No surprise here: John Roberts is the new Chief Justice, confirmed by a vote of 78-22. He'll be sworn in quickly so he can preside over the opening day of the new term, commencing (as always) on the first Monday of October.
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David Webber at The Nation has a new article on Judge John Roberts' 1985 AIDS memo to then President Ronald Reagan that Roberts wrote in conjunction with a major announcement Reagan was about to make. According to the article, he refused to disavow the memo when being interviewed by the Senate Judiciary Committee. Here's a snippet:
Five days before the press conference, [Roberts] reviewed the presidential briefing materials and recommended deletion of a sentence encapsulating the CDC's conclusion: "As far as our best scientists have been able to determine, AIDS virus is not transmitted through casual or routine contact." In a memorandum, the Assistant Counsel to the President explained, "I do not think we should have the President taking a position on a disputed scientific issue of this sort. There is much to commend the view that we should assume AIDS can be transmitted through casual or routine contact, as is true with many viruses, until it is demonstrated that it cannot be, and no scientist has said AIDS definitely cannot be so transmitted."
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The Senate Judiciary Committee, as expected, voted to send the nomination of Judge John Roberts for Chief Justice to the full Senate with a recommendation for confirmation. His confirmation vote will be held next week.
All Committee Republicans voted in Roberts' favor. Also voting for Roberts were Senators Leahy, Kohl, and (surprisingly) Feingold. Keep in mind, however, that Feingold voted to confirm John Ashcroft as Attorney General on the theory that the president's nominations are entitled to deference.
Senator Herb Kohl of Wisconsin, said he had been persuaded because of the nominee's "sterling reputation as a lawyer and a judge" and was therefore voting with "my hopes, not my fears." Senator Russell D. Feingold, a Democrat also from Wisconsin, said he was voting yes because he considered the nominee "a lawyer's lawyer," not an ideologue.
Let's hope he's right. The Democrats voting against Roberts were Senators Feinstein, Kennedy, Biden, Schumer, and Durbin.
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Vermont Democrat Patrick Leahy has announced he will back John Roberts for Chief Justice. Sen. Edward Kennedy said he will vote against him. John Kerry is likely to vote no as well.
Update: Excerpts from John Kerry's statement of reasons for opposing Roberts is here.
My biggest concern right now is that Justice Stevens will retire. That will mean Bush packs the court with three new conservatives.
Update (by TChris): David Corn weighs in, arguing that the Democratic leadership (such as it is) needs to stay in synch with its base rather than dividing on key issues.
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Senate Minority Leader Harry Reid says he will vote against the nomination of John Roberts for Chief Justice of the United States.
Reid scheduled a speech on the Senate floor for mid-afternoon, at which he was expected to make his announcement public.
I suspect several other Democrats will also vote against Roberts. He didn't answer their direct questions about his views on abortion, civil rights and other important issues, sticking to his script about respecting precedent. His hearings were more like a law school class at which he was lecturer-in-chief.
As big as the abortion issue is to many folks, civil liberties in the broader context (Patriot Act, increased governmental snooping, etc.) the death penalty and criminal justice are my primary areas of concern. Roberts just about got a pass on all those issues from the Senators, and I'm not happy about that. Still, Roberts will be confirmed, and the real fight is yet to come - over Justice O'Connor's replacement. I'm holding my big guns for that one.
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by Last Night in Little Rock
NYC Mayor Micheal Bloomberg has become the first [noted] Republican to oppose the confirmation of John Roberts to the Supreme Court, primarily over the right to choose under Roe v. Wade, not that it matters.
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Uh-oh. Alan Dershowitz discusses what he has learned from listening to Judge Roberts:
1. He will not overrule Roe v. Wade, though he will not extend it beyond current Supreme Court holdings.
2. He will dramatically lower the wall of separation between church and state, and be a reliable vote with Justices Scalia and Thomas on this critical issue.
3. He will uphold the death penalty against both substantive and procedural challenges and will narrow the opportunity of death row inmates to challenge their convictions.
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As this report notes, John Roberts answered few substantive questions during his confirmation hearings. This is standard practice in post-Bork hearings, and Roberts, who has coached other judicial candidates in the art of the non-answer, was careful to say nothing that could stir controversy.
"We're rolling the dice with you, judge," Biden said, "because you won't share your views with us. You've told me nothing in this Kabuki dance. The public has a right to know what you think."
"You've being less forthcoming with this Committee than any nominee who has ever come before us," said New York Democratic Senator Charles Schumer. "This process is getting more and more absurd," he added.
When he did venture an opinion, Judge Roberts tried to satisfy everyone (or, at least, to offend no one). As Emily Bazelon observes, Judge Roberts opined that justices who voted to replace Plessy (separate but equal is consistent with equal protection) with Brown (racial segregation violates equal protection) were not overreaching activists (placating the left) but were actually giving effect to the original intent of the Fourteenth Amendment (placating the right).
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Law Prof Eric Muller at Is That Legal takes issue with Judge John Roberts position that early in his career he was just a staff lawyer who didn't make policy decisions and just argued the way he was told.
....we are talking here about a man who left a clerkship with then-Associate Justice William Rehnquist to become a Special Assistant to the Attorney General of the United States under President Reagan, and who left that position to join the White House staff as Associate Counsel to the President.
These are no ordinary "staff attorney" positions. Nobody gets jobs of this sort just by being a talented young lawyer (as they do at the D.A.'s office, the Public Defender's Office, or the litigation firm downtown). These are, in their nature, ideological positions.
People for the American Way also scoffs at the claim that Roberts' position as Deputy Principal Solicitor General during Bush I was not an ideological position (received by e-mail):
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by Last Night in Little Rock
The LA Times today has an op-ed today, Roberts' bad decision by legal ethicists Stephen Gillers, David Luban and Steven Lubet that John Roberts was in the process of being interviewed for his appointment to the Supreme Court while he was deciding Hamdan v. Rumsfeld on the constitutionality of Gitmo military tribunals. (Roberts did not write the opinion, but he voted on the three judge panel.)
Judicial ethics and 28 U.S.C. § 455 mandated recusal. But, neither of those legal constraints kept Justices Thomas and Scalia from making George Bush president in 2000. Thomas' wife worked on Bush's transition team (§ 455(b)(5)(iii)) and Scalia's son worked for one of the law firms representing Bush (albeit not directly involved; § 455(b)(5)(ii)).
The "appearance of impropriety" standard applies. If it looks bad, that is enough.
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Sen. Patrick Leahy's staff has been live-blogging the confirmation hearing for Judge John Roberts.
7:30 p.m. Senator Durbin questions Judge Roberts about the death penalty.
Sen. Durbin is asking Judge Roberts about a question he was posed earlier: If there is room for a judge’s values and beliefs in their rulings. Sen. Durbin is asking Judge Roberts about what goes through Judge Roberts mind when he addresses cases that deal with the death penalty. Judge Roberts says that it is important to differentiate between cases that offer new scientific claims versus new personal claims. Judge Roberts says that it is important to recognize the irrevocability of the death penalty, and that it is necessary to bring additional scrutiny to those cases. Judge Roberts says that DNA evidence is an important opportunity that is a significant development in the law.
Here is the exact exchange:
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Update: Law Prof Glenn Reynolds, writing over at his MSNBC blog, sums up a general consensus of opinion on today's hearings: The Senators bloviated, speechified and repeatedly touted themselves. In agreement: Slate's Dahlia Lathwick, Ann Althouse and me. Although none of them mentioned Jeff Sessions who I thought was the worst of the bunch.
Update: I tuned in to watch a little bit of the hearings. Sen. Jeff Sessions has been speechifying against abortion without asking a question for almost five minutes. I can't believe he wasn't interrupted and told to ask a question.
There will be a break and then Sen. Feingold will question Judge Roberts at 5:05pm. I hope he asks about the death penalty like he did at Roberts' 2003 confirmation hearing. If you're not by a tv, you can watch here.
The radical right isn't happy with Roberts' answers. One commenter there says, "...this nomination is shaping up as the biggest failure of the Bush presidency."
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On a lighter note, I'm kind of partial to TChris's questions:
Did anyone in the White House ask you about Roe v. Wade? If the word abortion came up during any conversation with a member of the White House, please repeat that conversation for us. Was Guantanamo mentioned during your job interview? If given the chance, would you go duck hunting with Dick Cheney? Who should decide elections: voters or the Supreme Court?
Here are some of the criminal law decisions authored by Judge Roberts.
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Confirmation hearings begin at 11:30 ET for Judge John Roberts. You can watch them here. If confirmed, he will be the youngest Chief Justice in the past 200 years. That's important, because it means he will be shaping our jurisprudence for decades to come.
Roberts is expected to be confirmed, although his questioning may become testy at times. According to Yale Law School Professor Jack Balkin, there are good reasons for the Democrats to stand up to the President and ask Roberts the tough questions.
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by Last Night in Little Rock
Grits for Breakfast, a criminal law blog, has this today: John Roberts & the Fourth Amendment: Judicial activism to allow police searches. As I have previous said on my own site after Roberts' name was released, things do not bode well for the Fourth Amendment, Among other cases, it talks about Roberts' penning the infamous Metro french fry arrest case, previously referred to here as the ridiculous case of the week.
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