Is Roberts doing the American people a grave disservice?

[Ed]

I have been giving this some thought and I am now under the opinion that he is.

As Allen Derchowitz pointed out, Wasington made 11 appointment to the SC. The tenure during the early years was 4-7 years or so. The framers, nor anyone else, believed that a justice would serve for decades.

Given that, a person has a lot to address, IMO, before he is elevated, particularly one as young as Roberts. The idea that he will not discuss issues that might come up before the court is a lame position, again IMO. GW and company certainly know what his positions are on issues of concern to them. The mantra, amoung republicans, has been "no more Souters", that is to say a moderate in conservative clothing. They know, pure and simple.

So now Roberts makes ernest sounding noises about "fairness" and so on. There is no doubt in my mind that he has an opinion on Roe. How could he not? He has, I am sure, an idea about the original opinion and the basis for it's formulation. Saying it does not commit him, it has nothing to do with how he might decide in the future (and that is between him and his God. If he says he can be neutral, I must trust him). But barring these kinds of discussions, how can anyone really determine his fitness? The fig leaf of "fairness" only serves to make his confirmation more likely, it has no practicle manifestation in the slightest.

All in all, I want to know what he thinks the constitutional protections of privaacy, what he thinks of the original Roe decision, what he thinks about private property and a whole bunch of other things. Once he is confirmed, it is too late.

[Luke T.]

I think Roberts statements about the difference between forming an opinion off the cuff and forming an opinion through the process of judicial review is a valid one. During the more in-depth process of judicial review, one can end up finding one can't support one's opinion and be forced to concede to the other side.

This has happened in the past. A judge who is thought to be "conservative" is appointed to the court and ends up making "liberal" decisions.

Also, stating one's opinion during the confirmation process is like making a campaign promise, and that is not what judges should be about.

[Jocko]

Originally posted by Ed
I have been giving this some thought and I am now under the opinion that he is.

As Allen Derchowitz pointed out, Wasington made 11 appointment to the SC. The tenure during the early years was 4-7 years or so. The framers, nor anyone else, believed that a justice would serve for decades.

I don't see where you can make this assumption. They are appointed for life, after all, and even in the 18th century that could go into the 60's.

And I presume that of those 11 appointments, 9 of those comprised the first supreme court, yes? How many years was Washington president? Long enough for two of them to die or quit, I'll wager.

Given that, a person has a lot to address, IMO, before he is elevated, particularly one as young as Roberts. The idea that he will not discuss issues that might come up before the court is a lame position, again IMO. GW and company certainly know what his positions are on issues of concern to them. The mantra, amoung republicans, has been "no more Souters", that is to say a moderate in conservative clothing. They know, pure and simple.

So now Roberts makes ernest sounding noises about "fairness" and so on. There is no doubt in my mind that he has an opinion on Roe. How could he not? He has, I am sure, an idea about the original opinion and the basis for it's formulation. Saying it does not commit him, it has nothing to do with how he might decide in the future (and that is between him and his God. If he says he can be neutral, I must trust him). But barring these kinds of discussions, how can anyone really determine his fitness? The fig leaf of "fairness" only serves to make his confirmation more likely, it has no practicle manifestation in the slightest.

All in all, I want to know what he thinks the constitutional protections of privaacy, what he thinks of the original Roe decision, what he thinks about private property and a whole bunch of other things. Once he is confirmed, it is too late.

It's all about establishing his credentials and his basic sanity, not about composing a checklist. Even if it was, there's nothing to stop him from changing his mind later; remember, Souter was once conisdered a conservative, if you can believe that.

It's not only unnecessary to get his hypotheticals straight; it's also impossible. Roberts is handling Kennedy's and Biden's histrionics in exactly the right way, IMHO.

[Spidey13]

I agree with Luke. I'm sure Roberts has an opinion on R v. W and every other case that's come before the SC. However, a good judge puts these things aside during a case. Also, he can't decide how he would determine a case because a good judge will base his decision upon the arguments presented by each side during the hearing itself. Roberts cannot fairly decide now how he may rule in a case when he hasn't heard the arguments yet.

[crimresearch]

Also, where did the notion that Chief Justice is an 'elevation' come from?

[CapelDodger]

Originally posted by Luke T.
This has happened in the past. A judge who is thought to be "conservative" is appointed to the court and ends up making "liberal" decisions.The "going native" effect. It is not uncommon. Thomas a Becket was a bit of a surprise, for instance. It depends on the person and their attitude to the institution.

As I see it, Roberts's opinion on Roe is irrelevant. If a case comes before the Court where Roe is cited, Roberts should consider the whole case purely on the presentations that are made to the Court in that case. Perhaps he will.

[CapelDodger]

Originally posted by Spidey13
I agree with Luke. I'm sure Roberts has an opinion on R v. W and every other case that's come before the SC. However, a good judge puts these things aside during a case. Also, he can't decide how he would determine a case because a good judge will base his decision upon the arguments presented by each side during the hearing itself. Roberts cannot fairly decide now how he may rule in a case when he hasn't heard the arguments yet. And what Spidey13 said.

[CapelDodger]

Originally posted by crimresearch
Also, where did the notion that Chief Justice is an 'elevation' come from? Hang 'em high, boys. :)

[BPSCG]

Well, now, suppose Roberts were to say, "As a matter of fact, I believe Roe v. Wade was a bad decision, and if I were voting on it today, given the same facts as existed in 1972, I would vote against Roe."

Do you think the Dems would have any trouble rounding up the 41 votes they'd need for a filibuster?

Do you have any doubt they would do it?

It's a shame it's come to that, but there it is. You can forthrightly state your leanings on issues likely to come before the court, and go down in flames, or you can deflect those questions and get confirmed.

[Batman Jr.]

Originally posted by Luke T.
I think Roberts statements about the difference between forming an opinion off the cuff and forming an opinion through the process of judicial review is a valid one. During the more in-depth process of judicial review, one can end up finding one can't support one's opinion and be forced to concede to the other side.
It would be if he really were making opinions off the cuff. A more realistic model is that he has well-entrenched opinions about prominent political disputes but is refusing to disclose them for reasons of expediency in respect to what will best help secure the votes necessary for his nomination to be successful. Inquiry in these hearings is not the progenitor of his opinions; it is the device which reveals them.
Originally posted by Spidey13
I agree with Luke. I'm sure Roberts has an opinion on R v. W and every other case that's come before the SC. However, a good judge puts these things aside during a case. Also, he can't decide how he would determine a case because a good judge will base his decision upon the arguments presented by each side during the hearing itself. Roberts cannot fairly decide now how he may rule in a case when he hasn't heard the arguments yet.
But how can we differentiate whether he is a fair judge or just someone keeping reticent about his biases for fear of alienating a particular segment of the body which is to elect him? Someone housed in either the Legislative or Executive Branches can possess enough objectivity to divorce himself from his previously held ideologies based on a closer inspection of the facts of the global state of affairs, yet we still question his preliminary beliefs because they can often serve as an indicator of that person's reasoning ability. We don't merely stop our scrutiny of him at his unsubstantiated assertions that he "looks out for the little guy" or "cares about people." Roberts making endless incantations of his fairness is not convincing without specific cases with which to assess his fairness. He is proclaiming a perfect 100% on his "fairness test" without as much as answering the proverbial, and quite literal as well, first question. We don't really even have an idea of how he defines "fairness" and resultantly what being "fair" means in the context of his own lexicon. A Marxist could describe himself as being "fair" and a Social Darwinist, on the other hand, could describe himself with the exact same term. Though they express themselves in the exact same way, they mean two completely different things: the Marxist believes in affording people their needs regardless of their productivity, and the Social Darwinist believes people who are poor should be left to rot and that the rich are more deserving of prosperousness. Which one is Roberts, the Marxist or the Social Darwinist?

[Luke T.]

Originally posted by Batman Jr.
It would be if he really were making opinions off the cuff. A more realistic model is that he has well-entrenched opinions about prominent political disputes but is refusing to disclose them for reasons of expediency in respect to what will best help secure the votes necessary for his nomination to be successful. Inquiry in these hearings is not the progenitor of his opinions; it is the device which reveals them.

Asking Roberts about abortions (the right to privacy, if it makes you feel better) is not just asking him his opinion on past decisions, it asking him to give an opinion on arguments he has not yet heard that will be coming to the SC. He would be signalling a bias toward one side, which would make him a bad judge.

It smacks of asking him for a campaign promise.

[Luke T.]

Originally posted by Batman Jr.
But how can we differentiate whether he is a fair judge or just someone keeping reticent about his biases for fear of alienating a particular segment of the body which is to elect him?

By asking him to explain his thinking behind decisions he has made.

ETA: As a judge. Not as a lawyer arguing for his employer.

[CapelDodger]

Originally posted by Batman Jr.
We don't really even have an idea of how he defines "fairness" and resultantly what being "fair" means in the context of his own lexicon.(The rest is excellent as well.)

We can never know precisely what another person's idea of "fairness" is unless they have committed themselves to some ideological definition that we can refer to. Such people are interesting anthropologically but not socially. All we have to go on is our own experience, of individuals and of people generally.

Equally, we don't know that Roberts will let his own sense of fairness interfere with his role as a Supreme Court Judge. The Constitution doesn't mention fairness.

[Spidey13]

Originally posted by Batman Jr.

But how can we differentiate whether he is a fair judge or just someone keeping reticent about his biases for fear of alienating a particular segment of the body which is to elect him?

What Luke said. Roberts has a record as a judge. The best way to decide his qualifications and fairness is to review these cases. Doing this, you would be making a decision based on facts, as opposed to what-ifs.

[Batman Jr.]

Originally posted by Luke T.
By asking him to explain his thinking behind decisions he has made.

ETA: As a judge. Not as a lawyer arguing for his employer.
He has such a small paper trail that you can't tell much from these facts. If this is your solution to the problem, then I suggest we dump Roberts and find someone with a more extensive record.
Originally posted by Luke T.
Asking Roberts about abortions (the right to privacy, if it makes you feel better) is not just asking him his opinion on past decisions, it asking him to give an opinion on arguments he has not yet heard that will be coming to the SC. He would be signalling a bias toward one side, which would make him a bad judge.

It smacks of asking him for a campaign promise.
Whether or not you ask him about abortion, the bias is going to be there. He has the option of making the bias public or keeping it private where it will be potentially allowed to infest the cases he officiates and will be unchecked by critical eyes.

[CapelDodger]

Originally posted by Luke T.
It smacks of asking him for a campaign promise. And down that road lies the end of the dream.

[BPSCG]

Originally posted by Batman Jr.
He has such a small paper trail that you can't tell much from these facts. I heard some of the proceedings yesterday on CSPAN. one senator remarked that they had literally ten thousand either pages or documents - I forget which - regarding his record. I submit that William Shakespeare didn't leave such a paper trail.
If this is your solution to the problem, then I suggest we dump Roberts and find someone with a more extensive record.Like Robert Bork, mayhap? He had an extensive paper trail and, by all accounts, a brilliant legal mind. They couldn't crucify him on the legal mind, so they crucified him on the paper trail.
Whether or not you ask him about abortion, the bias is going to be there. He has the option of making the bias public or keeping it private where it will be potentially allowed to infest the cases he officiates and will be unchecked by critical eyes. This just in: Judge has biases. Details at eleven.

All judges have biases. It's the extent to which he can recognize them and apply the law as written and as intended by the authors, instead of catering to his biases, that makes him a good judge - or not. And, BTW, liberals have biases, too, and their biases can also "infest" their decisions.

[shuize]

This sounds a lot like what Sen. Biden was crying about.

Biden: "Hey, it's O.K. when candidates I like don't answer questions about pending cases. But now let me spend all of my question time posturing about how this is soooo very different."

Comparatively, I think Roberts is being much more specific about his past and current positions. I read recently that Justice Scalia wouldn't even give an opinion on whether he thought Marbury v. Madison was decided correctly. But IIRC he was confirmed 98-0.

[webfusion]

How does a guy who is not even a Supreme Court Justice yet, suddenly become a nominee for the Chief Justice? What about the other serving Judges, why isn't one of them being considered for that position?

It just seems odd... can anyone tell me if is this the normal route to being a Chief Justice (starting right at the top from day One?)

[crimresearch]

Yes, it would seem to be the norm to go outside...so why should the next one have to be a sitting member?

[webfusion]

I dunno ---- in most organizations, promotions happen from within, as people gain experience, form a better understanding of the inner-workings, and are moved up the ladder. That the President decided to "bump this guy to the top of the heap" leaves me wondering, were there no other Supremes capable or appropriate for the promotion to Chief Justice?

[crimresearch]

Really? Most football teams promote their best player to be coach? Most law enforcement agencies get their Chief or Sheriff by holding a competition to see who is the best cop?
Most universities promote the best professor to be the president?
Most major corporations promote CEOs from within, instead of from without?

But you knew that I meant that it is the norm for the Supreme Court anyway, didn't you...since that is what you were asking about.

So are you going to answer the question?

Why exactly should the President go against the normal process in this particular case?

[webfusion]

What is "normal" ?

The late Justice Rehnquist was an Associate and then became the Chief Justice.

Harlan F. Stone -- promoted to the top position in 1941.

Charles E. Hughes -- became Chief Justice in 1930.

Edward D. White --- 1910.

John Rutledge -- 1795.

So, there is precedent for the President not to announce that Roberts is the "best candidate" for this job and let the current Associates stand and seek the nomination. But, nobody is even looking in that direction --- it's Roberts or nothing (and a Congressional fight is looming on that).

It would seem that what you claim to be the "normal process" was not normal in several instances, especially in the most recent prior elevation of Judge Rehnquist.

[crimresearch]

So appointing from the outside on the order of 2 to 1 makes that NOT the norm?

Riiiiight... :rolleyes:

And if anyone has all these valid reasons why Roberts is so unqualified, I'm sure that Teddy Kennedy would love to have them right about now, because he sure hasn't been able to find anything substantive.

[Batman Jr.]

Originally posted by BPSCG
I heard some of the proceedings yesterday on CSPAN. one senator remarked that they had literally ten thousand either pages or documents - I forget which - regarding his record. I submit that William Shakespeare didn't leave such a paper trail.
Could you give me a quote of this statement? Even if it is true, I don't see how the page count means anything if the pages still obviously amount to such little of import that he can remain such a mystery.
Originally posted by BPSCG
Like Robert Bork, mayhap? He had an extensive paper trail and, by all accounts, a brilliant legal mind. They couldn't crucify him on the legal mind, so they crucified him on the paper trail.
As brilliant a legal mind as the man may have, it was concluded that his opinions were strong enough to pose a threat to the integrity of that mind. I don't see any problem in that.
Originally posted by BPSCG
This just in: Judge has biases. Details at eleven.

All judges have biases. It's the extent to which he can recognize them and apply the law as written and as intended by the authors, instead of catering to his biases, that makes him a good judge - or not. And, BTW, liberals have biases, too, and their biases can also "infest" their decisions.
I never said liberals didn't have biases. Again, how is it that we are going to tell if Roberts can overcome his biases and apply the law correctly if we are prohibited from probing those biases? Without knowledge of those biases, by what standard would his history be judged to show how independently he can think of his biases? Even granted a standard, what history would we judge him by? The problem with Roberts is that we know so little about his judicial philosophies as evinced either by his own admissions or his prior record. We can tell he knows the right judicial buzzwords; we don't know, though, if he actually knows what it means to take the principles behind those buzzwords and thoroughly and conscientiously put them into effect.

I'm sorry if I offended you with my colorful language (i.e. "infest"). I don't want this debate to get too tense. Debates where you feel like you're yelling at the other guy are just not pleasant.

[RandFan]

Originally posted by Batman Jr.
We can tell he knows the right judicial buzzwords; we don't know, though, if he actually knows what it means to take the principles behind those buzzwords and thoroughly and conscientiously put them into effect. Wow, I mean that sincerly. This man clearly knows much more than Buzzwords. Please note that the man has no notes in front of him and he rattles off case law like a well seasoned law professor. He regularly corrects the senators as to the point of certain cases and fine legal points. He has yet (AFAIK) told anyone he would have to check and get back to the comitee. His answers are never vague but are always detailed and substantive. I think to simply say he only knows buzzwords is unfair to Roberts and it certainly misses the mark.

I listened to two legal scholars on NPR on the way home (see below) one of them noted that Roberts testimony was a high water mark. In fact, Roberts might have made the next nomination's stint in front of the commitee more difficult because of Robert's performance.

What I would like to know is, why did the Democrats defend Ruth Bader Ginsburg's right not to answer questions but demand that Robert's answer them? Yes, I note that the Republicans role was reversed also.

Sacred Monkeys (http://www.scaredmonkeys.com/)

“In 1993, Senator Biden counseled Ruth Bader Ginsburg not to prejudge cases and she complied, refusing to answer approximately 55 questions, including questions about public education, labor laws, abortion, and many other topics. Twelve years later, he insists that Ginsburg answered questions that she clearly did not and badgers Judge Roberts for following her lead. Just because Senator Biden realizes his advice is no longer politically expedient, it is dishonest, unfair and unacceptable for Biden to attempt to change the rules of the game for Judge Roberts.� Could someone explain this one to me?

Finally, this guy is doing one hell of a job.

I recomend NPR's wrap up, go to this page (http://www.npr.org/templates/story/story.php?storyId=4847085) and click on "Special Coverage (Streaming, 50 min. file)" Pay particular attention to the last 5 minutes.

Oh, and the part about going to the movies is damn funny and Roberts handled it perfectly.

[Mark]

Not giving opinions on future cases does make sense.

On the other hand, Bush et. al. certainly know how he is going to rule on certain issues (if you think otherwise, you are naive). So what we are left with is, our leaders get to know what his views are and we do not.

In other words, We the People don't matter; it's none of our business.

If that doesn't bother you, it should. Whatever your party loyalty.

[Ed]

Originally posted by Luke T.
Asking Roberts about abortions (the right to privacy, if it makes you feel better) is not just asking him his opinion on past decisions, it asking him to give an opinion on arguments he has not yet heard that will be coming to the SC. He would be signalling a bias toward one side, which would make him a bad judge.

It smacks of asking him for a campaign promise.

Maybe but you appear to assume that if he does not state his bias it dosen't exist.

[rikzilla]

Originally posted by Ed
I have been giving this some thought and I am now under the opinion that he is.

Why? Do you really think such an issue litmus test is appropriate?

As Allen Derchowitz pointed out, Wasington made 11 appointment to the SC. The tenure during the early years was 4-7 years or so. The framers, nor anyone else, believed that a justice would serve for decades.

Eh? Perhaps I'm mistaken but I can only find 9 SCOTUS judges appointed by GW. Perhaps he nominated 11? There is also almost no merit to your idea that the "tenure during the early years was 4-7 years". Of the nine justices appointed by GW 5 died in office:
JAMES WILSON (8 years)
SAMUEL CHASE (15 years)
WILLIAM CUSHING (20 years)
JAMES IREDELL (9 years)
WILLIAM PATERSON (13 years)


Of those who retired from the court only John Jay, and John Rutledge did so for reasons other than health concerns. John Jay quit the court to become Governor of NY. GW's nominee to succeed Jay as Chief (John Rutledge) served only four months and resigned after the Senate refused to confirm him.

John Blair and Thomas Johnson cited health reasons for their resignations. There were no term limits. Now as then the appointment is lifetime.


Given that, a person has a lot to address, IMO, before he is elevated, particularly one as young as Roberts. The idea that he will not discuss issues that might come up before the court is a lame position, again IMO. GW and company certainly know what his positions are on issues of concern to them. The mantra, amoung republicans, has been "no more Souters", that is to say a moderate in conservative clothing. They know, pure and simple.
Undoubtedly true...but what difference does it make? Do we really want judges running for office by making what amounts to campaign promises? What about the independent judiciary?

So now Roberts makes ernest sounding noises about "fairness" and so on. There is no doubt in my mind that he has an opinion on Roe. How could he not? He has, I am sure, an idea about the original opinion and the basis for it's formulation. Saying it does not commit him, it has nothing to do with how he might decide in the future (and that is between him and his God. If he says he can be neutral, I must trust him). But barring these kinds of discussions, how can anyone really determine his fitness? The fig leaf of "fairness" only serves to make his confirmation more likely, it has no practicle manifestation in the slightest.

well it sure looks to me like he's fit. He's sure smart and sharp. He's making Kennedy and Biden look quite bad...and neither of those guys are stupid. Honestly, if we don't want a legislative litmus test for SCOTUS nominees this imperfect system is what we're down to.

All in all, I want to know what he thinks the constitutional protections of privaacy, what he thinks of the original Roe decision, what he thinks about private property and a whole bunch of other things. Once he is confirmed, it is too late.
So do I...but you can put that want in the same category as ice water in hell. You ain't gonna get it....and perhaps you shouldn't.

-z

Edited to add: The link to my SCOTUS info is here (http://supremecourthistory.org/02_history/subs_timeline/02_a.html)

[Luke T.]

Originally posted by Ed
Maybe but you appear to assume that if he does not state his bias it dosen't exist.

Everyone has bias. Everyone. The issue is if he is a good enough judge to be able to set aside his biases and rule on the basis of law. And therefore it is far more appropriate to ask him about his own thinking about his own rulings than to ask him to support or attach the decisions of others.

Has anyone even asked him about the french fry case?

He clearly was emotionally biased toward letting the 12 year old win. And yet he ruled against her. In fact, it was a unanimous decision against her. So explore that.

[BPSCG]

Originally posted by Mark
On the other hand, Bush et. al. certainly know how he is going to rule on certain issues (if you think otherwise, you are naive).Yeah. Bush & Co. know he's safe on abortion. If he gets on the court, that'll be the vote that kills Roe v. Wade. He's been pretty shifty in the hearings, but we all really know how he's going to vote.

Yup. Judge Souter is a slam-dunk.

[Mark]

Originally posted by BPSCG
Yeah. Bush & Co. know he's safe on abortion. If he gets on the court, that'll be the vote that kills Roe v. Wade. He's been pretty shifty in the hearings, but we all really know how he's going to vote.

Yup. Judge Souter is a slam-dunk.

This administration does NOT leave such things to chance.

I hope I am wrong, I really do. But these people are fanatics and I find it impossible to believe that a Souter would slip past them.

There is a reason many former Reagan officials have come out against this administration.

[Luke T.]

An excellent resource for Roberts' court decisions, and other Roberts-related documents, can be found here (http://www.law.umich.edu/library/news/topics/roberts/robertsindex.htm).

The french fry case is here (http://www.law.umich.edu/library/news/topics/roberts/opinions/03-7149.pdf).

ROBERTS, Circuit Judge: No one is very happy about the
events that led to this litigation. A twelve-year-old girl was
arrested, searched, and handcuffed. Her shoelaces were
removed, and she was transported in the windowless rear
compartment of a police vehicle to a juvenile processing
center, where she was booked, fingerprinted, and detained
until released to her mother some three hours later — all for
eating a single french fry in a Metrorail station. The child
was frightened, embarrassed, and crying throughout the ordeal.
The district court described the policies that led to her
arrest as ‘‘foolish,’’ and indeed the policies were changed after
those responsible endured the sort of publicity reserved for
adults who make young girls cry.

:D

Roberts obviously thought the law was stupid. But:

The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

[Luke T.]

Originally posted by BPSCG
I heard some of the proceedings yesterday on CSPAN. one senator remarked that they had literally ten thousand either pages or documents - I forget which - regarding his record. I submit that William Shakespeare didn't leave such a paper trail.

Originally posted by Batman Jr.
Could you give me a quote of this statement?

KOHL: Judge, since your nomination, literally -- as you know --tens of thousands of pages of your writings as a young White House aide have been released and looked at very carefully.

GRASSLEY: The Judiciary Committee has received from you or from government agencies that you have been affiliated with, thousands of documents on your record -- thousands of documents.

September 13 transcript (http://www.law.umich.edu/library/news/topics/roberts/confirmationhrngs/hearingtranscriptseptember13.pdf).

[punchdrunk]

Originally posted by RandFan
What I would like to know is, why did the Democrats defend Ruth Bader Ginsburg's right not to answer questions but demand that Robert's answer them? Yes, I note that the Republicans role was reversed also.

Could someone explain this one to me?


I think the explanation is that Ginsburg as a judge had made rulings on all types of issues that Roberts has not, and thus though she didn't answer questions for "current" issues, there were her past rulings to which to refer.


Finally, this guy is doing one hell of a job.



I agree! Gotta give the chimp credit for this one.

[BPSCG]

Originally posted by Batman Jr.
Could you give me a quote of this statement? Sorry - I only heard it over the air, don't recall which senator was talking at the time. I suppose i could go into the transcripts and dig it out, but i don't have the time (i don't even have the time to be playing here at JREF, but...)
Even if it is true, I don't see how the page count means anything if the pages still obviously amount to such little of import that he can remain such a mystery. Yeah, that would be true if 9,999 of those ten thousand pages were the comics pages from your local newspaper. But c'mon, he's been a judge and lawyer for 25 years. What do you think he writes about? To me, this smacks of, "Let's demand more, and hope we can get something to nail the SOB on."
As brilliant a legal mind as the man may have, it was concluded that his opinions were strong enough to pose a threat to the integrity of that mind. I don't see any problem in that.So strongly-held opinions are a bar to confirming a justice, even if he has a brilliant legal mind?

Pardon me while I try to digest that.
.
.
.
.
.

Sorry. Not getting there. Let's move on.
I never said liberals didn't have biases. Again, how is it that we are going to tell if Roberts can overcome his biases and apply the law correctly if we are prohibited from probing those biases? Without knowledge of those biases, by what standard would his history be judged to show how independently he can think of his biases? How about his record?
Even granted a standard, what history would we judge him by? The problem with Roberts is that we know so little about his judicial philosophies Really? If that's the case, I submit you haven't been paying any attention at all to the hearings, but simply to the soundbites of the gasbags happily bloviating in front of their microphones. Every time I've tuned in, he's struck me as thoughtful and far from doctrinaire. Last night, Oklahoma's Coburn asked about the "strict constructionist" view of the Constitution with regard to limits on federal power. Here it is:Do you agree with James Madison's interpretation of the general welfare clause, that the powers of the Congress should be fundamentally limited, or do you agree with the modern prevailing wisdom of both political parties, particularly appropriators, who believe Congress' role is fundamentally unlimited?

ROBERTS: Well, I agree with Madison's view in general that the Constitution does contain limitations on the federal authority. The general welfare clause, and in particular the necessary and proper clause of course, have been interpreted in many of Chief Justice John Marshall's early opinions to recognize, though, that the scope of authority given the Congress is broad and broad enough to confront the problems that, in Chief Justice John Marshall's case, were confronted by a young nation and helped to bind it together as a nation, and broad enough today to confront the problems that Congress addresses.

But the notion that the Constitution was one of limited powers, albeit broad under the necessary and proper clause and even the general welfare clause, as interpreted by Chief Justice John Marshall in these early opinions, that recognition doesn't undermine the framers' essential vision that we are dealing with the federal system in which vast powers reside with the states and that the federal government is one of limited powers; broad in, obviously, particular areas and broad under the necessary and proper clause but limited powers nonetheless. Link - the entire transcript from yesterday. (http://www.washingtonpost.com/wp-dyn/content/article/2005/09/14/AR2005091401445.html)His entire testimony is full of such discussions of his philosophy - when he's being asked questions about his philosophy instead of being orated to by pompous gasbags who are trying to get him to shout, "Yes! Yes! I admit it! I think abortion is murder and I support abortion clinic bombers!"

Anyone who says they don't know his political philosophy just hasn't been paying attention.
I'm sorry if I offended you with my colorful language (i.e. "infest"). I don't want this debate to get too tense. Debates where you feel like you're yelling at the other guy are just not pleasant. I'M NOT YELLING!!! YOU'RE THE ONE WHO'S YELLING!!!

Oh, almost forgot: Hellfire!!!

[Mark]

Originally posted by BPSCG
[B]Sorry - I only heard it over the air, don't recall which senator was talking at the time. I suppose i could go into the transcripts and dig it out, but i don't have the time (i don't even have the time to be playing here at JREF, but...)



In that case it didn't happen. That's what Jocko and Grammatron always tell me, anyway.

[BPSCG]

Originally posted by Mark
In that case it didn't happen. That's what Jocko and Grammatron always tell me, anyway. Rewind three or four posts before this one, to Luke T's previous one, and recant your words.

[punchdrunk]

Originally posted by BPSCG
Yeah. Bush & Co. know he's safe on abortion. If he gets on the court, that'll be the vote that kills Roe v. Wade. He's been pretty shifty in the hearings, but we all really know how he's going to vote.

Yup. Judge Souter is a slam-dunk.

Regarding Roe v Wade, didn't he say that he felt that it was an established precedent, and for that reason he didn't feel like it would be an issue he would overturn? I haven't seen the entire hearings but only have caught bits and pieces.

[Mark]

Originally posted by BPSCG
Rewind three or four posts before this one, to Luke T's previous one, and recant your words.

I don't have to. You didn't provide a link, therefore all you are doing now is trying to soften your stance.

Hey, I like this! I'm starting to understand why those guys do it all the time. ;)

[crimresearch]

So Roberts has a bias which will cause him to make flawed rulings, because everyone has a bias.

And BushCo has selected him, because they know that bias will cause him to make bogus rulings in the future (in their favor).

And they know this because they can read his mind ....

Because his past rulings, which would surely dictate his future rulings, are too hard to figure out, and he refuses to play the litmus test game with Congress.



And this method of arriving at conclusions is supposed to pass muster as skepticism, and critical thinking?

[BPSCG]

Originally posted by rhoadp
Regarding Roe v Wade, didn't he say that he felt that it was an established precedent, and for that reason he didn't feel like it would be an issue he would overturn? I haven't seen the entire hearings but only have caught bits and pieces. See, again, people aren't paying attention. He hasn't been saying that just because something is an established precedent, it shouldn't be overturned. What he's been saying is that the fact that it's an established precedent means it should be given extra weight, not that it is inviolate. Else Plessy v. Ferguson (which said that separate but equal accommodations for blacks and whites were okay) would still be the law of the land, and would not have been overturned by Brown v. Board of Education.

Established precedent is simply one of the factors you have to weigh, and make allowances for, in listening to an argument, because, as Roberts points out, the people have a right to know what the law is - the Court can't go changing the rules by which people live every five minutes (or rather, changing what the Constitution says the rules are).

So he's not saying Roe v. Wade is inviolate, but rather, that arguments in its favor are entitled to certain weight because it has been the established law of the land for over thirty years.

[punchdrunk]

Originally posted by BPSCG
See, again, people aren't paying attention. He hasn't been saying that just because something is an established precedent, it shouldn't be overturned. What he's been saying is that the fact that it's an established precedent means it should be given extra weight, not that it is inviolate. Else Plessy v. Ferguson (which said that separate but equal accommodations for blacks and whites were okay) would still be the law of the land, and would not have been overturned by Brown v. Board of Education.

Established precedent is simply one of the factors you have to weigh, and make allowances for, in listening to an argument, because, as Roberts points out, the people have a right to know what the law is - the Court can't go changing the rules by which people live every five minutes (or rather, changing what the Constitution says the rules are).

So he's not saying Roe v. Wade is inviolate, but rather, that arguments in its favor are entitled to certain weight because it has been the established law of the land for over thirty years.

Yeah, you're right, and actually this was the point I was trying to make but failed to do. I was paying attention, just too dumb to translate.

[Luke T.]

Originally posted by rhoadp
Regarding Roe v Wade, didn't he say that he felt that it was an established precedent, and for that reason he didn't feel like it would be an issue he would overturn? I haven't seen the entire hearings but only have caught bits and pieces.

There has been a great deal of talk about stare decisis surrounding Roe v. Wade and other issues the past couple days. About every other sentence had the words "stare decisis" in it, seems like. :)

One thing that caught my ear a couple days ago, and I think is along the lines of your question is this:

SPECTER: One final citation from the joint opinion in Roe, quote: "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding." Do you think the court -- the joint opinion is correct in elevating precedential force even above the specific holding of the case?

ROBERTS: That is the general approach when you're considering stare decisis. It's the notion that it's not enough that you might think that the precedent is flawed, that there are other considerations that enter into the calculus that have to be taken into account: the values of respect for precedent, evenhandedness, predictability, stability; the considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether it's been eroded. So to the extent that the statement is making the basic point -- that it's not enough that you might think the precedent is flawed to justify visiting it -- I do agree with that.

From September 13 transcript linked above.

[edited to fix transcript copying problems]

[punchdrunk]

Originally posted by Luke T.

From September 13 transcript linked above.


That's what I remember - thanks for finding the transcript!

[BPSCG]

The French-fry case Roberts alluded to above (BTW, ever since that, DC Metro has lightened up its enforcement and today we're seeing the results...) brought this to mind for me, regarding the infamous Dred Scott decision.

Briefly, a black slave named Dred Scott was taken to (I believe) Ohio, where he claimed he should now be free, since Ohio did not allow slavery. SCOTUS ruled against him, saying, essentially, that he had no rights under the law.

Okay, nobody today deny that the fact that we once treated people like this is an ugly stain on our history. But I've always wondered, was that ruling a sound ruling given the law of the land at the time, where slavery was in fact permitted? Could a reasonable person, even today, say, "Yes, it was outrageous, but if you applied the law and the facts and the Constitution as they were in the mid-19th century, the ruling was well-argued and the logical result not of some racist SCOTUS, but of bad law"?

[crimresearch]

From the Dred Scott decision (note the strict constructionism, of which some folks are so fond):

"The only two clauses in the Constitution which point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves....
The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted "
http://www.tourolaw.edu/patch/Scott/


Another case of the USSC flip-flopping, which has always amused me, is the wire tapping of telephines.

When it came up at first, the Court ruled as a matter of law, that no one could reasonably expect words spoken into some elctrical device which immediately sent those words outside, to be covered under privacy.
Many years later, they stated the exact opposite, as though it were the most obvious thing in the world.

[Batman Jr.]

Originally posted by RandFan
Wow, I mean that sincerly. This man clearly knows much more than Buzzwords. Please note that the man has no notes in front of him and he rattles off case law like a well seasoned law professor. He regularly corrects the senators as to the point of certain cases and fine legal points. He has yet (AFAIK) told anyone he would have to check and get back to the comitee. His answers are never vague but are always detailed and substantive. I think to simply say he only knows buzzwords is unfair to Roberts and it certainly misses the mark.
I'm not denying that he doesn't have a thorough erudition on the history of the judicial system; what I am denying is that he has proven than he can ascertain what has been fair legal practice in that history and incorporate those practices into the execution of his own duties on the Supreme Court. I'm sure there are plenty of mathematics professors that can tell you everything about John von Neumann and his work but are still incapable of matching his substantial faculties for mathematical computation and conceptualization. Similarly, a legal scholar could be privy to the arcane aspects and rationales behind past landmark cases, but that doesn't mean that he has the legal aptitudes and objectivity to apply himself similarly to how respected judges in soundly decided past cases applied themselves. The bottom line is this: merely having knowledge doesn't show evidence of capability. In my parlance, I refer to superficial knowledge without capability as having knowledge of the right "buzzwords."
Originally posted by RandFan
What I would like to know is, why did the Democrats defend Ruth Bader Ginsburg's right not to answer questions but demand that Robert's answer them? Yes, I note that the Republicans role was reversed also.
You know the answer, but I don't see how hypocrisy is really relevant to the logical points of the discussion.

[crimresearch]

...what I am denying is that he has proven than he can ascertain what has been fair legal practice in that history and incorporate those practices into the execution of his own duties on the Supreme Court.

Who is in a position to make such an evaluation? Who has the experience and the knowledge to pass judgment on a judge?

If Roberts is so lacking in abilities relevant to jurisprudence, why the need for emotional litmus tests and partisan gamesmanship?

Why not just list all of his screwups on the bench, along with the legal foundations proving that his rulings were so incompetent that he can't possibly hold any important post?

You know, the sort of vetting that should have been done to the recently departed FEMA chief before he ever took the job?

[RandFan]

Originally posted by Batman Jr.
I'm not denying that he doesn't have a thorough erudition on the history of the judicial system; what I am denying is that he has proven than he can ascertain what has been fair legal practice in that history and incorporate those practices into the execution of his own duties on the Supreme Court. I'm sure there are plenty of mathematics professors that can tell you everything about John von Neumann and his work but are still incapable of matching his substantial faculties for mathematical computation and conceptualization. Similarly, a legal scholar could be privy to the arcane aspects and rationales behind past landmark cases, but that doesn't mean that he has the legal aptitudes and objectivity to apply himself similarly to how respected judges in soundly decided past cases applied themselves. The bottom line is this: merely having knowledge doesn't show evidence of capability. In my parlance, I refer to superficial knowledge without capability as having knowledge of the right "buzzwords." We will simply have to disagree. I don't think Roberts has merly shown that he has knowledge but that he understands the philosophy and the logic behind that knowledge. I don't think your case can be made. Further many judges have changed significantly after they have joined the ranks of the Supremes. Looking at the past hasn't necassarily been a good indication of the future. See Blackmun and Powell.

I think Roberts easily demonstrates that he has what is needed to be a supreme court justice. You disagree. I understand.