Archive: July 31, 2005 - August 06, 2005
Judge Patel: Robes Sullied by Ads
U.S. District Judge Marilyn Hall Patel has this letter in the National Law Journal Congratulations on your nomination to the U.S. Supreme Court. I wish you well in the confirmation proceedings and, since I have no doubt you will be confirmed, I wish you a long, enjoyable and rewarding tenure. From what I understand, you will bring great intellectual vigor, wise judgment and sturdy independence to the court. Ordinarily a private letter would be appropriate, but these are unusual times, and I hope by this open letter to appeal to others of like mind and to those who are its subject. I write, first of all, as someone who loves, cares deeply about and sometimes grieves for the Constitution, the courts and our country. I also write as a member of the bench with 29 years of experience, 25 of those on the U.S. district court. I write because of...
By Fred Barbash | August 6, 2005; 8:37 AM ET | Comments (2)
The Morning Papers (Abbreviated)
The Washington Post, the New York Times and the Los Angeles Times all feature news of the Justice Department's refusal to turn over documents about Roberts's work there.Mike Allen and Jo Becker in The Post:The Justice Department refused yesterday to turn over documents about Supreme Court nominee John G. Roberts Jr. that Senate Democrats have demanded, escalating the most serious conflict in a confirmation process that has been more placid than either side had predicted. The attorney general's office said in four-page letters to each of the eight Democrats on the Judiciary Committee that it is "simply contrary to the public interest" to release certain records from Roberts's service in the solicitor general's office, which argues cases before the Supreme Court on behalf of the executive branch. "For the Solicitor General's office to perform its public service effectively, the internal deliberations of the office must remain confidential," each letter said....
By Fred Barbash | August 6, 2005; 8:19 AM ET | Email a Comment
Gay Rights and Roberts
For more reaction to Roberts's pro bono work on behalf of gay rights, see: Josh Richman in the Oakland TribuneRoberts' gay-rights work is cheeredChristian Broadcast Network: Roberts' Past Gay Rights Case Stirs Controversy Fox News:Gay-Rights Case Draws More Attention to Roberts Rush Limbaugh:Now, there's no question this is going to upset people on the right. There's no question the people on the right are going to say, "Wait a minute. Wait a minute! The guy is doing pro-bono work and helping gay activists?" and people are going to say, "See? This is what happens when you get caught up in the DC culture. This is what happens when you get caught up in the Washington establishment and culture: you want to be seen as enlightened and so forth." ....The LA Times the same day exposing Judge Roberts as a closet supporter of the gay rights movement in hopes of...
By Fred Barbash | August 5, 2005; 12:37 PM ET | Comments (6)
Roberts: The Anti-Bork
Edward Lazarus, at FindLaw, describes the lessons from the Bork hearings being applied by both sides in the Roberts nomination: The Bork hearings were a watershed event. They brought into public view the intense civil war in our legal culture - a war that rages to this day. They injected the truth-bending techniques of electioneering and interest group politics into the process for nominating and confirming judges. Most of all, they taught both sides that, when it comes to filling a seat on the Supreme Court - a seat the Justice is likely to occupy for 20, 30 years, or even 40 years, winning is everything and the ends justify the means. All this is playing out again in the run-up to the Roberts hearings, as both sides try to apply the lessons of the Bork experience in shaping their current strategies...
By Fred Barbash | August 5, 2005; 9:23 AM ET | Comments (16)
The Morning Papers
Morning papers are preoccupied today with stories about, and reaction to, the LA Times story of Thursday on Roberts's pro bono work on behalf of gay rights activists in Romer v. Evans. Maura Reynolds, in the LA Times reports:Supporters and opponents of Supreme Court nominee John G. Roberts Jr. were caught off guard Thursday by news that he once had worked behind the scenes to help gay rights activists win a key case before the nation's highest court. Debate erupted on conservative and liberal websites, with partisans on both sides asking whether Roberts' assistance was an aberration from his conservative record or a sign that his views might be less ideological than commonly thought. Jo Becker and Michael Grunwald report in The Washington Post: As a private lawyer, John G. Roberts Jr. represented homeless Washingtonians who had lost their government benefits because of city budget cuts. He advocated environmental protections...
By Fred Barbash | August 5, 2005; 2:39 AM ET | Comments (9)
Chief Justice Hospitalized Briefly
Chief Justice Rehnquist was hospitalized briefly today and then released. Here is the story by Gina Holland of the Associated Press via The Post....
By Fred Barbash | August 4, 2005; 7:34 PM ET | Email a Comment
Knights of Columbus on Roberts
From the Knights of Columbus convention in Chicago via WPRI TV: The leader of the Knights of Columbus says America has become a place where "abortion rights groups oppose a nominee to the U-S Supreme Court because he's a faithful Catholic." Supreme Knight Carl Anderson addressed the Catholic lay organization's convention in Chicago. He said that John Roberts' nomination shouldn't "be blocked because he refuses in conscience to submit to a pro-abortion litmus test. See also Knights of Columbus press release below....
By Fred Barbash | August 4, 2005; 5:57 PM ET | Email a Comment
The Hapless Toad Revisted
See this CNN.com and FindLaw article by Julie Hilden for more on the meaning of Rancho Viejo v. Norton and Judge Roberts's dissent from denial of en banc review, which, so far, appears to be the most discussed or "dissected" of Roberts's writings on the bench. See also this and this. Here is the dissent. From a commerce clause point of view, Roberts, in theory, could see a real estate development's frog-ousting as essentially the same as the frog-ousting performed by, say, a group of trespassing local kids building a fort. Roberts' commerce clause view isn't just narrow; it's virtually microscopic. In Roberts' own words, this case was about simply "the taking of a hapless toad" -- not about a developer's project clashing with the survival of an endangered species. But of course, this clash was plainly the context of the toad "taking" -- and no one could have missed...
By Fred Barbash | August 4, 2005; 4:44 PM ET | Comments (3)
C-SPAN on Saturday: Roberts '97 G'Twn appearance
The following announcement comes from C-SPAN: John Roberts Shares Insights to Supreme Court in Rare Appearance Recorded in 1997; Airs Saturday at 7 p.m. ET on C-SPAN: C-SPAN's America & The Courts Saturday will feature an appearance by Supreme Court Nominee Judge John Roberts at the Georgetown University Law Center from July 19, 1997. Roberts was an attorney with the Washington based Hogan and Hartson law firm at the time of this event. In what may be characterized as a "Supreme Court 101" tutorial, Roberts discusses in detail the workings of the Supreme Court and how cases are decided, down to details such as the color codings used when briefs are filed. He also shares the interpersonal relationships and interaction between the Justices, including who asks the most and least questions during arguments. America & The Courts airs at 7 p.m. ET and is simulcast on C-SPAN Radio, availabe...
By Fred Barbash | August 4, 2005; 2:27 PM ET | Email a Comment
A keen mind. A keen mind. A keen mind.
See the following suggested "letter-to-the-editor" at Family.org. Judge John Roberts has everything necessary to become a Supreme Court justice, a keen mind, years of relevant experience and the near-universal respect of those in the legal community....." Then see the following letters-to-the editor at:the Star Gazette (of Elmira, N.Y.)Judge John Roberts has everything necessary to become a Supreme Court justice - a keen mind, years of relevant experience and the near-universal respect of those in the legal community.....Tom JenneyAnd at the Sun Times: Judge John Roberts has everything necessary to become a Supreme Court justice -- a keen mind, years of relevant experience and the near-universal respect of those in the legal community......Ron Brandt And at the Palm Beach Post Judge John G. Roberts Jr. has everything necessary to become a Supreme Court justice - a keen mind, years of relevant experience and the near-universal respect of the legal community.....Muriel McConnon...
By Fred Barbash | August 4, 2005; 1:14 PM ET | Comments (3)
Biden: 'If he answers....he'll do fine.'
Sen. Joseph R. Biden (D-Del.) interviewed by Harry Smith on CBS this morning: SMITH: Very quickly -- Judiciary Committee, as you serve on -- any reason you see right now why John Roberts won't be confirmed as a Supreme Court justice? BIDEN: There's no reason to believe why he should or should not. I'm where the American people are -- 75 percent of the American people say, I like the guy -- 55 percent say they like the guy; 75 percent say, I need to know a lot more about what he thinks. We need to know a lot more about what he thinks, because his new job on the court, if he goes there, can fundamentally change the direction of the court. And he has to answer some questions, and I suspect if he answers them he'll do fine....
By Fred Barbash | August 4, 2005; 11:23 AM ET | Email a Comment
Roberts Memos: 'Excited and excitable youth'
At the Supreme Court Nomination blog, Lyle Denniston offers an analysis of Roberts's DOJ memos as "period pieces:" To be sure, they use the language of grown-up legal argumentation. But the very purity of the ideological reasoning suggests strongly that many, perhaps most, of the positions were taken for their audacity, and not for their real-world prospects of actual implementation....
By Fred Barbash | August 4, 2005; 6:24 AM ET | Email a Comment
Morning Papers
Good Morning. Joan Vennochi, Boston Globe columnist, writes this morning:It should come as no shock that Bush would select a conservative thinker as his nominee. So far, activists' effort to paint Roberts as an extremist looks silly. The Christian Science Monitor writes of the latest automated mass "letter-to-the-editor" campaign underway in connection with the Roberts nomination. Anyone with an ardent desire to show support for US Supreme Court nominee John Roberts will find a useful tool in the Focus on the Family website. There, a "letter writing wizard" encourages visitors to choose from a selection of paragraphs to copy and paste into a letter to send to newspapers for publication. The website even includes a listing of papers throughout the country, so that a user can compose a 200-word letter, sign his or her name, and e-mail it to media outlets in a matter of minutes. Richard A. Serrano in...
By Fred Barbash | August 4, 2005; 2:46 AM ET | Email a Comment
Roberts Questionnaire
See Judge Roberts's responses to the Judiciary Committee questionnaire and other primary source materials here....
By Fred Barbash | August 3, 2005; 5:56 PM ET | Comments (2)
Pew Research Center Poll
The Pew Research Center is out with a new survey suggesting that: Abortion has dominated the early skirmishing over President Bush's nomination of John Roberts to the Supreme Court. But the public takes a more expansive view of the court's agenda. Indeed, about as many Americans rate the rights of detained terrorist suspects as a very important issue for the Supreme Court as say that about abortion....
By Fred Barbash | August 3, 2005; 3:14 PM ET | Email a Comment
Analysis of Roberts record on standing
For an analysis of Roberts's views on standing and of his Duke Law Journal article on the subject see Brian Fletcher at the Supreme Court nomination blog. Fletcher says: Judge Roberts's essay makes it very plain that as a matter of policy he believes that a robust standing doctrine is a desirable check on judicial power. Furthermore, his defense of the Defenders opinion as a "sound and straightforward decision applying the Article III injury requirement" demonstrates his belief that the Court's precedents support a standing requirement with teeth. Therefore, it is reasonable to infer that Judge Roberts would vote with the Justices who favor stricter standing requirements. However, it is also important to recognize what cannot be fairly inferred from Judge Roberts's essay.....His argument is grounded in precedent and policy rather than originalism or any other distinctive philosophy of constitutional interpretation. In fact, rather than respond to the historical arguments...
By Fred Barbash | August 3, 2005; 10:43 AM ET | Email a Comment
The Morning Papers
Good Morning The Roberts coverage in this morning's papers centers on his answers to a Senate Judiciary Committee questionnaire on his philosophy and financial status. Articles appear in The Washington Post , the New York Times, USA Today and the Los Angeles Times.Dow Jones News Service, focusing on the financial form, reports: Newly released documents from the Senate Judiciary Committee on Tuesday showed that U.S. Supreme Court nominee John Roberts Jr. is worth at least $4.6 million. Some papers, such as the Philadelphia Inquirer, stress Roberts's pro bono work. Supreme Court nominee John G. Roberts Jr. has become a millionaire practicing law, but, by his own description, he has also spent hundreds of hours working for nothing on behalf of welfare recipients, prison inmates and other indigent clients. Here's the story in USA Today by Kathy Kiely and Joan Biskupic. James Gannon's Op-Ed in USA Today is headlined: A religious...
By Fred Barbash | August 3, 2005; 3:41 AM ET | Comments (2)
Excerpts From Roberts SJC Questionnaire
Excerpts from John Roberts's Judiciary Committee questionnaire via AP: "It is not 'judicial activism' when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts." "The proper exercise of the judicial role in our constitutional system requires a degree of institutional and personal modesty and humility. This essential modesty manifests itself in several ways: "First, 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. ... "Second, a judge needs the humility to appreciate that he is not necessarily the first person to confront a particular issue. Precedent plays an important role in promoting the stability of the legal system. ..."Third, a...
By Fred Barbash | August 3, 2005; 3:14 AM ET | Email a Comment
More DOJ Documents
More released documents pertaining to Roberts at DOJ can be found here. For a full list of available resources, see the washingtonpost.com special report....
By Fred Barbash | August 2, 2005; 7:11 PM ET | Email a Comment
Roberts Submits Answers to SJC
Hope Yen of the the Associated Press reports Roberts's answers to a Senate Judiciary Committee questionnaire: "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," Roberts said in response to a question about judicial activism. At the same time, he writes, "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," Roberts stated. In the questionnaire, Roberts also writes that 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 2003 luncheon speech. "According to recent press reports, in 1997...
By Fred Barbash | August 2, 2005; 6:41 PM ET | Comments (2)
James Rowley of Bloomberg reports
James Rowley of Bloomberg reports that: Memos U.S. Supreme Court nominee John G. Roberts wrote two decades ago questioning whether there is a constitutional right to privacy will likely draw scrutiny at his Senate confirmation hearings. Democrats on the Senate Judiciary Committee have said they want to explore Roberts's views on those and other topics including state-federal relations and the scope of Congress's power to regulate business. In a Dec. 11, 1981, memo to his boss, Attorney General William French Smith, Roberts referred to a comment by former Solicitor General Erwin Griswold that derided the "so-called 'right to privacy''' that formed the basis of the Supreme Court's 1973 decision in Roe v. Wade that legalized abortion nationwide....
By Fred Barbash | August 2, 2005; 4:52 PM ET | Email a Comment
Sen. Byrd: 'I like him.'
The Charleston Daily Mail reports that Sen. Robert Byrd (D-W. Va.) was favorably impressed by Roberts. "We seemed to share kindred thoughts about the early generation and where we get our heroes. He seems to get his heroes from John Marshall, Webster, Clay, Washington -- and so do I."...
By Fred Barbash | August 2, 2005; 11:05 AM ET | Email a Comment
The Morning Papers
Good Morning. In The Washington Post, Peter Baker writes of the broader battle, in the Roberts nomination as well as in the Bolton appointment, "to reassert executive prerogatives lost under his predecessor and limit public access to the internal workings of government." Columnist E.J. Dionne on The Post op-ed page asks: Is it wrong to question Judge John Roberts on how his Catholic faith might affect his decisions as a Supreme Court justice? Or is it wrong not to? The Washington Times, in an editorial, says that it is "deeply encouraged" by Roberts's DOJ memos on civil rights and other issues and is "grateful" to the press for "finding and circulating them." Tom Brune in Newsday reports that Roberts emphasized in a 1991 resume that he played a key decision-making role in the solicitor general's office, saying he served as acting solicitor general for "most cases arising from the D.C....
By Fred Barbash | August 2, 2005; 3:05 AM ET | Email a Comment
From PFAW: Precedents on Documents
People for the American Way issues a paper citing precedents for the release of documents at savethecourt.org. See an ad on the same subject in Quicktime or in Windows media....
By Fred Barbash | August 1, 2005; 4:21 PM ET | Email a Comment
AG on Document Release
The attorney general balks at release of documents, Reuters reports in interview with Gonzales....
By Fred Barbash | August 1, 2005; 3:59 PM ET | Email a Comment
ACLU Wishes 'retiring' CJ well
In an unusual press release dated Aug. 1: The American Civil Liberties Union today wished retiring Chief Justice Rehnquist well in his battle with cancer, but warned that the Bush administration was now in a position to reshape the Supreme Court for the next generation. "Though we disagreed with the Chief Justice on many issues, we wish him all the best," said Steven R. Shapiro, the ACLU's National Legal Director. "With two vacancies to fill on a closely divided Supreme Court, the stakes could not be higher." FYI: The link is now down. In a comment posted on this site, the ACLU says mistakes were made. This was a release drafted shortly after the O'Connor retirement that was prepared but never published. We believe that the publishing system at ACLU.org made it findable by search engines in a technical error. We've removed the page completely from our system. Emily Whitfield...
By Fred Barbash | August 1, 2005; 8:07 AM ET | Comments (10)
The Morning Papers
Good Morning. A new Gallup poll says 6 in 10 favor confirmation, but those surveyed also expect a difficult confirmation process.R. Jeffrey Smith, Amy Goldstein and Jo Becker, in The Washington Post, go deeper into Roberts's DOJ papers and conclude: A review of Roberts's papers from his time at the Justice Department and interviews with his contemporaries show he was deeply involved with the Reagan administration's efforts to recast the way government and the courts approached civil rights. (See Roberts documents at washingtonpost.com.) The Post's Charles Lane writes that while everyone is concentrating on Roe: "There has been far less attention to an equally contentious issue that takes up far more of the justices' time each term than abortion: capital punishment. Every death sentence in the country comes before the court not once but twice or more: first on direct appeals, the vast majority of which are brushed aside, and...
By Fred Barbash | August 1, 2005; 2:29 AM ET | Comments (4)
Dodd: Roberts 'probably a pretty good choice.'
Chris Wallace questions Sens. Christopher Dodd (D-Conn.) and Mitch McConnell (R-Ky.) on today's "Fox News Sunday":WALLACE: Senator McConnell, the White House has released literally thousands of pages of documents from John Roberts's work in the Reagan administration, both at the White House and also at the Reagan Justice Department. From reading the documents, it's clear that he is a conservative. But is there anything that you see in those documents that shows him to be outside the mainstream? MCCONNELL: Well, the Democrats think almost everybody's outside the mainstream. Their definition of mainstream is a little bit different from mine. My mainstream definition is what would be good in Louisville, Kentucky; theirs, I guess, on the east side of Manhattan.(LAUGHTER)...
By Fred Barbash | July 31, 2005; 11:37 AM ET | Comments (7)
Sunday Papers
Good morning. The Washington Post editorial page analyzes Roberts's Justice Department memos and concludes that he was:Fully in tune with the staunchly conservative legal views of the administration he was serving -- and indeed, at times to the right of some of its leading conservative lawyers. Adam Liptak and Todd S. Purdum, in the New York Times, have interviewed Roberts's fellow Rehnquist clerks: They offered a revealing portrait of an affable, ambitious and frankly conservative intellectual, much like his boss. In the New York Times Magazine Jeffrey Rosen writes of liberal fears of rightward change at the court and concludes that:Even if the court is, in fact, transformed, the consequences might be far less severe than liberals imagine....
By Fred Barbash | July 31, 2005; 9:36 AM ET | Comments (3)
