Skip to comments.Blindly battling over Roberts (LA Times Supports John Roberts)
Posted on 08/12/2005 5:24:37 AM PDT by DoraC
Blindly battling over Roberts I'M HAVING a hard time figuring out who's less rational: the liberal activists campaigning to defeat John Roberts' Supreme Court nomination, or the conservative activists campaigning to support it. Roberts, of course, is President Bush's widely hailed surprise pick to replace retiring Justice Sandra Day O'Connor. Roberts has won praise from moderate liberal legal analysts such as Cass Sunstein of the University of Chicago and my New Republic colleague Jeffrey Rosen. Roberts is widely regarded as extremely intelligent. Unlike conservative ideologues such as Antonin Scalia or Clarence Thomas, he prefers not to rewrite legal doctrine with sweeping new decisions. He is not the sort of nominee who you'd think should start a culture war. Unfortunately, somebody forgot to tell that to NARAL Pro-Choice America, which has launched a new television ad assailing Roberts. The ad itself is highly misleading.
(Excerpt) Read more at latimes.com ...
Jonathan Chait must be smoking some really expensive weed. Scalia and Thomas are the only two Justices who can be relied upon to actually interpret the Constitution, rather than re-write it.
To prevent duplication, please do not alter the heading. Thanks.
These two justices, unlike most of the others, prefer to rewrite legal doctrine rather than rewrite the Constitution.
Actually, I think that a majority of Scalia's and Thomases would be a disaster. I am fine with not legislating from the bench, but they (especially Thomas) overturn every precedent they don't like and so jetisson hundreds of years of judicial wisdom.
Actually it seems the writer supports Roberts, the LA Times editorial board did not write this.
Aarg! I should have known better than to go read an LA Times article in full. They made sure to get in their insults toward conservatives, and now I feel soiled!
It wasn't his Pro Bono work. He was helping another lawyer trying to improve the quality of advocacy before the Supreme Court on which John Roberts spent 6.5 hours. He has spent about 52,000 hours as a lawyer and a judge, how could he possibly put everything he ever worked on in his questionnaire response to the Senate?
Can you find anything in his other 51,993.5 hours of legal work with which you agree?
How about a WEE BIT of perspective? Also, why would anybody trust the LA Times about anything?
Overturning precedent is not a bad thing, if the precedent is wrong. Then again, they can always bring back the Dred Scott decision, which was overturned years later...after all, we're talking about judicial wisdom of hundreds of years ago, right?
The liberals are trying to portray Roberts as a liberal so that conservatives will abandon him. They know they can't stop him any other way. That's why NARAL pulled its ad. The Dem leadership pointed out that the ad was at cross purposes with their strategy.
Have you injured your knee?
I agree with everything in your post, but most particularly this line. If the LA Slimes reports on the sky being blue today, I will automatically assume it isn't.
The "judicial wisdom" that Scalia and Thomas don't care for seems to me to have been born in the last 40 years, ala "The Great Society". I would happily trade liberal nanny state justices for more Scalias and Thomases.
The guy is *going* to be confirmed.
This is a dance where no music is being played.
There is going to be a majority.
There will not be a filibuster.
It is a waste of time. Regardless of what the media says, the guy will be confirmed.
Its just a good way to divert attention from the Valerie Plame mess for the Democrats. As it became more clear that the only people to break the law were Democrats and liberals, they had to get the stinky stuff off their shoe, or change shoes. Roberts is a different shoe.
Apparently the President agrees with you.
If the doctrine is wrong, or proven to be damaging, it is your duty to re-write it.
The real Roberts
World Net Daily
I predicted it.
I told you those expected to oppose the nomination of John Roberts to the U.S. Supreme Court would come around after realizing they got their wish another Anthony Kennedy or David Souter.
Just check out the column earlier this week by the Washington Post's Richard Cohen.
This is the beginning.
Soon you will see some of the most partisan Democrats in the U.S. Senate coming around. Mark my words.
Cohen's commentary is not directed to Republicans in the Senate, who will support the nomination by President Bush unanimously. It is directed to those who might consider opposing him. Here's a man who is convinced, as I am, that Roberts has virtually the entire "conservative movement" bamboozled.
"John G. Roberts Jr. is out of the closet," he writes. "President Bush's nominee for the Supreme Court, on the basis of the available evidence and all we know about human behavior, is not and I emphasize not! a bigot. Specifically, he seems to harbor no prejudice against gay men and lesbians, who are, as we all know, anathema to social conservatives, who are anti-gay and pro-Bush, in about equal measures. Roberts, amazingly and inexplicably, seems to be a man of tolerance."
What this really means is that Roberts has no objections to creating special protections for homosexuals based on their sexual behavior.
He bases this conclusion on Roberts' role in the landmark 1996 Romer Supreme Court case. Roberts, he points out, "helped develop the winning legal strategy."
Cohen asserts that Roberts may even have endorsed the cause rather than simply come to the aid of a colleague from his firm, as the White House suggests.
"After all, Roberts was not compelled to volunteer his time. Hogan & Hartson encourages pro bono work, but it hardly compels its lawyers to take cases that they might find morally or politically repugnant," Cohen writes.
Clearly, a lawyer who, say, agreed with the likes of the Rev. Pat Robertson or Rep. Tom DeLay (Rev., Rep., it's all the same nowadays) would not have taken the case. What's more, there's evidence to suggest that Roberts knew what he was doing. He made no mention of the case in the 83 pages he submitted to the Senate outlining his finances, pro bono work and other matters of interest. He knows the political peril of tolerance.
But as we should realize by now, Roberts faces no peril from the right only the indignities of grilling from the left.
What a sad state of affairs.
We now have "conservative" organizations leading the fight for confirmation of a man who is certain to be a grave disappointment to them.
Ahhh, but we've been here before.
Some of those same organizations and individuals fought equally hard for the confirmations of Souter and Kennedy.
Some people never learn.
Oh, there will be a few left-wing groups that raise a ruckus about Roberts to the bitter end. Groups like NARAL and People for the American Way raise money by demonizing the nominations of Republican presidents.
But, again, watch the votes in the Senate. Watch the hard-line Democrats fall into place one by one and two by two over the coming weeks. When all is said and done, Roberts may wind up with a unanimous or near-unanimous approval.
That's my prediction.
This kind of clarity is just one of the benefits of being around long enough to see history repeat itself tragically and ironically.
Cohen's right. Roberts is "out of the closet."
But some people notably most "conservative" organizations aren't going to recognize it until it's too late.
Dred Scott was overturned by the 13th and 14th amendment.
That stung. ;)
Or maybe we just don't like elistist a-holes like this writer.
That is not the point. In fact, I am not sure that you're right on that, either. However, the point I tried to make is, the "hundreds of years of judicial wisdom" you refer to, have given us such idiocy as the Dred Scott decision, Roe v Wade, and the unbelievable "emanations and penumbras" argument. Just because some Supreme Court Justice from 1850 wrote a decision that, in effect, re-wrote the Constitution, doesn't make it right.
For example, if somehow, in 2001, 3 of the 7-2 majority in Bush v Gore had incredibly decided they were wrong and it should be overturned, we would have heard not one Liberal defending the principle of Stare Decisis.
But as soon as there is a majority to overturn Roe v Wade, we better get ready for the howling and gnashing of teeth from the Liberals, screaming how Stare Decisis is being violated.
Dred Scott held that:
1. Congress had no authority to regulate slavery in the territories and thus could not grant the territorial legislatures the authority to do that.
2. Blacks are not citizens of the United States and therefore have no standing to sue in federal courts.
Both holdings were overturned by the specified amendments.
You say some precedents are wrong and should be overturned. I agree. Some decisions, like Dred Scott, Plessy, Lochner and Bowers were wrong and have been rightfully overruled. But that's different from saying that every precedent you believe is wrong should be overruled. And that's were conservative activism comes kicking in, I don't think someone like Roberts would do that. He is more likely to limit the scope of decisions he disagrees with. Compare that to Thomas: Scalia says that he homas does not believe in stare decisis, something that is essential to stability in the legal system.
You give a poor example, but you're right. Liberals only defend the precedents they like. However, considering all precedents, liberal and conservative, should be important for a conservative judge. The fact that liberals don't do that is no reason at all to do the same.
We continue to agree. See my reply to DoraC on #29. Stare Decisis is a horrible concept when it comes to judicial judgement. It's the equivalent of saying "why, that's the way we always do it around here."
Finally someone points this out. Roberts was the head of the appellate practice for a major, white-shoe Washington D.C. law firm - that incidentally has a well-known pro-bono practice. If his colleagues came to him and asked him to moot a case - which is apparently what he did in the Romer case - it's a no brainer. Basic professionalism for lawyers. These attacks on Roberts for being a professional who contributed to his law firm's pro bono practice make me sick.
The translation of this article is essentially this:
"Because NARAL is acting so incredibly stupid we have to make some noises about condemning their ad -- but LOOK! CHRISTIANS! AREN'T THEY DUMB?"
So what do you suggest? That the Supreme Court reconsiders every damn case, even though they dismissed a similar case a week ago (hypothetical). You do know that we need many more justices and an circuit court system to handle that load, don't you? And how would lower courts handle cases, if the Supreme Court treats its own precedents like toilet paper? I don't think that it would be workable.
And precedents don't just get followed for the sake of following precedent. That's why Plessy eventually got overturned by the activist Warren-court.
I don't believe in a living constitution, but I do know that the founders intended the constitution to last for centuries. So I am not so big a fan of Scalia's originalism, aside from the fact that it threatens the stability of our system. (I hope I don't sound like a flaming liberal.)
You're in effect saying that conservatives are obligated to protect liberal precedents, otherwise we're just as bad as they are. I don't understand that logic.
We know that liberals have no problem with overturning precedents they don't like. We also know they don't give a damn about the Constitution. All that motivates them is their ideology.
So, following your advice, a pack of liberal judges could mow down dozens of precedents with no constitutional justification. Then, after years of work to get strict constructionists appointed, we'd be told that to overturn all those unconstitutional liberal rulings would be an attack on precedent that would be just as ugly as the one the liberal activists engaged in. So the new supposedly conservative majority on the court would uphold all those dozens of rulings based on stare decisis.
Of course, years later when the liberals regain control, they'd go right back to freely overturning all the precedents that they don't like.
Where's the logic in that?
Actually, the only judicial 'wisdom' Scalia and Thomas would overturn is the product of about the last 50 years, maybe a little longer if you include some of the more radical decisions of the New Deal years (eg the New Deal gutting of the Commerce Clause as a restraint on Federal power). During that 50 some-odd years, a succession of left-wing courts completely overturned the previous 150 years of previous American judicial wisdom, as you call it.
There is virtually no case to be made that this overthrow of American judicial wisdom had its roots in the Constitution or law--it was pure and unfettered judicial reworking of America to better fit an elitist, liberal view of the world.
Scalia and Thomas would simply return to actual interpretation of the Constitution and laws as written. This seems radical for those of us who grew up post-Warren Court. In reality, it is a return to the wisdom of the founding fathers and the 150 years of judicial wisdom that followed and that, with some exceptions, adhered to the Constitution as written.
But the reality is, the current court is deeply radical when in refuses to overturn clearly a-constitutional decisions imposed on us by the radicals of the past 50 years. It is even more radical when it continues to create new constitutional rights that have no basis in the constitution (eg the right of sodomy).
It used to be possible to search for already posted articles by using the author name (as an alternative to a keyword in the title) as search term. It seemed to me that it was much easier to be sure of not posting redundantly that way than it is currently, especially with syndicated columnists where the article title can change from paper to paper. Is it too complicated to reinstitute that alternate method of searching?
I really don't think there's a middle ground here. Either you believe the constitution is living or you are an originalist.
I am not suggesting the Court reconsider every case. I am not even suggesting they reconsider any one case. However, if the Court gets a case in its docket, rather than simply looking for old cases, and seeing how other Courts ruled, why not (warning: Revolutionary Idea) examine that case on its own Constitutional merit, and rule accordingly? Following precedent is ok, if the precedent is sound to begin with. Otherwise, it simply compounds prior errors.
The Framers, our Founding Fathers, meant the Constitution to stand the test of time, or as you say so well, last for centuries. However, when it gets constantly re-written, based on the agenda of nine un-elected people, who have lifetime appointments, and who consider themselves the Last Word, then our Constitution starts to lose that ability to outlive each and every one of us. I would rather have Justices who read the Constitution looking for the Founding Fathers' original intent, instead of the modern meaning.
That stettles it. If the NYT is for him, I am agin him. Calls & letters going out today to Lott & Cochran.
Durn'it! NYT was supposed to be LAT.
It's amazing how careless so many freepers and other conservatives are in rushing to judgement in favor of Roberts.
He might be terrific (I suspect he'll be a lot better than O'Connor), but the rush to support came in before any solid evidence just on the say-so of well known conservatives (some of whom ironically are having certain doubts now).
Rehnquist is not an originalist, but he doesn't seem to believe in a living constitution either. He is just conservative. So maybe there is some middle ground?
But the Founders dit not intend for a constitution that had to be amended every 5 years either. That is why they used broad language in most of the constitution. And that is why it is so important to look at the spirit of the constitution, rather than only at the word.
Of course the court should only follow precedent when the precedent is correct. But when you don't look at the reasoning of the court and only conclude that the precedent is wrong because the original intent was different, it could lead you down very wrong paths. For example, the Fourteenth Amendment was not directly intended to prohibit segregation or anti-miscegenation laws. However, the Supreme Court strook both down, looking at the spirit of the amendment and the constitution. I wonder what Thomas and Scalia would do in such a case. Were Brown and Loving wrongly decided?
The Founding Fathers may not have intended for the Constitution to be amended, but they immediately realized they had left too many loopholes for the Federal Government to intrude upon the lives of the citizenry, which is why we got the Bill of Rights (Amendments 1 through 10) in quick succession after the Constitution's ratification. When we look at the spirit of the Constitution, we give it that "living, breathing" quality we so despise. We shouldn't look at the spirit, but at the Founders' intent...what exactly did they mean when they wrote (blank)?
In a perfect world, the Rehnquist court would not be saddled by the reasoning used by the Burger court, or the Hugo Black court...they shouldn't! Like I said, circumstances change, and people change. Hugo Black was an avowed anti-Semite...should we consider his reasoning nowadays?
The concept of judicial independence becomes laughable when the Court of 2005 is bound by the reasoning used by the Court in 1850.