Roberts would recuse himself?

[zakur]

The faith of John Roberts (http://www.latimes.com/news/printedition/opinion/la-oe-turley25jul25,1,3397898.story?coll=la-news-comment) Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case).

Roberts may insist that he was merely discussing the subject theoretically in an informal setting, and that he doesn't anticipate recusing himself on a regular basis. But it's not a subject that can be ignored; if he were to recuse himself on such issues as abortion and the death penalty, it would raise the specter of an evenly split Supreme Court on some of the nation's most important cases.

[Grammatron]

Supreme Court nom Roberts gives assurances -senator (http://today.reuters.com/news/newsArticle.aspx?type=politicsNews&storyID=2005-07-25T213017Z_01_N25284941_RTRIDST_0_POLITICS-USA-COURT-BUSH-DC.XML)

WASHINGTON (Reuters) - A Republican senator said on Monday that Supreme Court nominee John Roberts had assured him he would rule on the law without the influence of his Catholic religion, which opposes abortion.

"He recognized that anybody who cannot do that ... is unsuitable for the bench," Sen. John Cornyn of Texas said after a private meeting with President Bush's conservative candidate for the high court.

Roberts spent a fourth day visiting with senators who will decide whether to confirm him to replace retiring Justice Sandra Day O'Connor. A vote is expected in September after confirmation hearings.
....
Cornyn said he asked Roberts about a column on Monday in The Los Angeles Times by Jonathan Turley, a law professor at George Washington University. It focused on a meeting the nominee had last week with assistant Senate Democratic leader Richard Durbin of Illinois.

Turley wrote that two people who attended the meeting said Roberts was asked by Durbin what he would do if the law required a ruling that his church considered immoral.

"Roberts ... answered after a long pause that he would probably have to recuse himself," Turley wrote.

Durbin's office had no immediate comment, but later in the day a spokesman said the column was wrong.

At the White House, press secretary Scott McClellan said, "Judge Roberts has said in previous testimony that personal beliefs or views have no role whatsoever when it comes to decisions that judges make."

[Brown]

Another strange development (as reported by the New York Times (http://www.nytimes.com/2005/07/26/politics/politicsspecial1/26cnd-confirm.html?hp&ex=1122436800&en=e02795e581a17a24&ei=5094&partner=homepage)--reg. req'd):Republican and Democratic senators clashed today on whether the administration was cooperating enough in releasing thousands of pages of documents from earlier in the career of Judge John G. Roberts, President Bush's nominee for the Supreme Court.

All eight Democrats on the Senate Judiciary Committee signed a letter to the White House expressing their disappointment that the Bush administration was not giving them all the information they have asked and urging a change of heart. But the White House was standing fast, as were their Republican allies in the Senate.
...
Republican senators, meanwhile, said the White House has already been cooperative enough.
...
President Bush's chief spokesman, Scott McClellan, said today, "The decision that we have made to provide them with all of that appropriate information, I think, goes above and beyond what the Senate needs to do their job. It's more than what they need."The notion that the White House would so blatantly refuse to provide documentation, saying that it has provided enough for the Senate to do "their" job, is bizarre. The notion that any group of United States senators would deem less than full disclosure to be "good enough" is bizarre squared. Every senator, regardless of party, should take the position that the Senate, not the President, will decide what the Senate deems to be important.

The request for documents is related to the Senate's inquiry and there is no indication that there is a "fishing expedition":
The dispute has to do with documents related to Judge Roberts's work in the solicitor general's office from 1989 to 1993, under the first President George Bush. Democrats say they need the documents because they could shed light on the nominee's thinking about issues that may come before the Supreme Court.

The White House and its Republican allies say Democrats are not entitled to those papers because they are covered under the attorney-client privilege. The solicitor general acts as the lawyer for the federal government.The assertion of attorney-client privilege is strange because: (1) the president is not the "client" and cannot assert the privilege; (2) Judge Roberts is not entitled to assert the privilege on his own behalf; and (3) the privilege can be waived. Furthermore, every lawyer knows that his client might waive the privilege in the future, so lawyers have no expectation that their advice will be confidential for all time. Apparently the White House is ignorant of this fact, however:Mr. McClellan said previous solicitors general have expressed concerns that the confidentiality of their office might be breached. "They rely on open, candid and thorough assessments or advice from their attorneys during the decision-making process, and you cannot have that if attorneys in the Office of the Solicitor General fear that that information might be disclosed," he said.Also, this business gives one an eerie sense of deja vu. Where have we heard a similar argument before? The answer is: during Watergate. Richard Nixon made a similar argument for refusual to turn over tapes, citing executive privilege. Nixon turned over what he said were transcripts, and said to the Congress, in effect, "That is all you need to do your job." The Supreme Court eventually heard, and soundly rejected, Nixon's argument.

[Luke T.]

I also have a sense of deja vu. The 1960 election when Kennedy was asked if he was a tool of the Pope.

[CapelDodger]

Originally posted by Luke T.
I also have a sense of deja vu. The 1960 election when Kennedy was asked if he was a tool of the Pope. Al Smith was asked much the same in 1928, as I recall. I think it's a valid question, if not exactly in the terms you use. What would a good Papist President do if given a direct order by the Pope in infallibility mode?

[zakur]

Gonzales: Roberts Not Bound by Statement (http://www.guardian.co.uk/worldlatest/story/0,1280,-5168973,00.html) Gonzales said circumstances had changed since Roberts commented on Roe v. Wade during his 2003 confirmation hearing for the seat he now holds on the U.S. Court of Appeals for the District of Columbia Circuit.

``If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent,'' Gonzales said.

``If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong,'' Gonzales said.

While abortion foes fret about Roberts' statement two years ago, abortion rights groups are concerned by a legal brief Roberts helped write for a Supreme Court case while serving as deputy solicitor general in the administration of President George H.W. Bush.

The brief argued that the landmark abortion decision ``was wrongly decided and should be overruled.'' Bush officials have said the brief reflected administration policy and Roberts was one of nine lawyers who signed it.

Gonzales said deciding when to overturn an earlier ruling ``is one of the most difficult questions any Supreme Court justice has to answer.'' Among the factors to consider is how old is the precedent, he said.

Gonzales said he has a ``preliminary judgment'' about whether the Constitution affords the right to an abortion, but he declined to reveal it.

[Luke T.]

Speaking of Durbin and the Pope and Kennedy and abortion and all that:

Around 8:50 p.m., I saw Kerry just off the Senate floor. Again I asked him about the Vatican’s doctrinal note. “I have not read it,� he admitted. I slipped quickly into an elevator with him, Democratic Senator Dick Durbin of Illinois, and two others. Kerry pointed me to Durbin, another pro-abortion Catholic. “Why don’t you ask him?� Kerry suggested with a nervous smile. “He has a direct line to the Vatican.�

Durbin, his expression blank, said nothing.

The elevator released us, and I walked with Kerry down the escalator to wait for the tram to his office. “I have to represent all the people in my state, and to tell Jews and Buddhists otherwise…� he said, trailing off.

After a pause, he began again. “President Kennedy settled this in 1960.�

http://www.crisismagazine.com/may2003/feature1.htm

[corplinx]

Originally posted by Brown
The request for documents is related to the Senate's inquiry and there is no indication that there is a "fishing expedition"

I'm willing to buy that attorney client and execute privelege may not apply. I'm not so gullible as to believe this isn't a fishing expedition or small obstruction meant as a warning about future nominees.

If you want thousands of documents not looking for anything specific, what is it you call that?

[Luke T.]

Originally posted by corplinx
If you want thousands of documents not looking for anything specific, what is it you call that?

Fact-finding.

[Art Vandelay]

I don't understand how ruling that laws against abortion are unconstitutional could be considered immoral, even if one were to accept that abortion is a sin. How would Roberts possibly be "required" to make a ruling that he considers immoral? If one honestly believes that the constitution does not prohibit anti-abortion laws, then there is no conflict, so the question is moot. If one honestly believes that the constitution does prohibit them, then how is it immoral to say so? If you were asked whether a particular state has any laws against rape, and you honestly believe that it does not, would it be immoral to say so?

Apparently there are people that believe that justices have a moral obligation to make up laws against anything they consider a sin. "Strict constructionism" my ass.

Originally posted by Brown
The notion that the White House would so blatantly refuse to provide documentation, saying that it has provided enough for the Senate to do "their" job, is bizarre. The notion that any group of United States senators would deem less than full disclosure to be "good enough" is bizarre squared. While it may very well be that accepted practices are such that what you say is true, the fact that you would consider this a given is itself bizarre. If the Senate told me that it felt that pawing through my stuff is needed for them to do their job, I'd tell them to go **** themselves. Granted, I, as a private citizen, am not entirely the same as the President. But you have failed to explain how this translates into different rules.

Every senator, regardless of party, should take the position that the Senate, not the President, will decide what the Senate deems to be important. The Senate is free to determine what it deems important, but the President will determine what he deems important.

The assertion of attorney-client privilege is strange because: (1) the president is not the "client" and cannot assert the privilege; (2) Judge Roberts is not entitled to assert the privilege on his own behalf; and (3) the privilege can be waived.
(1) Someone is the client. (2) Granted, but his presumed wishes may be considered when determining whether to waive privilege. (3) Huh? Privilege can be waived, therefore it should be?

Furthermore, every lawyer knows that his client might waive the privilege in the future, so lawyers have no expectation that their advice will be confidential for all time.Everyone knows that their partner may put tapes of them having sex on the internet, but that hardly means there is no expectation of privacy.

Where have we heard a similar argument before? The answer is: during Watergate. Do you really think that that is comparable? To begin with, they were investigating a crime. Is Roberts suspected of committing a crime? Do you expect the Senate to issue subpoenas?

Luke T.Kerry pointed me to Durbin, another pro-abortion Catholic.The use of the term "pro-abortion" shows the author to be dishonest. Kerry et al. are not "pro-abortion", and to claim otherwise is a vicious lie. The author also compares pro-choice politicians to racists, completely missing the fact that pro-choice politicians do not support abortion, merely women's right to have them. The proper analogy would not be with racists, but with those that opposed outlawing racism. I see nothing evil in either position.

[RandFan]

Originally posted by Art Vandelay
I don't understand how ruling that laws against abortion are unconstitutional could be considered immoral, even if one were to accept that abortion is a sin. A sticky wicket to be sure. Let's leave out the word sin for the moment and substitute "immoral". How could a law that allows immorality not be considered immoral? Therefore how could you invalidate a moral law for an immoral one?

I've never accepted the notion that a person who believed abortion was murder could be pro-choice. How is that possible? It takes mental gymnastics to come to such a position. Is there any other instance where such a severe immorality is a matter of choice? I'm against slavery but it's your choice.

I'm against drive by shootings but it's your choice. The problem is that most people are just uncomfortable with abortion for a number of subjective reasons. There is no objective reason to believe that 1st trimester abortion is murder.

FWIW, I'm very uncomfortable with abortion. I would that people not do it. However I cannot rationally accept that abortion is murder or even immoral for that matter. If I did I would actively be anti-abortion. No question about it. People who believe that another person is killing a child but that the choice to kill a child is up to the other person are moral morons.

[delphi_ote]

Originally posted by Art Vandelay
If the Senate told me that it felt that pawing through my stuff is needed for them to do their job, I'd tell them to go **** themselves.

In the federal law of the United States, contempt of Congress is the crime of obstructing the work of U.S. Congress, with a punishment of up to one year in prison and up to $1,000 in fines.

U.S. Congress generally brings this action for refusing to testify before a Congressional committee, or failing to provide a committee with requested documents.

http://en.wikipedia.org/wiki/Contempt_of_Congress

That sounds like a very good idea, Art.

[Luke T.]

Originally posted by corplinx
If you want thousands of documents not looking for anything specific, what is it you call that?

Fishing expedition.

[Luke T.]

Originally posted by corplinx
If you want thousands of documents not looking for anything specific, what is it you call that? Berger-larizing (http://www.foxnews.com/story/0,2933,126249,00.html)

[Jocko]

Originally posted by Luke T.
Fact-finding.

Kenneth Starr will be glad to hear it, as I'm sure will his critics will be.

[Luke T.]

Originally posted by Art Vandelay
Luke T.The use of the term "pro-abortion" shows the author to be dishonest. Kerry et al. are not "pro-abortion", and to claim otherwise is a vicious lie. The author also compares pro-choice politicians to racists, completely missing the fact that pro-choice politicians do not support abortion, merely women's right to have them. The proper analogy would not be with racists, but with those that opposed outlawing racism. I see nothing evil in either position.

So when did Durbin question Kerry's Catholicism and how it would affect his Presidency?

[Jocko]

Originally posted by Luke T.
Fishing expedition.

Oh, drat, I thought we were entering a brave new world of peace, love and mutual understanding. Poop.

[Jocko]

Originally posted by Luke T.
Berger-larizing (http://www.foxnews.com/story/0,2933,126249,00.html)

Heh, heh...

Sandy Berger Probed Over Terror Memos

Considering where he was stuffing them, I'm sure "probing" was the only way to get them all back.

[Brown]

Originally posted by Art Vandelay
While it may very well be that accepted practices are such that what you say is true, the fact that you would consider this a given is itself bizarre. If the Senate told me that it felt that pawing through my stuff is needed for them to do their job, I'd tell them to go **** themselves. Granted, I, as a private citizen, am not entirely the same as the President. But you have failed to explain how this translates into different rules.

The Senate is free to determine what it deems important, but the President will determine what he deems important.

(1) Someone is the client. (2) Granted, but his presumed wishes may be considered when determining whether to waive privilege. (3) Huh? Privilege can be waived, therefore it should be?

Everyone knows that their partner may put tapes of them having sex on the internet, but that hardly means there is no expectation of privacy.These remarks really miss the boat. It's hard to take them seriously.

Every lawyer knows that materials protected by the attorney-client privilege might someday come to light. Every lawyer also knows that it is the client, not the lawyer, who has the privilege. Further, every lawyer--including every private lawyer--knows that responding to a request for records from a duly authorized authority with "Go **** yourself" would place the lawyer in grave danger of losing his license and possibly winding up in the slammer.

Put simply, the lawyer has no expectation of perpetual privacy pertaining to the counsel afforded to a client.

In circumstances like this, a lawyer or client might have grounds for withholding documents on the basis of work product protection (which is not a privilege, but which is based upon an expectation of privacy). Work product protection has not been asserted here, however, and given the White House's stance, it's not clear how it could be asserted now.

[Art Vandelay]

Originally posted by delphi_ote
In the federal law of the United States, contempt of Congress is the crime of obstructing the work of U.S. Congress, with a punishment of up to one year in prison and up to $1,000 in fines.

U.S. Congress generally brings this action for refusing to testify before a Congressional committee, or failing to provide a committee with requested documents.

http://en.wikipedia.org/wiki/Contempt_of_Congress

That sounds like a very good idea, Art.See, that's the sort of information that was missing from Brown's post. Odd that there were so many complaints about the Patriot Act allowing the FBI to perform searches without judicial review, when apparently Congress has already given themselves essentially the same power. If Congress were to capriciously invade my privacy, I would certainly object.

BrownFurther, every lawyer--including every private lawyer--knows that responding to a request for records from a duly authorized authority with "Go **** yourself" would place the lawyer in grave danger of losing his license and possibly winding up in the slammer."Duly authorized"? "Self-appointed" is how I would describe it. If the Senate were to ask an ex-girlfriend to turn over all love letters from him, would you consider that a valid request?

Put simply, the lawyer has no expectation of perpetual privacy pertaining to the counsel afforded to a client. This assertion simply does not follow from the previous statements. Simply because a lawyer cannot be assured of privacy does not mean that lawyers do not expect their clients to exercise discretion.

Luke T.So when did Durbin question Kerry's Catholicism and how it would affect his Presidency?Huh?

RandFan
A sticky wicket to be sure. Let's leave out the word sin for the moment and substitute "immoral". How could a law that allows immorality not be considered immoral?You seriously are of the opinion that anything that is immoral should be illegal, and furthermore that failing to make it illegal is itself illegal?

Therefore how could you invalidate a moral law for an immoral one?Isn't passing a law which one has no legal right to pass itself immoral, even if one does so with good intentions? Suppose that a particular state has no laws against rape. Another state sends in police officers to arrest residents of that state in that state, for committing rape in that state. Isn't that, at least, questionable? Would you call a judge "immoral" if he were to dismiss these cases?

I've never accepted the notion that a person who believed abortion was murder could be pro-choice. How is that possible? You're conflating a bunch of different issues. Whether one is pro-choice and whether one believes that anti-abortion laws are allowed by the constitution are two separate issues. Saying that it should be legal and saying that it's "up to the other person" are different. And saying that abortion is immoral isn't quite the same thing as saying it's murder. As for your slavery example, there were plenty of people that were deeply opposed to slavery, but recognized that there were valid reasons for not trying to abolish it.

[crimresearch]

Originally posted by Brown
Another strange development (as reported by the New York Times (http://www.nytimes.com/2005/07/26/politics/politicsspecial1/26cnd-confirm.html?hp&ex=1122436800&en=e02795e581a17a24&ei=5094&partner=homepage)--reg. req'd):The notion that the White House would so blatantly refuse to provide documentation, saying that it has provided enough for the Senate to do "their" job, is bizarre. The notion that any group of United States senators would deem less than full disclosure to be "good enough" is bizarre squared. Every senator, regardless of party, should take the position that the Senate, not the President, will decide what the Senate deems to be important.

The request for documents is related to the Senate's inquiry and there is no indication that there is a "fishing expedition":
The assertion of attorney-client privilege is strange because: (1) the president is not the "client" and cannot assert the privilege; (2) Judge Roberts is not entitled to assert the privilege on his own behalf; and (3) the privilege can be waived. Furthermore, every lawyer knows that his client might waive the privilege in the future, so lawyers have no expectation that their advice will be confidential for all time. Apparently the White House is ignorant of this fact, however:Also, this business gives one an eerie sense of deja vu. Where have we heard a similar argument before? The answer is: during Watergate. Richard Nixon made a similar argument for refusual to turn over tapes, citing executive privilege. Nixon turned over what he said were transcripts, and said to the Congress, in effect, "That is all you need to do your job." The Supreme Court eventually heard, and soundly rejected, Nixon's argument.

I call BS...Kerry didn't demand that George Bush the person turn over his private legal paperwork, he demanded that the government turn over 'in its entirety' every document and memo that Roberts had anything to do with, between one date and another.

I've already provided a link the courts' acceptance of privilege between government attorneys and their departmental clients in the New Plame thread, if anyone is interested in determining for themselves whether Congress has the right to ignore said privilege.
But claiming that it can't possibly exist in any form, because it doesn't exist in one form, is incorrect.

It might also prove enlightening to do a little research into the courts' positions on having to make public things like work product, classified documents, and records sealed by court order.... all of which would fall under Kerry's demand.

If anyone were in fact, interested in such things....