.
In the 2003 hearings, Roberts responded to a question about Roe v. Wade by calling the 1973 court decision "the settled law of the land."
(The Associated Press contributed to this report.)
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
The Senate Judiciary Committee convened on Monday, Sept. 12, to consider the nomination of Judge John G. Roberts Jr. to be the next chief justice of the Supreme Court. Made up of 10 Republicans and eight Democrats, the committee will question Roberts and other witnesses before voting to send his name to the full Senate for confirmation.
The committee members are:
Chairman: Arlen Specter (Pa.)
Specter, a moderate Republican, will chair the confirmation hearings for Judge John G. Roberts to be associate justice of the Supreme Court.
The five-term Republican has a history of upsetting certain constituencies. In a moment of candor that almost cost him the chairmanship, Specter angered conservatives after his re-election last year by saying anti-abortion judges would have difficulty winning Senate confirmation.
Specter sent a letter to Roberts after his nomination warning him that lawmakers are angry about the Supreme Court's perceived denigration of Congress. Specter said he plans to question Roberts closely about this issue during the nomination hearings.
He has been sympathetic to Democrats who want more documents Roberts wrote when he worked in the administrations of presidents George H.W. Bush and Ronald Reagan, saying they should be released "without delay."
Specter is battling Hodgkin's disease and the chemotherapy treatment has taken a toll; he has lost his hair.
Orrin G. Hatch (Utah)
Hatch, a senior committee member and former chairman, said Roberts is "a brilliant constitutional lawyer with unquestioned integrity. He's the kind of judge that all of us want -- someone committed to applying the law impartially rather than legislating from the bench."
Hatch urged his Judiciary Committee colleagues to refrain from asking political questions that would require Roberts to prejudge cases. Hatch, who has served on the committee for the confirmation of eight of the nine sitting justices, said senators should instead focus on the nominee's overall judicial approach.
"We have neither desire, need, nor right to know most of Judge Roberts's views on most imaginable subjects," he said. Hatch suggested using the "Ginsberg Rule" in reference to Associate Justice Ruth Bader Ginsburg's confirmation hearings: "No hints, no forecasts, no previews."
Hatch is a strong supporter of President Bush's judicial nominees and an abortion opponent. But, he has shown bipartisanship with liberal stalwart Sen. Edward M. Kennedy, including on legislation to pay for poor children's health care by increasing cigarette taxes.
Charles E. Grassley (Iowa)
Grassley is one of the few non-lawyers on the committee; he is a farmer.
The five-term Republican noted the unpredictable nature of the nomination process when he said that the seven sitting justices appointed by Republican presidents have behaved unexpectedly on the court. "We ended up with two liberals, two moderates and three conservatives," he said.
When he met with Roberts, Grassley said he gave the judge some advice: "It seems like the less [nominees] say to the committee, the better off they are."
Grassley is a social conservative who opposes abortion and gun control and has voted before to confirm conservative judges.
Jon Kyl (Ariz.)
Kyl chairs the Senate Republican Policy Committee, which released a statement in July that said "no judicial nominee should be compelled to answer any question that would force him or her to prejudge or signal future conclusions regarding any case or issue."
The statement criticizes Senate Democrats for demanding Roberts announce his positions on "questions that the Supreme Court will be deciding after he is confirmed."
Kyl met with Roberts in late July and said the nominee was "very impressive and clearly has the background, temperament and potential to be a solid addition to the Supreme Court."
This will be Kyl's first vote on a Supreme Court nominee as either a member of the committee or a senator.
Mike DeWine (Ohio)
Following Roberts's nomination, DeWine commended President Bush for "sending a very well qualified nominee to the Senate for its consideration."
The two-term senator was one of the so-called "Gang of 14'' - seven Republicans and seven Democrats - who averted a Senate showdown over Bush's nominees to the lower courts.
There was early speculation that Bush's pick for the Supreme Court could test the bipartisan agreement on filibustering judicial nominees. DeWine said a filibuster of Roberts' nomination would be highly unlikely because his resume doesn't show the "extraordinary circumstances" that would meet a threshold for a Democratic filibuster.
Jeff Sessions (Ala.)
Sessions was nominated in 1986 to be a federal district judge in Alabama and was rejected after civil rights groups claimed he had made racially insensitive statements and pursued politically motivated prosecutions of civil rights activists. He now serves with some of the same senators that voted against his nomination.
Sessions said Roberts should not be pressed to answer some of the questions on abortion that Democrats indicate they will ask because "he shouldn't be committing to case after case."
"I don't know what his views are [about Roe v. Wade], but groups have raised a lot of money to oppose this nominee," Sessions said. "It is incumbent on these senators not to let these groups decide it, and listen to what he says. He has been exceptional in every way."
Sessions threatened to push for curbs on use of filibusters if Democrats continued to block Bush's judicial nominations.
Lindsey Graham (S.C.)
An attorney, Graham is a former Air Force lawyer and the only senator serving in the National Guard or Reserves. He was a member of the "Gang of 14'' - seven Republicans and seven Democrats - who averted a Senate showdown over Bush's nominees to the lower courts.
Graham said he expects the Judiciary Committee will aggressively question Roberts, "but I do not expect him to say how he would vote on any particular case," the South Carolinian said after meeting with the nominee in July.
"Questions asking the nominee to do this in advance of hearing a case should be out-of-bounds," Graham said. "The same goes for requests for documents protected under attorney-client privilege."
Graham also said it would be "improper to use a client's position against the nominee" because of the unfairness of judging the lawyer, who gives legal advice, by the actions and desires of the client.
John Cornyn (Tex.)
Cornyn is a former judge on the state court in San Antonio and Texas Supreme Court in Austin. The freshman senator is also a former Texas attorney general.
Cornyn, considered by some court watchers and journalists to be a possible Supreme Court nominee himself, said the committee should be careful with the questions it asks Roberts. "America deserves a nominee who reveres the law, not one whose service on the bench is conditioned on political promises."
Insisting on specific questions about whether a case like Roe v. Wade was correctly decided "will undoubtedly force [Roberts] to prejudge a case that is currently pending on the court's docket."
Sam Brownback (Kan.)
Brownback, a possible presidential candidate in 2008, is the committee's youngest member. He is involved in social issues important to social conservatives. He is an abortion opponent and against embryonic stem cell research.
He called the question of when life begins "the central issue of our day" and one that the hearings will spotlight.
He said the hearings would be a chance to have "a really important discussion with the country on what is the role of the courts in America today. Are they going to be courts or are they much broader based entities?"
Tom Coburn (Okla.)
Coburn, who listed Antonin Scalia and Clarence Thomas as model justices, said, "If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation."
"I am looking for somebody who is not going to make that mistake again in any other area of life," said Coburn, who is antiabortion.
In their meeting Roberts declined to answer Coburn's question about how his Catholic faith affects his life and work. "He said, 'I'm very uncomfortable talking about that,"' Coburn said.
Coburn is a physician by training and is the newest member of the Judiciary Committee.
For more information about the Republican members of the Senate Judiciary Committee, visit the committee's Web site at http://judiciary.senate.gov/.
Ranking Member: Patrick J. Leahy (Vt.)
Leahy has been vociferous in requesting documents Roberts wrote when he worked for presidents George H.W. Bush and Ronald Reagan that could provide "a practical sense of how, when and why politics and the law intersect for him."
He said the White House's refusal to release some of those documents is part of the administration's pattern of "stonewalling the Senate and the public." Leahy said that his party's request is "a carefully crafted and narrow request for a few documents that might illuminate Judge Roberts's views on important issues of concern to all Americans -- civil rights, privacy and access to justice."
Leahy has serves as the committee's ranking Democratic member and twice served as committee chairman, briefly in 2002 and once in 2000. Has led the party through several high-profile confirmation battles, from the 1991 Thomas hearings to former Sen. John Ashcroft's nomination to be attorney general in 2001.
Edward M. Kennedy (Mass.)
Kennedy led the effort against Robert Bork, whose Supreme Court nomination was rejected in 1987. He is the committee's Democratic elder statesman, having served seven full terms in the Senate.
Kennedy said Roberts's responses to questions at his confirmation hearing next month will be key to the committee's decision.
"The only way to know whether nominees have an activist judicial philosophy," he said in a recent speech, "is to find out what their judicial philosophy is. . . . A résumé is no substitute for answering questions about whether the nominee respects the basic rights and freedoms on which the nation was founded."
Kennedy was one of three Democrats to vote against Roberts in his 2003 confirmation to the U.S. Court of Appeals for the District of Columbia Circuit.
Joseph R. Biden Jr. (Del.)
Biden, a who has been open about aiming for the White House in 2008, said some senators' presidential ambitions could come into play in the Roberts hearing and confirmation.
"Whether or not that is the motivation of anyone voting on Roberts or asking questions about Roberts, I'm sure it'll be phrased in that context," he said.
Biden disagreed with the Bush administration's reluctance to release some documents Roberts wrote when he worked in the administrations of George H.W. Bush and Ronald Reagan.
"That's a big mistake," he said. "There's precedent for these kinds of documents being released in the past. And why are they always looking for a fight?"
Biden was committee chairman from 1987-1995, handling confirmation hearings for Supreme Court Justices Anthony Kennedy, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer, and defeated nominee Robert Bork.
Herbert Kohl (Wis.)
Kohl, a moderate Democrat, cautioned not to read anything into his vote to confirm Roberts to a seat on the U.S. Court of Appeals for the District of Columbia in 2003.
"I'm not going to let myself get pushed in one direction or another until our hearings are complete," he said after a short meeting with Roberts last month.
Kohl is a self-made millionaire (and owner of the NBA's Milwaukee Bucks). He was one of a dozen Democrats to vote for Bush's $1.35 trillion tax cut in 2001.
Dianne Feinstein (Calif.)
Feinstein is the first and remains the only woman on committee. The three-term senator and former mayor of San Francisco is a supporter of abortion rights.
Feinstein has joined the Democrats' call for the White House to release more of the documents Roberts wrote when he worked in the administrations of George H.W. Bush and Ronald Reagan.
"I think it's fair to be able to look at these papers," she said.
Russell D. Feingold (Wis.)
Feingold's questioning at Roberts's 2003 confirmation hearings for the U.S. Court of Appeals for the District of Columbia Circuit elicited the most comprehensive response on the nominee's views of the death penalty.
Roberts did not directly address the issue of whether or not the death penalty was fair, but he did question whether or not long delays undermine any deterrent effect the death penalty might have. The legal appeals process is "not certain, it's not definite, and there doesn't seem to be any reasonable time limitation," Roberts said.
In July Feingold said: "Before voting to confirm anyone to this most important post, I must be satisfied that the nominee will approach the difficult and controversial issues that the court is called upon to resolve with an open mind, not a preset ideological disposition."
Feingold was a member of the same Harvard Law School class (1979) as Roberts, but did not know him.
Charles E. Schumer (N.Y.)
Schumer, a leader in the opposition to Bush's judicial nominees, has said the public's desire for meaningful answers from nominees ebbs and flows, but now Roberts's responses are especially important.
"The time in history, and Sandra Day O'Connor's removal, means the focus on real questions will be greater than it has ever been, because she was a swing nominee at a time of a divided court and a divided country," he said.
Schumer said he has told Roberts he will ask whether Roe v. Wade "was correctly decided." In his 2003 confirmation hearings to the U.S. Court of Appeals for the District of Columbia Circuit, Roberts called Roe "the settled law of the land." Schumer was one of three Democrats to vote against Roberts in that confirmation.
Richard J. Durbin (Ill.)
Durbin was one of three liberal Democrats on the committee who voted against Roberts when he was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit.
Durbin said Roberts sidestepped too many questions in those hearings and has urged the nominee to be more forthcoming in confirmation hearing in September.
In the 2003 hearings, Roberts responded to a question about Roe v. Wade by calling the 1973 court decision "the settled law of the land."
(The Associated Press contributed to this report.)
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
Profile of the Nominee
On September 5, President Bush nominated John G. Roberts Jr. to be chief justice of the Supreme Court. Bush previously nominated Roberts to be associate justice.
John G. Roberts Jr., 50, has long been considered one of the Republicans' heavyweights amid the largely Democratic Washington legal establishment. Roberts was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2003 by President George W. Bush. (He was also nominated by the first President Bush, but never received a Senate vote.) Previously, he practiced law at Washington's Hogan & Hartson from 1986-1989 and 1993-2003. Between 1989 and 1993, he was the principal deputy solicitor general in the first Bush administration, helping formulate the administration's position in Supreme Court cases. During the Reagan administration, he served as an aide to Attorney General William French Smith from 1981 to 1982 and as an aide to White House counsel Fred Fielding from 1982 to 1986.
With impeccable credentials -- Roberts attended Harvard College and Harvard Law School, clerked for Justice William H. Rehnquist on the Supreme Court and has argued frequently before the court -- the question marks about Roberts have always been ideological. While his Republican Party loyalties are undoubted, earning him the opposition of liberal advocacy groups, he is not a "movement conservative," and some on the party's right-wing doubt his commitment to their cause. His paper record is thin: As deputy solicitor general in 1990, he argued in favor of a government regulation that banned abortion-related counseling by federally funded family-planning programs. A line in his brief noted the Bush administration's belief that Roe v. Wade should be overruled.
As a judge on the D.C. Circuit, Roberts voted with two colleagues to uphold the arrest and detention of a 12-year-old girl for eating french fries on the Metro train, though his opinion noted that "[n]o one is very happy about the events that led to this litigation." In another case, Roberts wrote a dissenting opinion that suggested Congress might lack the power under the Constitution's Commerce Clause to regulate the treatment of a certain species of wildlife.
-- Charles Lane
Documents released Aug. 29 by the National Archives written by Roberts while working in the Reagan administration:
Memo to Ken Starr, councelor to Attorney General William French Smith, on appellate argument opportunities, Aug. 26, 1981
Memo to Sandra Day O'Connor regarding her nomination hearings for associate justice of the Supreme Court, Sept. 9, 1981
Memo to Ken Starr, counselor to Attorney General William French Smith, on judicial activism, Oct. 1, 1981
Memo to the Attorney General William French Smith regardling illegal immigrants, June 15, 1982
Memo to the Attorney General William French Smith regarding cases referred by the Equal Employment Opportunity Commission before the Supreme Court, June 18, 1982
Documents from the Reagan Library relating to Roberts' time as Associate Counsel to the President during the Reagan administration:
The Ronald Reagan Presidential Library released 5,393 government documents on Aug. 15.
Here, these documents are presented as 135 PDF files.
Roberts response to a Senate Judiciary Committee questionnaire in preparation for this September confirmation hearings:
Part I: Pages 1-25
Part II: Pages 26-50
Part III: Pages 51-76, Financial Disclosure Report
Memos written by Roberts during his tenure as an assistant White House counsel and a special assistant to then-Attorney General William French Smith during the Reagan administration:
Letter Regarding Pardons For Those Convicted of Violence Against Abortion Clinics, February 10, 1986.
Memo Regarding a Request to Support "In God We Trust" Plagues in Kentucky Schools, May 24, 1985.
Draft Article on Judicial Restraint, undated. The article was written by Roberts but was to appear in an American Bar Association journal under Smith's name. A Nov. 30, 1981 response to Roberts's draft by Bruce Fein, then of the Justice Department, is also available.
Roberts's Summary of a Lecture on "The Right to Privacy" by Then-Solicitor General Erwin N. Griswold, Dec. 11, 1981.
Memorandum Regarding Supreme Court Appellate Jurisdiction, April 12, 1982
Proposal to Divest the Supreme Court of Appellate Jurisdiction
Roberts on Anti-Busing Bill, Feb. 15, 1984
Roberts on the Clarksville Baptist Church, Aug. 2, 1984
Roberts on Grove City College, July 24, 1985
Roberts on the Ann Gorsuch Case, Dec. 23, 1982
Roberts on Fair Housing, Jan. 31, 1983
Roberts on Grenada, Jan. 13, 1984
Roberts on Immigration Reform and Control Act of 1983, Jan. 30, 1984
Roberts on Legislative Veto, Aug. 4, 1983
Documents related to a 1990 request by the Federal Communications Commission to defend a policy aimed at encouraging more minority ownership of broadcast stations.
Letter from FCC Chairman Alfred C. Sikes to Attorney General Richard L. Thornburgh, Jan. 20, 1990. Includes a handwritten memo written by Associate White House Counsel Fred Nelson suggesting that Roberts was "reluctant to defend [the] commission's position."
U.S. Brief in Support of Metro Broadcasting, Inc.'s Case Against the FCC, Feb. 9, 1990.
Oral arguments Roberts made before the Supreme Court when representing private clients:
Smith v. Doe, Nov. 13, 2002
Barnhart v. Peabody Coal Co., Oct. 8, 2002
Gonzaga University v. Doe, April 24, 2002
Rush Prudential HMO, Inc. v. Moran, Jan. 16, 2002
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency Jan. 7, 2002
Toyota Motor Mfg. v. Williams, Nov. 7, 2001
Other filings and Web sites:
National Archives Records Pertaining to Roberts
Transcript of Senate Judiciary Committee Confirmation Hearing, Jan. 29, 2003 (PDF)
Transcript of Senate Judiciary Confirmation Hearing, April 30, 2003 (PDF)
Roberts Financial Disclosure Report, Fiscal Year 2003
Hedgepeth v. WMATA, the case involving a 12-year-old girl arrested for eating on the Metro.
Rancho Viejo, LLC v. Norton Gale, Roberts dissented from the D.C. Circuit decision not to reconsider a three-judge panel's ruling that protected a rare California toad under the Endangered Species Act.
U.S. Brief in Rust v. Sullivan dealing with the issue of abortion signed by Roberts.
U.S. Brief in Oklahoma City Public Schools v. Dowell about school desegregation signed by Roberts.
Smith v. Doe, Nov. 13, 2002
Barnhart v. Peabody Coal Co., Oct. 8, 2002
Gonzaga University v. Doe, April 24, 2002
Rush Prudential HMO, Inc. v. Moran, Jan. 16, 2002
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, Jan. 7, 2002
Toyota Motor Mfg. v. Williams, Nov. 7, 2001
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
On September 5, President Bush nominated John G. Roberts Jr. to be chief justice of the Supreme Court. Bush previously nominated Roberts to be associate justice.
John G. Roberts Jr., 50, has long been considered one of the Republicans' heavyweights amid the largely Democratic Washington legal establishment. Roberts was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2003 by President George W. Bush. (He was also nominated by the first President Bush, but never received a Senate vote.) Previously, he practiced law at Washington's Hogan & Hartson from 1986-1989 and 1993-2003. Between 1989 and 1993, he was the principal deputy solicitor general in the first Bush administration, helping formulate the administration's position in Supreme Court cases. During the Reagan administration, he served as an aide to Attorney General William French Smith from 1981 to 1982 and as an aide to White House counsel Fred Fielding from 1982 to 1986.
With impeccable credentials -- Roberts attended Harvard College and Harvard Law School, clerked for Justice William H. Rehnquist on the Supreme Court and has argued frequently before the court -- the question marks about Roberts have always been ideological. While his Republican Party loyalties are undoubted, earning him the opposition of liberal advocacy groups, he is not a "movement conservative," and some on the party's right-wing doubt his commitment to their cause. His paper record is thin: As deputy solicitor general in 1990, he argued in favor of a government regulation that banned abortion-related counseling by federally funded family-planning programs. A line in his brief noted the Bush administration's belief that Roe v. Wade should be overruled.
As a judge on the D.C. Circuit, Roberts voted with two colleagues to uphold the arrest and detention of a 12-year-old girl for eating french fries on the Metro train, though his opinion noted that "[n]o one is very happy about the events that led to this litigation." In another case, Roberts wrote a dissenting opinion that suggested Congress might lack the power under the Constitution's Commerce Clause to regulate the treatment of a certain species of wildlife.
-- Charles Lane
Documents released Aug. 29 by the National Archives written by Roberts while working in the Reagan administration:
Memo to Ken Starr, councelor to Attorney General William French Smith, on appellate argument opportunities, Aug. 26, 1981
Memo to Sandra Day O'Connor regarding her nomination hearings for associate justice of the Supreme Court, Sept. 9, 1981
Memo to Ken Starr, counselor to Attorney General William French Smith, on judicial activism, Oct. 1, 1981
Memo to the Attorney General William French Smith regardling illegal immigrants, June 15, 1982
Memo to the Attorney General William French Smith regarding cases referred by the Equal Employment Opportunity Commission before the Supreme Court, June 18, 1982
Documents from the Reagan Library relating to Roberts' time as Associate Counsel to the President during the Reagan administration:
The Ronald Reagan Presidential Library released 5,393 government documents on Aug. 15.
Here, these documents are presented as 135 PDF files.
Roberts response to a Senate Judiciary Committee questionnaire in preparation for this September confirmation hearings:
Part I: Pages 1-25
Part II: Pages 26-50
Part III: Pages 51-76, Financial Disclosure Report
Memos written by Roberts during his tenure as an assistant White House counsel and a special assistant to then-Attorney General William French Smith during the Reagan administration:
Letter Regarding Pardons For Those Convicted of Violence Against Abortion Clinics, February 10, 1986.
Memo Regarding a Request to Support "In God We Trust" Plagues in Kentucky Schools, May 24, 1985.
Draft Article on Judicial Restraint, undated. The article was written by Roberts but was to appear in an American Bar Association journal under Smith's name. A Nov. 30, 1981 response to Roberts's draft by Bruce Fein, then of the Justice Department, is also available.
Roberts's Summary of a Lecture on "The Right to Privacy" by Then-Solicitor General Erwin N. Griswold, Dec. 11, 1981.
Memorandum Regarding Supreme Court Appellate Jurisdiction, April 12, 1982
Proposal to Divest the Supreme Court of Appellate Jurisdiction
Roberts on Anti-Busing Bill, Feb. 15, 1984
Roberts on the Clarksville Baptist Church, Aug. 2, 1984
Roberts on Grove City College, July 24, 1985
Roberts on the Ann Gorsuch Case, Dec. 23, 1982
Roberts on Fair Housing, Jan. 31, 1983
Roberts on Grenada, Jan. 13, 1984
Roberts on Immigration Reform and Control Act of 1983, Jan. 30, 1984
Roberts on Legislative Veto, Aug. 4, 1983
Documents related to a 1990 request by the Federal Communications Commission to defend a policy aimed at encouraging more minority ownership of broadcast stations.
Letter from FCC Chairman Alfred C. Sikes to Attorney General Richard L. Thornburgh, Jan. 20, 1990. Includes a handwritten memo written by Associate White House Counsel Fred Nelson suggesting that Roberts was "reluctant to defend [the] commission's position."
U.S. Brief in Support of Metro Broadcasting, Inc.'s Case Against the FCC, Feb. 9, 1990.
Oral arguments Roberts made before the Supreme Court when representing private clients:
Smith v. Doe, Nov. 13, 2002
Barnhart v. Peabody Coal Co., Oct. 8, 2002
Gonzaga University v. Doe, April 24, 2002
Rush Prudential HMO, Inc. v. Moran, Jan. 16, 2002
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency Jan. 7, 2002
Toyota Motor Mfg. v. Williams, Nov. 7, 2001
Other filings and Web sites:
National Archives Records Pertaining to Roberts
Transcript of Senate Judiciary Committee Confirmation Hearing, Jan. 29, 2003 (PDF)
Transcript of Senate Judiciary Confirmation Hearing, April 30, 2003 (PDF)
Roberts Financial Disclosure Report, Fiscal Year 2003
Hedgepeth v. WMATA, the case involving a 12-year-old girl arrested for eating on the Metro.
Rancho Viejo, LLC v. Norton Gale, Roberts dissented from the D.C. Circuit decision not to reconsider a three-judge panel's ruling that protected a rare California toad under the Endangered Species Act.
U.S. Brief in Rust v. Sullivan dealing with the issue of abortion signed by Roberts.
U.S. Brief in Oklahoma City Public Schools v. Dowell about school desegregation signed by Roberts.
Smith v. Doe, Nov. 13, 2002
Barnhart v. Peabody Coal Co., Oct. 8, 2002
Gonzaga University v. Doe, April 24, 2002
Rush Prudential HMO, Inc. v. Moran, Jan. 16, 2002
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, Jan. 7, 2002
Toyota Motor Mfg. v. Williams, Nov. 7, 2001
http://www.washingtonpost.com/ac2/wp-dyn/e...er=emailarticle
Roberts, Pressed on Abortion, Cites Respect for Settled Law
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By DAVID STOUT
Published: September 13, 2005
WASHINGTON, Sept. 13 - Judge John G. Roberts Jr. testified today, as he was pressed for his views on legalized abortion, that there is nothing in his Catholic faith that would prevent him from adhering to settled law on the bitterly divisive issue.
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Matthew Cavanaugh/European Pressphoto Agency
Judge John G. Roberts was testifying today before the Senate Judiciary Committee.
News Analysis: An Opening Performance Worthy of an Experienced Lawyer (September 13, 2005)
Schedule for Tuesday (September 13, 2005)
The Scene: As Roberts Hearings Begin, Manners Befit the Moment (September 13, 2005)
Forum: Issues Before the Supreme Court
Excerpts | Transcript | Video
Senate Hearing Primer
A Supreme Court confirmation hearing offers a window on the legal debates of the day.
Scotusblog.com
A regularly updated guide to the nomination and confirmation of Judge John G. Roberts.
Senator Arlen Specter, the chairman of the Senate Judiciary Committee, immediately questioned Judge Roberts about the 1973 Supreme Court decision that upheld the right of a woman to choose abortion and the 1992 decision that reaffirmed it.
Soon afterward during the second day of confirmation hearings, the questioning began to range far and wide, touching on the separation of government powers, the history of the civil rights movement and the right to privacy, a right that Judge Roberts said is indeed embodied in the Constitution.
Mr. Specter, a Pennsylvania Republican, wanted to know if Judge Roberts agreed with what Senator John F. Kennedy told a group of Protestant ministers in 1960: "I do not speak for the church on public matters, and the church does not speak for me."
"I agree with that, senator, yes," said Judge Roberts, who is President Bush's nominee to be chief justice of the United States.
The committee's ranking Democrat, Senator Patrick J. Leahy of Vermont, questioned the nominee aggressively on his beliefs about the separation of powers within government in the context of a president waging war without explicit authorization of Congress.
"I believe very strongly in the separation of powers," Judge Roberts said.
Mr. Specter, who supports the right to abortion, had been expected to question the nominee aggressively on the issue, and he did. And while Judge Roberts did not wholeheartedly embrace the 1973 Roe v. Wade decision or the 1992 Planned Parenthood v. Casey decision, he did signal that he would at least have to think long and hard before moving to upset them. He cited the principle of "stare decisis," a Latin term meaning to stand by the thing decided, in stating that the Roe ruling was "settled as a precedent of the court."
"So as of '92, you have a reaffirmation of the central holding in Roe," Judge Roberts recalled as Mr. Specter began the questioning. "That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles."
The nominee gave cautious answers, citing the difficulty of giving specific answers to hypothetical questions. But as a general principle, he said, he believes in "the importance of settled expectations," that ordinary citizens as well as lawyers should be able to rely on the predictability and stability of settled law.
But not always. Although overturning precedent can be "a jolt to the legal system," he said, it is sometimes right and necessary. He cited the landmark Brown v. Board of Education ruling of 1954, which outlawed public school segregation and in so doing overturned the Plessy v. Ferguson decision of the 19th Century that had upheld "separate but equal" facilities.
Although a Republican, Mr. Specter showed no sign of wanting to give Judge Roberts a free pass. The judge, now on the United States Court of Appeals for the District of Columbia Circuit, would succeed the late Chief Justice William H. Rehnquist if confirmed by the Senate.
Mr. Specter questioned the nominee about a memorandum he wrote in 1981, while a lawyer in the Reagan administration, in which he referred to the "so-called right to privacy."
The senator wanted to know if the wording indicated that Judge Roberts was lukewarm to the concept of a right to privacy, or if in fact he believed that privacy was a right embodied in the Constitution.
"Senator, I do," the judge replied. He said that right was spelled out in the First and Fourth Amendments, protecting free speech and freedom from unreasonable searches, as well as the lesser-known Third Amendment, protecting homeowners against having soldiers quartered in their homes against their will.
Senator Leahy pressed the nominee on how much power he thought a president had to wage war, even if undeclared, and whether he thought a president could authorize the use of torture - an obvious reference to mistreatment of some people detained after American military operations in Iraq and Afghanistan, and the controversy over whether administration officials at least tacitly approved the mistreatment.
"Does Congress have the power to stop a war?" Mr. Leahy asked.
"Congress has the power of the purse," the judge replied.
The senator conceded that point but added, "Wars sometimes keep going."
As for whether a president could "authorize" unlawful torture, Judge Roberts said, "I believe that no one is above the law."
http://www.nytimes.com/pages/partners/aol/...page/index.html
E-Mail This
Printer-Friendly
Reprints
By DAVID STOUT
Published: September 13, 2005
WASHINGTON, Sept. 13 - Judge John G. Roberts Jr. testified today, as he was pressed for his views on legalized abortion, that there is nothing in his Catholic faith that would prevent him from adhering to settled law on the bitterly divisive issue.
Skip to next paragraph
Enlarge This Image
Matthew Cavanaugh/European Pressphoto Agency
Judge John G. Roberts was testifying today before the Senate Judiciary Committee.
News Analysis: An Opening Performance Worthy of an Experienced Lawyer (September 13, 2005)
Schedule for Tuesday (September 13, 2005)
The Scene: As Roberts Hearings Begin, Manners Befit the Moment (September 13, 2005)
Forum: Issues Before the Supreme Court
Excerpts | Transcript | Video
Senate Hearing Primer
A Supreme Court confirmation hearing offers a window on the legal debates of the day.
Scotusblog.com
A regularly updated guide to the nomination and confirmation of Judge John G. Roberts.
Senator Arlen Specter, the chairman of the Senate Judiciary Committee, immediately questioned Judge Roberts about the 1973 Supreme Court decision that upheld the right of a woman to choose abortion and the 1992 decision that reaffirmed it.
Soon afterward during the second day of confirmation hearings, the questioning began to range far and wide, touching on the separation of government powers, the history of the civil rights movement and the right to privacy, a right that Judge Roberts said is indeed embodied in the Constitution.
Mr. Specter, a Pennsylvania Republican, wanted to know if Judge Roberts agreed with what Senator John F. Kennedy told a group of Protestant ministers in 1960: "I do not speak for the church on public matters, and the church does not speak for me."
"I agree with that, senator, yes," said Judge Roberts, who is President Bush's nominee to be chief justice of the United States.
The committee's ranking Democrat, Senator Patrick J. Leahy of Vermont, questioned the nominee aggressively on his beliefs about the separation of powers within government in the context of a president waging war without explicit authorization of Congress.
"I believe very strongly in the separation of powers," Judge Roberts said.
Mr. Specter, who supports the right to abortion, had been expected to question the nominee aggressively on the issue, and he did. And while Judge Roberts did not wholeheartedly embrace the 1973 Roe v. Wade decision or the 1992 Planned Parenthood v. Casey decision, he did signal that he would at least have to think long and hard before moving to upset them. He cited the principle of "stare decisis," a Latin term meaning to stand by the thing decided, in stating that the Roe ruling was "settled as a precedent of the court."
"So as of '92, you have a reaffirmation of the central holding in Roe," Judge Roberts recalled as Mr. Specter began the questioning. "That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles."
The nominee gave cautious answers, citing the difficulty of giving specific answers to hypothetical questions. But as a general principle, he said, he believes in "the importance of settled expectations," that ordinary citizens as well as lawyers should be able to rely on the predictability and stability of settled law.
But not always. Although overturning precedent can be "a jolt to the legal system," he said, it is sometimes right and necessary. He cited the landmark Brown v. Board of Education ruling of 1954, which outlawed public school segregation and in so doing overturned the Plessy v. Ferguson decision of the 19th Century that had upheld "separate but equal" facilities.
Although a Republican, Mr. Specter showed no sign of wanting to give Judge Roberts a free pass. The judge, now on the United States Court of Appeals for the District of Columbia Circuit, would succeed the late Chief Justice William H. Rehnquist if confirmed by the Senate.
Mr. Specter questioned the nominee about a memorandum he wrote in 1981, while a lawyer in the Reagan administration, in which he referred to the "so-called right to privacy."
The senator wanted to know if the wording indicated that Judge Roberts was lukewarm to the concept of a right to privacy, or if in fact he believed that privacy was a right embodied in the Constitution.
"Senator, I do," the judge replied. He said that right was spelled out in the First and Fourth Amendments, protecting free speech and freedom from unreasonable searches, as well as the lesser-known Third Amendment, protecting homeowners against having soldiers quartered in their homes against their will.
Senator Leahy pressed the nominee on how much power he thought a president had to wage war, even if undeclared, and whether he thought a president could authorize the use of torture - an obvious reference to mistreatment of some people detained after American military operations in Iraq and Afghanistan, and the controversy over whether administration officials at least tacitly approved the mistreatment.
"Does Congress have the power to stop a war?" Mr. Leahy asked.
"Congress has the power of the purse," the judge replied.
The senator conceded that point but added, "Wars sometimes keep going."
As for whether a president could "authorize" unlawful torture, Judge Roberts said, "I believe that no one is above the law."
http://www.nytimes.com/pages/partners/aol/...page/index.html
http://www.nytimes.com/2005/09/13/politics...xt-roberts.html
Second Day of Hearings on the Nomination of Judge Roberts
TRANSCRIPT
Second Day of Hearings on the Nomination of Judge Roberts
TRANSCRIPT
http://www.nytimes.com/2005/09/13/politics...xt-roberts.html
Second Day of Hearings on the Nomination of Judge Roberts
TRANSCRIPT
Senators to Question 1st Supreme Court Nominee in 11 Years
Second Day of Hearings on the Nomination of Judge Roberts
TRANSCRIPT
Senators to Question 1st Supreme Court Nominee in 11 Years
http://www.nytimes.com/2005/09/13/politics.../13roberts.html
An Opening Performance Worthy of an Experienced Lawyer
An Opening Performance Worthy of an Experienced Lawyer
http://www.nytimes.com/2005/09/13/politics...l1/13scene.html
As Roberts Hearings Begin, Manners Befit the Moment
As Roberts Hearings Begin, Manners Befit the Moment
http://www.nytimes.com/2005/09/12/politics.../12roberts.html
In Roberts Hearing Today, Spotlight Falls on Senators, Too
In Roberts Hearing Today, Spotlight Falls on Senators, Too
--------------------
Roberts Indicates Respect for Abortion Precedent
--------------------
By David G. Savage
Times Staff Writer
September 13 2005, 9:17 AM PDT
WASHINGTON -- Judge John G. Roberts Jr., President Bush's choice for chief justice of the United States, presented a strong indication today that he would not vote to overturn the precedent established in the Roe v. Wade decision that legalized abortion.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
Roberts Indicates Respect for Abortion Precedent
--------------------
By David G. Savage
Times Staff Writer
September 13 2005, 9:17 AM PDT
WASHINGTON -- Judge John G. Roberts Jr., President Bush's choice for chief justice of the United States, presented a strong indication today that he would not vote to overturn the precedent established in the Roe v. Wade decision that legalized abortion.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
--------------------
Text of Roberts' Statement
--------------------
Text of John Roberts' opening statement to the Senate Judiciary Committee, as transcribed by CQ Transcriptions.
From Associated Press
September 12 2005
Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
Text of Roberts' Statement
--------------------
Text of John Roberts' opening statement to the Senate Judiciary Committee, as transcribed by CQ Transcriptions.
From Associated Press
September 12 2005
Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
--------------------
An Understated Start to Hearings
--------------------
Moments of drama are few on the first day of proceedings for the chief justice nominee. But some say the restraint may not last the week.
By Maura Reynolds and Richard B. Schmitt
Times Staff Writers
September 13 2005
WASHINGTON; The ornate Russell Caucus Room has been the site of many of the Senate's more memorable moments; including investigations into scandals such as Watergate and Teapot Dome as well as the free-for-all interrogations of Supreme Court nominees Robert H. Bork and Clarence Thomas.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
An Understated Start to Hearings
--------------------
Moments of drama are few on the first day of proceedings for the chief justice nominee. But some say the restraint may not last the week.
By Maura Reynolds and Richard B. Schmitt
Times Staff Writers
September 13 2005
WASHINGTON; The ornate Russell Caucus Room has been the site of many of the Senate's more memorable moments; including investigations into scandals such as Watergate and Teapot Dome as well as the free-for-all interrogations of Supreme Court nominees Robert H. Bork and Clarence Thomas.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
--------------------
Roberts Sees Role as Judicial 'Umpire'
--------------------
'I have no platform,' the chief justice nominee tells senators at start of confirmation hearings.
By David G. Savage
Times Staff Writer
September 13 2005
WASHINGTON; Judge John G. Roberts Jr., President Bush's choice for chief justice of the United States, said Monday that he aspired to a humble and limited role as leader of the Supreme Court, more akin to an umpire who calls the balls and strikes rather than the star player who is the center of attention.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
Roberts Sees Role as Judicial 'Umpire'
--------------------
'I have no platform,' the chief justice nominee tells senators at start of confirmation hearings.
By David G. Savage
Times Staff Writer
September 13 2005
WASHINGTON; Judge John G. Roberts Jr., President Bush's choice for chief justice of the United States, said Monday that he aspired to a humble and limited role as leader of the Supreme Court, more akin to an umpire who calls the balls and strikes rather than the star player who is the center of attention.
The complete article can be viewed at:
http://www.latimes.com/news/nationworld/na...-home-headlines
Who says Senator Spector doesn't have a sense of humor!
[Relying on my memory:]
BIDEN: (To Roberts) With all due respect, that is a misleading answer.
SPECTOR: Well, they may be misleading but those are his answers.
Spector made a funny! Spector made a funny!
[Relying on my memory:]
BIDEN: (To Roberts) With all due respect, that is a misleading answer.
SPECTOR: Well, they may be misleading but those are his answers.
Spector made a funny! Spector made a funny!
So basically, his response about Roe vs. Wade is that he'll adhere to Roe vs. Wade until someone comes up with a better argument.
and, he seems to be bound and determine to not answer a Democrat's question.
Let's see if he answers this one...
Let's see if he answers this one...
And, I'll be honest--I don't know what the hell they're talking about half the time because I don't know the details of every freakin case to ever come before the Supreme Court.
Does anyone know the Youngstown case they're talking about?
QUOTE(starrygalore @ Sep 13 2005, 10:26 AM)
Does anyone know the Youngstown case they're talking about?
This is the link; http://caselaw.lp.findlaw.com/scripts/getc...l=343&invol=579
This is the first page of the record;
U.S. Supreme Court
YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)
343 U.S. 579
YOUNGSTOWN SHEET & TUBE CO. ET AL. v. SAWYER.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT. * No. 744.
Argued May 12-13, 1952.
Decided June 2, 1952.
To avert a nation-wide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the President by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces. The Secretary issued an order seizing the steel mills and directing their presidents to operate them as operating managers for the United States in accordance with his regulations and directions. The president promptly reported these events to Congress; but Congress took no action. It had provided other methods of dealing with such situations and had refused to authorize governmental seizures of property to settle labor disputes. The steel companies sued the Secretary in Federal District Court, praying for a declaratory judgment and injunctive relief. The District Court issued a preliminary injunction, which the Court of Appeals stayed. Held:
1. Although this case has proceeded no further than the preliminary injunction stage, it is ripe for determination of the constitutional validity of the Executive Order on the record presented. Pp. 584-585.
(a) Under prior decisions of this Court, there is doubt as to the right to recover in the Court of Claims on account of properties unlawfully taken by government officials for public use. P. 585.
(
Seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. P. 585. [343 U.S. 579, 580] 2. The Executive Order was not authorized by the Constitution or laws of the United States; and it cannot stand. Pp. 585-589.
(a) There is no statute which expressly or impliedly authorizes the President to take possession of this property as he did here. Pp. 585-586.
(
In its consideration of the Taft-Hartley Act in 1947, Congress refused to authorize governmental seizures of property as a method of preventing work stoppages and settling labor disputes. P. 586.© Authority of the President to issue such an order in the circumstances of this case cannot be implied from the aggregate of his powers under Article II of the Constitution. Pp. 587-589.
(d) The Order cannot properly be sustained as an exercise of the President's military power as commander in Chief of the Armed Forces. P. 587.
(e) Nor can the Order be sustained because of the several provisions of Article II which grant executive power to the President. Pp. 587-589.
(f) The power here sought to be exercised is the lawmaking power, which the Constitution vests in the Congress alone, in both good and bad times. Pp. 587-589.
(g) Even if it be true that other Presidents have taken possession of private business enterprises without congressional authority in order to settle labor disputes, Congress has not thereby lost its exclusive constitutional authority to make the laws necessary and proper to carry out all powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof." Pp. 588-589.
103 F. Supp. 569, affirmed.
For concurring opinion of MR. JUSTICE FRANKFURTER, see post, p. 593.
For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 629.
For concurring opinion of MR. JUSTICE JACKSON, see post, p. 634.
For concurring opinion of MR. JUSTICE BURTON, see post, p. 655.
For opinion of MR. JUSTICE CLARK, concurring in the judgment of the Court, see post, p. 660.
For dissenting opinion of MR. CHIEF JUSTICE VINSON, joined by MR. JUSTICE REED and MR. JUSTICE MINTON, see post, p. 667.
Biden explained quite well, I think, why the "umpire analogy" Roberts used yesterday is very misleading and inapposite:
http://www.washingtonpost.com/wp-dyn/conte...1300947_pf.html
QUOTE
As you know, in major league baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges (ph) is: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, That was down around the ankles and I think it was a strike. They don't get to do that.
But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States -- I mean born in America to be a president of the United States. The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?
So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?
Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure.
And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment.
It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for.
You get to go back and decide. You get to go back and decide like in the Michael H. case: Do you look at a narrow or a broad right that has been respected? That's a strike zone.
. . .
So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.
So I want to try to figure out how you infer. I want to figure out how you go about this.
But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States -- I mean born in America to be a president of the United States. The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?
So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?
Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure.
And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment.
It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for.
You get to go back and decide. You get to go back and decide like in the Michael H. case: Do you look at a narrow or a broad right that has been respected? That's a strike zone.
. . .
So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.
So I want to try to figure out how you infer. I want to figure out how you go about this.
http://www.washingtonpost.com/wp-dyn/conte...1300947_pf.html
Okay--sorta clears things up, but I don't really see how this applies to the president's authorization of the use of torture (other than the executive order part). He's been doing that alot actually--When he was talking about Roe v Wade he kept talking about the Miranda case. It's really frustrating! It's like, answer a question directly!! (but we know that will never happen)
It's also disturbing that he refuses to answer the Dems questions. And, using the Ginsberg precendent to not answer some questions, but then when she did answer similar questions, he just decides to set his own precendent by not answering. To me, that's pretty telling of how he would act as a judge. Use precendence when its convienant and beneficial to his agenda, depart from precedence when precendence does not fit his agenda.
It's also disturbing that he refuses to answer the Dems questions. And, using the Ginsberg precendent to not answer some questions, but then when she did answer similar questions, he just decides to set his own precendent by not answering. To me, that's pretty telling of how he would act as a judge. Use precendence when its convienant and beneficial to his agenda, depart from precedence when precendence does not fit his agenda.
Do you have C-SPAN on? They're interviewing a spinmaster from the Washington Times....how they acknowledge that paper as being a legitimate news organization is beyond me.
As Biden pointed out, he gets to "infer" the "strike zones" using his Baseball/Umpire analogy. So he gets to decide what words in the Constitution mean. Words like "unreasonable" as in search and seizure. Words like "cruel and unusual", etc.
QUOTE(starrygalore @ Sep 13 2005, 10:54 AM)
Do you have C-SPAN on? They're interviewing a spinmaster from the Washington Times....how they acknowledge that paper as being a legitimate news organization is beyond me.
I didn't have it on at that time. Right now they are talking to Chuck Todd Hotline Editor in Chief.
Moonies' Washington Times is a Yellow Journalistic Rag with a paid for political slant!
Okay, it's back on and Kyl's up (the douche). I can not STAND this guy!!!!!!
Yeah, he probably won't read the entire transcript because the entire transcript would disprove his point.
Yeah, he probably won't read the entire transcript because the entire transcript would disprove his point.
QUOTE(starrygalore @ Sep 13 2005, 12:21 PM)
So basically, his response about Roe vs. Wade is that he'll adhere to Roe vs. Wade until someone comes up with a better argument.
I think he sounds less threatening on Roe than he does toward civil rights, although those constitutionally challenging arguements on Roe are more than likely waiting in the wings at the state level.
He has a very, very dissastisfying view on Civil Rights. He doesn't seem to understand the basic principle behind them, which I find extremely disturbing given what just happened in New Orleans. I am disappointed that officials have been appointed to this level with such a misunderstanding of these laws. Also, with all of the labor inequities we have just experienced over the last five years, it is becoming more and more clear that the conservative movement lacks a very fundamental understanding of how Civil Rights Laws and issues of equal rights and freedom for all Americans have shaped our country and how they have the power to affect everybody in their everyday lives.
I have a better opinion of Roberts today than I did yesterday (which is not saying much). He does seem like a competent lawyer, but as a judge, he has some very underdeveloped ideas and overall IMO he is not ready to sit on the Supreme Court. Maybe in another 10 years, but not now. He needs more seasoning and experience in the position he is in, and he needs more exposure to issues of Civil Rights before he can preside effectively at the level he was nominated to.
OMG, other than the emminant domain thing, I don't agree with a SINGLE aspect of his definitions of advancing progress and freedom. In fact, his definitions seem to be more in line with hindering progress and freedom. (I'm referring to Kyls, by the way)
WHAT?! I'm sorry--he just claimed that the Supreme Court couldn't decided what cases came before them! Are you kidding me??? That's exactly WHAT the SC does!!! (again a Kyls reference--who is this idiot?)
WHAT?! I'm sorry--he just claimed that the Supreme Court couldn't decided what cases came before them! Are you kidding me??? That's exactly WHAT the SC does!!! (again a Kyls reference--who is this idiot?)
He's had practice sessions with "actors" representing the Senators I have NO doubt. This is all canned to get him through. He would not be supported by the Religious Fanatics, and by BushCo. unless he was a "Champion" of their causes. All you have to do is determine their interests and you have your answer as to who he is.
The Religious Fanatics want a "Christian" Theocracy!
The Right Wing wants rollback of Civil Rights for minorities, women, and the disabled.
BushCo. wants expanded Corporate Rights and Immunity from all Financial Responsibility, including Pensions and Liability to the average American. The
The Religious Fanatics want a "Christian" Theocracy!
The Right Wing wants rollback of Civil Rights for minorities, women, and the disabled.
BushCo. wants expanded Corporate Rights and Immunity from all Financial Responsibility, including Pensions and Liability to the average American. The