Archive: July 17, 2005 - July 23, 2005
Sunday Morning's Papers
Some of the country's best reporters have spent days researching Judge Roberts and have produced good and lengthy portraits -- profiles in perfection -- of a man who has excelled at the highest levels of his profession but left few traces of his political, ideological or jurisprudential leanings, if any. He even plays squash with both hands to keep his opponents guessing, reports the Chicago Tribune. Why, some of his closest friends can't tell you what he is, as E. Barrett Prettyman Jr. tells The Post's Michael Grunwald and Amy Goldstein: "You know, I must have had a thousand lunches with John, and I can't think of a single thing he's said that would specify his politics," says Prettyman, a World War II veteran who once served as an aide to Robert F. Kennedy. "We were all under the impression that he's a conservative, but he always talked generalities. He's...
By Fred Barbash | July 23, 2005; 3:37 PM ET | Email a Comment
Morning Papers
The continuing quest of Democrats and allied activists for an effective approach to the Roberts nomination is the prevailing theme of news coverage in Saturday morning's papers. Meanwhile, a Washington Post-ABC News poll show Americans eager to avoid a partisan battle, albeit curious about the nominee's views on issues such as abortion. And columnist Colbert King in the Post says that if complaining Democrats want to control judicial appointments, they should be spending more time and money on Senate races. Ronald Brownstein, in the Los Angeles Times, says critics "are turning to populist economic arguments to thwart his nomination," trying to portray him "as a threat to the economic interests of average families." This use of populist economic arguments appears partly driven by necessity: Roberts' record as an attorney and federal judge is much more extensive on economic than social issues, and thus potentially offers more ammunition for critics....
By Fred Barbash | July 23, 2005; 10:12 AM ET | Comments (1)
Cass Sunstein
Cass R. Sunstein (University of Chicago) in today's LA Times: Judge John G. Roberts Jr. fits the standard profile of a Supreme Court nominee: a middle-aged white man, appointed after serving on a federal appellate court. Whatever they think of Roberts' merits, many people had hoped for something different -- something other than the standard profile. First Lady Laura Bush, for instance, said, "I would really like for him to name another woman." While describing Roberts as "first-rate," Justice Sandra Day O'Connor said she was "disappointed ... to see the percentage of women on our court drop by 50%." Others have hoped, and continue to hope, for a Latino justice, or perhaps for another African American. Still others, including Senate Minority Leader Harry Reid, argue that the president should be considering people "outside the box," including candidates from state government, the executive branch or even Congress, rather than taking...
By Fred Barbash | July 23, 2005; 7:34 AM ET | Comments (1)
Hapless Toad II
More on Rancho Viejo. See previous post as well. Ted Frank, writing at pointoflaw.com, says: With so few opinions in his two years as a junior member of the D.C. Circuit, there is a lot of focus on Judge Roberts' dissent from a denial of an en banc review in Rancho Viejo, LLC v. Norton, with opponents seizing on this decision in an effort to tar Roberts as anti-environmentalist and worse. I was interviewed on this topic in a front-page article in my old hometown paper. (Bill Walsh, "'Hapless toad' case fuels fears of Roberts' foes", New Orleans Times-Picayune, Jul. 22). I noted, but didn't seem to persuade the writer, that Judge Roberts' dissent did not necessarily indicate that he intended to strike down the Endangered Species Act as unconstituional, but rather asked the D.C. Circuit to revise its jurisprudence on the question in a manner consistent with Supreme...
By Fred Barbash | July 23, 2005; 6:24 AM ET | Comments (1)
Hapless Toad
For a good analysis of Judge Roberts's much discussed "hapless toad" dissent from denial of rehearing en banc in Rancho Viejo v. Norton see Tom Goldstein's Supreme Court Nomination blog. There are two very different plausible readings of Judge Roberts's Rancho Viejo opinion. On one view, he sought to advance aggressively a vision of limited federal power.... On another reading, however, Judge Roberts's opinion was far more innocuous. There is a tendency to read substantial subtext into Judge Roberts's opinion because it addresses such a controversial subject and is written with such understatement. But I think the opinion is better read to mean exactly what it says: that he perceived an inconsistency between circuit and Supreme Court precedent on an important issue that ought to be resolved by the full court....
By Fred Barbash | July 22, 2005; 7:44 PM ET | Email a Comment
Washington Post pollster Richard Morin
Washington Post pollster Richard Morin reports this afternoon: A clear majority of Americans say John G. Roberts Jr. should be confirmed to serve on the Supreme Court but want him to state his views on abortion before the Senate votes on his nomination, according to a new Washington Post-ABC News poll. Nearly six in 10 Americans -- 59 percent -- believe the Senate should vote to confirm Roberts while 23 percent say it should not. The remainder expressed no opinion. But the public wants to know more about Roberts and his attitudes on key legal issues before he is confirmed. Nearly two in three -- 64 percent -- say Roberts should publicly explain what his views are on abortion before the Senate acts....
By Lexie Verdon | July 22, 2005; 5:26 PM ET | Email a Comment
More Resources on Roberts
Here are some new links to primary sources. Click through for previously posted links: Read a Roberts law review article on standing in the Duke Law Journal, 42 LJ 1219, April, 1993. Listen to recordings of some of Roberts's oral arguments on behalf of the United States courtesy of Oyez. org. A few links to some transcripts of Supreme Court oral arguments by Roberts for private clients. The link is via the Supreme Court Web site....
By Fred Barbash | July 22, 2005; 12:39 PM ET | Email a Comment
Richard Epstein
Richard Epstein (University of Chicago law school), writing in the Manhattan Institute's Point of Law: Everyone has to remember that a nominee is a bundle of positions on all sorts of issues. It is as if we were given the choice to take or leave a bag of groceries in a supermarket, some of whose contents we liked and some not. In general, we are better taking the bag if there is an all-or-nothing choice even if we do not like all of the items. In politics it is still worse because there is no candidate who is worth his or her salt who does not have some features various groups do not like. All that we can ask for is to have a person who will listen to the arguments when individual cases are decided, issue by issue. I do not think that the hard-left will be able...
By Fred Barbash | July 22, 2005; 10:09 AM ET | Comments (4)
Moveon.org
Moveon.org has launched a petition drive against Roberts: In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people. Working for mining companies, Roberts opposed clean air rules and worked to help coal companies strip-mine mountaintops. He worked with Ken Starr (yes, that Ken Starr), and tried to keep Congress from defending the Voting Rights Act. He wrote that Roe v. Wade should be "overruled," and as a lawyer argued (and won) the case that stopped some doctors from even discussing abortion...
By Fred Barbash | July 22, 2005; 9:23 AM ET | Comments (12)
USA Today Poll
From USA Today: An early sampling of public opinion found support for Roberts, but also a desire for more information about his views. A USA TODAY/CNN/Gallup Poll of 625 adults Wednesday found: •51% called the choice excellent or good; 34% called it fair or poor; the rest had no opinion. •76% said they needed more information before they could decide whether his views were "mainstream." •74% felt it would be appropriate to ask Roberts about abortion at the hearings. The poll has an error margin of +/-- 4 percentage points....
By Fred Barbash | July 22, 2005; 9:20 AM ET | Comments (1)
The Morning Papers
Good Morning.The papers are now starting the process of probing Roberts' past. It's still early, but so far they are finding a consistent pattern of steadiness, caution, savvy and nice-guyism dating all the way back to his law school days, so much so that potential opponents look stumped, at least momentarily, for a strategy. As Janet Hook asks in the Los Angeles Times, "What happens when an army prepares for World War III -- and ends up in a border skirmish? That question looms for liberal groups that have been collecting millions of dollars and preparing for years for a scorched-earth battle over President Bush's first Supreme Court nominee." Indeed, Charles Babington, in The Washington Post, says that "Democratic senators signaled yesterday that they may quiz President Bush's Supreme Court nominee more closely about his views on interstate commerce than on abortion. But some Republicans, sensing that John G. Roberts...
By Fred Barbash | July 22, 2005; 3:44 AM ET | Comments (1)
Roberts Another O'Connor, Rehnquist
David Garrow, writing in the Financial Times op-ed section, says that Roberts will resemble O'Connor and Rehnquist rather than Scalia or Thomas and that he "will not produce any significant ideological shift on what has been a distinctly moderate though Republican-dominated Court."...
By Fred Barbash | July 21, 2005; 7:01 PM ET | Email a Comment
Reflection of a Roberts Mentee
Supreme Court Extra features a recollection of Roberts from a lawyer he mentored at Hogan & Hartson. The writer is, as he says, "quite conflicted." "Because he [Roberts] is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive's worst case scenario."...
By Fred Barbash | July 21, 2005; 3:34 PM ET | Comments (1)
Gang of 14
The bipartisan Gang of 14 met today and sees little trouble for Roberts, says The Post's Charles Babington.The possibility that Senate Democrats might filibuster President Bush's Supreme Court nominee grew even more remote today, as key lawmakers said they saw no justification to deploy the tactic that has been used in recent years to block several judicial nominees. The so-called Gang of 14, the bipartisan group of lawmakers who averted a showdown last spring over a threat to ban filibusters, met today for the first time since John G. Roberts Jr. was tapped for the court. Several members later said the nomination will not trigger a filibuster unless researchers discover some political bombshell before the Senate hearings slated for late summer....
By Fred Barbash | July 21, 2005; 2:17 PM ET | Comments (1)
More Resources on Roberts
Here are some new ones, followed by some previously posted links: A few links to some transcripts of Supreme Court oral arguments by Roberts for private clients. The link is via the Supreme Court Web site. More to come. Smith v. Doe, Nov. 13, 2002 Barnhart v. Peabody Coal Co., Oct. 8, 2002 Gonzaga University v. Doe, April 24, 2002 Rush Prudential HMO, Inc. v. Moran, Jan. 16, 2002 Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, Jan. 7, 2002 Toyota Motor Mfg. v. Williams, Nov. 7, 2001 U.S. Brief in Rust v. Sullivan (1990) signed by Roberts as deputy solicitor general. Subject: abortion. U.S. Brief in Oklahoma City Public Schools v. Dowell (1989) signed by Roberts. Subject: school desegregation. Circuit Judge Roberts's dissent from denial of a rehearing en banc in Rancho Viejo v. Norton Gale (2003). Subject: commerce clause and endangered species. Judge Roberts's opinion in Hedgepeth v....
By Fred Barbash | July 21, 2005; 12:57 PM ET | Comments (1)
Roberts Another Rehnquist
An Op-ed in Newsday by Jim Copland, director of the Manhattan Institute's Center for Legal Policy, suggests that Roberts might unite the court."Roberts' combination of intellectual heft and personal grace could be just what this Supreme Court needs. Today's court is often deeply divided, although not so clearly along the liberal-conservative axis as some observers would have you believe. The court needs members like Chief Justice William Rehnquist who work to build consensus and make order out of chaos. Roberts' style suggests that he, like Rehnquist (for whom he once clerked) could be a leader who'll bridge gaps among the justices and lead the court for the next generation."...
By Fred Barbash | July 21, 2005; 11:25 AM ET | Email a Comment
Not In the Federalist Society
Charles Lane reports in this morning's Washington Post that Roberts is not a member of the Federalist Society, contrary to reports in The Post, the Los Angeles Times, CNN and elswhere. Lane writes: How this urban legend got started is not clear. The issue probably got clouded in part because the Federalist Society's membership is confidential; individual members must decide whether or not to acknowledge their affiliation. Even some conservatives found the story plausible. "I'm shocked that he is not," said Richard A. Samp, chief counsel of the right-of-center Washington Legal Foundation. Upon reflection, some Federalist Society members conceded that they had never actually seen Roberts at meet-and-greets such as the society's annual black-tie dinner. "That's a good question, let me think. Now that you mention it -- no," was former Bush Justice Department official Viet Dinh's response when asked if he had ever spotted Roberts at any Federalist events....
By Fred Barbash | July 21, 2005; 11:16 AM ET | Comments (1)
Attorney General Gonzales
The attorney general appeared on network news programs this morning to talk about the Roberts nomination. Here are excerpts from his interview with Steve Doocy of Fox News: DOOCY: Judge John Roberts probably feels pretty good today. I was reading one of the New York papers -- that apparently a top Democrat said of his nomination: He's in. There's no need to count the votes. Why is this guy a good guy? GONZALES: Well, he's very well qualified. No one can argue regarding his professional competence. He's got a wonderful record as an appellate specialist, great record in the executive branch. And I think no one has any questions regarding his professional competence. Those that know Judge Roberts, obviously, speak very highly of his personal integrity. He's a person of great character, a person of great courage. And we're also very, very confident in his judicial philosophy. This is a...
By Fred Barbash | July 21, 2005; 7:49 AM ET | Email a Comment
Morning Papers
Good Morning. The second day themes in the papers this morning are that Roberts is without a discernible ideology, which, in turn, suggests that he'll encounter little discernible opposition from Democrats on the Hill. If his wife were the nominee, on the other hand, that would be another matter. Peter Baker and Charles Babington in The Washington Post report that Democrats have resigned themselves to an easy confirmation for Judge Roberts, despite opposition from some liberal organizations. The key indicator is the mood of the Gang of 14, which, at this point, see no "extraordinary circumstances" in this nomination. The Post's Charles Lane looks at Roberts short stint as a judge and finds insufficient evidence on which to base any broad conclusions about the record. In the view of some experts, he looks to be another Rehnquist, for whom he clerked, with a deferential view of executive power but also...
By Fred Barbash | July 21, 2005; 3:38 AM ET | Comments (9)
Roberts Voting Patterns on D.C. Circuit
A study of Judge Roberts's voting on the appeals court posted by Kevin Russell, Anisha Dasgupta and Brian Flectcher at Goldstein & Howe's Supreme Court Nomination Blog yields no distinct ideological pattern, though the sample is necessarily small considering his short time there. Here's the key finding verbatim: "First, the most prominent feature of the data is how little anyone dissents or writes separately in the D.C. Circuit. Of the 191 decisions we reviewed, 97% were decided unanimously. This was so, even though the panels frequently consisted of both conservative and liberal members. Accordingly, one should not read too much into the relatively minor variations in the degree of agreement between Judge Roberts and various other judges on the circuit. "Second, when one examines the very small number of cases in which Judge Roberts disagreed in whole or in part with one of his colleagues, no clear ideological pattern emerges....
By Fred Barbash | July 20, 2005; 7:03 PM ET | Comments (4)
Christian Science Monitor
The Christian Science Monitor, in an editorial, proposes some questions the Judiciary Committee can ask without putting Roberts in the position of "dodging questions" because they may pertain to future cases:Point to a few instances when you've had to put aside strong personal views - either in your White House work or your two years on the bench - to argue or judge a case. As the definition of rights - in education, the workplace, family planning, etc. - has expanded in US history, has it been better for state and federal legislators or for the courts to bring those to citizens? Even if a decision is based clearly on the Constitution, should a justice also weigh the consequences of that decision on broader society? Should the Constitution be a flexible document whose interpretation changes with the times? Public approval of the Supreme Court has eroded over the years. What...
By Fred Barbash | July 20, 2005; 3:07 PM ET | Comments (7)
A Senate Reception
Judge Roberts traveled to Capitol Hill and first met with three Republican senators this afternoon. Here are the senators' comments as they greeted the judge. Senate Majority Leader Bill Frist (Tenn.): "I want to formally welcome Judge Roberts to the United States Senate today. He is obviously an outstanding Supreme Court nominee. He is the best of the best legal minds in America. We in the United States Senate are beginning on a process that is among our most consequential constitutional responsibilities of giving advice and consent. But Judge Roberts, I do want to welcome you. The United States Senate is ready to go; we look forward to a dignified process, a fair process, a process that treats you, our nominee, with respect." Sen. Mitch McConnell of Kentucky: "Well, as the majority leader indicated, we're very pleased to have Judge Roberts here today. We think this is an outstanding choice...
By Lexie Verdon | July 20, 2005; 2:52 PM ET | Comments (4)
Justice O'Connor Reaction
Supreme Court Justice Sandra Day O'Connor said Wednesday that the man President Bush nominated to replace her is "first rate," but she's disappointed in a sense that the nominee isn't a woman, wire services reported. "I have watched Judge Roberts since he has been an advocate before our court, and I and my colleagues have been enormously impressed with his scholarship and his skills," O'Connor said in an interview Wednesday during the annual conference of the U.S. 9th Circuit in Spokane. "He's earned an excellent reputation as a lawyer, so I think he's very well qualified." "I am disappointed, in a sense, to see the percentage of women on our court drop by 50 percent, but I can't be disappointed in the quality of person nominated. He's first rate," she added....
By Fred Barbash | July 20, 2005; 2:49 PM ET | Comments (20)
Reaction: Sen. McCain
Comments by Sen. John McCain (R-Ariz.) in an interview with radio host Don Imus, July 20: MCCAIN: Oh, absolutely. I think is really an outstanding pick that the president has made. His credentials are remarkable. Thirty-nine times, he's argued a case before the United States Supreme Court. He has intellect, and he has maturity. And I don't know if you saw him when he made his brief statement after the president announced him last night. It was -- it was quite a nice job he did there. And so I don't pretend to speak for my other members of the gang of 14, but it's hard for me to believe that he would meet an extraordinary circumstances criteria. Now, obviously he is conservative. Just as Justice Breyer and Ruth Bader Ginsberg were liberal. I don't -- and I think that's exactly what the president said he would appoint when he...
By Fred Barbash | July 20, 2005; 10:11 AM ET | Comments (7)
Roberts Resources
U.S. Brief in Rust v. Sullivan (1990) signed by Roberts as deputy solicitor general. Subject: Abortion. U.S. Brief in Oklahoma City Public Schools v. Dowell (1989) signed by Roberts. Subject: School Desegregation. Circuit Judge Roberts's dissent from denial of a rehearing en banc in Rancho Viejo v. Norton (2003). Subject: Commerce Clause and Endangered Species. Judge Roberts's opinion in Hedgepeth v. WMATA, the case involving a 12-year-old girl arrested for eating a french fry in a Washington Metro station. A transcript of the Senate Judiciary Committee confirmation hearings for John G. Roberts to the U.S. Court of Appeals, dated Jan. 29, 2003. Summary of some of Roberts's opinions compiled by Tom Goldstein at his Supreme Court nomination blog. Here is a partial list from oyez.org of cases argued by Roberts before the Supreme Court on behalf of private parties. An interesting piece about his boyhood in Indiana from the...
By Fred Barbash | July 20, 2005; 9:42 AM ET | Comments (1)
Reaction: Sen. Kennedy
Matt Lauer interviewed Sen. Edward Kennedy (D-Mass.) on the "Today Show" this morning. Here are some excerpts:LAUER: So when you voted against John Roberts in 2003 you said the following, quote, I am concerned about Mr. Roberts' efforts to limit reproductive rights as a government lawyer, his advocacy against affirmative action and federal environmental protection laws, and his efforts to shield the states from individual suits and to limit Congress' ability to pass legislation regulating state conduct in the name of states' rights. Have you changed your opinion in any way on Judge Roberts? KENNEDY: Well, these are really questions, aren't they? And that's what this whole process is about.We congratulate Judge Roberts with the nomination. And now the president has fulfilled his responsibility; we in the Senate have to fulfill ours. And the real question I think that Americans are thinking about this morning is: Whose side is Judge...
By Fred Barbash | July 20, 2005; 8:38 AM ET | Comments (6)
Fred Thompson on Today Show
Former senator Fred Thompson, who has been charged by the White House with shepherding Roberts through the process, appeared on the "Today Show" this morning. Here are some of his comments verbatim in response to Katie Couric:COURIC: President Bush noted Thursday night that Judge Roberts would, quote, strictly apply the Constitution in laws and, quote, not legislate from the bench if he becomes a Supreme Court associate justice. From what you've learned about him so far, why do you think he is qualified to serve on the high court? THOMPSON: Well, for many reasons, Katie. I think he is probably one of the more qualified nominees ever to be nominated to the Supreme Court in the history of the country. Going back to his academic background, you mentioned he went to Harvard undergrad and law school. He was at the top of his class both undergrad and in law school....
By Fred Barbash | July 20, 2005; 8:14 AM ET | Email a Comment
Morning Papers
Good Morning. Here's some editorial page reaction from the nation's press in the form of excerpts: Newsday In nominating John G. Roberts for the Supreme Court, President George W. Bush may have found just enough middle ground. Roberts, 50, is a solid conservative. That's sure to please the Republican right wing. He's also an intellectual heavyweight with integrity and an impressive resume who doesn't appear, at first blush, to be a radical ideologue like the failed high court nominee Robert Bork. That might be enough to make him acceptable to Senate moderates critical to his confirmation. We'll have to wait and see. But by avoiding an obviously incendiary appointment, Bush has made a constructive, probative confirmation process a possibility - if Roberts answers appropriate questions openly and fully when he appears before the Senate. The Washington Post: "If confirmed as the successor to Justice Sandra Day O'Connor, it is likely...
By Fred Barbash | July 20, 2005; 6:24 AM ET | Comments (2)
Roberts Resources
Here is his opinion in Hedgepeth v. WMATA, the case involving a 12-year-old girl arrested for eating on the Metro. Here is a transcript of the Senate Judiciary Committee confirmation hearings for John G. Roberts dated Jan. 29, 2003....
By Fred Barbash | July 19, 2005; 11:31 PM ET | Comments (6)
Reaction: Judicial Confirmation Network
Statement from Judicial Confirmation Network counsel Wendy E. Long: "President Bush has kept his promise to the American people with his choice of Judge John Roberts for the Supreme Court. Judge Roberts is the cream of the crop: he is widely respected as one of the most brilliant judges in the country, and has an outstanding record in public service and as an advocate before the Supreme Court. "Judge Roberts' record and his testimony before the Senate when he was confirmed unanimously for the D.C. Circuit two years ago reflect a jurist who prizes faithfulness to the Constitution and the rule of law, and who respects the limited role of federal courts in our constitutional system of government."...
By Fred Barbash | July 19, 2005; 10:11 PM ET | Comments (2)
Reaction: Alliance for Justice
Alliance for Justice Statement: "At this time, Alliance for Justice cannot support Judge Roberts' elevation to the Supreme Court. While we will be conducting a complete analysis of his record on and off the bench, an initial review has led to serious concerns about whether he will be fair, independent and will protect the rights and freedoms of all Americans. "As expressed in one case where he would have invalidated a provision of the Endangered Species Act, his exceedingly restrictive view of federal law-making authority - more restrictive than the current Supreme Court's - could threaten a wide swath of workplace, civil rights, public safety and environmental protections. In his years of service as a political appointee in the administrations of Presidents Reagan and George H.W. Bush, Judge Roberts also helped craft legal policies that sought to weaken school desegregation efforts, the reproductive rights of women, environmental protections, church-state separation...
By Fred Barbash | July 19, 2005; 10:03 PM ET | Comments (3)
Reaction: ACLU
From the American Civil Liberties Union:"The American Civil Liberties Union today expressed deep concern about some of the civil liberties positions advocated by Judge John Roberts, President Bush's choice to replace retiring Justice Sandra Day O'Connor on the Supreme Court. "While serving as principal deputy solicitor general from 1989-1993, he authored briefs calling for Roe v. Wade to be overruled, supporting graduation prayer, and seeking to criminalize flag burning as a form of political protest. "All these positions were rejected by the Supreme Court," said Steven Shapiro, the ACLU's National Legal Director. "But the Supreme Court remains closely divided on many of these questions." "As a senior Justice Department official, Roberts was in a position to help shape the government's legal positions as well as represent them. "At a minimum, the Senate should determine the extent to which the positions taken in these briefs also reflect Roberts's personal views. "The...
By Fred Barbash | July 19, 2005; 9:53 PM ET | Comments (3)
Reaction: Jeff Mazzella
From Jeff Mazzella, Center for Individual Freedom"Judge Roberts is an outstanding nominee. "Judge Roberts is a well-qualified, mainstream choice who will stand up for the Constitution and reject the temptation to legislate from the bench. He has a clear record demonstrating that he understands that the Constitution is the supreme law of the land, not an evolving set of flexible guidelines. "With Judge Roberts's nomination, President Bush has kept his campaign promise to select a Supreme Court justice who will put the Constitution first. "Already, liberals and their special interest puppet masters are promising a war. But instead of making the confirmation process a war, Senators should make sure that the process is fair. And it must include a simple up-or-down vote on the Senate floor. "Most important, the nominee deserves to be treated with the dignity and respect befitting a Supreme Court justice. Senators should stop the name-calling, insults...
By Fred Barbash | July 19, 2005; 9:49 PM ET | Comments (5)
Reaction: Kerry
Sen. John Kerry (D-Mass.)"Americans deserve a Supreme Court that is fair, independent, ethical and served by justices committed to our constitutional freedoms rather than an ideological agenda. Justice O'Connor refused to use her position as a means to advance a political agenda. In replacing her, we must be confident Judge Roberts will do the same. "We know Judge Roberts is no Sandra Day O'Connor, and the White House has sent a clear signal. There are serious questions that must be answered involving Judge Roberts's judicial philosophy as demonstrated over his short time on the appellate court. "The Senate must learn whether he has clear consistent principles upholding constitutional standards like civil rights and the right to privacy in Roe v. Wade. These issues are in serious question if you take even a cursory glance at his record. "The American people expect the Senate to fulfill its duty to conduct a...
By Fred Barbash | July 19, 2005; 9:44 PM ET | Email a Comment
Reaction: Feingold
From Sen. Russ Feingold (D-Wis.) "Evaluating the nomination of Judge John Roberts Jr. is a responsibility I take very seriously and one that I look forward to as a member of the Senate Judiciary Committee. Supreme Court justices can have a uniquely significant impact on our country for years, even decades. "While I voted in favor of Judge Roberts to be a circuit court judge in 2003, the level of scrutiny that the Senate gives nominees to the highest court in the land must be even greater than that for any other appointed position in our government. I will review his record carefully and look forward to questioning him in the Judiciary Committee's hearings."...
By Fred Barbash | July 19, 2005; 9:42 PM ET | Email a Comment
Reaction: Schumer
From Sen. Charles Schumer (D-N.Y.) "There's no question that Judge Roberts has outstanding legal credentials and an appropriate legal temperament and demeanor. But his actual judicial record is limited to only two years on the D.C. Circuit Court. "For the rest of his career, he has been arguing cases as an able lawyer for others, leaving many of his personal views unknown. For these reasons, it is vital that Judge Roberts answer a wide range of questions openly, honestly and fully in the coming months. "His views will affect a generation of Americans, and it is his obligation during the nomination process to let the American people know those views. "The burden is on a nominee to the Supreme Court to prove that he is worthy, not on the Senate to prove that he is unworthy. "I voted against Judge Roberts for the D.C. Court of Appeals because he didn't...
By Fred Barbash | July 19, 2005; 9:39 PM ET | Comments (1)
Reaction: Leahy
From a news conference by Sen. Patrick Leahy (D-Vt.), ranking minority member, Senate Judiciary Committee: "The president has announced his choice. Now the Senate has to rise to the challenge and do its work. To fulfill our constitutional duties, we need to consider this nomination as thoroughly and carefully as the American people deserve. "It's going to take time and the cooperation of the nominee and the administration. After all, a member of the Supreme Court is there for all people in this country, no matter what their party.And that means that Republicans as well as Democrats have to take seriously our constitutional obligations on behalf of all Americans. "We have to ensure the Supreme Court remains a protector of all Americans' rights and liberties from government intrusion and that the Supreme Court understands the role of Congress in passing legislation to protect ordinary Americans from special interests abuses. "No...
By Fred Barbash | July 19, 2005; 9:36 PM ET | Comments (2)
Roberts Resources
Resources for Information on John Roberts Here are some of his opinions as a judge. Here is his opinion in Hedgepeth v. WMATA, the case involving a 12-year-old girl arrested for eating on the Metro. Here is a transcript of the Senate Judiciary Committee confirmation hearings for John G. Roberts dated Jan. 29, 2003. Here is a profile of Roberts from Tom Goldstein's Supreme Court nomination blog....
By Fred Barbash | July 19, 2005; 9:29 PM ET | Comments (1)
The President's Announcement
"Good evening. "One of the most consequential decisions a president makes is his appointment of a justice to the Supreme Court. "When a president chooses a justice, he's placing in human hands the authority and majesty of the law. "The decisions of the Supreme Court affect the life of every American. "And so a nominee to that court must be a person of superb credentials and the highest integrity, a person who will faithfully apply the Constitution and keep our founding promise of equal justice under law."I have found such a person in Judge John Roberts. "And tonight I am honored to announce that I am nominating him to serve as associate justice of the Supreme Court. "John Roberts currently serves on one of the most influential courts in the nation, the United States Court of Appeals for the District of Columbia Circuit. "Before he was a respected judge, he...
By Fred Barbash | July 19, 2005; 9:20 PM ET | Comments (10)
Reaction to Roberts: Reid
Senate Minority Leader Reid via AP: "The president has chosen someone with suitable legal credentials, but that is not the end of our inquiry....The Senate must review Judge Roberts' record to determine if he has a demonstrated commitment to the core American values of freedom, equality and fairness." AP: Roberts is "a judge who sees himself a fair umpire who will fairly construe the Constitution and be faithful to it," said Sen. Jeff Sessions, R-Ala. AP: "It's a good choice," said Sen. John Warner, R-Va., a member of the powerful "Gang of 14" that recently prevented a Senate meltdown over judicial filibusters. When asked whether Roberts could be confirmed easily, Warner said, "I wouldn't predict anything, but it's certainly a good place to start."...
By Fred Barbash | July 19, 2005; 8:58 PM ET | Comments (1)
Reaction to Roberts: NARAL
NARAL on its pro-choice blog notes the following: "1. As Deputy Solicitor General, Roberts argued in a brief before the U.S. Supreme Court (in a case that did not implicate Roe v. Wade) that "[w]e continue to believe that Roe was wrongly decided and should be overruled.... [T]he Court's conclusion in Roe that there is a fundamental right to an abortion... finds no support in the text, structure, or history of the Constitution. "2. In Rust v. Sullivan, the Supreme Court considered whether Department of Health and Human Services regulations limiting the ability of Title X recipients to engage in abortion-related activities violated various constitutional provisions. Roberts, appearing on behalf of HHS as Deputy Solicitor General, argued that this domestic gag rule did not violate constitutional protections. "3. Roberts, again as Deputy Solicitor General, filed a "friend of the court" brief for the United States supporting Operation Rescue and...
By Fred Barbash | July 19, 2005; 8:47 PM ET | Email a Comment
Reaction to Roberts: Coryn
From Sen. John Coryn (R-Tex.) (before the announcement)"The President will soon announce his nominee to the Supreme Court: Judge John G. Roberts, Jr, currently serving on the U.S. Court of Appeals for the District of Columbia Circuit. In doing so, he will urge the Senate to consider this nomination thoroughly and expeditiously. The President has done his part, and now we in the Senate must do ours. We must ensure that the nominations process does honor to the Supreme Court, to the Senate, and to the Nation. "Judge Roberts is an exceptional judge, brilliant legal mind, and a man of outstanding character who understands his profound duty to follow the law. He has enjoyed a distinguished history of public service and professional achievement. It is clear to me that Judge Robert's history has prepared him well for the honor of serving this country on our nation's highest Court, and I...
By Fred Barbash | July 19, 2005; 8:11 PM ET | Comments (3)
Roberts Background
John G. Roberts has long been considered one of the Republicans' legal heavyweights. He was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2003 by Bush. He was also nominated by the first President Bush, but never received a Senate vote. Previously, he practiced law at Washington's Hogan & Hartson from 1986-1989 and 1993-2003. Between those years, he was he principal deputy solicitor general, helping to formulate the administration's position in Supreme Court cases. During the Reagan administration, he served as an aide to Attorney General William French Smith and as an aide to White House counsel Fred Fielding from 1982-1986. He attended Harvard College and the Harvard Law School, clerked for Justice (now Chief Justice) William H. Rehnquist on the Supreme Court. He has not been considered a "movement conservative," and in the past, some on the party's right have doubted his commitment to their...
By Fred Barbash | July 19, 2005; 8:03 PM ET | Comments (1)
And the nominee is.......
Roberts, says the AP. John G. Roberts....
By Fred Barbash | July 19, 2005; 7:44 PM ET | Comments (2)
Roberts
John Roberts is the nominee. Here are some of his opinions as a judge. Here is his opinion in Hedgepeth v. WMATA, the case involving a woman arrested for eating on the Metro. Here is a transcript of the Senate Judiciary Committee confirmation hearings for John G. Roberts dated Jan. 29, 2003. Here is a profile of Roberts from Tom Goldstein's Supreme Court nomination blog....
By Fred Barbash | July 19, 2005; 7:12 PM ET | Comments (3)
Maybe Not Clement?
With 3 1/2 hours to go before the announcement, some observers are steering reporters away from Clement as the choice. Rumors about J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit are reemerging, emanating from CNN, which reported that he was gathering his family, all dressed up, for some sort of event. Check back often for the latest buzz. Here's an article from The Post's Charles Lane and Jerry Markon about Luttig....
By Fred Barbash | July 19, 2005; 5:39 PM ET | Comments (7)
People for the American Way
People for the American Way expressed concern about Edith Brown Clement on its Web site before today's speculation that she was the president's choice: "Judge Clement has joined troubling dissents from two important decisions by the full Fifth Circuit. In one, Judge Clement maintained that the scope of an important federal criminal law, the Hobbs Act, should be severely limited on 'federalism' grounds. "In the other, Clement voted to allow the unlawful firing of a public school teacher. Judge Clement also wrote the opinion in a 2-1 decision reversing a jury's award of damages for pain and suffering of a mother and daughter killed in a grisly truck accident."...
By Fred Barbash | July 19, 2005; 5:21 PM ET | Comments (1)
Clement on Roe and Privacy
Clement's comments in answer to written questions on privacy and Roe before the Senate Judiciary Committee during confirmation hearings for the appeals court: Question: "Do you believe the Constitution contemplates a 'right to privacy'?" Answer: "Yes, as I stated in my responses to the follow-up questions asked by Senator Kohl, I do believe that the Constitution contemplates a right to privacy. The Supreme Court has repeatedly held that the Constitution encompasses a right to privacy." Question:" Do you believe the constitutional right to privacy encompasses a woman's right to have an abortion?" Answer: "The Supreme Court has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion. The cases handed down by the Supreme Court on the right to abortion have reaffirmed and redefined this right, and the law is settled in that regard. If confirmed, I will faithfully apply Supreme Court...
By Fred Barbash | July 19, 2005; 5:06 PM ET | Comments (8)
Operation Rescue on Clement
Operation Rescue put out the following press release through the Christian Wire Service:"Speculation is racing concerning the probability that President George W. Bush's Supreme Court nominee, to be announced tonight at 9 PM EDT, will be Judge Edith 'Joy' Clement. "'Judge Clement gravely concerns us,' said Operation Rescue President Troy Newman. "'In her statement made during her confirmation process to the District Court in 2001 she said that the Supreme Court "has clearly held that the right to privacy guaranteed by the Constitution includes the right to have an abortion" and that "the law is settled in that regard" referencing the 1973 Roe v. Wade decision that decriminalized abortion. "'Based on those statements we must respectfully oppose Edith Clement's confirmation to the Supreme Court, and will do so until such time that Judge Clement can show us that these statements do not reflect her true opinions,' said Newman. "'President Bush...
By Fred Barbash | July 19, 2005; 5:02 PM ET | Comments (2)
Resources
A partial record of Judge Edith Clement's confirmation hearings for the appeals court are here. She was part of a panel of appointees questioned en masse by the judiciary committee. Tom Goldstein's summaries of Judge Clement's opinions are here....
By Fred Barbash | July 19, 2005; 4:52 PM ET | Email a Comment
On Timing
Here are some comments by Senate Minority Leader Harry Reid (D-Nev.) to reporters in response to questions about the timing of the Supreme Court announcement: "Well, the way I look at it: If this is a noncontroversial candidate, there's no reason that we can't use the August recess to have the Judiciary Committee members read the briefs. In fact, if this is a judge who has written opinions -- when I said briefs, I mean opinions -- they can wait for the FBI's investigation. The Judiciary Committee does their own. ABA does work. "This can all go forward and there's no reason we can't do hearings early in September. If you had hearings that took a good long week, everyone would have all the opportunity they need to ask their questions. And there would be, hopefully, just one report; no minority reviews from the senators.And if that were the case,...
By Fred Barbash | July 19, 2005; 3:42 PM ET | Comments (1)
From the White House
Here is the White House e-mail on the announcement: "THE PRESIDENT WILL ANNOUNCE HIS NOMINEE TO THE SUPREME COURT THIS EVENING AT 9:00PM EST FROM THE WHITE HOUSE - TODAY'S PRESS BRIEFING IS CANCELED."...
By Fred Barbash | July 19, 2005; 1:54 PM ET | Comments (1)
On Judge Clement
On the subject of Judge Clement, who may or may not be announced tonight at 9 when the president tells us his choice for the Supreme Court (see previous breaking news post), see this Hadley Arkes article published last week in the National Review Online, which gives some glimpse into conservative uncertainties about Judge Clement."Edith Jones has the sharper definition as a conservative, tagged as pro-life in her perspective, and she is bound to draw the heaviest fire. Joy Clement, in contrast, would be a harder target: Her own specialty was in maritime law; she has not dealt, in her opinions, with the hot-button issues of abortion and gay rights; and she has stirred no controversies in her writings or in her speeches off the bench. She would be the most disarming nominee, and it would be a challenge even for Ralph Neas or Moveon.org to paint her as an...
By Fred Barbash | July 19, 2005; 1:37 PM ET | Comments (2)
Tonight at Nine
The White House says the president will announce his choice for the Supreme Court tonight at nine. Some observers are cautioning about jumping to the conclusion that Edith Clement is the designated nominee. For a rolling sampler of Clement's opinions, see Tom Goldstein's Supreme Court Nomination Blog. Tom says he will update throughout the day....
By Fred Barbash | July 19, 2005; 1:19 PM ET | Email a Comment
Bush Likes Surprises
From The Washington Post's Mike Allen: A single, arguably self-evident, partly-tongue-in-check sentence by White House press secretary Scott McClellan has single-handedly wiped the CIA leak story off the cable news airwaves: "The president is closer today than he was yesterday on naming a nominee." No time -- or day -- for an announcement has been announced. A wide swath of Republican officials say they expect it today, or very soon. But don't forget what Bush's aides often remind reporters: The president likes surprises....
By Fred Barbash | July 19, 2005; 12:56 PM ET | Comments (3)
Any Moment Now
The Washington Post's Peter Baker (as well as wire services) reports that White House allies are being told to expect an announcement as early as this afternoon. Judge Edith Clement of the 5th Circuit is the consensus front-runner, though no one outside the inner circle claims to know for sure. Here is what the president said when asked about it at 12:10 p.m. during an appearance with Australia's prime minister:QUESTION: "Can you tell us, as you consider Supreme Court nominees, how important it is to you to replace Justice O'Connor with another woman? And can you bring us up to date on whether you've completed interviewing candidates?" BUSH: "First, I'm comfortable where we are in the process. That's important for you to know.Secondly, I have thought about a variety of people, people from different walks of life, some of whom I've known before, some of whom I had never met...
By Fred Barbash | July 19, 2005; 12:11 PM ET | Email a Comment
Any Time Now?
The Post's Mike Allen now reports that Republican aides on Capitol Hill said as they arrived this morning that they had been told to expect an announcement as soon as today. Hill Republicans said the leader in the buzz derby was Judge Edith Brown Clement of the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, who was nominated to that court by Bush in 2001 and quickly confirmed by the Senate. (See profiles of the 5th Circuit and various candidates at washingtonpost.com.) But those officials were cautious because they had been so recently taken in by rumors about the retirement of Chief Justice William Rehnquist, which he quashed with a statement last week. Some Republicans immediately speculated that the announcement -- once expected closer to Bush's departure at the end of the month for a working vacation at his ranch in Crawford, Tex. -- had been...
By Fred Barbash | July 19, 2005; 8:53 AM ET | Comments (5)
Bush-Specter in Private Meeting
Mike Allen of The Washington Post reports this morning that Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) paid a last-minute, unannounced visit to the White House last night to meet with the president. The meeting came amid reports that well-wired Republicans expect President Bush to announce his pick sooner (this week) rather than later (next week). Specter was last at the White House a week ago today, when he and three Senate colleagues munched on breakfast with the president and Vice President Cheney and chewed over possible choices, plus the timetable for hearings. The president, who prefers to conduct business by daylight, was unusually busy last night. He was also eating chilled asparagus soup and pan-roasted halibut with ginger-carrot butter at a rare black-tie White House dinner, for Indian Prime Minister Manmohan Singh....
By Fred Barbash | July 19, 2005; 7:31 AM ET | Comments (2)
Morning Papers and Blogs
The president's comments yesterday about the status of the selection process dominate the morning press Supreme Court coverage along with intensified speculation about the short list. The Hill's Alexander Bolton says conservatives have been told Alberto Gonzales is out of the running but that the oft-mentioned women candidates, including Maura Corrigan of Michigan's high court, are in. Tom Goldstein, at the Supreme Court Nomination Blog, thinks "a late-breaking candidate like Justice Corrigan is unlikely because of the substantial vetting required before making the selection." Based on Bush's comments about not needing to interview some candidates, Peter Baker writes in The Washington Post that the:"formulation suggested that some finalists would include close acquaintances such as Attorney General Alberto R. Gonzales or U.S. Appeals Court Judge Priscilla R. Owen, fellow Texans who owe their current jobs to Bush and would not need to be interviewed further. He is also considering several other...
By Fred Barbash | July 19, 2005; 3:00 AM ET | Comments (2)
Podcasts
Thanks to a reader for alerting us to the podcast on the court sponsored by the Alliance For Justice. I welcome other suggested links for podcasts from across the political spectrum....
By Fred Barbash | July 18, 2005; 7:01 PM ET | Email a Comment
Women Candidates
A blog at confirm.them.com, a project of Redstate.org (which describes itself as a Republican community weblog) features a useful exchange of names of women candidates reported to be under consideration and a series of links to biographical information about both male and female candidates. On the subject of women candidates, see also Bill Kristol's editorial in The Weekly Standard called "A Good Woman Isn't Hard to Find." "President Bush would improve the Court by appointing any from a long list of well-qualified women. Among them are federal appellate judges like Edith Jones, Edith Brown Clement, and Priscilla Owen on the 5th U.S. Circuit Court of Appeals, Janice Rogers Brown on the D.C. Circuit, Karen Williams on the 4th Circuit, and Alice Batchelder on the 6th Circuit; distinguished law professors like Mary Anne Glendon, Learned Hand Professor of Law at Harvard, and Lillian R. BeVier, John S. Shannon Professor of Law...
By Fred Barbash | July 18, 2005; 6:50 PM ET | Email a Comment
Bush on Nomination
President Bush, asked today at a news conference with the Indian prime minister how close he was to a Supreme Court announcement, repeated earlier comments that he was continuing to consult widely on a choice but that he would act expeditiously in order to make sure the new justice can be in place for the beginning of the next term. Here are excerpts from his comments: QUESTION: "We understand you are now close to a decision on a Supreme Court nominee." BUSH: "Really. It's amazing how Washington works, Mr. Prime Minister." QUESTION: "Have you narrowed down the list and met with finalists? Will you now share the list with Senate leaders to avoid a confirmation battle as Democrats have proposed?" BUSH: "Well, thank you for telling me where I am in the process. I appreciate that. We have consulted with the Senate. We will continue to consult with the Senate....
By Fred Barbash | July 18, 2005; 11:39 AM ET | Comments (1)
Any Day Now
The Washington Post's Peter Baker reports this morning that the White House may be days away from a nomination announcement, having narrowed the list to a few people. Some advisers believe he is increasingly inclined to appoint a woman."President Bush," writes Baker, "accelerating his search for a new Supreme Court justice, appears to have narrowed his list of candidates to no more than a few finalists and could announce his decision in the next few days, Republican strategists informed about White House plans said yesterday. "Advisers to Bush had anticipated an announcement closer to the end of the month, but the White House signaled allies over the weekend to be prepared for a nomination this week, according to the strategists, who asked not to be named because the process remains officially confidential. 'We've been told to be ready,' one strategist said..... "Laying the groundwork for his nomination, Bush used his...
By Fred Barbash | July 18, 2005; 3:55 AM ET | Comments (2)
