Archive: September 11, 2005 - September 17, 2005
Bush Consults on Next Nominee
David Espo of the AP reports:President Bush has invited key lawmakers to a White House meeting next week to begin consultations on a replacement for retiring Supreme Court Justice Sandra Day O'Connor, officials said Friday. The meeting, to be held Wednesday, signals that the White House is moving to find a successor to O'Connor as Judge John Roberts Jr. awaits confirmation as chief justice....
By Fred Barbash | September 17, 2005; 7:50 AM ET | Email a Comment
Committee Adjourns; Sept. 22 Vote
After thanking senators on the committee and the Judiciary Committee staff, Sen. Specter adjourned the hearing at 7:10 p.m. The committee is planning to vote on the nomination Sept. 22....
By Lexie Verdon | September 15, 2005; 7:10 PM ET | Comments (17)
Karen Pearl: Planned Parenthood Against
"What is at stake in these hearings is nothing less than women's health and lives" said Karen Pearl, of Planned Parenthood of America. Roberts's record reveals a nominee who is "not likely" to uphold the rights of women. There are forces seeking to restrict sex education and contraception, "the very things that will reduce the number of abortions in this country," she said. Roberts refuses to say how he would vote on these issues and "we ask that you oppose" his nomination for that reason. "The American people deserve a chief justice who will uphold Roe," she said. She said Roberts argued in favor of the legal position of "violent protesters" in the Bray case and nowhere did he volunteer a statement against them. When Roberts is willing to comment on Griswold and Eisenstadt [the right to privacy] but not on Roe [abortion], he is "drawing lines of convenience"...
By Fred Barbash | September 15, 2005; 6:33 PM ET | Comments (52)
John Engler: National Assoc. of Maufacturers For
Former Michigan Gov. John Engler (R), head of the National Association of Manufacturers, said his organization supports Roberts because he and members believe Roberts will help "achieve a business environment that is fair and predictable." Explaining why the NAM is for the first time taking a position on a high court nominee, Engler said Roberts is "committed to applying the law rather than applying his own personal views," and he "understands the practical consequences" of court rulings. NAM describes its mission is "to enhance the competitiveness of manufacturers by shaping a legislative and regulatory environment conducive to U.S. economic growth and to increase understanding among policymakers, the media and the general public about the vital role of manufacturing to America's economic future and living standards."...
By | September 15, 2005; 6:28 PM ET | Email a Comment
Susan Thistlethwaite, Chicago Theological Seminary
Susan Thistlethwaite is president of the Chicago Theological Seminary. She said our society is becoming more religiously diverse. Such increasing pluralism, she said, calls for "greater vigilance" in maintaining the Supreme Court's traditional principles separating church and state. She said she does not have confidence that Roberts would do so....
By Fred Barbash | September 15, 2005; 6:22 PM ET | Comments (30)
Rabbi Dale Polakoff
Rabbi Dale Polakoff of the Rabbinical Council of America, an organization of Orthodox rabbis, said "the contours of religious liberty in this nation are still being shaped by the Supreme Court," but that his organization is "optimistic that a Justice Roberts will be supportive and solicitous of religious liberty in America."...
By | September 15, 2005; 6:15 PM ET | Email a Comment
Robert Reich, Clinton Administration Secretary of Labor
Sen. Arlen Specter joked that he was still waiting for answers to questions he had submitted to Reich when he was secretary of Health and Human Services. "That's because I was Secretary of Labor," Reich replied. Reich noted that he was once an assistant solicitor general, working for Robert Bork. In those days, the solicitor general regarded himself as working for the Supreme Court, not the incumbent administration. Then they brought in a "political" deputy solicitor general and "there is no doubt in my mind that Roberts," in that very role, "came down on the side of very conservative social and economic values." Reich said he is troubled by Roberts's apparent views limiting the authority of Congress under the Commerce Clause, as in the "hapless toad" case (Rancho Viejo). He said he didn't care so much about the hapless toad but "what about the hapless worker" in, say, West Virginia....
By Fred Barbash | September 15, 2005; 6:08 PM ET | Comments (1)
Diana Furchtgott-Roth, Former Chief Economist for the Department of Labor
Diana Furchtgott-Roth, former chief economist for the U.S. Department of Labor during President Bush's first term, said those who worry about Roberts's views about "comparable worth" are misguided. Comparable worth embraces the notion that men and women should be paid equally for different jobs if they are valued equally by society. Roberts had called comparable worth "highly objectionable" and "pernicious" in earlier writings. "Women made extraordinary progress during Ronald Reagan's presidency," Furchtgott-Roth said. Male-dominated occupations paid more than those dominated by women, she said, "because people are willing to pay more for them." "Women often choose careers with a more pleasant environment and more potentially flexible schedules, such as teaching," she added....
By | September 15, 2005; 6:05 PM ET | Email a Comment
David Strauss, University of Chicago Law School
Strauss said he was not here to speak about Roberts directly but about judicial conservatism. The hallmarks of the new conservatism include a skepticism about the powers of Congress, particularly about Congress's power to address the concerns about the American people, he said. That power is under unprecedented challenge in many fields, including the rights of disabled, age discrimination, the protection of intellecutal property rights, as well as to the right to privacy. The question of the right to privacy and whether it even exists or should be applied narrowly is "on the table," he said. There are points in history when the court redefines its relationship with the rest of the government and the people. "We may be at such a point," he said. "Those are the stakes presented by this appointment and other appointments," he concluded....
By Fred Barbash | September 15, 2005; 5:41 PM ET | Comments (2)
Vanderbilt Professor Christopher Yoo
Vanderbilt law professor Christopher Yoo, a former colleague of Roberts at Hogan & Hartson, said Roberts was a fair, open-minded and empathetic colleague, one who "treated everyone around him with respect and decency." He had a reputation "for fairness and willingness to engage all viewpoints." "He was always supportive and encouraging, even while holding us to the highest professional standards," Yoo said. Roberts helped Yoo, who was trying to care for his ill father-in-law, by allowing him substantial flexibility in his work schedule and assignments, and took on extra work himself, Yoo recalled. "There is no doubt in my mind he would make an admirable chief justice," Yoo said....
By | September 15, 2005; 5:36 PM ET | Comments (6)
Judith Resnik, Professor (Against)
Judith Resnik is a Yale Law School professor. "This hearings isn't only about John Roberts," she said. "It's about us. Point one. "Point two. This is no ordinary hearing. This is about who's going to be chief justice of the United States.... This person is the chief executive officer of the entire federal judicial system," she said, "the head of the policy-making body of the federal judiciary." "Point three. This is the occasion to determine what the qualifications are. Which gets me to point four. The chief justice should be the chief advocate for justice in the United States," she said. The chief should be "the guardian of justice," who understands that "law has to be a source of strength for those who need it." "I regret to report that ... Judge Roberts has not expressed an affirmative vision" of the "needs the courts fill for ordinary Americans," she said....
By Fred Barbash | September 15, 2005; 5:28 PM ET | Comments (18)
Patricia Bellia, Notre Dame Law Professor (Backs Roberts)
Patricia L. Bellia, a former attorney-adviser in the Justice Department's office of legal counsel and a constitutional law professor at Notre Dame, said John Roberts has shown through his work on the Court of Appeals that his philosophy defies "categorization as conservative or liberal, Republican or Democrat," and that he "possesses one of the nation's foremost legal minds."...
By | September 15, 2005; 5:23 PM ET | Comments (1)
Peter Edelman, Lawyer (Against Roberts)
Peter Edelman is a former Clinton administration lawyer who opposes Roberts. The history of the court and Constitution is one of increasing protection for the individual, he said. With Roberts, the record "adds up to a troubling likelihood of a chief justice who will try to turn the clock back." It's not just a matter of one case, but "about his judicial philosophy across the board, how he views the Constitution as a whole." His memos were often "written on his own initiative.... He was at the right fringe of even his conservative colleagues in the Reagan administration. This is a pure case about the direction" he is going to take. His conservatism "radically threatens the Constitution" as we know it, he said. Former nominee Robert Bork "made things easy for the committee," said Edelman. "He put it all in one article in the Indiana Law Journal. Judge Roberts is...
By Fred Barbash | September 15, 2005; 5:15 PM ET | Comments (3)
Former Solicitor General Charles Fried
Former solicitor general Charles Fried, a Harvard law professor, called Roberts, whom he said he does not know personally, "a model of intelligence, fairness, substantiveness and civility." He said he could "warmly support Judge Roberts ... he knows the difference between law and politics." He said opinions written by Roberts show a man with a "head and a heart." "As I read and hear some of the criticism," Fried said, "I wonder whether we are talking about the same man." Roberts's critics, Fried suggested, are complaining because they would prefer that Roberts "start with the result, and then wrestle the law around until it fitted." Instead, Roberts applies "fidelity to the law, not the pursuit of an agenda," Fried said....
By | September 15, 2005; 5:12 PM ET | Comments (2)
Beverly Jones (Plaintiff in Tennessee v. Lane)
Beverly Jones was a plaintiff in Tennessee v. Lane. She is a single mother and disabled person and was seeking relief under the Americans with Disabilities Act. After an accident disabled her and she trained as a court reporter, she found she could not get into many courthouses to work because there was no access for individuals in wheelchairs. She often had to ask strangers to physically carry her up stairs, and even into bathrooms. Tennessee challenged the constitutionality of the ADA in her suit. The Supreme Court sided with her by a 5-4 vote. Now she can do her job with much greater ease. "My case is over ... but it's not the end of the issue.... There are too many others who need the protection of the law and Constitution." Goodman v. Georgia is coming up in the next term, she noted, raising similar issues in the context...
By Fred Barbash | September 15, 2005; 4:27 PM ET | Email a Comment
Henrietta Wright, Lawyer and Friend
Henrietta Wright (who worked in the Carter White House) said she was not there to comment on Roberts's judicial record but rather on Roberts as a person. She said he is "definitely a man who respects smart women; his wife has two more degrees than he does." He is "a very likeable and congenial person." Perhaps as chief justice he can help bring some unity to the court's opinions. "I laughed and groaned", she said when she read about critics picking apart his comments in a memo about women lawyers, knowing how he really felt. "I can assure you ... that what you see here is the justice you will get," she said. He has "no agenda other than to apply the law as it is written."...
By Fred Barbash | September 15, 2005; 3:46 PM ET | Comments (3)
Roderick Jackson: High Court Touches Lives
Coach Roderick Jackson, the named plaintiff in Jackson v. Birmingham Board of Education, urged the panel to "confirm justices who will understand their key role in protecting our civil rights, who will recognize the significant impact of their decisions on our everyday lives, and who will help to continue to make the promise of the law a reality." Jackson told the panel about his struggle to get equal amenities for his girls' basketball team."My story," he said, "shows the impact the Supreme Court can have on the lives of regular citizens and how key a role the court plays in making sure that our civil rights laws truly guarantee fair treatment for all.""My team didn't have it easy, and the girls were treated worse than the boys in many ways. The girls were not allowed to practice in the new, regulation gym used by the boys' team; instead, the girls...
By | September 15, 2005; 3:42 PM ET | Comments (3)
Mayor Bruce Botelho of Juneau, Ala.
Bruce Botelho said he came to know Roberts when serving as attorney general of Alaska and retained Roberts on various matters. He noted that he is a Democrat. He said Roberts's briefs are "technically perfect." His oral presentation is straitforward and comprehensible. This summer, Judge Roberts agreed to meet with a group of Boy Scouts coming to the Washington area for the jamboree. He kept the appointment even though he had just been nominated to the Supreme Court, saying "I could think of no better use of my time," Botelho said. He met with the scouts for an hour. Roberts, he said, "has an unparalleled reverence" for the law in our society, an open mind on all issues and he will "decide cases not causes."...
By Fred Barbash | September 15, 2005; 3:35 PM ET | Email a Comment
Women's Law Center's Greenberger Opposes Roberts
Marcia Greenberger, co-president of the National Women's Law Center, said Roberts's support for women family members, friends and colleagues does not extend to women's legal rights. Instead, she said, his "past work" has undermined them. "Judge Roberts's record consists of document after document detailing his past work to undermine women's legal rights on the job, in schools and in government programs. This week, Judge Roberts told Sen. Feinstein he could not identify anything he would change in his writings and memoranda except the tone he used -- and his support for limiting life tenure for judges. "Judge Roberts provided a clear explanation for this seeming contradiction. He testified that he forms his legal views without regard to his life experiences as 'a father, husband, or anything else.' Unfortunately, John Roberts's view of the law is entirely divorced from its real-world consequences on women's lives. In contrast to Justice Oliver Wendell...
By | September 15, 2005; 3:31 PM ET | Comments (2)
Catherine Stetson: Roberts Was a Mentor
Catherine Stetson worked for Roberts at Hogan. Roberts was her mentor, she said. When she came back to Hogan after maternity leave as a working mother, the transition back to working with Judge Roberts was "seamless." He "never questioned the balance I chose to strike" between work and family. In 2001, he helped her become a partner even though she had been working part time as an associate....
By Fred Barbash | September 15, 2005; 3:22 PM ET | Comments (1)
Reginald Turner of the National Bar Association
Reginald Turner is head of the National Bar Association, representing African American lawyers. "We've reviewed Judge Roberts's record," he said, and it's "troubling." The stakes in this appointment could not be higher, according to Turner, especially in light of the inequities exposed by Katrina. "The available record precludes us from supporting Roberts's nomination," he said. The record is incomplete because documents have been withheld, he said, and available documents show he does not support equal justice under law or civil rights and civil liberties. He said the National Bar Association cannot support Roberts's confirmation....
By Fred Barbash | September 15, 2005; 2:49 PM ET | Comments (4)
Denise P. Lindberg: Hogan & Hartson Colleague
Judge Denise P. Lindberg, a state trial judge in Utah, worked with Roberts at Hogan & Hartson, a Washington law firm. She praised his "keen intellect, sound judgment, honesty." She said he was "incredibly nice but never arrogant," and someone who "reveres the law and treats it and everyone associated with it with the utmost respect." Roberts's view is that the job of a judge is not, she said, to solve social problems, but to handle whatever cases come before them, Lindberg said. "To this high office, John brings a remarkable combination of skills, personality," which will make him "an outstanding leader of the federal judiciary," she said. Excerpts below:...
By | September 15, 2005; 2:44 PM ET | Email a Comment
Anne Marie Tallman Against Roberts for MALDEF
Anne Marie Tallman, of the Mexican American Legal Defense and Educational Fund, said the writings and decisions of John Roberts place him in opposition to the interests of minorities. If some of his legal views had been adopted, thousands of immigrant children would have been barred from public schools, left illiterate and made part of a permanent underclass. The electoral achievements of Latinos, African Americans and Native Americans would not have happened, she said. He has shown a lack of respect for Latino immigrants, equal pay for women and Indian tribes, according to Tallman....
By Fred Barbash | September 15, 2005; 2:40 PM ET | Comments (2)
Kathryn Webb Bradley Backs Roberts
Kathryn Webb Bradley, who is a senior lecturing fellow at Duke law school, said her "admiration for [Roberts's] advocacy skills deepened into a deep respect for his intellect and his integrity." "I never saw any evidence," she said, that Roberts used the law to promote a particular political agenda. "His respect for precedent with his cautious approach to moving beyond established bounds offers" evidence of his respect for stare decisis, she said. As a Democrat and a woman, she said, she was confident that Roberts would protect "the individual liberties of every citizen, including the right to privacy."...
By | September 15, 2005; 2:35 PM ET | Email a Comment
Maureen Mahoney: Roberts Knows the 'Role of a Judge'
Maureen Mahoney, a partner in the Washington office of Latham & Watkins, and a former Roberts colleague in the solicitor general's office, used her testimony to try to deflect any concerns that Roberts's early writings and work in that office necessarily reflected his personal views. "He was not viewed as a partisan operative. Instead he was viewed as a brilliant advocate in the finest tradition of this office," she said. During Mahoney's tenure in the solicitor general's office, President Bush nominated her to fill a vacancy on the U.S. District Court for the Eastern District of Virginia, but the Senate did not act on her nomination. "Please do not presume that the views that are expressed in briefs on behalf of the United States ... necessarily reflect the views he will adopt," as chief justice. "Our job was to defend the policies of the administration within the bounds of the...
By | September 15, 2005; 2:28 PM ET | Comments (1)
Carol Browner Against Roberts
Carol M. Browner is the former head of the Environmental Protection Agency in the Clinton administration. She said the court's Commerce Clause jurisprudence threatens to undermine the federal government's authority to enforce laws protecting the environment, particularly with regard to "citizen suits" and implied rights of action. She said little about Roberts, however....
By Fred Barbash | September 15, 2005; 2:27 PM ET | Comments (6)
Nathaniel Jones
Nathaniel Jones is a retired federal appellate judge for the 6th Circuit. He said that Judge Roberts has "argued in the past against" eradication of the badge of slavery and servitude. So much of his record is against implementation of civil rights laws, he said. The question before the committee is one of values, not competence, he said. The author of the Dred Scott Decision, Chief Justice Taney, was undoubtedly a talented lawyer, as was the author of Plessy v. Ferguson. But they "lacked the values" to sensitize them....
By Fred Barbash | September 15, 2005; 1:04 PM ET | Comments (10)
Peter Kirsanow - for Roberts
Peter Kirsanow is a member of the U.S. Commission on Civil Rights. [Roberts's] "approach to civil rights is exemplary," he said. "It is legally sound, intellectually honest and with a deep appreciation for the civil rights cause." Critics have misrepresented his record, Kirsanow said. He did not adopt an anti-civil rights approach to the Voting Rights Act, as alleged. He advocated for "vigorous enforcement." His views on affirmative action are, in fact, those of the Supreme Court and are not "out of the mainstream." Excerpts below:...
By Fred Barbash | September 15, 2005; 12:57 PM ET | Email a Comment
Wade Henderson - Against Roberts
Wade Henderson is executive director of the Leadership Conference on Civil Rights. "All evidence indicates that John Roberts would use his undeniably impressive legal skills to bring us back to a country we would not recognize...," he said. "As we've seen over the past two weeks, when the federal government's role is diminished, the least of us" suffers most. Roberts has a "pre-Brown" position that "prevents the federal courts from fulfilling" its role in the field of civil rights, he said. "America can and should do better."...
By Fred Barbash | September 15, 2005; 12:51 PM ET | Comments (10)
Jennifer Braceras - for Roberts
Jennifer Braceras is an attorney and Bush appointee to the U.S. Civil Rights Commission. She said John Roberts is the victim of "deliberately misleading attacks" that would have been leveled against anyone nominated by this president. "It is clear that Judge Roberts has a strong commitment to equal opportunity," she said. Individuals should turn to the legislative bodies rather than the courts if they desire far-reaching civil rights remedies. "The Supreme Court is neither the first nor last word on civil rights."...
By Fred Barbash | September 15, 2005; 12:44 PM ET | Comments (1)
John Lewis - Against Roberts
Civil rights veteran Rep. John Lewis (D-Ga.) testified against Roberts, saying that his confirmation would be a setback to civil rights. "I feel if Roberts is confirmed the court will no longer hear the peoples' cries for justice.... If the federal courts had abandoned us during the civil rights movement in the name of judicial restraint, we'd still be struggling." Roberts's memos "reveal him to be hostile to civil rights and to the Voting Rights Act." Excerpts below:...
By Fred Barbash | September 15, 2005; 12:38 PM ET | Comments (5)
American Bar Association
Steve Tober, speaking for the American Bar Association standing committee that reviews judicial candidates, said Judge Roberts has been found unanimously to be "well qualified" to be chief justice of the United States. "He has the admiration and respect of his colleagues on and off the bench. And he is the very definition of collegial." Tober said the committee reviewed him twice, for the associate justice position and the chief justice's position....
By Fred Barbash | September 15, 2005; 11:48 AM ET | Comments (7)
'No Disqualifying Factors' in FBI Report
"Sen. Leahy and I are here to report, there are no disqualifying factors," Sen. Arlen Specter said, after the committee met in closed session to review the FBI's background report on Roberts. If anything, said Leahy, "this was a housekeeping chore."...
By | September 15, 2005; 11:45 AM ET | Email a Comment
Senators Will Submit Questions in 24 Hours
Sen. Specter said his colleagues would submit questions in 24 hours. "I have a strong inclination, however many questions there are, you will be able to answer them in the appropriate course." Sen. Lindsey Graham (R-S.C.) said he was compiling a list of questions other nominees had declined to answer, saying they involved issues that might come before the high court. Then he gave a short speech about the matter of Roberts's "heart," suggesting that some on the panel might define it as whether or not Roberts agreed with their views. "No one could question your intellect," he said. He said he completely disagreed with Justice Ruth Bader Ginsburg's value system -- "she wants the age of consent to be 12," he said. "She has a different value system than I do," Graham said. "But she has a good heart." Watch video of Roberts' final comments before the committee: var...
By | September 15, 2005; 11:10 AM ET | Comments (3)
Durbin: Roberts as Hired Gun
Sen. Richard Durbin (D-Ill.) expressed concern that Roberts, as a lawyer, will "play with any team that wants you to play," that the first client who comes to him is the client he will ultimately represent. To some extent, Roberts agreed. In the gay rights case from Colorado (Romer), for example, he would have represented Colorado had the state come to him first. Roberts, while saying the concept of being a "hired gun" was a negative way to put it, agreed that the cause and the nature of the client was not that relevant to him. He believed every client was entitled to solid representation. "If you'll play with any team that wants you to play," said Durbin, it raises questions about where "you draw the line." He has been asked if he's "on the side of the little guy," Roberts said. "If the Constitution says the little...
By Fred Barbash | September 15, 2005; 11:03 AM ET | Comments (10)
Roberts Offers Guidelines for Evaluating Him
Schumer and Feinstein had asked Roberts to give his rationale for why they should support his nomination to be chief justice. "I have tried to be as fully expansive as I can be," Roberts said. "The basic question, what kind of justice I would be? That is the judgment you have to make. I would begin, if I were in your shoes, with what kind of judge I have been. I appreciate it has only been a little more than two years, but you have 50 opinions... "I do not think you can read those opinions and say this is an ideologue.... You and I agree that is not the sort of person you want on the Supreme Court," Roberts said. "You have all the documents, the questionnaire, not just my opinions, my briefs. I think those all would show what kind of judge I could be," he said. "I...
By | September 15, 2005; 10:49 AM ET | Email a Comment
Roberts Says He's 'Not an Ideologue'
Sen. Charles Schumer (D-N.Y.) suggested he has not made up his mind how to vote. Picking up from Sen. Joseph Biden (D-Del.), he said it's not only a "roll of the dice.... It's betting the whole house." In support of voting for Roberts, Schumer praised his mind and his prowess as a lawyer and his judicial philosophy of "modesty and stability.... Modest jurists tend not to be ideologues," although he wondered about Roberts's definition of modesty. On the other hand, Schumer said the committee had not succeeded in penetrating Roberts's heart. "You wouldn't admit now that any of those views you argued for in the 1980s were misguided. That's troubling," he said. Also on the negative side is the administration's withholding of documents. "This was not your decision but you carry its burden," Schumer said. Most important is "your refusal to answer"...
By Fred Barbash | September 15, 2005; 10:47 AM ET | Comments (3)
Feingold Questions Roberts on Habeas Review
Sen. Russell Feingold (D-Wis.) questioned John Roberts about memos and a letter expressing reservations about the use of habeas corpus to slow down death penalty cases. In one, Roberts said, the system, which allowed multiple appeals, "goes far to making a mockery of the justice system." "Your memos clearly indicate that I think, that these were your views," Feingold said."The comments in your memos in the 1980s, I am sorry to say, don't even show the slightest concern about innocent lives being lost if federal habeas review were eliminated," Feingold said. Watch video of Feingold questioning Roberts: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091505-5v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH MOVIE AND BACK-UP GRAPHIC HEIGHT var backupGraphic = "no" ; // If you have a backup graphic "yes" or "no" var graphicSrc = "" ;...
By | September 15, 2005; 10:21 AM ET | Email a Comment
Kennedy: What About the Less Advantaged?
Sen. Edward M. Kennedy (D-Mass.) tried again today to elicit responses from Roberts that might show empathy for the less advantaged in the United States. While Roberts appeared to satisfy some of Kennedy's concerns, he also continued to talk about them in terms of legal nuance. But as their conversation wound down, Kennedy reminded Roberts that he had spoken of his admiration for former Chief Justice Earl Warren, and his willingness to show he had a "head and a heart." Roberts replied: "My point with respect to Chief Justice Warren was that he appreciated the impact the decision in Brown would have, and he appreciated that the impact would be more beneficial and favorable ... with the court speaking with one voice [rather] than a splintered court." "He spent time in the reargument to convince the other justices ... of the importance of what the court was doing and its...
By | September 15, 2005; 10:03 AM ET | Comments (3)
Feinstein: She's Still Undecided
Sen. Dianne Feinstein (D-Calif.) does not know, at this time, what she will do when it's time to vote on the John Roberts nomination, although she suggested she is confident he will indeed be confirmed, that "you will be there for 40 years...." She struggled, as she did yesterday, to try to get him out of his lawyerly role. She tried, again, to get him to say he was wrong in questioning the holding in Plyler v. Doe. He responded, once again, that opposing that holding did not question his commitment to the education of immigrant children. Nor is it fair to characterize his positions or discern some sort of pattern on the basis of a small sample of cases from the appeals court, as some have done, he said. She questioned him on the circumstances under which he believes statutes imply a private right...
By Fred Barbash | September 15, 2005; 9:58 AM ET | Comments (1)
Leahy: Private Right of Action
Sen. Patrick Leahy (D-Vt.) questioned Roberts about a number of cases (such as Wilder v. Va. Hospital Association) in which he has argued against a private right of action to vindicate various federal statutes. Roberts responded that these cases involved determining the intent of Congress to provide a right to sue. The real problem, he said, was that Congress too often failed to be explicit on that subject. Referring to a Roberts memo on the invasion of Grenada, Leahy asked Roberts if he thought Congress can "stop a war." Short of exercising its power of the purse, that is an "unsettled" question, Roberts responded. It's difficult to articulate in the abstract where the line would be drawn, he said, or "even what the role of the courts would be" if such a question were to arise. Leahy asked whether the secret FISA court (Foreign Intelligence Surveillance...
By Fred Barbash | September 15, 2005; 9:25 AM ET | Comments (2)
Hearings Open - Third Day
Sen. Arlen Specter (D-Pa.) opened the third day of hearings at 9:01. There will be a third round of questioning for Democrats, at their request. At 11 there will be a closed session. At 11:30, six panels of witnesses will start testifying....
By Fred Barbash | September 15, 2005; 9:02 AM ET | Comments (2)
Schumer's Test: Is Roberts 'Conservative Mainstream'?
Sen. Charles Schumer (D-N.Y.) said he would really like to vote for Roberts. The test is whether he is "conservative mainstream.... I'm going to try a few other ways to try to find out who you are?" "Where do you place yourself on the ideological spectrum of the D.C. Circuit?" Schumer asked Roberts. Roberts responded that it was a difficult question to answer. "I do know I saw a study that was done that showed I agreed more with some judges appointed by Democratic presidents than with judges appointed by Republican presidents." "Just assure me ... that 'modesty' isn't a concept you use when you want to slow things down" in the law, Schumer said. "It's a grievous insult to a judge," Roberts said, to suggest that he applies principles one way to achieve a certain result and another way to achieve another result. The notion of "modesty" in the...
By Fred Barbash | September 14, 2005; 7:01 PM ET | Comments (20)
Feinstein Attempts to Get at 'the Man'
Sen. Dianne Feinstein (D-Calif.) resumed what she called her attempt to get at "you, the man," as opposed to "you, the judge." How, she asked, can Roberts make sure he stays in touch with the "real people out there." Roberts noted that there are "a lot of soccer games" in the future and that he will be seeing "other parents and other children" at them and that that will help him keep in touch. If it's just through your children, Feinstein said, "that's going to be a limited segment of society." Roberts said he's also involved in the "Streetlaw Program," which educates teenagers about the law. She went on to ask him his views on affirmative action. "Do you personally subscribe -- not to quotas -- but to measured efforts that can withstand strict scrutiny?" "Affirmative action of that sort is a very positive approach," Roberts responded. "People will disagree"...
By Fred Barbash | September 14, 2005; 6:44 PM ET | Comments (6)
Coburn: Unfairness to Roberts
Sen. Tom Coburn (R-Okla.) said he thinks it's unfair that some have suggested that Roberts "is not a kind, not a considerate person ... on the basis of a flimsy record. That record doesn't hold up to the smell test. You've not been able to defend yourself...." Where did our law come from, Coburn asked Roberts. Didn't some of it come from "natural law? Like don't kill someone. Don't steal.... There's a theological component of that to many people.... I just want to tell you you've been very strong today to just tolerate this." ...
By Fred Barbash | September 14, 2005; 6:28 PM ET | Comments (4)
Sen. Brownback: Stay Away From Gay Marriage Issues
Sen. Sam Brownback (R-Kan.) complained about the court's free speech rulings, suggesting they have gone too far, even striking down congressional acts attempting to regulate child pornography, laws designed to protect children from "pediophiles" [sic]. At the same time, he complained the court has upheld statutes regulating campaign finance, that is, political speech. "How do you square such a broad interpretation of the First Amendment" in some cases with such a narrow interpretation in others, he asked. "Doesn't this strike you as odd?" "I certainly appreciate that concern," said Roberts. Brownback, acknowledging that Roberts can't comment, then warned that if the court "comes in and trumps" the issue of marriage as a union of a man and a woman, it would be a tremendous "jolt." "I just hope, if you're confirmed on the court, that you'll consider what happens if the court stomps on this issue. If you come in...
By Fred Barbash | September 14, 2005; 6:14 PM ET | Comments (9)
Durbin Asks About Educating Undocumented Students
Sen. Richard Durbin (D-Ill.) asked Roberts to explain why he so willingly embraced the holding in Brown v. Board of Education of Topeka, and yet could not similarly endorse Plyler vs. Doe, in which the high court voted 5-4 in 1982 to strike down a Texas law banning undocumented students from obtaining a public education. Roberts said he could not remember much about a memorandum he had written to Attorney General William French Smith criticizing his solicitor general's office for failing to urge the high court to uphold the law. Durbin noted that the memo had helped spur two Hispanic groups to oppose Roberts's nomination, the first time the groups have opposed a Supreme Court nominee.Roberts said he was doing the work of a diligent staff lawyer, advising his client, the attorney general, about "activities within the department which were inconsistent," with Smith's previously stated positions. Durbin wondered if Roberts...
By | September 14, 2005; 6:13 PM ET | Comments (4)
Specter: Hopes Nomination Will Go to Floor on 9/26
Sen. Arlen Specter, chairman of the committee, said the nomination will probably come to the Senate floor on Sept. 26. He notes that the Democrats on the committee desire a third round of questions. While he said he opposes this, he said he will go along with it. ...
By Fred Barbash | September 14, 2005; 5:37 PM ET | Comments (10)
Sen. Cornyn: Questions About Answers
Senators on both sides are increasingly preoccupied now with the extent to which John Roberts has or has not been responsive to substantive questions. Sen. John Cornyn (R-Tex.) says he's keeping count. Roberts has "responded to" 66 questions, he notes, suggesting that it would be futile for members to "keep asking the same question over and over again" in slightly different ways. Cornyn equates the tradition of declining to answer with the principle that judges should not provide "advisory" opinions, citing the authority of Chief Justice John Jay, in an apparent attempt to elevate to constitutional status the code of silence for nominees testifying before the Judiciary Committee. "In addition to the ethical, constitutional and practical" reasons for silence, Cornyn said, the framers wanted judges to be insulated from political pressures. Cornyn spent the balance of his time complaining about fragmented Supreme Court decisions that...
By Fred Barbash | September 14, 2005; 5:33 PM ET | Comments (1)
Schumer Pushes Roberts to Give More Details
In one of the most heated exchanges today, Sen. Charles Schumer (D-N.Y.) sternly criticized Roberts for what he said was a concerted effort to dodge questions, a "confounding" reluctance to offer much insight into his views of the law. "That seems strange to me and I think it seems strange to the American people," Schumer said. "You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you were in private practice," Schumer said. So why not now? Schumer asked. "This is the one time you go before an elected body before a lifetime appointment. It seems to me this is something of an argument of convenience," Schumer said. "This is the only place in time that you cannot criticize any cases of the Supreme Court is in this hearing room when it is...
By | September 14, 2005; 4:32 PM ET | Comments (22)
Graham: Kelo Case Sparked Huge Outcry
The eminent domain case, Kelo vs. City of New London caused Graham's phone to "ring off the hook ... When you meet your new colleagues, please let them know that some of the things they do that we watch. And that the courts are able to do their job because the public defers to the court and respects the court. But there is a limit." Roberts said as chief he would hope to bring "coherence and consensus" to the court, reiterating earlier statements. "Coming from the chief it may be a point that other justices would be more receptive to than coming from one of their colleagues. We are not benefited by having six different opinions in a case," Roberts said. But he said he recognized that would not always be possible. "The court should be as united behind an opinion of the court as it possibly can. Obviously in...
By | September 14, 2005; 3:50 PM ET | Comments (3)
Graham Renews Discussion Over Voting Rights
By midafternoon, the panel was reviewing issues others had asked John Roberts about, giving him a chance to reiterate his views and show that he has the temperament and takes an approach that makes him qualified to be chief justice. Was he ever asked to take a legal position that he thought was "unethical or not solid," while serving in the Reagan administration's Justice Department? Sen. Lindsey Graham (R-S.C.) asked. No, Roberts said. Did his position on a key voting rights case show that he is a racist? Roberts said it did not. Graham said he was impressed with Roberts's stamina, especially because it is very warm in the hearing room in the Russell Senate Office Building. "It must be 150 degrees in here. I just don't know how you are doing it, but I'm impressed," Graham said at the beginning of the questioning....
By | September 14, 2005; 3:37 PM ET | Email a Comment
The Second Amendment: No Opinion Expressed
In response to Sen. Russell Feingold's (D-Wis.) questioning on the right to bear arms, John Roberts gave no opinion as to whether the right was "collective," as some judges have held (guaranteed to militias), or "individual," as others have ruled. Since the circuits are split, Roberts said, the question might come before the court. Nor would he comment on the Supreme Court's rulings (Hamdi and Rasul) on the government's detention powers in the "war on terrorism." Feingold raised once again questions about the ethics of Roberts sitting on a case involving President Bush's detention powers while discussing a court appointment with members of the Bush administration. This is a reference to the Hamdan case in the Court of Appeals for DC, in which Roberts participated. While Roberts declined to say anything on the subject yeterday, he did answer some questions today. The transcript of the exchange is excerpted...
By Fred Barbash | September 14, 2005; 3:22 PM ET | Comments (7)
Rehnquist Was Always Looking for a Salary Boost, Sessions Says
Sessions told Roberts said he was disinclined to boost lawmakers' and justices' pay "when we can't balance the budget." "The chief was always over here knocking on our door for a pay raise. We do have a deficit in our country," Sessions said. Roberts said he wouldn't be back "right away" asking for a pay hike....
By | September 14, 2005; 3:03 PM ET | Comments (1)
A Policy-Making Body?
Sen. Jeff Sessions (R-Ala.) offered his kudos for Roberts's "excellent manner and your forthrightness in answering these questions." He asked Roberts if he understood the "danger" of the high court making policy. Roberts said a judge's job is "to interpret the law, not make the law." Sessions said the drift toward making policy is happening on the high court. "I think it does threaten the legitimacy of the court." A majority of the justices on the high court were nominated by Republican presidents. Sessions questioned if "the ideal of a blindfolded justice, a neutral umpire, is that a romantic naive idea." Roberts said, "Good judges, working hard, cannot only achieve it but also can achieve it together in a collegial way."...
By | September 14, 2005; 2:53 PM ET | Comments (2)
Feinstein: Man v. Legal Automaton
Oddly, Sen. Dianne Feinstein (D-Calif.) suggested that Roberts had "shut down" after lunch yesterday, and become "very cautious" after a morning of relatively candid testimony. "Did someone caution you?" she asked. "Did anyone [outside the hearing] ask you your opinion on Roe?" "No," said Roberts. She said she was concerned that Roberts was now coming across as "Judge Roberts, the legal automaton" as opposed to "Judge Roberts, the man.... I do expect to know a little bit more about what you think as a man.... You could be chief justice as long as 40 years ..." That said, she failed, as did Biden, to find out what Roberts would do in an "end-of-life" situation involving a relative. She did get him to say quite a bit about the Lopez case (U.S. v. Lopez), in which the court, offending most of the Congress, invalidated a 1990...
By Fred Barbash | September 14, 2005; 2:28 PM ET | Comments (2)
DeWine: 'Great justices never forget who they are'
In his remarks, Sen. DeWine cautioned John Roberts to hold on to his modesty and sense of self, assuming he is confirmed. "Great justices are more than legal automatons, legal technicians. They are more than just that.... Great justices never forget who they are. I wish you well."...
By | September 14, 2005; 2:26 PM ET | Email a Comment
FYI
Note: The Associated Press reports from San Francisco:Reciting the Pledge of Allegiance in public schools was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist who lost his previous battle before the U.S. Supreme Court. U.S. District Judge Lawrence Karlton ruled that the pledge's reference to one nation "under God" violates school children's right to be "free from a coercive requirement to affirm God." Karlton said he was bound by precedent of the 9th U.S. Circuit Court of Appeals, which in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools....
By Fred Barbash | September 14, 2005; 2:24 PM ET | Comments (7)
Roberts Offers a Civics Lesson
Sen. Mike DeWine (R-Ohio) gave Roberts an opportunity to provide a civics lesson, first asking about standing and then asking about what was most surprising to him on his first day as an appellate court judge. The doctrine of standing, Roberts said, comes down to a very basic task: "First make sure you have got a real case.... The doctrine requires that you are actually injured by what Congress is doing ... the injury can be aesthetic, it can be environmental ... so you are not just voicing a gripe, you're trying to get a case decided," he said. While the road map may be in the Constitution, the customs of appellate courts are more obscure, he said. After hearing his first oral argument, Roberts adjourned with the two other judges on the panel to begin their discussion. After much silence, he learned from a senior judge that it was...
By | September 14, 2005; 2:19 PM ET | Email a Comment
Kohl: Eminent Domain
Sen. Herb Kohl (D-Wis.), continuing his relatively friendly line of questioning, elicits from Roberts the view that the court ought to be taking more cases. "They could contribute to the clarity of the law" by doing so he said. At the moment, the court only takes about 80 cases per term, compared to 25 years ago, when it took 150 or 180. Asked about his criteria for granting review in cases, Roberts recited the standard circumstances: when the appeals courts are split; when a case is so important (as with Bush v. Gore) that the court must weigh in; and when a lower court strikes down an act of Congress on constitutional grounds. Kohl, demonstrating the bipartisan horror at the Kelo eminent domain case (Kelo et al v. City of New London et al,), reminded Roberts that in their private conversation, Roberts had said he was "surprised" by Kelo. "I...
By Fred Barbash | September 14, 2005; 2:00 PM ET | Email a Comment
Kyl Praises Roberts; Biden Quotes Biden
"It seems to me that you are following the great tradition of the court in your approach to the law. You are cautious, you are careful," Kyl said, and "willing to look at the circumstances of the times." Sen. Biden was allowed to reply to references about his approach to questioning judicial nominees. Reading his previous statements, Biden said, "if a nominee doesn't answer questions not about what they would decide, but how they decide," he would vote against the nominee. "You can thank Justice Scalia for that," Biden said....
By | September 14, 2005; 12:30 PM ET | Comments (23)
Kyl: Roberts's Views Are 'Irrelevant'
Sen. Jon Kyl (R-Ariz.) reiterated some Republican panel members' concern that Democrats are unfairly pushing Roberts to provide more of a window into his views. He cited Biden's remarks when he was chairman of the committee during the Ginsburg hearings. Biden had cautioned Ginsburg to determine for herself which questions about issues she would answer and to feel free to deflect those which might come before the court in "50 different forms." Roberts said he thought he had been "more expansive than most nominees. I have gone back and read the transcripts. Some of them would not talk about cases, even though it is unlikely" those cases would make a return to the court, he said. He said his approach "is a more pragmatic approach. If I think a case is unlikely to come before the court, I have told the committee what my views are.... Other nominees may have...
By | September 14, 2005; 12:25 PM ET | Comments (3)
On Whistleblowers and Courtroom Cameras
Sen. Grassley asked about the qui tam provisions of the False Claim Act and whether John Roberts had any "bias" about those cases. Roberts said he had none. Grassley also urged his colleagues to move quickly on legislation he introduced earlier this year to allow cameras in federal courtrooms after Roberts, in reply to a question, said he lacks "a set view on that." Grassley replied: "I suggest to the chairman that we move quickly on that bill before he has an opinion on that." Rehnquist had opposed cameras in federal courts. Many states and localities allow photography in courtrooms....
By | September 14, 2005; 11:58 AM ET | Comments (1)
Biden: 'We are Rolling the Dice With You'
"Good morning, Judge. How are you?" said Sen. Biden (D-Del.), grinning, before launching his most aggressive line of questioning yet, on the subject of the right to privacy as applied to such issues as assisted suicide and sexual conduct, and promising to interrupt Roberts as he pleases because, said Biden, "you're used to being interrupted aren't you." "I'm used to being interrupted -- by a court," replied Roberts. "Well ... we're the court here," said Biden. Watch video of the Biden-Roberts exchange: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091405-8v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH MOVIE AND BACK-UP GRAPHIC HEIGHT var backupGraphic = "no" ; // If you have a backup graphic "yes" or "no" var graphicSrc = "" ; var graphicLink = "" ; //requiredVersion: Change this to 8 to test your alternate text....
By Fred Barbash | September 14, 2005; 11:54 AM ET | Comments (33)
Grassley Asks About Judicial Interpretation of Statutes
It is going to be very hard for people to cast a no vote against you, Sen. Charles Grassley (R-Iowa) said. He then asked John Roberts about issues already raised, including voting rights and deference to the intent of Congress. Roberts repeated his earlier statements that the right to vote is a crucial right from which all other rights flow. Grassley then returned to an issue that has bothered both Republicans and Democrats during the hearings -- the court's willingness to defer to the intent of legislatures and Congress when evaluating statutes. Roberts signaled his willingness to go beyond the words of a statute and try to divine the intent of the bill's sponsors. "Obviously when you are dealing with interpreting a statute, the most important part is the text," Roberts said. Sometimes that is where you end, too, Roberts said. As an appellate judge, he said, he also has...
By | September 14, 2005; 11:38 AM ET | Email a Comment
Kennedy: Voting Rights, Affirmative Action
Sen. Edward Kennedy (D-Mass.) continued questioning Roberts on the Voting Rights Act and on affirmative action, in an apparent effort to get him to separate himself from positions he advanced while working for the Justice Department in the Reagan administration. To some extent, he succeeded, eliciting from Roberts a statement that his views then were those of a junior administration lawyer advancing his bosses' policies and do not necessarily represent his current thinking. Watch video of Kennedy questioning Roberts: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091405-7v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH MOVIE AND BACK-UP GRAPHIC HEIGHT var backupGraphic = "no" ; // If you have a backup graphic "yes" or "no" var graphicSrc = "" ; var graphicLink = "" ; //requiredVersion: Change this to 8 to test your alternate text. var requiredVersion =...
By Fred Barbash | September 14, 2005; 11:31 AM ET | Comments (13)
Hatch Praises Nominee's 'Fair Line'
Sen. Orrin Hatch (R-Utah) spent much of his time during this second round praising Roberts's performance before the committee, and at times issued pointed rebukes to some committee Democrats for putting what he said was a misleading spin on Roberts's remarks. "I think you have really acquitted yourself as anyone I have seen," in the 10 high court nominations he has considered during his 29-year Senate tenure, Hatch said. Watch video of Hatch praising nominee Roberts: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091405-6v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH MOVIE AND BACK-UP GRAPHIC HEIGHT var backupGraphic = "no" ; // If you have a backup graphic "yes" or "no" var graphicSrc = "" ; var graphicLink = "" ; //requiredVersion: Change this to 8 to test your alternate text. var requiredVersion = 7; // version...
By | September 14, 2005; 10:56 AM ET | Comments (2)
Leahy: Lawyers and Clients
Sen. Patrick Leahy (D-Vt.) tried to pin down John Roberts on the handling of death penalty cases, pressing him on the government's position in the Herrera case, where, as a deputy solicitor general, he signed a brief urging limits on the ability of capital defendants to bring successive habeas corpus claims in federal court. Leahy contended that this position was tantamount to a position that an innocent person should not be able to bring new evidence to the courts even though it could prevent an execution. Roberts responded, as he has before, that the case was not about "actual innocence" but rather about repeated and duplicative habeas corpus claims. Watch video of Leahy questioning Roberts for the second time: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091405-5v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH...
By Fred Barbash | September 14, 2005; 10:50 AM ET | Comments (3)
Specter and Roberts on Original Intent
After Sens. Brownback and Coburn finished, the senators on the committee started a second round of questioning. Specter began by discussing the idea of "a living Constitution, which he said Rehnquist demonstrated in U.S. v. Dickerson. He asked Roberts what he thought about that notion. Roberts said, "I think the framers, when they used broad language, like liberty, like due process ... were crafting a document that they meant to apply down the ages ... to changing conditions."When it came to permitting segregation, he said, those who instituted it strayed from "the principles of the framers." He said his view of "original intent" differed from some. "I depart from some views of original intent ... some people view it as just the conditions at that time, just a particular problem. I think you need to look at the words they used," to determine if those words should be applied "more...
By | September 14, 2005; 10:19 AM ET | Comments (10)
Coburn: 'Reliance' on Foreign Law
While Sen. Tom Coburn (R-Okla.) was a friendly questioner, his statements were such that Roberts ultimately felt compelled to challenge some of them. Coburn complained, as have other Republicans of "reliance" on foreign law by the court, asking Roberts whether such behavior by a justice constituted the "good behavior" demanded of him by the Constitution. Roberts explained that it was not appropriate to "accuse judges" of violating their oaths for reaching an opinion contrary to particular views. "Judges who reach a contrary result on those questions are operating in good faith. I wouldn't want to suggest that they're not doing that." Roberts also noted that the court does not generally "rely" on foreign law, in the sense that cases turn on foreign law citations."In the prior opinions, those cases are not determinative in the sense that those cases turned on foreign law," he said. (Note: The case that has...
By Fred Barbash | September 14, 2005; 10:00 AM ET | Comments (5)
Brownback on Roe and Leadership Qualities
Sen. Brownback gave a speech about Roe v. Wade and said the facts "had been falsified" by Norma Corvey, the Roe in Roe v. Wade. And he asked about Roberts's views about the rights of the unborn in the womb. Roberts said he "had to refrain" from commenting. He also asked about Roberts's leadership qualities. Roberts described former Chief Justice William H. Rehnquist, for whom he clerked, as "a mentor to a great many people.... He appreciated the appropriate limits on the judicial role, on judicial power.... I do think it is important for judges on every level," to take the same approach. Watch Brownback's questioning of Roberts: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091405-3v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH MOVIE AND BACK-UP GRAPHIC HEIGHT var backupGraphic = "no" ; // If you have...
By | September 14, 2005; 9:34 AM ET | Comments (33)
Brownback Frustrated by Response on Kelo
Sen. Sam Brownback (R-Kan.) complimented Roberts on his testimony yesterday. "You revealed a great deal," Brownback said. He said the extensive questioning on Roe v. Wade from his colleagues "only make the point that it should be left to the political system." He then immediately went to Kelo v. New London, which he said had stirred intense reaction across the country. "We thought private property rights were established and set. Now it appears it is not....You can take private property...and now give it back to another individual." He added: "Now isn't it easier for one man's home to become another man's castle?" In June, the high court voted 5-4 to uphold a New London, Conn., plan condemning homes in a large swath in a moderate-income neighborhood. The ruling allowed the city to give the land to a developer for $1, with a 99-year lease, to build a waterfront hotel, office...
By | September 14, 2005; 9:29 AM ET | Comments (3)
Hearings Resume - Second Day
Chairman Arlen Specter (R-Pa.) resumed the John Roberts confirmation hearings at 9:02. Most of the chairs are empty at the moment. In an opening comment Specter assured Judge Roberts that he was not suggesting yesterday that his answers were "misleading." Watch video of Specter's comments: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091405-2v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH MOVIE AND BACK-UP GRAPHIC HEIGHT var backupGraphic = "no" ; // If you have a backup graphic "yes" or "no" var graphicSrc = "" ; var graphicLink = "" ; //requiredVersion: Change this to 8 to test your alternate text. var requiredVersion = 7; // version the user needs to view site (max is 7, min is 2) var useRedirect = false; // "true" loads new flash or non-flash page into browser // "false" embeds movie or...
By Fred Barbash | September 14, 2005; 9:03 AM ET | Comments (33)
Roberts: Bob Jones Was Not the Correct Position
Sen. Dick Durbin (D-Ill.) was the first to broach the subject of the death penalty, specifically the Herrera case, in which Roberts, as a deputy solicitor general, argued against the defendant. "Obviously, any case involving the death penalty is different," Roberts said. "The court has said that.... And I certainly know the magnitude and scrutiny" the court has brought to the subject. "No one wants an innocent person executed. Period." He declined to go further, however. He also declined to be explicit on separation of church and state cases, except to describe how the court has wrestled with a workable test. Durbin asked if Roberts had ever "stood up" to administration officials during his years as deputy solicitor general in favor of the rights of an individual or of a defendant. He then asked Roberts about the Bob Jones University case in 1983, in which the Reagan administration attempted to...
By Fred Barbash | September 13, 2005; 7:23 PM ET | Comments (8)
Cornyn Defends Roberts
Sen. John Cornyn (R-Tex.) used most of his time to defend Roberts from criticisms leveled by Democrats. He counted up the number of times Roberts answered questions about constitutional issues and said he had been "forthright" with the committee. He said that some of Roberts's memos have been "taken out of context." And he praised him for his "modesty" as a judge and for his philosophy of a limited role for the judiciary. If Americans don't like their elected representatives, "they can throw the rascals out," he said. They "can't do that with judges."...
By Fred Barbash | September 13, 2005; 7:20 PM ET | Comments (3)
Sen. Schumer: "Pleasantly Surprised but...."
To his disappointment, Sen. Charles Schumer (D-N.Y.) failed in efforts to draw a strong denunciation from Roberts of some extreme statements made by televangelist Pat Roberts on the judiciary, including a comment that activist judges were more dangerous than terrorists, although Roberts said he disagreed with it and would uphold and defend the independence of the judiciary. Things got a little testy when Schumer pressed Roberts, unsuccessfully, for a statement on whether something "has to cross state lines" to trigger application of the Constitution's Commerce Clause. Schumer asked how Roberts could comment on the right to privacy embodied by Griswold v. Connecticut but not on the Commerce Clause issue of Wickard v. Filburn, a 1942 case. Roberts said the principle of Griswold was no longer being litigated while the Commerce Clause question has been before the court quite recently, in the still-pending Raich case. Schumer did say, however, that...
By Fred Barbash | September 13, 2005; 6:42 PM ET | Comments (3)
Sen. Graham on Conservatism
Sen. Lindsey O. Graham (R-S.C.) quizzed John Roberts on the nature of his conservatism, attempting, with little success, to get the nominee to associate himself with Rehnquist conservatism or Reagan conservatism or Scalia conservatism. He tried, but failed, to get him to denounce the American Civil Liberties Union. Graham also denounced the views of Ruth Bader Ginsburg, noting that all of her offensive views were "put aside" by Republicans so that President Bill Clinton could choose his own type of justice. Roberts remained silent. Graham did succeed in eliciting concern from Roberts about what Graham described as the politicization of the confirmation process and the tendency to associate an attorney with the views of his clients. "It's a very serious threat to the integrity of the courts to politicize them," Roberts said. "It is not a good development to regard the courts as an extension of politics...."...
By Fred Barbash | September 13, 2005; 6:12 PM ET | Comments (4)
Sen. Feingold: Civil Liberties in Times of Crisis
NOTE: Sen. Specter said the hearings today will probably go until about 7:30 tonight. Sen. Russ Feingold (D-Wis.) asked John Roberts about the possibility of televising Supreme Court arguments. Roberts said he had "no settled view" and that he would certainly need to consult his colleagues. "I certainly understand the interest," he said. "What kind of impact," Feingold asked, did the events of Sept. 11, 2001, have on Roberts and on his views about civil liberties. "The Bill of Rights doesn't change in times of war. It doesn't change in times of crisis," he said. "The obligations to uphold the rule of law is not suspended." Do you believe that Korematsu was wrongly decided, Feingold asked, with reference to the 1940s Supreme Court case upholding the "exclusion of Japanese-Americans" from areas of the West Coast. Roberts said he believed it was wrongly decided....
By Fred Barbash | September 13, 2005; 5:47 PM ET | Comments (2)
Sen. Sessions on a Variety of Issues
Sen. Jeff Sessions (R-Ala.) devoted his questions to rebuttals of some of the challenges raised by Democratic senators. He noted that many of the positions Roberts took in the Justice Department were, in fact, consistent with Supreme Court rulings at the time, the point being that they were not out of the mainstream but rather consistent with the law as it then stood. That was especially true regarding the Voting Rights Act controversy embodied in Mobile v. Bolden, the 1980 decision Sen. Kennedy discussed at length. On the question of "comparable worth" raised by Sen. Feinstein, Sessions said, "You have consistently favored equal pay for equal work, have you not?" Roberts said, "There is no question of equal pay for equal worth. The question" is comparable pay for comparable work, which has been rejected by the courts. Sessions said he was "glad" that Roberts and...
By Fred Barbash | September 13, 2005; 4:37 PM ET | Comments (18)
Sen. Feinstein Queries Roberts on Women, Roe and Precedents
Sen. Dianne Feinstein (D-Calif.) asked John Roberts about his views of women and their rights, saying that some of Roberts's past comments showed a level of insensitivity to the meaning of his words. Feinstein mentioned a memorandum rejecting the proposed Equal Rights Amendment and a reference to The Ladies Task Force. She said Roberts "implied it is a canard that women are discriminated against because they received 59 cents at that time to every dollar earned by men." "I mention these examples to highlight what appears to be either a very acerbic pen, or else you really thought that way." Watch video of Feinstein's questioning of Roberts: var movieSrc = "http://www.washingtonpost.com/wp-srv/mmedia/player/player.swf?whichMode=normal&justify=left&playad=no&mediatype=stream&postdir=politics&postvideo=091305-11v&cuesfile=none&autoplay=no&starttime=0&endtime=0&largerver=none&image=none"; //URL OF WHERE .SWF MOVIE IS PUBLISHED var movieWidth = "454" ; //FLASH MOVIE AND BACK-UP GRAPHIC WIDTH var movieHeight = "275" ; //FLASH MOVIE AND BACK-UP GRAPHIC HEIGHT var backupGraphic = "no" ; // If you have a...
By | September 13, 2005; 4:14 PM ET | Comments (32)
DeWine: Standards for Free Speech and 'Public Forum'
Sen. Mike DeWine (R-Ohio) expressed his concern about the "shrinking public square," that is, what he considers a decline in the rights of free speech afforded individuals in various public places. Strip malls are now allowed to restrict the distribution of leaflets and handbills, for example. The "traditional public forum, as we know it, has really shrunk." In response, Roberts noted the changing standards for determining what is and what is not a "public forum" over the years. "It is important," Roberts said, that people keep a "basic principle in mind when addressing these concerns ... It's captured in the expression 'it's a free country.' When you're talking about what people can say, what signs they can put up, people need to appreciate that it's a free country and people can say things that you may not agree with." However, the particular mode of analysis used by the court...
By Fred Barbash | September 13, 2005; 3:36 PM ET | Comments (1)
Roberts Explains His Role in Rust
Sen. Kohl questioned Judge Roberts about his work on the government's brief in Rust v. Sullivan, defending the Department of Health and Human Services decision to limit the ability of Title X fund recipients to engage in abortion-related activities. Title X funds, the administration said, were to be used only to support preventive family planning services. Roberts reiterated a position he has taken earlier in the hearings -- that he was a staff lawyer, in this case "one of nine" defending his client's position. "I don't think there is anything in there that suggests we think or thought that anybody who disagreed was unreasonable," Roberts told Kohl....
By | September 13, 2005; 3:26 PM ET | Comments (6)
Roberts Says He Has Reconsidered Some of His Writings
Under questioning from Sen. Kohl, Roberts continued to emphasize a theme that he hinted at during his opening statement yesterday: that his writings while at the Justice Department during the Reagan administration were of a lawyer speaking to a client and didn't necessarily reflect his own views. He also said that some of what he wrote 25 years ago, such as advocating term limits for judges, he has since reconsidered. "I don't think any of us would do things or write things today that we did when we were 25 and had all the answers," Roberts said....
By | September 13, 2005; 3:20 PM ET | Comments (5)
Kohl Asks for Endorsement of Roe v. Wade
Questions from Sen. Herb Kohl (D-Wis.) on the right to privacy elicited a mixed response from John Roberts. Griswold v. Connecticut, Roberts said, essentially is settled and unlikely to make a return visit to the high court. "I agree with the Griswold court's conclusion that marital privacy extends to contraception and the availability of that," Roberts said. Kohl pointed out that the Griswold case laid the legal groundwork for Roe v. Wade in 1973, legalizing abortion nationwide. But Roberts would not be drawn into endorsing Roe in the same way he had offered his views of Griswold. "The other is an area," Roberts said, that is "live with business. I don't feel it is appropriate for me to comment on that."...
By | September 13, 2005; 3:13 PM ET | Comments (6)
Kyl: Citation of Foreign Law
The hearing resumed at 2:16 with questions by Sen. Jon Kyl (R-Ariz.). Kyl's primary concern was the practice by some U.S. judges of citing foreign law in support of their decisions. He specifically mentioned last term's ruling Roper v. Simmons (invalidating the death penalty as applied to minors) where the court has cited foreign law. "It's an American constitution," said Kyle, not a British or a French or an Iranian constitution. "What," he asked Roberts, is the "role of foreign law" in interpreting the Constitution? Roberts said his concern about citations to foreign law arose when foreign law was cited as "precedent" for a decision. "If we're relying on a decision by, say a German judge," there is no accountability, he said. In "foreign law you can find anything you want," Roberts said. " ... That actually expands the discretion of...
By Fred Barbash | September 13, 2005; 2:51 PM ET | Comments (15)
Biden Says Roberts's Answers 'Misleading'
Sen. Biden continued to pursue a debate about the Reagan administration's course of action in a key gender discrimination case affecting women students in colleges and universities. "The idea that a conservative civil rights division says it is pretty clear that [there is] discrimination against women, you say 'that may be but we shouldn't do anything about it,' " Biden said Roberts wrote. Roberts said he did not fully remember the memo but said he was reminding the attorney general, William French Smith, of the views Smith had previously taken. "I would regard that as very good staff work," Roberts said. "I would view it as very poor staff work," Biden replied. "I was a staff lawyer. I didn't have a position. The administration had a position," Roberts said. Biden interrupted. Sen. Specter, the committee chairman, asked him to refrain. "The answers are misleading," Biden said. "The answers may be...
By | September 13, 2005; 12:49 PM ET | Comments (91)
Biden Continues to Press
"Nominees have to draw the line where they are comfortable," John Roberts said, as Sen. Biden pushed him to talk about his views of the right to privacy. Biden said that Ginsburg had discussed some issues in her confirmation hearing that she had not previously written about. "Did she in fact somehow compromise herself?" Biden asked Roberts. Roberts said he would rather not say. "He's filibustering, sir," Biden said to Sen. Arlen Specter (R-Pa.), who had urged him to allow Roberts to continue speaking. Nominees "should not forecast hints about how they might rule," Roberts said. "I am not going to comment on whether a particular nominee adhered to the approach" of not commenting on certain issues. "You are not answering," Biden said....
By | September 13, 2005; 12:35 PM ET | Comments (18)
Biden Asks About State Regulation of Abortion
Sen. Joseph Biden (D-Del.) made a speech on the principles of the Constitution and its staying power. Then he said that all judges have to "infer" rules from the Constitution. "I want to know how you infer," Biden said. Regarding the right to privacy, "do you agree that there is a right of privacy to be found in the liberty clause of the 14th Amendment?" "I do, Senator," Roberts said. "I think every member of the court subscribes to that proposition, to some extent or another." If a state passed a law banning abortion, Biden asked, what would Roberts's view be? Roberts declined to answer. "That is an area where I think I should not respond," Roberts said. Biden was undeterred. Justice Ginsburg had answered that question at her confirmation hearing, Biden said. Roberts said the justice, then Judge Ginsburg, had written on the topic. He said he has not."If...
By | September 13, 2005; 12:29 PM ET | Comments (15)