The Real John Roberts

The Village Voice ^ | September 2nd, 2005 | Nat Hentoff

[neverdem]

Liberty Beat The Real John Roberts Justice O'Connor ruled Bush can't get 'a blank check' but her successor will give him one by Nat Hentoff September 2nd, 2005 3:05 PM

With the nomination of John G. Roberts, Jr., President George W. Bush now stands on the verge of a lasting legacy as a president who changed the face of American law. . . . Bush is about to secure a consistent conservative majority on the Supreme Court that will likely sweep away a host of doctrines in areas ranging from abortion to affirmative action to presidential powers. Law professor Jonathan Turley, George Washington University, National Law Journal, August 1

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Professor Oona A. Hathaway, Yale Law School, a former law clerk to Justice [Sandra Day] O'Connor, said [that] the arrival of Judge Roberts 'could re-center the court' in the direction of unchecked presidential power. The New York Times July 24

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Having read the huge outpouring of John Roberts's memoranda during his stays at the Justice Department, along with his filings and arguments in his private-practice cases, I decided that his two-year record on the nation's second most influential court, the District of Columbia Circuit Court of Appeals, should be my initial focus on the effect on our lives of the 30 or more years he will sit on that tribunal. (As I write, his confirmation appears to be foreordained, after the current turbulent hearings before the Senate Judiciary Committee.)

Before Roberts became a circuit court judge, his supporters say, he functioned as an advocate for the government or his private clients, and thereby his views in those cases did not necessarily reflect his core personal beliefs. But as a judge, John Roberts was speaking only for John Roberts.

In Hamdan v. Rumsfeld, decided on July 15, 2005, a three-judge D.C. court panel, including Roberts, ruled on how much deference the Congress and the courts should give the president during the war on terror. This case is at the very core of Bush's worldwide anti-terrorism strategy.

Neal Katyal, a law professor at Georgetown University—and the attorney for Salim Ahmed Hamdan, who has been a prisoner at Guantánamo for three years, much of the time in solitary confinement —said of the decision by Roberts and his colleagues on the "military commission" Bush has set up for Hamdan and other prisoners:

"[It] vests the president with the ability to circumvent the federal courts and time-tested limits on the executive . . . . No decision, by any court, in the wake of the September 11, 2001, attacks has gone this far." (Emphasis added.)

Professor Katyal is not engaging in hyperbole.

The Hamdan decision gave the president (and by precedent, his successors) the unreviewable power—outside the jurisdiction of civilian courts, and what have been up to now the due process protections of military courts—to strip U.S. detainees of the humane Geneva Conventions on the treatment of prisoners. This is an international treaty the United States has ratified—as is the international treaty Covenant Against Torture, which the Bush administration has also violated.

Roberts indicated that if he is confirmed, he will recuse himself from cases in which he was involved on the D.C. Circuit Court, but his legal reasoning in this decision reveals a great deal about his reverence for presidential powers and his willingness to validate a separate legal system on these issues that has been constructed since 9-11 by the president, Donald Rumsfeld, and attorneys general John Ashcroft and Alberto Gonzales.

In these cases, I often consult an expert in constitutional law, appellate attorney Jonathan Freiman (also involved in this case), who is, in addition, a senior fellow at Yale Law School. He points out that in the Hamdan decision, John Roberts disregarded "the plain text of the [Constitution's] Supremacy Clause . . . which unambiguously states: ' . . . all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land.' "

Freiman emphasizes that Roberts joined this part of the opinion "without reservation." Moreover, Roberts and his colleagues bypassed the congressional habeas corpus statute. (The Founders made sure that the crucial right of a prisoner to challenge the lawfulness of his imprisonment is in the body of the Constitution.)

The habeas corpus statute, Freiman notes, "allows someone held by the government to petition a court for release when he believes that he is 'in custody in violation of the Constitution or treaties of the United States.' "

Moreover, Freiman warns us: "[Roberts's] willingness to erase the word 'Treaties' from our Constitution and laws might mark [him and his two colleagues] not just as jurists willin g to depart from the plain meaning of legal texts, but also as legal isolationists, turning away from the treaties that bind this nation to the civilized world." (Emphasis added.)

So radical was the decision Roberts joined that, as Katyal says in his petition to the Supreme Court for review: "An emblematic example of the break with our country's traditions" is that Hamdan has no right to be part of most of his own trial.There is no instance, emphasizes Katyal, "either civil or military, in our nation's 229-year history, where trial procedures were specifically engineered to force a non-disruptive defendant to be excluded from his trial." Also, at these "trials," a defendant's representative is forbidden to see the core of the so-called evidence against the defendant, which is secret.

Moreover, Katyal told the Supreme Court—quoting a Neil Lewis report in the August 1, 2005, New York Times—that some military prosecutors involved in Hamdan's trial were so concerned it be fair that they have charged that "the chief prosecutor had told his subordinates that members of the military commission that would try the first four defendants (which include Hamdan) would be 'handpicked' to ensure that all would be convicted." (Emphasis added.) But John Roberts has said nothing about that.

In his 2003 State of the Union Address, George W. Bush, speaking of the many suspected terrorists arrested by the U.S., added: "Many others have met a different fate. Let's put it this way. They are no longer a problem for the United States."

Will those disappeared suspects—including the "ghost detainees" at secret CIA interrogation centers around the world—be a problem for Justice John Roberts as he defers to unilateral presidential powers?

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[EQAndyBuzz]

"Freiman emphasizes that Roberts joined this part of the opinion "without reservation." Moreover, Roberts and his colleagues bypassed the congressional habeas corpus statute. (The Founders made sure that the crucial right of a prisoner to challenge the lawfulness of his imprisonment is in the body of the Constitution.) "

If we did to the prisoner what we should have done according to the Geneva Convention, this would have been a moot point.

This prisoner deserved to be interrogated, then excecuted.

[ozzymandus]

Nat Hentoff = commie RAT.

[minus_273]

execpt the left has unilaterally altered the geneva convention to accomodate them. pinkos consider them POWs representing no gov in particular. ...

[Congressman Billybob]

This is the usual Oh-my-God article that is wrong about activities on the Supreme Court. John Roberts will only improve the Court by half a Justice. That's because Justice O'Connor voted in favor of the Constitution about half the time in her 22 years.

Congressman Billybob

Latest column: "Tide of Lies Swamps NY Times: Employees Riot and Steal Office Supplies"

[MarcusTulliusCicero]

"He points out that in the Hamdan decision, John Roberts disregarded "the plain text of the [Constitution's] Supremacy Clause . . . which unambiguously states: ' . . . all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land.' "

"Moreover, Freiman warns us: "[Roberts's] willingness to erase the word 'Treaties' from our Constitution and laws might mark [him and his two colleagues] not just as jurists willin g to depart from the plain meaning of legal texts, but also as legal isolationists, turning away from the treaties that bind this nation to the civilized world." (Emphasis added)"

My understanding of the treaty provision of the Constitution is that it gives treaties the same validity as any Congressional law, which is considered the "supreme law of the land" as well. Treaties do not and can not, however, supersede any portion of the United States Constitution. (This is evident by the fact that, in the case of many treaties, Congress must pass statutes to bring the laws of the United States into conformance with provisions of a signed treaty - something that would be unnecessary if that treaty had more force than Congressional laws or the Constitution). If they could, then theoretically, we could assign the election of the President and members of Congress to, oh, say, the U.N. simply by signing a treaty that says so, could we not?

[zendari]

Wasn't he joined by 2 others in the Hamdam decision? Are all 3 of them radicals?

[Carry_Okie]

"[Roberts's] willingness to erase the word 'Treaties' from our Constitution and laws might mark [him and his two colleagues] not just as jurists willin g to depart from the plain meaning of legal texts, but also as legal isolationists, turning away from the treaties that bind this nation to the civilized world."

I can think of nothing I would rather see from the Supreme Court than to watch a series of multilateral treaties go down the Constitutional dumper. These are the bases of so many unconstitutional environmental regulations I wouldn't know where to start.

[Carry_Okie]

Treaties do not and can not, however, supersede any portion of the United States Constitution.

There are a bunch that do and on a grand scale, particularly the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere (1941).

[neverdem]

Nat Hentoff = commie RAT.

Bush on guns

"Liberal scholars, including law professor Lawrence Tribe and journalist Nat Hentoff, agree that any honest interpretation of the Second Amendment must conclude that individuals have the right to own firearms."

Nat Hentoff is one of the few liberals with whom I think I could also have a reasonable conversation. You should read some of his articles. You might be surprised. He isn't an unqualified pro-choicer either.

Scan the articles in the left sidebar of the second link.

[FlingWingFlyer]

ANYTHING is better than what we have on the Supreme Court now. Scalia and Thomas excluded.

[MarcusTulliusCicero]

Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere; 56 Stat. 1354; TS 981 The Convention was signed by the United States on October 12, 1940, and ratified April 15, 1941. United States ratification documents were deposited with the Pan American Union, Washington, D.C., on April 28, 1941. Implementing legislation for the United States was achieved by enactment of Public Law 93-205, the Endangered Species Act of 1973 (16 U.S.C. 1531-1543; 87 Stat. 884). Section 8(e) of the Act directs the President to designate the agencies "which shall act on behalf of and represent the United States in all regards as required by the Convention," which was accomplished by Executive Order 11911, April 13, 1976. Congress had to pass implementing legislation in order to carry out the terms of the treaty, which it would not have had to do if the treaty superseded the Constitution. Now -it is entirely possible that the legislation that Congress passed was not Constitutionally based, but the treaty itself did not supersede the Constitution.

[Carry_Okie]

Congress had to pass implementing legislation in order to carry out the terms of the treaty, which it would not have had to do if the treaty superseded the Constitution.

You clearly haven't read the treaty. Allow me to quote myself:

The Convention on Nature Protection must be read to be believed. In his summary report to a distracted Senate, Executive Report No. 5, April 3 1941, Secretary of State Cordell Hull misrepresented its virtually unlimited scope. From the Preamble (bold emphasis added):

“The Governments of the American Republics, wishing to protect and preserve in their natural habitat representatives of all species and genera of their native flora and fauna, including migratory birds, in sufficient numbers and over areas extensive enough to assure them from becoming extinct through any agency within man’s control;”

After going on at considerable length about wilderness areas and national parks, they come back with this language in Article V Section 1:

“The Contracting Governments agree to adopt, or to propose such adoption to their respective appropriate law-making bodies, suitable laws and regulations for the protection and preservation of flora and fauna within their national boun¬daries but not included in the national parks, national reserves, nature monu¬ments, or strict wilderness reserves referred to in Article II hereof.”

All species, all land, no limits to the commitment. Mr. Hull made no mention of the scope of Article V in the summary he submitted to the Senate. It was he who convened the Planning Commission that created the United Nations soon after the adoption of this treaty. It is a document that exceeds the constitutional authority of the government of the United States.

It can’t work either. This treaty is contrary to natural law.

Nature is a dynamic, adaptive, and competitive system. Under changing conditions, some species go extinct, indeed, for natural selection to operate, they must. The problem arises when human influence grows so powerful that one can always attribute loss of a species to being “within man’s control.” When humans ask, “Which ones lose?” the treaty specifies, “None,” and demands no limit to the commitment to save them all. This of course destroys the ability to act as agent to save anything, much less objectively evaluate how best to expend our resources to do the best that can be done.

This treaty cannot be satisfied: It calls for a halt to natural selection, itself.

So, a treaty that exceeds Constituional authority of the United States (not to mention Natural Law) is on the books and was attached to the ESA. Together with CITES, they have brought resource enterprise to its knees, and done little to nothing for endangered species to boot.

[MarcusTulliusCicero]

So, a treaty that exceeds Constituional authority of the United States (not to mention Natural Law) is on the books and was attached to the ESA.

The treaty, in and of itself, did not supersede the Constitution. I am not saying that there aren't treaties that unConstitutionally give away elements of our sovreignty. My dispute with the article is whether, when the Constitution says that a treaty becomes the "supremem law of the land", that was understood to mean that it had equal weight with the Constitution. It clearly does not. At the time of ratification of the Congress, this provision meant that treaties applied to the separate states and superseded state law. That goes along with the provision that states, by themselves, cannot enter into treaties with other nations. That is a power restricted to the Federal government.

Congress passed legislation to implement the treaty that you cited. If treaties had equal authority as the Constitution, then implementing legislation by the Congress following ratification of the treaty would be superfluous. Treaties have the same weight as any piece of Congressional legislation. That is why there is often subsequent implementing legislation passed. If there weren't, then you'd have, in effect, two Congressional statutes in conflict. The implementing legislation resolves the conflict. So, it isn't the treaty that superseded the Constitution. It was the implementing legislation that Congress subsequently passed that put the treaty provisions in conflict with Constitutional authority. Robert's opinion in Rancho Viejo, LLC., v. Norton addressed this very issue. It was his opinion that the Endangered Species Act was not Constitutional under the Commerce Clause provisions (which is why conservatives think it was an originalist decision on his part - they didn't read the rest of the paragraph where he intimated that ESA could be found Constitutional under other provisions.)

Whether or not the treaty is against natural law is not relevant to whether it supercedes the Constitution. The point made in the article that I was commenting on was trying to claim that the Geneva Conventions had greater authority than the U.S. Constitution, simply because we ratified it. It doesn't. They might have a claim if had Congress passed implementing legislation following ratification that limited the power of the President to authorize military tribunals under his powers as Commander in Chief. It would be on that basis that SCOTUS would decide if Congress exceeded its Constitutional authority in authorizing the implementing legislation. They also fail to mention that the Geneva conventions only apply to soldiers wearing uniforms of the countries to whose army they belong. The Conventions did not extend to terrorists at the time of their ratification and have not been amended to do so.

[Lancey Howard]

Okay. I am starting to get a lot less nervous about Roberts.

[Carry_Okie]

The treaty, in and of itself, did not supersede the Constitution.

Pure word-play. To abide by the agreement requires that the government exceed its Constitutional authority. In the ESA, it did.

My dispute with the article is whether, when the Constitution says that a treaty becomes the "supremem law of the land", that was understood to mean that it had equal weight with the Constitution. It clearly does not.

It doesn't have to say that. Pursuant to the law of nations, a government can surrender unconditionally by treaty, which obviously exceeds the authority granted to the United States in the Constitution. That was one of the reasons European royalty insisted upon a new governing document OTHER than the Articles of Confederation before they would loan the United States any money after the Revolutionary War.

What you are confronting is, in my opinion, the resulting trojan horse planted in the Constitution. What is worse is the ratification provision in Article II, Section 2, Clause 2; the detractors of which were disposed with one glorious handwave from Hamilton in Federalist 75:

The only objection which remains to be canvassed, is that which would substitute the proportion of two thirds of all the members composing the senatorial body, to that of two thirds of the members PRESENT. It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority. This consideration seems sufficient to determine our opinion, that the convention have gone as far in the endeavor to secure the advantage of numbers in the formation of treaties as could have been reconciled either with the activity of the public councils or with a reasonable regard to the major sense of the community. If two thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder. Proofs of this position might be adduced from the examples of the Roman Tribuneship, the Polish Diet, and the States-General of the Netherlands, did not an example at home render foreign precedents unnecessary.

The Convention on Nature Protection was ratified with no recorded vote, no record of a quorum, no record of debate, and no record of a committee hearing. Supreme Law of the Land. That's how dirty it gets, my son. FReeper sauropod found that information at my direction in the Library of Congress.

Treaties have the same weight as any piece of Congressional legislation.

Nonsense. The implementing legislation is written pursuant to the treaty as a means of compliance. If the scope of that legislation is insufficient to the terms of the treaty, the United States can be sued in Federal Court, which is routinely the case. That is how we got subspecies protection without specific authorization in the ESA.

What you are talking about is how it should work; not how it does work.

It was the implementing legislation that Congress subsequently passed that put the treaty provisions in conflict with Constitutional authority.

IMHO, a handy dodge.

Whether or not the treaty is against natural law is not relevant to whether it supercedes the Constitution.

True, however, that it exceeds Natural Law is proof that it exceeds the scope of powers granted to the government of the United States. Something to do with an illegal contract... ;-)

The point made in the article that I was commenting on was trying to claim that the Geneva Conventions had greater authority than the U.S. Constitution, simply because we ratified it. It doesn't.

By itself, no, subsequent to the lawsuit... Now you know one reason why legal thugs like the Center for Biodiversity are rolling in money.

They also fail to mention that the Geneva conventions only apply to soldiers wearing uniforms of the countries to whose army they belong. The Conventions did not extend to terrorists at the time of their ratification and have not been amended to do so.

On this you are absolutely correct, which is all you really had to say to gainsay the stupidity within the article above.

[Still Thinking]

This is the usual Oh-my-God article that is wrong about activities on the Supreme Court. John Roberts will only improve the Court by half a Justice. That's because Justice O'Connor voted in favor of the Constitution about half the time in her 22 years.

Are you actually confident he'll do the Constitutional think all the time, or close to it? If so, that would ease my mind some, but it seems a little farfetched, since it would make him easily the best justice, bar none.

[Still Thinking]

"[Roberts's] willingness to erase the word 'Treaties' from our Constitution and laws might mark [him and his two colleagues] not just as jurists willing to depart from the plain meaning of legal texts, but also as legal isolationists, turning away from the treaties that bind this nation to the civilized world."

When I stop laughing, at least I'll know not to take this ass clown seriously. "Civilzed world" indeed. Bad as we are, we're still head and shoulders above twits like France, no doubt revered by the author.

[Congressman Billybob]

From a pile of research in John Roberts' decisions and his advice memos in the Justice Department, I strongly believe that Roberts is in the Scalia mode. He won't I think, be as absolute as Thomas. But Thomas is so willing to overturn precedent as to represent a risk to the Court's future.

As much as I admire Thomas for his intellectual rigor, I'd be a bit nervous if Roberts were in his mold. That's the quick version of what I could discuss ad nauseum for hours.

Congressman Billybob

Latest column: "Tide of Lies Swamps NY Times: Employees Riot and Steal Office Supplies"

[Congressman Billybob]

From a pile of research in John Roberts' decisions and his advice memos in the Justice Department, I strongly believe that Roberts is in the Scalia mode. He won't I think, be as absolute as Thomas. But Thomas is so willing to overturn precedent as to represent a risk to the Court's future.

As much as I admire Thomas for his intellectual rigor, I'd be a bit nervous if Roberts were in his mold. That's the quick version of what I could discuss ad nauseum for hours.

Congressman Billybob

Latest column: "Tide of Lies Swamps NY Times: Employees Riot and Steal Office Supplies"