Tag Archives: roberts

Thoughts on Alito

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Get used to saying “Scalia, Alito” rapidly, as in, “Roberts, Scalia, Alito, Thomas,” who will be voting closely together in lots of cases.

Fortunately, there are still five pretty solid votes on the Court for the area I care most about, gay rights – Stevens, Kennedy (who wrote Lawrence and Romer), Souter, Ginsburg, and Breyer. Now that O’Connor’s presumably gone, I think Kennedy’s going to become the new swing vote. Also interesting and still semi-applicable: this SCOTUSblog article from June about a possible “gang of three” – just replace “Rehnquist” with “Alito” in the following excerpt:

On a Court somewhat more conservative without O’Connor, Kennedy’s influence seems sure to grow. He has a chance to become the new balance wheel, a role that was filled so routinely by O’Connor. (Even if there were to form a solid Rehnquist-Scalia-Thomas-Roberts phalanx, they would still need Kennedy to prevail, and he would not be with such a quartet automatically.) Kennedy also has more influence than is sometimes credited to him. He has a store of common sense that saves him from ideological rigidity, and that steers him away from agenda-driven voting. He has an even deeper sense of what history asks of the few who become members of the Court. Those are summonses to the use of sound judgment.

As I’ve said recently, despite my relatively liberal social views, my judicial views have been in flux lately. Alito seems not be an ideologue or an asshole like Scalia, which is good. I prefer him to someone like Janice Rogers Brown or Priscilla Owen. (And hey – go, New Jersey, with two out of nine seats!)

The Harriet Miers nomination was bad for the Court as an institution. The Alito nomination is good for the Court, regardless of how good or bad it turns out to be for the country.

Alito?

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Both SCOTUSBlog and Confirm Them predict that the new Supreme Court nominee will be Samuel Alito of the Third Circuit, a judge whose chambers are in Newark, New Jersey – and not too far from my office! And I worked in his building one summer during law school when I interned with a federal district judge in Newark. Alito is nicknamed “Scalito” because his views apparently resemble those of Scalia, but apparently he’s not an ass like Scalia is.

Article III Groupie thinks it could be Luttig. She thinks Alito could wind up as the Edith Clement of this round to John Roberts’s Luttig. We’ll see.

I was thinking it might be McConnell, but apparently he’s not under consideration because conservatives might not be totally comfortble with him on Roe and other issues.

This could be announced Monday.

The Krauthammer Compromise

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From Miers’s withdrawal letter:

As you know, members of the Senate have indicated their intention to seek documents about my service in the White House…

Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination… I have decided that seeking my confirmation should yield.

From the White House statement in response:

It is clear that Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a President’s ability to receive candid counsel.

Wow. The Washington Post’s Charles Krauthammer couldn’t have scripted it any better. But he didn’t have to – this is exactly how he scripted it last Friday, and the White House was listening:

Finally, a way out: irreconcilable differences over documents.

For a nominee who, unlike John Roberts, has practically no record on constitutional issues, such documentation is essential for the Senate to judge her thinking and legal acumen. But there is no way that any president would release this kind of information — “policy documents” and “legal analysis” — from such a close confidante. It would forever undermine the ability of any president to get unguarded advice.

That creates a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege.

Hence the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive’s prerogatives, the Senate expresses appreciation for this gracious acknowledgment of its needs and responsibilities, and the White House accepts her decision with the deepest regret and with gratitude for Miers’s putting preservation of executive prerogative above personal ambition.

Faces saved. And we start again.

Bush was clearly laying the groundwork for this the other day:

When George W. Bush was asked this morning about a report that the White House is thinking through contingency plans for the withdrawal of Harriet Miers’ nomination, he responded with what we thought was a non sequitur: Rather than confirming or denying the report, the president said that he will refuse to release documents reflecting the advice Miers has given him as a member of his White House staff.

It wasn’t an answer to the question he was asked, but… maybe it wasn’t quite the non sequitur we thought it was, either…

At his Cabinet meeting this morning, the president all but blurted out that he wouldn’t and couldn’t turn over such documents without jeopardizing the ability of future presidents to hear frank advice and “to make sound decisions.”

And like clockwork, the mainstream press is now reporting that a “document snag” is threatening to “scuttle” Miers’ nomination. Maybe this is all just coincidence. Maybe Krauthammer was tipped off to a plan already in the works. Or maybe, with Karl Rove distracted by other matters, the president is taking advice from wherever he can find it.

So, there we go – the Krauthammer Compromise. Miers is gone. Her name will never sully the Court.

I wonder who’s next.

Poor O’Connor – she was really hoping to be living it up in Arizona by now, wasn’t she?

More On Miers

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I have no respect for any Democratic senator who finds Harriet Miers’s nomination to the Supreme Court acceptable, such as Charles Schumer, Harry Reid and others. I understand why most Republican senators would support her – despite her utter lack of qualifications, she passes their religion/abortion tests. But how can a Democratic senator support her when she lacks any evidence of the intellectual firepower necessary to sit on the Court, and probably doesn’t agree with them on substantive issues to boot? I’m flummoxed, unless they’re pretending to like her in order not to give Republicans more reasons to support her.

I loathe this nominee. It’s odd that I find myself agreeing with people like George Will and Charles Krauthammer (BTW, doesn’t he totally look like Mandy Patinkin?), but I do.

Of course, I feel some schadenfreude watching many conservatives get as angry about this nomination as I am. But that doesn’t mean I don’t agree with them, even if my reasons are slightly different than theirs:

For more than two decades, conservatives have been developing a team of potential justices for the high court in preparation for a moment such as this. They point to jurists such as Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit, Judge Michael W. McConnell of the 10th Circuit and Judge Priscilla R. Owen, newly sworn in on the 5th Circuit, as examples of people who have not just paid their dues but also weathered intellectual battles in preparation for reshaping the Supreme Court….

“The feeling was after John Roberts that surely the president was going to have to go to the bench where there were all these very excellent people who are serving on the circuit court or scholars who have been grooming for this possibility for years and years,” said Paul M. Weyrich, a leading voice in the conservative movement and one who has been openly skeptical of Miers.

Luttig and McConnell are highly qualified for the Court and I could respect them. But Owen? She might be intellectually qualified (is she? I don’t know), but she’s a major radical and I find her decisions odious. It’s Miers’s lack of intellectual qualifications and experience that concern me more than her purported judicial “philosophy” (if she even has one). Although that does bother me, too.

That said, she could pull a John Kerry during her confirmation hearings. Many people were surprised by John Kerry’s first presidential debate performance because they had built up all these preconceived notions about him in a portrait painted by the Republicans. It’s possible that Miers is a lot smarter than I’m giving her credit for.

But there’s no reason to believe that’s true unless there’s any evidence for it.

Harriet Miers was an awful, awful choice for a nomination. She’s completely unqualified to sit on the Supreme Court and her name should be withdrawn.

On Miers

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On Harriet Miers: Bleah.

I’m underwhelmed. I like superstar picks, particularly federal appellate judges (despite some calls for diversity). There’s nothing to say she’ll be an awful justice, but there’s nothing to say she’ll be a great one, either.

What are her views on the Constitution? Who knows? All I’ve read is that she’s pro-life.

And with Katrina and Brownie, is this really the time for Bush to name a crony? (That word is going to get tired really soon, but it’ll do for now.) Burton and Minton, Truman’s pals, were totally forgettable. Harriet Miers was the best he could do? It’s not the case that anyone would have paled in comparison to Roberts. There were a number of good choices out there.

Harry Reid apparently mentioned to Bush recently that she’d be an acceptable choice. So I’m guessing she’ll get confirmed. Even if she turns out not to be an intellectual powerhouse, she’ll have three or four clerks helping her out.

Anyway: bleah.

Poor Justice Breyer II

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Poor Justice Breyer can’t get a break. His eleven years of having to answer the door, which seemed to be coming to an end, will instead continue even after Roberts is confirmed to the Court. As How Appealing notes, Breyer will continue to be the most junior justice after Roberts becomes Chief, because the Chief Justice is, by definition, the most senior member of the Court. Breyer will have to wait until O’Connor’s replacement gets confirmed – whoever she turns out to be.

(Heh. I said she.)

Roberts as Chief

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There’s been way too much news this past week. Between Katrina and Rehnquist/Roberts, I can’t read the newspapers and blogs fast enough. And I’m pissed that The Note has been on vacation for two and a half weeks. Mark Halperin and his staff will have a lot of catching up to do when they return tomorrow.

It’s not totally suprising that Bush has moved Roberts’s nomination to the Chief Justice position. He’s practically in love with Roberts, and he wasn’t going to name someone who wasn’t a white male as Chief Justice, but he wasn’t going to nominate a white male for the second vacancy. So O’Connor’s replacement will probably be someone non-white or female or both.

On the other hand, Bush has never acted in line with political predictions.

Interesting fact: since Roberts is only 55 only 50 years old, he could wind up having one of the longest Chief Justiceships in American history, second only to that of John Marshall. [Update: or even the longest!]

The switch of Roberts to the Chief Justice’s seat changes the dynamics of Bush’s two appointments. As SCOTUSblog writes, “The nomination of a doctrinaire conservative to replace the Chief Justice could have been explained as ideologically neutral for the Court, as the new nominee would not move that seat to the right. Moving Judge Roberts to the seat of Chief Justice, by contrast, opens up again the debate over what Democrats will describe as the ‘O’Connor’ seat — that of a moderate conservative.”

There’s going to be pressure (again) to replace O’Connor with a moderate. But hasn’t that ship sailed? What if Roberts actually turns out to be the moderate of the two appointments? Ugh. It’s still possible.

At any rate, here’s hoping that Chief Justice Roberts will be presiding over Bush’s impeachment trial soon.

Roberts and Romer

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I’m very intrigued by the news about Judge Roberts and Romer v. Evans. My initial cautious admiration had been turning into worriment in the last couple of weeks, with all the news about his cocky Reagan-era views, but this reassures me a bit. It doesn’t mean a whole lot – again, whom you represent or advise as a lawyer doesn’t necessarily say anything about your own views. But I can’t imagine that Antonin Scalia or Clarence Thomas would have volunteered, pro bono, to help out the gays.

On the other hand, the issue in Romer v. Evans was pretty egregious. It involved the following amendment to the Colorado constitution:

“Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing.”

In short, the amendment (which passed) legalized all types of discrimination against gays and lesbians – in employment, in housing, in whatever. Opposition to that amendment wouldn’t necessarily translate to sympathy for gay marriage or other gay-rights issues. As Arthur Leonard says in the linked article above, “There is certainly a difference between striking down laws that impose second-class citizenship on a class of people and supporting more affirmative rights for such people, and I don’t think a judge’s position on one necessary predicts his position on the other.” (It could be argued, of course, that same-sex marriage bans impose second-class citizenship on a class of people, but I know what he’s getting at.)

So like everything else that has been uncovered thus far, it doesn’t say much about Roberts other than that he’s not a Scalia or Thomas. Well, it also says he might not be a Rehnquist.

But also, Roberts, at age 50, would be the youngest member of the current Court by seven years. (Thomas is 57.) Scalia will be 70 next year. While age does not predict attitude, someone born in 1955 will have grown up in a different cultural context than someone born in 1936. Judge Roberts was 14 at the time of the Stonewall riots, for instance. Not that that necessarily means anything, but it’s something to keep in mind.

Anyway, this whole thing is intriguing. I guess we’ll see what it means.

Pattygate

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The Wikipedia article on United States Supreme Court nominee John Roberts was the focus of considerable attention last week, and not just in terms of heavy editing. It also inspired a joke that transformed into a rumor circulating in the blogosphere that Roberts might be homosexual, or at any rate a rumor that people might be trying to spread such a rumor.

Read more. Isn’t paranoia fun?

FAIR v. Rumsfeld

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This week’s New Yorker has an article by Jeffrey Toobin (I always confuse him with Jeffrey Rosen) about an upcoming Supreme Court case, FAIR v. Rumsfeld, that touches on gay rights. Strictly speaking, it’s not a gay-rights case; it involves the constitutionality of the Solomon Amendment, under which federal funding is withheld from any university that contains a law school that bans the military from on-campus recruiting. Many law schools include sexual orientation in their non-discrimination policies, and because gays aren’t allowed to serve openly in the military, the schools ban the military from recruiting on campus, just as they ban any law firm that discriminates on the basis of sexual orientation. The law schools claim the Solomon Amendment violates their free speech, while the government claims it has a right to attach conditions to federal funding. The federal appeals court ruled in favor of the law schools, and the Supreme Court is hearing arguments on the case next term.

I think I would side with the government on this. One, I don’t think this is a free-speech case; the law schools are free to vehemently speak out against the military’s policy, organize protests, whatever they want. Two, the government is not forcing any policy on the schools; they are free to choose between accepting federal funds and banning military recruiters. But this is a weaker argument, because (a) we’re talking about withholding federal funds from entire universities – $130 million in the case of NYU – and (b) if it were really a free-speech issue, I don’t think the federal-funding excuse would pass muster.

I was going to make a third point that the military is probably different from a law firm, but if I were a judge writing the opinion, I’d probably leave that part out, just because I wouldn’t want to go there.

Incidentally, the article also has some predictions about how John Roberts would vote on the case if he were confirmed.

Roberts and Gays

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For at least a year before the nomination of Judge John G. Roberts to the Supreme Court, the White House was working behind the scenes to shore up support for him among its social conservative allies, quietly reassuring them that he was a good bet for their side in cases about abortion, same-sex marriage and public support for religion.

Yeah, so that kind of worries me.

Granted, the only other part of the article that mentions gay rights is this:

Mr. Leo said he told wary social conservatives that even though Judge Roberts had not ruled on abortion or other issues his other opinions showed “a respect for the text and original meaning and a presumption of deference to the political branches of government.” …

Mr. Leo said such narrow and deferential rulings are “going to comport better” with the restrained role that social conservatives want judges to play on questions about abortion, gay rights or religious displays, which they believed should be left to elected officials rather than the Supreme Court, Mr. Leo said.

Granted, there’s nothing specific there that says Roberts would vote for or against gay rights. But I won’t kid myself; as impressed as I am by him, he’s still a Bush nominee. So I’ll continue to hope what I’ve already been hoping for a while: that no same-sex marriage case comes before the Court in the near future. Regardless of the Court’s composition, one of two things would happen: either it would find bans on same-sex marriage constitutional, or it would find them unconstitutional and thereby practically guarantee passage of a constitutional amendment outlawing same-sex marriage. This is just not a good time for the Supreme Court to be ruling on gay marriage, period.

There are, of course, other gay rights issues that could come before the Court.

Anyway, we knew after last fall’s election results that things didn’t look good. At this point, we just have to keep our fingers crossed.

From Salon

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From a letter in Salon.com:

My first wish is that the Democrats in the Senate confirm Roberts quickly, without much fuss, so our ADD media can get back to the Fitzgerald investigation that day by day threatens the permanent Republican majority in Washington far more effectively than the Democratic Party is capable of. It’s taken five fucking years for the media to stop playing stenographer and start acting like real reporters. A divisive partisan bitchfest over the Roberts nomination will only take the attention and focus away from the fact that the executive branch is filled with inveterate liars and criminals. Roberts is as good as it’s going to get if you’re a liberal, and you can’t just keep filibustering until 2009.

Dual Letters

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Okay, this is weird.

In today’s Times:

To the Editor:

Re “Bush Picks Nominee for Court; Cites His ‘Fairness and Civility’ ” (front page, July 20):

I am a knee-jerk liberal, and I know that I will probably deplore many of the opinions that Judge John G. Roberts will write as a Supreme Court justice, if he is confirmed.

But I think that he is eminently qualified for the position and should be confirmed.

All Americans knew in the 2004 presidential election that Supreme Court nominations would play a big role in the near term. The public elected George W. Bush despite a clear understanding of his particular philosophy about constitutional interpretation and “legislating from the bench” – even if that negative characteristic applies equally to conservative and liberal judges.

The public will (and should have to) live with the choice that President Bush has made. Intellect and qualification should always be the prime concerns in selecting lifetime appointees to the high court.

In Judge Roberts, Mr. Bush appears to have gone above and beyond in those areas. That Judge Roberts may be crafted in the mold of Antonin Scalia and Clarence Thomas, judges whom President Bush says he admires, is our own fault.

Josh Goldberg
Chicago

In today’s Washington Post:

I am a liberal, and I know I will deplore a good number of the Supreme Court opinions John G. Roberts Jr. authors. But I think he is eminently qualified for the position and should be confirmed nonetheless.

Americans knew in the 2004 presidential election that Supreme Court nominations would play a big role in the near term. The public reelected George W. Bush despite a clear understanding of his particular philosophy about constitutional interpretation and “legislating from the bench” — even if that negative characteristic actually applies equally to conservative and liberal judges. The public will — and should have to — live with the choice that Mr. Bush has made.

Intellect and qualification should always be the prime concerns in selecting these lifetime appointees. In Judge Roberts, Mr. Bush appears to have gone above and beyond those standards. The fact that Roberts is crafted “in the mold of [Justices] Antonin Scalia and Clarence Thomas” is our own fault.

JOSH GOLDBERG

Chicago

From the New York Times’s letters policy:

“Letters to The Times should only be sent to The Times, and not to other publications.”

Oooh, they got burned!

Patty Roberts

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From a long profile of John Roberts in today’s Times, one sentence stands out.

The school yearbook from 1972, his junior year, shows he played Peppermint Patty in the production of “You’re A Good Man, Charlie Brown.”

From this we can conclude that a Justice Roberts would have deep empathy on lesbian issues.

Gang of 3?

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Here’s a great analysis of how Roberts could become part of a new “Gang of 3” on the Court:

Thus, the possibility is a Court in the new Term starting in October that has Scalia and Thomas, joined somewhat loosely by Rehnquist, on the most conservative wing, Justices Souter, Ruth Bader Ginsburg and John Paul Stevens on the most liberal wing, and Roberts somewhat loosely aligned in the center with Kennedy and Breyer.

It’s all tea leaves at this point, but this is interesting nonetheless.