John Roberts--future Supreme Court Justice? (no spam)

[fable]

The US Supreme Court began as nothing: an empty position created to theoretically balance the Congress and Presidency, but literally without power. Thanks to the first head of that Court, and subsequent appointees, it's gathered a great deal of power. Indeed, it has become strong enough that, beginning with Ronald Reagan, we finally saw what I'd predicted as early as 1968: an ideologically led attempt by the President to control the decisions of the Court, through its bench appointees. Since these nine people on the Supreme Court serve for life (barring stepping down of their own accord), getting in one's ideological bedfellows has enormous impact. Currently, the split in the Supreme Court is roughly down the middle between those who hold moderate views and those who hold ideologically far right ones, but...

Shrub showed yesterday great shrewdness in choosing an old-fashioned, die-hard conservative to replace a moderate, Sandra Day O'Connor, who is stepping down. He chose somebody who is young without much of a record as a judge, so there's little past that the moderates in both parties can focus upon. And the candidate has repeatedly avoided stating his views on key issues. But who is John Roberts? Let's see.

He's 50, so if appointed, he could serve for 2 or 3 decades. He clerked for Rehnquist, the Chief Justice, and a man who is ideologically conservative. (Let's remember that "conservative" in this case doesn't mean conserving, but actually overturning important federal laws such as those establishing national abortion rights.) He was an associate counsel for Reagan, Deputy Solicitor General for Bush Sr, a partner in the prestigious firm of Hogan & Hartson, and is currently a judge on the US Court of Appeals for the DC Circuit (appointed in 2003).

Under Reagan, he opposed a congressional effort to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act. For Daddy Bush, he co-authored a friend-of-the-court brief arguing that public high-school graduation programs could include religious ceremonies. The Supreme Court disagreed by a vote of 5-4. Connor, whom he would replace, was on the side of those 5 that disagreed with Thomas. Again under Bush Sr, he argued that environmental groups concerned about mining on public lands had not proved enough about the impact of the government's actions to give them standing to sue. This time, the Supreme Court adopted this argument.

Interestingly, he was part of a unanimous opinion on the US Court of Appeals last year denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment. The panel was forced to reverse its decision after a Supreme Court ruling directly contradicted it. He has also argued in court that doctors and clinics receiving federal funds may not talk to patients about abortion.

His record straight down the line is one that opposes federal governmental intervention--when it suits his views, as in abortion and environmental legislation; but strongly in favor of governmental intervention--as in overturning state laws regarding separation of church and state power, or in matters involving civil rights.

Will he get in? Oh, I don't doubt it. The intellectual level of the Congress has never been lower, and those who might oppose him would rather be colorless than take a stand and risk the negative ads that powerful neo-con groups could finance during their next elections.

[boo's daddy]

Scary stuff, and as you say, it is regarded as the lasting legacy of any president to be able to appoint Supreme Court justices.

Though it's interesting that Day O'Connor was regarded as a conservative, appointed by Reagan, but ended up having some moderate views (or maybe that's just in comparison with her colleagues).

What's most shocking to me is your statement that this guy has very little experiences as a judge.

The system seems to undermine the idea of an independent judiciary. It's also bad luck that only 2 of the 12 current justices are Democrat nominees.

[Lestat]

Originally Posted by fable

The US Supreme Court began as nothing: an empty position created to theoretically balance the Congress and Presidency, but literally without power. Thanks to the first head of that Court, and subsequent appointees, it's gathered a great deal of power.
<snip>
(Let's remember that "conservative" in this case doesn't mean conserving, but actually overturning important federal laws such as those establishing national abortion rights.)

But isn't it so that one of the main problems in the US is that there is no such thing as a legislation on abortion rights and that in this issue and many other controversial issues Congress cowardly backs down out of doing any real legislative work, preferring to keep to their pork barrel politicking, and thus handing over power to the Supreme Court.

The comparison with Europe is maybe not fair, but in most countries the abortion issue has been firmly dealt with by the legislative branch of government after parliamentary debate. You might or might not like the outcome, but there is legal certainty.
In the States a craven congress leaves it to a bunch of old farts, nominally part of the judiciary branch of government, and nominated by the executive branch, to interpret an even older document dating from the time that abortion wasn't really the issue of the day. So your abortion rights actually depend on the whims of 9 old men and women. Not what I would call legal certainty.

I think it would not even bad if Roe vs Wade was struck down and that congress would be forced to tackle the issue instead of having people rely on some arcane interpretation of a centuries' old document.

[fable]

Originally Posted by boo's daddy

The system seems to undermine the idea of an independent judiciary. It's also bad luck that only 2 of the 12 current justices are Democrat nominees.

Nine, not twelve. Prior to Reagan, US Presidents saw Supreme Court appointments as a way to reward factions and friends, but without the nastiness of "ideological correctness." Some presidents have appointed people they disliked intensely. For example, Lincoln put Salmon P. Chase on the bench, after the resignation of Chief Justice Roger Taney in 1864. Lincoln personally disliked Chase a lot, but recognized he had a fine legal mind and a strong following. Had Lincoln lived, I suspect there would have been several confrontations between an executive branch led by Lincoln and a judicial branch led by Chase.

[fable]

Originally Posted by Lestat

But isn't it so that one of the main problems in the US is that there is no such thing as a legislation on abortion rights

The Congress can't legislate on abortion rights, when the Supreme Court has already defined these. Traditionally known as Roe vs. Wade, it was a decision handed down from the Supreme Court in 1973. This federally legalized abortion, throwing out various state laws that made it illegal. (Significantly, Rehnquist, now Chief Justice, was one of the dissenters from this decision.)

...and that in this issue and many other controversial issues Congress cowardly backs down out of doing any real legislative work, preferring to keep to their pork barrel politicking, and thus handing over power to the Supreme Court.

I'm not sure I understand you. Congress being cowardly...? Doing no "real legislative work"? Congress does an enormous amount of legislative work, much of it quite real, affecting the lives of hundreds of millions of people. Individual members take stands that are identical to those people who elect them. What would you have them do? Get elected, then move on sufficient issues to the opposite side to get them recalled and removed from office?

As for handing over power to the Supreme Court, they can't do that. The roles of those two branches of government are absolutely separate. Congress passes laws, and that also applies to the legislatures of each state. The Supreme Court can declare laws unconstitutional, if cases are brought before it (and accepted for review by it). So the Supreme Court is the actual "court of last resort." If the Supreme Court throws out a federal law, the only way to get it reenacted is to make it an amendment to the Constitution, and that's a very lengthy process.

Unless, of course, the president chooses to act by arbitrary fiat "in time of war." This has been Shrub's course, but I think he's shrewd enough to realize any attempt to overturn Roe vs Wade directly in his faux war on terror would backfire fast and furiously.

I think it would not even bad if Roe vs Wade was struck down and that congress would be forced to tackle the issue instead of having people rely on some arcane interpretation of a centuries' old document.

So you *did* know about Roe vs Wade. However, it's not centuries' old, but only 32 years old. It's not arcane, but very clear. The battlelines are drawn in the US. The executive branch wishes to change the lineup of the Supreme Court, after which a conservative state legislature will bring a case before it that challenges Roe vs Wade. It will clearly be their hope that a new Court will overturn its previous landmark decision. This is the scenario that everybody is discussing openly over here, except of course for the far right that still squawks about how impartial it is.

[VonDondu]

Roberts is basically an attorney who has served Republican causes and the Bush family throughout his career. He grew up in Indiana, which makes me wonder if he has any personal connections to Dan Quayle. Roberts helped the Bush-Cheney campaign win the Supreme Court case that stopped the Florida recount, effectively giving Bush the presidency. I suppose you might consider nominating Roberts to be a Supreme Court Justice to be a reward for such service, but I think it is more accurate to see his nomination as a way for Bush to put "his own people" into positions of power. Bush and his father before him had tried for years to give Roberts a seat in the judiciary. Before Roberts was confirmed as a federal Appeal Court judge in 2003, he claimed that anything he said while representing his clients as an attorney reflected his clients' views but not necessarily his own views. But there is no denying that he aspires to be a champion of conservatives and conservative issues.

As much as I would like to believe that the Supreme Court is "above politics", I don't think that anyone who serves in a position of such power has ever been above politics. Bush's inclination to "pack the court" is understandable, if not honorable. At least he hasn't tried to add three extra members to the Supreme Court to tilt the balance even more in his favor like Franklin D. Roosevelt tried to do. The main thing that bothers me about Bush is his childish insistence when it comes to practically everything that "I'm the one who gets to decide" because he's the President and Congress is obliged to give him a rubber stamp on everything because he thinks that's their job.

It is remotely possible that, once on the Court, Roberts might confound his appointer's expectations. John Marshall and Earl Warren certainly did unexpected things. But rather than being a champion of freedom, Roberts will probably do everything he can to overturn the "right of privacy" that has been established by judicial fiat over the years. Personally, I think the only way to find an inviolable right of privacy in the Constitution would be to add one to it through a constitutional amendment, and we might actually have to do that if we want to protect our right to privacy. Even so, our safety would still depend on whether our leaders actually bothered to familiarize themselves with the Constitution, which sometimes seems like a lost cause since the American public, most of whom are not familiar with the Constitution, can't be bothered to demand it of their elected representatives.

[Lestat]

Originally Posted by fable

The Congress can't legislate on abortion rights, when the Supreme Court has already defined these.

But had clear legislation on the issue existed, then there would have been no need to "legislate from the bench".

Originally Posted by fable

I'm not sure I understand you. Congress being cowardly...? Doing no "real legislative work"? Congress does an enormous amount of legislative work, much of it quite real, affecting the lives of hundreds of millions of people. Individual members take stands that are identical to those people who elect them. What would you have them do? Get elected, then move on sufficient issues to the opposite side to get them recalled and removed from office?

Due to gerrymandering of districts, most incumbents are fairly safe in their seats (about 98% get reelected). In this situation, the incentive to please their conservative or liberal base, mostly composed of high profile pressure groups, is higher than looking for a compromise in the center. Agreed, this tendency is far smaller with senators, so centrist politics are more common there (McCain-Lieberman). But the tendency to pander to the respective bases, whether unions or christian conservatives is real.
And were is the legislation on abortion? Roe vs Wade is a judicial decision, that can be overturned on the whim of a few unelected people, not a piece of legislation, voted on by the elected representatives of the people.

Originally Posted by Fable

As for handing over power to the Supreme Court, they can't do that. The roles of those two branches of government are absolutely separate. Congress passes laws, and that also applies to the legislatures of each state. The Supreme Court can declare laws unconstitutional, if cases are brought before it (and accepted for review by it). So the Supreme Court is the actual "court of last resort." If the Supreme Court throws out a federal law, the only way to get it reenacted is to make it an amendment to the Constitution, and that's a very lengthy process.

Unless, of course, the president chooses to act by arbitrary fiat "in time of war." This has been Shrub's course, but I think he's shrewd enough to realize any attempt to overturn Roe vs Wade directly in his faux war on terror would backfire fast and furiously.

By not legislating on certain, often difficult, moral issues, the legislative branch hands power over to the courts to make decisions. They leave a vacuum, the judicial system fills it.

Originally Posted by Fable

So you *did* know about Roe vs Wade. However, it's not centuries' old, but only 32 years old. It's not arcane, but very clear. The battlelines are drawn in the US. The executive branch wishes to change the lineup of the Supreme Court, after which a conservative state legislature will bring a case before it that challenges Roe vs Wade. It will clearly be their hope that a new Court will overturn its previous landmark decision. This is the scenario that everybody is discussing openly over here, except of course for the far right that still squawks about how impartial it is.

The document I was talking about is the US constitution. The arcane interpretation (Roe vs Wade) is to find within this document firstly a right to privacy and secondly to derive from this right to privacy a right on abortion. For the faraway observer this seems, I'm sorry, arcane. It seems to me far better to go the lengthy way and to legislate, and if needed to amend the constitution, and to have a sorely needed public debate on the issue (instead of the confrontation between two absolutist views). That way the problem would arranged with the benefit of certainty for the women concerned, instead of them having to fear for their reproductive rights each time a supreme court judge gets changed.

I agree with very few viewpoints of the christian right, but I think they have a point if they are saying there is too much "legislation from the bench" in the US (and conservative judges are as much at fault, if not more, than liberal ones).

But this is, as I meant to say, maybe a too European view. The strong role of the judiciary in the US in shaping policies on issues such as gay rights, abortion & euthanasia is fairly alien to me. In my home country, Belgium, these issues have been dealt with in parliament, not in courts.

But for the rest I agree with your analysis BTW.

[VonDondu]

Originally Posted by Lestat

But isn't it so that one of the main problems in the US is that there is no such thing as a legislation on abortion rights and that in this issue and many other controversial issues Congress cowardly backs down out of doing any real legislative work, preferring to keep to their pork barrel politicking, and thus handing over power to the Supreme Court.

...in most countries the abortion issue has been firmly dealt with by the legislative branch of government after parliamentary debate...

I think it would not even bad if Roe vs Wade was struck down and that congress would be forced to tackle the issue instead of having people rely on some arcane interpretation of a centuries' old document.

To address this issue, you have to understand the way our federal system works. In theory, individual states should write abortion laws unless the federal courts decide that the federal government has an interest in protecting people's constitutional rights. If a state passes a law and the federal courts decide that the state is within its rights to enforce such a law, that's what the people living in that state have to abide by. If the U.S. Supreme Court overturns Roe v. Wade and decides that the U.S. Consitution does not guarantee any federal right to abortion, then it's up to all 50 states to write their own laws on the issue. It's a lot easier to change state laws than it is to amend the U.S. Constitution or pass a national law on an issue like abortion. So if the current crop of state legislators offend the 80% of the American public who supposedly support the right of abortion, they will surely be voted out of office and their successors will write new laws that will better please the people in their own states. THAT IS, if people in those states will actually bother to vote.

I don't think I can explain how our federal system works, since there are so many conflicting opinions on the subject. The 9th Amendment implies that people have rights that aren't specifically spelled out in the Constitution (just because a particular right isn't mentioned by the Constitution, that doesn't mean that no such right exists). The 10th Amendment basically says that any power that isn't given to the federal government by the Constitution belongs to the states or to the people unless it is prohibited by the Constitution. Those are called "reserved powers".

I have always believed that the right of privacy is a "reserved right" that is not spelled out by the Constitution itself. The problem is that the "right of privacy" is not clearly defined. Personally, I believe in the right of marital privacy and the right of consenting adults to have sex. But if a state comes along and decides they have a vested public interest in regulating private behavior, what can stop them from passing a law to prohibit certain forms of behavior, such as sodomy or the use of birth control? The Supreme Court decided that the federal government has the power to prevent states from violating the right to privacy by arguing that the right to privacy actually exists in the Constitution. The reasoning was as follows. Since the right to free speech mentioned in the 1st Amendment has been interpreted to mean all sorts of things that aren't specifically mentioned in the Constitution, such as the "right" to learn a foreign language, that means that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance". In other words, the right to stand in a public square shouting your political views without fear of government reprisal must also include the right to gather with your friends to talk about politics or to wear T-shirts with political statements and all sorts of other things. This sets a precedent. It naturally follows that other specific rights spelled out by the Constitution also have "penumbras". If the Supreme Court can establish a penumbral right "emanating" from the right of free speech, then the Court can also establish a penumbral right emanating from the right to protection against unlawful search and seizure such as the right of a married couple to use contraception. The right to have an abortion is also a penumbral right. Such a right was also supported by the precedents established by a long history of case law, which themselves carried the weight of law. For example, the Court abided by the following judicial principle: "A governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."

On the other hand, there are people who believe that, if the Constitution doesn't say specifically that people have the right to get abortions, then there is no such constitutional right, and if a state wants to ban abortions, then the federal government needs to mind its own business.

What I would like to reiterate is that, even if the federal right to have abortions is overturned, that doesn't mean that abortion will automatically become illegal.

Furthermore, just as conservatives can try to add an amendment to the Constitution banning gay marriage, it is also possible for the rest of us to try to add an amendment to the Constitution that finally states specifically that people have a meaningful right to privacy in this country and we don't want the religious zealots to control our lives, which ought to be prohibited by the Constitution, anyway.

[Ripe]

We'll see how it end up. Roberts still need to be approved by Senate (where Republicans have majority, but not big enough to get around filibusters) so he may not end up on the bench.

[fable]

Originally Posted by Lestat

But had clear legislation on the issue existed, then there would have been no need to "legislate from the bench".

Clear legislation on this issue isn't possible in the US, because every state has the right to legislate on matters not covered in the US constitution. The Supreme Court is therefore often cast in the roll of determining what is a matter for federal jurisdiction. This is similar to the devolution of powers to the county and municipality levels practiced in the UK before Thatcher and Blair decided to concentrate so much of it in federal hands. So lack of clarity can also mean more power at a lower level of government--a bad side, a good side. Just as crystalline clarity can be best found in absolute dictatorships. Where do we draw the line? -I couldn't say, though I do favor still greater devolution of power to states and localities, provided the federal government shares out tax subsidies, which since Reagan it has been doing less and less.

Due to gerrymandering of districts, most incumbents are fairly safe in their seats (about 98% get reelected). In this situation, the incentive to please their conservative or liberal base, mostly composed of high profile pressure groups, is higher than looking for a compromise in the center. Agreed, this tendency is far smaller with senators, so centrist politics are more common there (McCain-Lieberman). But the tendency to pander to the respective bases, whether unions or christian conservatives is real.

Pretty much what I've said, except that the turnover in congressional seats is so large that far fewer than 98% of incumbents ever get reelected. It's simply that the same party gets in. I would also note that McCain is a conservative, and Lieberman is very far to the right. The former simply puts a human face on it (why does nobody remember when he got into a mud-slinging match with Shrub before the Republicans chose the latter, over who was the most conservative by record?). And Lieberman is a Democrat who makes Utah's Orrin Hatch, that conservative bulwark, look like a hippy.

I agree with very few viewpoints of the christian right, but I think they have a point if they are saying there is too much "legislation from the bench" in the US (and conservative judges are as much at fault, if not more, than liberal ones).

What the Christian Right means by this is that the Supreme Court hasn't overturned Roe vs Wade. If by chance a liberal Congress were to have passed laws taking a woman's right to abortion further, and a conservative SC overturned these, the Christian Right would claim the latter was acting in an exemplary fashion. In my opinion it is always a good thing to disagree with zealots, even if they say it's night outside, and it really appears to be.

For the rest, I think VonDondu has covered matters well while I was busy. The nature of the system is such that the US constitution becomes a reference document for the Supreme Court, but this doesn't mean that every case or issue ever reaches the SC. Far from it. A huge number of cases submitted to the SC each year are refused for review. The ones that are accepted are those with constitutional implications--in other words, cases that involve more than a simple judgment, and concern matters with far-reaching implications to government on many levels. I can only add that this is precisely the kind of emotive, polarizing issue that should not be left to politicians, but should be a matter of calrm and rational deliberation from non-political individuals.

Which, unfortunately, the US Supreme Court no longer is.

[Lestat]

Originally Posted by fable

Pretty much what I've said, except that the turnover in congressional seats is so large that far fewer than 98% of incumbents ever get reelected. It's simply that the same party gets in. I would also note that McCain is a conservative, and Lieberman is very far to the right. The former simply puts a human face on it (why does nobody remember when he got into a mud-slinging match with Shrub before the Republicans chose the latter, over who was the most conservative by record?). And Lieberman is a Democrat who makes Utah's Orrin Hatch, that conservative bulwark, look like a hippy.

OK, the examples were maybe not very well chosen, but in his actual work in the senate (e.g. filibuster deal) McCain has shown that he at least can talk to the opposing side without it becoming a shouting match.
For the redistricting and reelection rates of incumbents: 98% in 1998 and 2000, 99% in 2002:
The sheer uncompetitiveness of most House races takes one's breath away. In 2002, four out of five of them were won by more than 20 points. The average margin was a stunning two to one, meaning some races had even bigger margins. Last time, 200 races had margins of 40 points of more and 80 were uncontested. So far this year, the uncontested figure is 68. In 2002, just four incumbents lost to challengers at the polls (another four lost in primaries). North Korea might be proud of the incumbent re-election rate: 99%. More than nine in ten Americans live in districts that are, in practice, one-party monopolies. (Economist, September 16th, 2004)

Originally Posted by Fable

It is always a good thing to disagree with zealots, even if they say it's night outside, and it really appears to be.

Nah, it can be fun to agree with them and then in the same phrase point out that they don't act accordingly or point to results that they won't like . Make them squirm.

[fable]

Originally Posted by Lestat

OK, the examples were maybe not very well chosen, but in his actual work in the senate (e.g. filibuster deal) McCain has shown that he at least can talk to the opposing side without it becoming a shouting match.

McCain was widely known before he lost the Republican nomination for president for his screaming on the floor of the Senate. He lost that quality very quickly--from which I assume he realized it was more effective to his future career to be seen as reasonable. Yet his voting record shows him as anything but reasonable, and he has shot down a number of pieces of legislation designed to help the veterans he so warmly embraces in public.

For the redistricting and reelection rates of incumbents: 98% in 1998 and 2000, 99% in 2002.

My bad! -I thought you meant the number of incumbents reelected in Congress, not those involved in redistricting. Very few, however, have been involved in redistricting.
:
Nah, it can be fun to agree with them and then in the same phrase point out that they don't act accordingly or point to results that they won't like . Make them squirm.

Zealots never squirm. They are utterly convinced of their own divine Truths, and will simply regard you as a fellow traveler or one of the damned, depending on whether you voice agreement with them, or not.

[Lestat]

Originally Posted by fable

Zealots never squirm. They are utterly convinced of their own divine Truths, and will simply regard you as a fellow traveler or one of the damned, depending on whether you voice agreement with them, or not.

Oh well, when meeting an obscenely rich christian right person, it's still nice to be able get out that phrase about the camel, the needle, the rich man and the kingdom of heaven* and then ask if he still believes in the literal truth of the bible...

(* something like "a camel will sooner pass through the eye of a needle than a rich man will enter the Kingdom of Heaven")

EDIT: found this little tidbit in a MSNBC article on the net:
In a 2000 case, Roberts ruled that police did not violate the constitutional rights of a 12-year-old girl who was arrested, handcuffed and detained for eating a single french fry inside a subway station in Washington, D.C.
If this characterises the guy and he gets on the SC (which according to most commentators, he will)... well, the brown stuff is going to hit the ventilation appliance.

[fable]

In a 2000 case, Roberts ruled that police did not violate the constitutional rights of a 12-year-old girl who was arrested, handcuffed and detained for eating a single french fry inside a subway station in Washington, D.C.
If this characterises the guy and he gets on the SC (which according to most commentators, he will)... well, the brown stuff is going to hit the ventilation appliance.

Nah. This is the kind of nightmare conclusion magistrates on the state bench have to make from time to time, upholding a law which looks terrible because of its human interest angle. I wonder, would people be equally horrified if it was a 300-pound white guy named Louie, bald, with tattoos? And eating a big Mac?

Of far greater concern to me is Roberts' clear lockstep with the Reagan/Bush belief system. There's no indication from his record that this judge will provide an independent, intelligent, credible voice for the Supreme Court. And if the Democrats can't get their act together on this nomination, a very great many things could change for the worse.

[Cuchulain82]

Originally Posted by fable

Of far greater concern to me is Roberts' clear lockstep with the Reagan/Bush belief system. There's no indication from his record that this judge will provide an independent, intelligent, credible voice for the Supreme Court. And if the Democrats can't get their act together on this nomination, a very great many things could change for the worse.

I agree with the above concern about Reaganism coming back. It seems to me that Neo-Cons now nostalgically pine for a time that is percieved as a republican heydey. I am also very concerned that Democrats appear to be rolling over for this nomination; all of the buzz recently is about the White House warning "Congress" (and by this is it generally interpreted to mean "Democrats") not to ask about any of the work that Roberts did while working under Reagan/Bush Sr. They claim this falls under attorney/client privelage, but I don't think this is a viable excuse...

In any case, do you Fable (or anyone else) believe that working on the court can change the way that someone acts? Reagan didn't get what he bargained for with O'Connor, and I have to hope that no matter what political agenda someone may have upon confirmation they would also have a greater respect for the Supreme Court. I can hope, I guess...