Posted on 08/03/2005 10:11:23 AM PDT by Tumbleweed_Connection
John Roberts says he will honor established Supreme Court rulings, telling a Senate committee that legal precedents are important to "promoting the stability of the legal system."
Liberal interest groups quickly criticized the high court nominee for failing to state whether he would uphold the landmark Roe v. Wade abortion decision.
In responses to a Senate Judiciary Committee questionnaire, the 50-year-old federal appeals court judge addressed a wide array of questions, from his financial holdings and work history to political ties and judicial philosophy. In particular, the survey offered Roberts' most current views on "judicial activism," an area critical to gauging his stance on the 1973 Roe decision.
"It is difficult to comment on either 'judicial activism' or 'judicial restraint' in the abstract, without reference to the particular facts and applicable law of a specific case," Roberts writes in the 84-page disclosure, which the committee released late Tuesday.
"Precedent plays an important role in promoting the stability of the legal system," he added. "A sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath."
At the same time, Roberts said that "judges must be constantly aware that their role, while important, is limited."
"They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law," he wrote to the committee, which will begin considering Roberts' nomination on Sept. 6.
The Supreme Court is closely divided on the issue of abortion rights and other social issues, with retiring Sandra Day O'Connor, the justice whom President Bush selected Roberts to replace, often providing the swing vote. While previous court nominees have typically refrained from commenting specifically on Roe, liberal groups say the stakes are now too high to ignore.
"John Roberts' lawyerly answers fall far short of the candor the American people expect," said Nancy Keenan, president of NARAL Pro-Choice America, which opposes Roberts' nomination. "Even anti-choice Justices Antonin Scalia and William Rehnquist respect precedent, but that hasn't stopped them from explicitly saying they want to overturn Roe v. Wade."
In the questionnaire, Roberts said he would be "fully open" to the views of the other eight justices on the court, and approach cases as a "thoughtful skeptic," avoiding a firm stance without first fully reading the briefs, questioning the lawyers and paying attention to precedent.
Although their role in deciding major social issues of the day should be "limited," justices are fully within their power to overturn acts of Congress and the president if those branches overstep their authority. "It is not judicial activism when the courts carry out their constitutionally-assigned function," Roberts wrote.
Some legal experts said Roberts' statements were noteworthy for striking a careful balance.
"There's something for both camps," said David Garrow, a Supreme Court historian at Emory University. "He is repeatedly pledging personal modesty and humility with regard to believing he has the right answer, but at the same time expressing a firm and forceful view of an independent judiciary."
As to Roe, Roberts' disclosure offers "no clear signal," Garrow said.
Roberts worked in the administrations of President Reagan and the first President Bush, during which time he co-wrote a legal brief for the administration arguing that Roe should be overruled. He then entered private practice before becoming an appellate judge in 2003.
In response to a question about his memberships, Roberts said he does not recall ever being a member of the conservative Federalist Society, although he participated in events including a 1993 panel and gave a luncheon speech to the legal group in 2003.
"According to recent press reports, in 1997 I was listed in brochures as a member of the Washington Lawyers Steering Committee," Roberts wrote. "I have no recollection of serving on that committee, or being a member of the society."
Detailing his political ties, Roberts said he spent about a week assisting Florida Gov. Jeb Bush during the disputed presidential election count in 2000.
He said he went to Florida at the request of GOP lawyers, assisting an attorney who was preparing arguments for the Florida Supreme Court and at one point meeting the governor, President Bush's younger brother, to discuss the legal issues "in a general way."
"My recollection is that I stayed less than one week," Roberts wrote.
Other political affiliations Roberts listed were the executive committee of the D.C. Lawyers for Bush-Quayle in 1988, Lawyers for Bush-Cheney and the Republican National Lawyers Association.
Responding to a question about his experience in the judicial selection process, Roberts wrote that he was interviewed by Attorney General Alberto Gonzales as early as April 1. At that time, Chief Justice William H. Rehnquist was at the center of retirement speculation because of his thyroid cancer.
Besides Bush, Roberts reported having discussions with Vice President Dick Cheney, Karl Rove, White House Counsel Harriet Miers and Chief of Staff Andrew Card. To the question whether if any of them asked about his specific legal views or positions on cases, Roberts gave a one-word reply: "No."
The responses also show Roberts is worth about $5.3 million, with sizable stock investments, a golf club membership and home in Chevy Chase, Md., worth $1.3 million. His portfolio includes $291,200 in XM Satellite Radio, $264,000 in Dell computers and $106,553 in Texas Instruments.
"Just point me to the emanations from the penumbra of the Constitution and I'll take a look at it."
Amazing. This is THE issue, and it eclipses the light of all others for some. But conservatives are intolerant.
Nothing like perpetuating a mistake, to make people respect the system.
His answer on precedent is a little scary, but I think if they could ask him a more pointed question it might be clearer.
I believe that, if we are talking about the interpretation of a law, the judge, even the Supreme Court, should follow previous interpretations of that law from previous court cases, even if that interpretation is at odds with what they think the law means.
That would be prudent, because if the legislature disagreed with how the court had interpreted the law, they could have changed it -- therefore, since they haven't changed it, they must like the way the law is working, and having judges simply change what the law "means" would be activist.
HOWEVER, if the court ruling was to prohibit the legislature from acting, based on a bad interpretation of the constitution, a new judge should NOT give the same weight to that precedent, since there was no way a legislature could have corrected a misinterpretation.
So, a precedent on the civil rights act of 1964 set in 1970 should be considered settled law, but Roe V. Wade should not.
Changing Supreme Court justices is the only way we can fix mistakes in interpretation of the constitution, so it has to be OK for justices to throw out previous rulings.
For those who say we can change the constitution, it doesn't matter -- if the court can get the current wording wrong, or ignore it, they will be able to make the same mistakes or interpretations on any amendment we make.
If "no law prohibiting free exercise" can mean "laws prohibiting exercise", and if "for public use" can mean "for private development", and "shall not be infringed" can mean "regulate and restrict all you want", what words could you possibly put in that couldn't be made to mean whatever an activist judge wants.
IOW Judge Bork is right in that we can expect another do nothing "ratchet judge"
The looneys turn us left, and like a ratchet wrench the supposed conservatives do nothing when the movement is for the right.
The left overturns hardwick without hesitation, but the right cringes at not eliminating bad decisions.
I doubt if Bork will consider Roberts a ratchet judge. Roberts is too smart for the liberals to pin down, but he is another Scalia/Thomas.
Good catch. But actually that plays in favor of Roberts gaining support amoung liberals so I am a bit surprised that AP would spin it that way.
This law is not subject to judicial review.
Article. III.
Section. 2.
Clause 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Hopefully, Roberts means that he will respect good precedent, not bad. It is absurd to respect the latter, and seeing as how new precedent has been established in the last 50 years by the Left on most fronts in the Culture War, to do so would guarantee final victory for the radical, court-imposed social revolution.
I agree with those who think that the GOP is missing an opportunity to lead the public in a debate over judicial philosophy and the proper role of Courts. Basically, what Mark Levin says here;
http://bench.nationalreview.com/archives/071476.asp
If the GOP is not willing to take up this fight, then the idea of Judicial Supremacy will never be challenged.
Roberts is a precedent believer, he values bad precedent over the constitution.
The white house messed up bad on this.
Roberts will be very conservative and an originalist on issues that haven't come before the supreme court before.
But on issues that have come before the court he will be like ruth bader ginsberg.
Look for roberts to vote in our favor for parental notification because there is no precedent for that but look for him to vote against us in all precedent cases.
No supreme court justices follows precedent as a rule of law it isn't even in the constitution.
The liberal justices overturned the death penalty precedent.
What is it with roberts and the rule of law with precedent.
How did the white house not vet this.
Having him respect all the bad precedents over the last 50 years is a defeat.
Damn the dems for blocking miguel estrada he was an originalist and he would have been the pick.
First, that would be put on a law, not an amendment.
Second, an activist judge would simply say that congress cannot legislate the jurisdiction of the supreme court to decide the constitutionality of the legislation because that would violate separation of powers.
If the court is interpreting the law and the constitution, they can say anything means anything they want.
Change the court, not the constitution.
Well, I guess we won't know for sure until he gets a chance to vote to overturn one of the many bad liberal precedents set in the last few decades.
I personally don't believe that he will wind up as you say, i.e. as bad on dealing with bad precedent, but good on matters yet to reach the Court. Is there anyone like that on the high court?
I think he will go one way or the other. Either he'll be the Scalia/Thomas we hoped for, or a huge mistake in the mold of O'Connor, Kennedy, and Souter.
So at a minimum, if he does not turn out to be a Scalia, then I at least hope that you are right and I am wrong. Certainly a judge who used conservative/originalist lenses in future jurisprudence would be preferable to 6 of the justices currently on the Court, even if he was worthless on correcting past wrongs.
Actually, you are wrong here. This has been used before, and the Supreme Court agreed that they had no ability to review a law that Congress (and the President) specifically shielded from such review.
Our Constitutional expert-in-residence, the honorable Congressman BillyBob, can probably give you the relevant case(s).
Some tree-hugging lawyers in Seattle (IIRC) got an injunction against the further construction of the pipeline under an obscure statute. Congress then withdrew jurisdiction from the courts. Then the court which had issued the injunction withdrew it, ruling that it was without power to act any further in the matter.
A full discussion of this subject would include a description of the "fundamental law" exception to this general provision in the language of Article III, Section 1, of the Constitution. However, the power to do this is long established and repeatedly recognized.
Congressman Billybob
But would such a statement also protect a law that otherwise was obviously unconstitutional, as opposed to being simply open to an interpretation of its meaning or how it interacts with other laws?
For example, could congress and the white house pass a law saying that all congressmen have to be Catholic, and label it so as to prevent judicial review?
It doesn't seem like they should be able to do so, or that a court would interpret the constitution as allowing them to do so.
His answer is fine. It is something that we would have gotten from Rehnquist.
Note that this article fails to select some interesting quotes he also said in the same statements that say the juciciary must be restrained etc.
So he has to prepare an 84 page response?
That's the whole problem with the government in a nutshell!
Millions upon millions of pages of laws and other garbage are written annually, by thousands upon thousands of "writers", that nobody; that's nobody, reads, prior to voting upon the proposed law or regulation.
Can't things be boiled down into a few pages at most, so at least these politicians can attempt to comprehend what they are supposed to vote upon? Ya,know, something like the brevity of the Constitution?
In Roberts case he should have written FU! Strong letter to follow!
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