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Friday, September 16, 2005

Roberts Round Up

Since I barely have time to answer comments, this post has little Hammertime original thought. I cut some pieces of the transcript of the Roberts' hearing out, and follow it with a piece I found at the Volokh Conspiracy as well as an article from the St. Louis Dispatch. They say it much better than I, anyway. Emphases are mine.


ROBERTS: I had someone ask me in this process -- I don't remember who it was, but somebody asked me, you know, Are you going to be on the side of the little guy? And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that, I'll look out for particular interests, I'll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States. And that's what I would do.
DURBIN: Would you at least concede that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system? And that many times the powerless, the person who has struggled and clawed their way to your courtroom, went through a wall of adversity which the power never had to face? Is that part of your calculation?
ROBERTS: Absolutely. And it's, again, what's carved above the doors to the Supreme Court: Equal justice under law. And the judicial oath talks about doing justice without regard to persons, to rich and to poor. And that, of course, is critically important. You do have to appreciate that there are going to be interests who, for one reason or another, don't have the same resources as people on the other side. The idea is not to give the case to the side with the best resources, the side with the best lawyers, the side with the most opportunity to prepare it and present it. It is to decide the case according to the law and according to the Constitution. And as case after case in the Supreme Court shows, that's often the prisoner who's sitting in his cell and writes his petition out longhand.
ROBERTS: Sometimes the Constitution is on that person's side and not on the side of the corporation with the fancy printed brief. But the judge's obligation is to appreciate that the rule of law requires that both of those be treated equally under the law.

First, is the question of compassion and humanity. I said on the first days of these hearings it's important to determine not just the quality of your mind but the fullness of your heart, which to I think a good number of us at least on side of the aisle really mean the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.

GRAHAM: Your heart -- nobody can question your intellect, because it would be a question of their intellect to question yours...
... so we're down to the heart. And is it all coming down to that?
Well, there are all kind of hearts. There are bleeding hearts and there are hard hearts. And if I wanted to judge Justice Ginsburg on her heart, I might take a hard-hearted view of her and say she's a bleeding heart. She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?
Well, she has a different value system than I do. But that doesn't mean she doesn't have a good heart. And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is, "Adopt my value system", we're doing a great disservice to the judiciary.
Thank you.

From Volokh Conspiracy:

I am struck, watching the hearings, at the complete disconnect between the criticisms of many of those opposing Judge Roberts and a cogent view of the role of the courts. It seems that many of the criticisms are policy based — x or y rulings would lead to bad RESULTS — and make no reference whatsoever regarding whether such results are in fact the correct interpretation of the law (or the Constitution). Judge Roberts's repeated point was that he was committed to the law, and not to a political agenda, yet most of the criticism seems to be that he lacks a particular favored agenda on things like civil rights, the environment, etc. But certainly the critics cannot have it both ways, pissing and moaning that he might reject a substantive conclusion that they favor, yet demand that he not bring his personal views into the judging process. Unless they think that he will misinterpret the law in a way that follows his allegedly retrograde views and opposes their more "enlightened" views, it seems that their criticism should be about the laws as written, or the Constitution itself, and not about the jurist who interprets them faithfully. Demanding a Justice that would distort the laws to serve a particular end, be it civil rights, the environment, or what have you, is basically demanding a jurist who would be dishonest and violate his oath of office. Judge Roberts has naturally refused to be goaded into such silliness. The fact that folks like Kennedy, Schumer and Durbin keep setting that up as the test for their willingness to support him is appalling and speaks to the bankruptcy of their philosophies of government. (Not to be biased, several Republicans also seem to fall into the same exact trap regarding abortion, flag-burning, and the pledge of allegiance. They seem to think that the fact that they do not LIKE the results of various cases has something to do with whether they were rightly decided under the laws and the Constitution, and seem to think that their strong emotions on such issues should have some influence on Judge Roberts's future rulings. They are, of course, mistaken and equally suspect in their philosophies of government.)

In any event, I think Roberts comes out of this looking like the consummate jurist who knows precisely where his duties and loyalties must lie — to the law and the Constitution. Most of his critics come off looking like they are pandering to folks who don't know about or don't care about the proper functioning of the courts, and most of the Senators just come off looking ridiculous. It is particularly ironic to hear the demands of Senators (most notably Specter) that they not be treated like children when they seem so intent on acting like children. If they had the slightest inclination to follow the Constitution on their own accord, and to take seriously the limitations on their powers, they would not need to be rebuked quite so often and perhaps when the Court was forced to overturn some piece of legislation they would get more slack for an honest disagreement or mistake rather than whacked on the wrist for making a power grab.

And from the St. Louis Dispatch:

POINT OF VIEW: A test of principles and ideas
By Amy White

This week's confirmation hearings on the nomination of Judge John Roberts to be Chief Justice of the Supreme Court were supposed to be an opportunity for Senate opponents to expose his liabilities. Instead, it has been the Democratic Party's liabilities on full display.

Exhibit One: Citing the flawed response to Hurricane Katrina, Wisconsin Democrat Herbert Kohl noted that it was "those without employment opportunities and educational opportunities" who lacked the means to escape the violent storm and the catastrophic flood that followed. "As you seek the position of chief justice," Kohl asked, "what role would you play in making right the wrongs revealed by Katrina?"

And there it is: the Democrats' dependence on the judicial branch of government to solve society's problems.

In his reply, Roberts endorsed the principle of equal justice under the law but reminded the senator that the court's only obligation is to "uphold the rule of law, which is the key to all rights being meaningful." When Kohl continued to press, the judge offered up a little Civics 101: "We hear cases brought before us. We do not have the authority to execute the law or make the law. Our constitutional authority is to decide the cases presented."

Not one to be out-liberaled, Sen. Edward Kennedy of Massachusetts picked up the theme. He asked Roberts if he thought Congress had the power to "pass laws aimed at righting wrongs, ending injustice, eliminating the inequalities we have just witnessed so dramatically and tragically in New Orleans." He then peppered Roberts with questions about the Civil Rights Act, the Voting Rights Act and a host of other anti-discrimination laws. Did Roberts agree that the laws are constitutional? Roberts said he did.

Kennedy failed to note the obvious: Despite decades of legislation, there were still poor people in New Orleans lacking opportunity. But the senator continues to dream of more laws to fix societal problems that laws, to date, have failed to remedy.

Senator Diane Feinstein of California predictably asked Roberts several questions about "the right to privacy" in the Roe v. Wade case and the rephrased "right to be left alone" on end-of-life issues. Like Kenendy she missed the obvious: Roe v. Wade denied Americans in the womb any right to be "left alone." Indeed, her advocacy on these issues seem reserved for those slated to die, wanting to die or whose next-of-kin wish them to die.

Sen. Charles Schumer of New York read quotes from three prominent religious conservatives suggesting that the federal judiciary poses "more of a threat than terrorists." When Judge Roberts said he disagreed with such comments and would defend the judiciary from personal attacks, the senator asked, "Do you strongly disagree? Don't these turn your insides a little bit?"

Roberts didn't take the bait. "Senator, people from all across the political spectrum have attacked judges." This plain reality was not useful to Schumer, however, who obviously hoped to get the judge to condemn some of the religious conservatives who have supported his nomination to the high court.

Sen. Joseph Biden of Delaware, who enjoys being the most charismatic Democrat on a charisma-challenged committee, challenged Roberts on the Violence Against Women Act, debating the judge on the definitions of "heightened scrunity" versus "strict scrunity" in sex discrimination cases. Although it was Biden who had posed the question, he wouldn't wait for an answer. When the committee chairman, Pennsylvania Republican Arlen Specter, admonished Biden to let Roberts speak, Biden replied - in cheerful frustration - "But I have no time left, Mr. Chairman! And I know the answer!"

Biden might as well have been speaking for all congressional Democrats who have protested that the nominee is too conservative, too political and too religious to sit on the Supreme Court. After hours of questioning that only have proved John Roberts' dazzling command of American jurisprudence - and his uncanny ability to evade with sincerity - the Democrats are out of time.

As to what kind of chief justice this man will be, his opponents already know the answer: He will not legislate from the bench what fails to be legislated by the people's elected representatives. He will not seek to right the wrongs of the past, present or future. His only expressed aim is to fulfill his responsibility to "serve the rule of law."

In the years to come under the Roberts court, it will be interesting to see whether a court that serves only the rule of law will advance the Democratic agenda - or obliterate it.



  • I believe Roberts is the kind of judge conservatives say they want, a guy who looks at the laws in questions and determines how they apply to the situation at hand; a judge who does not make up laws from the bench.

    I believe Roberts is not the kind of judge conservatives actually want, an activist of their own.

    I think it is ok for Democrats to vote against Roberts for a variety of reasons, but I don't think they should filibuster. Just say why they don't think Roberts is their kind of judge, vote no, and go on.

    Personally, I think I'd vote yes.

    By Blogger Mark, at 9/19/2005 07:38:00 PM  

  • Mark,
    I'm one who wants what Roberts is. I don't seek a judge who will ban abortion - I seek the right of the people to ban, or permit, the act. While the people voting to allow it will not make it morally right, it will make it Constitutionally correct.

    Similarly, a judge who won't apply the commerce clause to a farmer who feeds his cows his own extra corn by claiming that it could impact interstate commerce - that's Roberts, and a judge that most conservatives actually do who won't legislate from the bench.

    By Blogger Hammertime, at 9/26/2005 01:03:00 PM  

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