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Senate Lawyers Burning the Midnight Oil on Roberts

The Senate is in recess, but the Judiciary Committee lawyers are working through it, day and night, pouring over thousands of pages of released documents on Judge John Roberts to ready the Senators for the confirmation hearings that begin September 6. The Chicago Tribune has an informative article on what the staffers are doing and how the Senators have divided the work.

Specter's staff lawyers are readying talking points to combat negative information, not to be partisan, but to be fair. Cornyn's lawyers essentially admit their partisan role. Sen. Diane Feinstein will take the lead on Roe v. Wade, while Sen. Edward Kennedy will focus on civil rights issues.

Here's a clue to how it's going to go:

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Roberts Too Liberal For Public Advocate

by TChris

Definition of "lunatic fringe": a group so far to the right that it considers John Roberts too liberal to sit on the Supreme Court.

A conservative group in Virginia said Tuesday it would oppose Supreme Court nominee John Roberts’ confirmation because of his work helping overturn a Colorado referendum on gays. The stance by Public Advocate of the United States, which describes itself as a pro-family organization, puts it in opposition to conservative groups that have endorsed Roberts.

The group’s president, Eugene Delgaudio, last year criticized Vice President Cheney (another left wing radical) for suggesting that the concept of freedom extends to gays.

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Specter: CJ Rehnquist Is a Judicial Activist

by TChris

Update: Attacks on the Supreme Court by politicians who disagree with the Court's rulings threaten the Court's independence, Justice Breyer said today. If Arlen Specter wants to use the Roberts' nomination to send the Court a message, it seems Justice Breyer is taking the opportunity to send a message on behalf of "seven or eight or nine members of the Supreme Court." The message, in essence: leave us alone.

*****
Original post:

It’s funny that a Republican senator would accuse conservative Supreme Court justices of judicial activism, but Arlen Specter, previewing some of the questions he intends to pose to John Roberts, seems to have done just that.

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Judge Roberts' Wife Opposes the Death Penalty

Judge John G. Roberts' wife is a consistent Catholic pro-lifer who opposes the death penalty. She belongs to an anti-capital punishment group. In the article on Justice Stevens' speech critical of the death penalty that I reported on earlier today, someone has called my attention to this statement which I missed.

"It [the death penalty] doesn't appear to be shaping up as a major issue," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a pro-death penalty group.

Scheidegger said that although Roberts' wife, Jane, is a member of a group that opposes capital punishment, Roberts has had no opportunities to vote on death cases in his two years on a federal appeals court.

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Judge John Roberts: Staunch Law and Order Man

I've noted that Judge John Roberts is no friend of the criminally accused. The Wall Street Journal (free article) confirms this today. It's worse than I thought.

While Roberts doesn't have an extensive judicial record on criminal issues, his positions as Deputy Solicitor General are troubling, first because he helped decide what cases the office should accept and second, because of information emerging that he is a staunch law and order man.

...one issue that has gotten less public scrutiny has been his staunch law-and-order record. During Judge Roberts's time as principal deputy solicitor general in the administration of George H.W. Bush, his office chose to get involved in dozens of state cases to limit the rights of criminal defendants. The cases backed state prosecutors seeking to preserve convictions won with warrantless searches and confessions obtained without Miranda warnings about the right to remain silent; to dismiss claims by inmates of "cruel and unusual punishments"; and to validate aggressive law-enforcement techniques, such as sobriety checkpoints and "protective sweeps" of crime-infested dwellings.

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Memory Problems

by TChris

While it's difficult to predict the kind of Supreme Court Justice that John Roberts might become, it is increasingly apparent that his memory is a bit fuzzy. First he didn't remember being on the steering committee of the Washington chapter of the Federalist Society. Then he neglected to disclose that he had been a registered lobbyist for the cosmetics industry.

In a letter to the Senate Judiciary Committee's ranking Democrat, Sen. Patrick J. Leahy of Vermont, Roberts explained that his firm had registered him as a lobbyist because he met with government lawyers as part of his work representing the Cosmetic, Toiletry and Fragrance Assn. At the time, the association sought to block a proposed labeling regulation by the Food and Drug Administration.

...Roberts explained that because his work for the association consisted of preparation for litigation, "the question about lobbying on the questionnaire did not trigger a memory of those meetings."

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Judge Roberts on the Death Penalty

While much attention is paid to Judge John Roberts' position on Roe v. Wade and the right to privacy, there is another critical issue that he needs to be questioned on: his views towards capital punishment.

The Washington Post reports that at his 2003 confirmation hearing for his seat on the D.C. Circuit Court of Appeals, Sen. Russ Feingold had the following exchange with him:

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John Roberts Update

My latest "Scoring Scotus" update is on Eric Alterman's Altercation today.

One more note: Legal Times reports that Judge Robert's nomination has been two decades in the making and is the flower of the Reagan revolution.

The results have been telling: a reined in commerce clause diminishing Congress' ability to regulate, sweeping state immunity from most private lawsuits, an increasing emphasis on state and individual rights, and, ironically, a smaller Supreme Court docket as appellate courts fall in line with current Court sympathies.

While conservatives label these developments as classic examples of restraining the power of the federal government and the judiciary, liberals see something very different -- an activist, right-wing judiciary shaping the courts to conservative standards.

"The conservative seizing of political power is part of a very broad vision to change the culture of the United States," notes New Democratic Network President Simon Rosenberg. "The federal judiciary fits into the context of the broader march."

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Judge John Roberts: No Friend of the Accused

Among the documents released from Judge John Roberts' tenure as Associate White House Counsel during the Reagan era are memos criticizing the Supreme Court Justices for accepting too many death penalty appeals and prisoners-rights cases:

Mr. Roberts wrote in a memorandum to his boss, Fred F. Fielding, the White House counsel, that ...the court had only itself to blame for its burden of cases.

"If the justices truly think they are overworked, the cure lies close at hand," Mr. Roberts wrote. "The fault lies with the justices themselves....He wrote that if the court took fewer death penalty and prisoner-rights cases, the docket would be cut by at least a half-dozen cases a year. He added a comment that may signal his view of the Supreme Court's proper role.

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UPDATED: Useful Questions III

by TChris

Earlier posts (here and here) have suggested questions that could usefully be posed to John Roberts at his confirmation hearing. Continuing in that vein, Vikram David Amar suggests that senators ask Roberts to analyze the Supreme Court's rulings in five "blockbuster" cases that were decided by 5-4 majorities.

Amar refutes the notion that a judicial nominee shouldn't be asked about legal issues if those issues might again come before the court:

This is nonsense. Of course the nominee should not make, or be asked to make, promises about future rulings. But the disclosure of specific views about past cases does not commit the judge to rule in any particular way in the future. He remains free to change his mind if he is persuaded by sound legal arguments, the same way sitting justices are free to do so.

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John Roberts' Financial Status

The White House today said it will refuse to turn over Supreme Court Nominee John Robert's tax returns.

Courting Influence has his 10 page financial disclosure statement (pdf) from his 2003 application to the D.C. Circuit Appeals court, filed in May, 2004. Net Worth: $3,782,275.

Not bad for a lawyer who was only in private practice for 13 years of his career. Roberts was a government lawyer from the beginning of his legal career in 1979 until he left for Hogan & Hartson in 1986. He was an associate for a year, and then made partner. He left the firm to return to Government employ as Deputy Solictitor General in 1989. Total time spent in private practice at this point: 3 years. He left his job as Deputy Solictor General to return to private practice with Hogan and Hartson in 1993.In 2003, he was confirmed as a D.C. Circuit Appeals Court Judge.

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Alberto Gonazales: Roberts Not Obligated to Follow Roe v. Wade

In a new interview with the Associated Press, Attorney General Alberto Gonzales said that once Judge John Roberts becomes a Supreme Court Justice, he is no longer obligated to follow precedent like Roe v. Wade...in other words, unlike an Appeals Court Judge who is bound by Supreme Court precedent, as a high court Justice, if he disagrees with it, he could vote to overturn it.

The legal right to abortion is settled for lower courts, but the Supreme Court ``is not obliged to follow'' the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday as the Senate prepared to consider John Roberts' appointment that would put a new vote on the high court.

In an interview with The Associated Press, Gonzales said a justice does not have to follow a previous ruling ``if you believe it's wrong,'' a comment suggesting Roberts would not be bound by his past statement that the 1973 decision settled the issue.

Excerpts from the interview:

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NARAL Makes FOIA Request for Bush White House Memos on Roberts

Press Release:

NARAL Pro-Choice America filed a formal request with the Bush White House that asks for records or descriptions of any contacts between President Bush or other administration officials and radical right organizations that have praised his selection of John Roberts for the Supreme Court.

Nancy Keenan, president of NARAL Pro-Choice America, said the jubilant reaction from organizations that have advocated the overturning of Roe v. Wade reflected the undue influence these groups may have had on this selection.

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John Roberts: Brilliance vs. Experience

My latest "Scoring Scotus" is up at Eric Alterman's Altercation today. (the first one is here.) I won't be cross-posting, so please read both. I still have some reservations about Roberts. Does a brilliant legal mind trump a lack of experience in the trial courts? The Senate Questionnaire submitted by Judge Roberts when he applied for his seat on the D.C. Circuit Court of Appeals is available here(pdf), courtesy of Courting Influence.

It's somewhat curious to me that so many have touted his qualifications to a position on the nation's highest court when:

  • He has never tried a case before a jury
  • He has never presided over a trial as a judge
  • He has little criminal law experience or expertise
  • He has almost no experience practicing before state courts
  • The sum total of his appellate experience is arguing 65 cases in 17 years.
By all accounts, Judge Roberts has a brilliant legal mind and a terrific temperament. But in addition to trying to ascertain his position on abortion, states' rights, the environment and the Commerce Clause, I hope the Judiciary Committee doesn't overlook the fundamental question of whether his experience makes him qualified for the job.

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Another Useful Question

by TChris

In addition to the useful questions suggested here to pose to John Roberts at his confirmation hearing, a NY Times editorial offers another useful question: If, as you claim, you've never been a member of the right wing's favorite legal organization, the Federalist Society, why were you "listed in a Federalist Society Lawyers' Division Leadership Directory for 1997-1998 as a member of the steering committee of the Washington chapter"?

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