| Biden Warps Ginsburg Precedent |
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September 13, 2005 |
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RUSH: Now, Senator Biden, it was his turn to question Judge Roberts this morning just before the recess. We have four sound bites. Biden started this way, "Justice Ginsburg answered the question. She never wrote about it. She answered it specifically. She went on to say that, and let me quote, she said (and this is quoting Justice Ginsburg) he goes on to say, "'History, counsel, caution, and restraint,'" and I agree with him. He says then -- this is referring to the majority opinion -- but it does not counsel abandonment, abandonment of the notion that people have the right to certain fundamental decisions about their lives without interference from the state," and what he next says, "Is history doesn't counsel abandonment nor does it require what the city is urging here, cutting off the family right at the first boundary, which is a nuclear family." He rejects that. "I am taking a position I have all the time." Then she goes on to say, "Un-uhh. She thinks your old boss was dead wrong. She said so, and she said the majority was dead right. The Ginsburg rule, what do you think? She never wrote about it."
ROBERTS: Senator, I think the nominees have to draw the line where they're comfortable. It's a matter of --
BIDEN: You're not applying the Ginsburg --
SPECTER: Let him finish.
BIDEN: I don't have much time. But go ahead.
ROBERTS: It's a matter of great importance, not only to potential justices but to judges. We are sensitive to the need to maintain the independence and integrity of the court. I think it's vitally important that nominees, to use Justice Ginsburg's words, "no hints, no forecasts, no previews."
RUSH: Biden shot back with this.
 BIDEN: That is not true, judge. Justice Ginsburg violated that rule according to you. Justice Ginsburg said -- Ginsburg said precisely what position she agreed on. Did she in fact somehow compromise herself when she answered that question?
ROBERTS: She said, "No hints, no forecasts, no previews."
BIDEN: No, no. Judge, she specifically, in response to a question, whether or not she agreed with the majority or minority opinion, in Moore vs. The City of Cleveland said explicitly, "I agree with the majority, and here's what the majority said, and I agree with it." My question to you is, do you agree with it or not?
VOICE: Well, I do know, senator, that in numerous other cases, because I read the transcript --
BIDEN: So did I, judge.
ROBERTS: -- she took the position that she should not comment. Justice O'Connor took the same position. She was asked about a particular case.
BIDEN: Oh, judge, no, I don't have a lot of time.
ROBERTS: It is not correct for me to comment. There's a reason for that --
SPECTER: Wait a minute, Senator Biden. He's not finished his answer.
BIDEN: He's filibustering, Senator.
SPECTER: Okay, go ahead. |
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(Chamber Audience Laughs)
SPECTOR: No, he's not.
ROBERTS: That's a bad word, Senator.
RUSH: That's a bad word. Okay. So that's how that transpired. Then Judge Roberts finally got a chance to answer and said this.
ROBERTS: Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints, about how they might rule in cases that might --
BIDEN: I got that, judge.
ROBERTS: -- go before the court.
BIDEN: Did Justice Ginsburg give a hint on the specific question?
 ROBERTS: I'm not going to comment on whether or not a particular nominee adhered to the approach that they announced.
BIDEN: Well, let's make it clear, she did not. Let's stipulate, she did not adhere to the approach.
RUSH: Well, so this is an attempt to trip Roberts up. The Ginsburg rule, we knew that he was going to invoke it. "Hey, you didn't make her answer these specific questions." The caveat here is this: Ginsburg did answer questions about things that she had previously written, when there was a record. Now, Biden doesn't mention this, at least not in the bites that we have here, but she did offer to confirm things that she had written on previous cases and so forth, which some would say violated her own rule, but in that case she was commenting on herself. Now, we have here a montage. It's a very short one, 17 seconds, back from 1993, at the Senate judiciary committee hearing for Ruth Bader Ginsburg and her confirmation, and this is a montage of Senator Biden with Judge Ginsburg. You'll hear a little music here at the beginning.
BIDEN: You not only have a right to choose what you will answer and not answer, but in my view you should not answer.
GINSBURG: I do not want to give here any hints. I would not like to answer that question. I cannot say anything more than I have already said.
RUSH: And so you hear a totally different tone with Judge Ginsburg back in 1993 from Senator Biden, who said, "You not only have a right to choose what you will answer and not answer, but in my view you shouldn't answer." Now, granted these hearings are partisan and back when, you know, the Democrat nominee, you have deference on the Democratic side just as you have deference on the Republican side here to Judge Roberts. See, I think that deference is a little... I mean, it's comfortable to some people, and it's welcome, but I think the Republicans are perfectly entitled to ask questions about judicial philosophy, not specific cases, but judicial philosophy. That's what our concern with the construction of the court is, and to the extent Democrats want to be partisan and so forth that's expected, but the Republicans can do a little bit more than defense. They can also get specific about judicial philosophy. It's a key element to all of this. But anyway, it's just interesting to listen to the differences in Senator Biden when the nominee is of his party versus the opposite.
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 Just a little comment here about Biden. I don't think Biden laid a hand on Judge Roberts there. The argument was about a case that, at the time, a memo that Roberts had written about a case, and at the time the case was unsettled. Today it is, and so the line of questioning was a little bit misleading, as though the case is still up for grabs and Roberts not wanting to answer it when it's already settled law. But Roberts, he's not going to talk about the future. He's not going to get into any of these hypotheticals and tell these guys how he's going to rule. So all in all, I think that the biggest disappointment for the left today is that the hearings were boring, that they haven't scored any points. You've had Ted Kennedy out there acting like this guy is a mean-spirited racist and bigot, and the last thing he comes off as is mean spirited. So once again the credibility of the left's accusations is exposed as totally fraudulent, particularly for a nation of pictures. You can go out there all day long and say Judge Roberts hates blacks and he doesn't know failure and he's a racist and a bigot and all this, but you watch him and you do see that. You don't see any personality evidence of it. You don't hear anything out of his mouth that gives credence to it. So what you have is the same old playbook. It's like Jeff Sessions said yesterday in his opening statement. The great senator from Alabama, Senator Sessions told Judge Roberts, "You know, you're just a victim of a form attack here. The Democrats have a form, and they've just filled your name in on the blanks where there's a name to be placed. You are a racist. You are a sexist. You're this. You're that. You're against civil rights. You're against women's rights, and you're going to have to put up with it, judge, because this is the way they play the game. It's a form criticism and a form critique and it's just your name that happens to be filled out on the form today," and that's pretty much true. It's the same old, tired, worn-out allegations from a long-ago prepared Democrat handbook that's not been modernized nor updated.
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Read the Articles... |
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Headline: John Roberts deserves a dignified process
Subheadline: An Unseemly Spectacle Demeans Us All
By: Theodore Olson
Date: September 12, 2005
Our nation is in the process of replacing two of its most distinguished jurists and over 57 years of accumulated wisdom on its highest court. Sandra Day O'Connor provided keen instincts, common sense and poise since her appointment in 1981. William H. Rehnquist gave the Court 33 years of penetrating intelligence and integrity, 19 of them as chief justice. It would be refreshing if the confirmation of their successors could be conducted with the same class that characterized these two careers. Don't bet on it.
A political Gresham's law has debased Senate confirmation proceedings so that they now tend to combine the worst features of reality TV, professional wrestling and celebrity criminal trials. And the more lofty the judicial position, the more the process has sunk into an unseemly and demeaning spectacle. The pathway to service on our most prestigious courts has come to resemble a theater of the absurd, during which prospective judges are probed, humiliated, scolded and scorned. Those who somehow make it through the excruciating process may be forgiven for being embittered by the experience.
Despite the politically charged controversies over the direction and role of the courts in our society, the public has generally maintained an almost reverential respect for our judiciary, and continues to regard judges as decent, fair and remarkably free of corruption. Why, then, must the process by which their appointments are confirmed be so raw and blatantly partisan?
I concede a certain bias. For nearly 25 years, I have known and practiced law with and against John Roberts. I cannot imagine a more gracious, thoughtful and warm individual--or a more highly qualified person to occupy a seat on the Supreme Court. There is simply no legitimate or rational basis for the carefully orchestrated, heavily bankrolled, hyperbolic and often plain nasty attacks being launched against him.
Sadly, Judge Roberts is only experiencing the ritual aspects of the contemporary judicial confirmation process: invasions of his privacy; distortions of his record, including attacks on the most trivial or casual (and long-forgotten) utterances; and apocalyptic predictions concerning the imagined consequences of his confirmation. These tactics have worked in the past, so there is no price to be paid for using them. We therefore seem destined endlessly to relive them.
Two additional strategies will be deployed in the Roberts hearings. His Senatorial inquisitors will pose questions designed to pin down how he might rule on a particular issue (abortion, for example). They, along with various interest groups, will also complain that the White House has failed to produce confidential materials he may have authored as an administration lawyer. Both tactics are win-win for his opponents: The nominee will either submit, only to be hammered for positions he has taken, usually wrenched completely out of context--or he will resist, opening himself to accusations of being evasive, arrogant or a stonewaller.
This sort of gamesmanship is not worthy of the Senate or the judiciary. Aside from those who benefit financially from the fundraising opportunities presented by a confirmation battle, and those who are titillated by the opportunity to witness--or participate in--a public flogging, most of our citizens don't like what they are seeing. The solution, if one exists, is for the public to cry foul whenever a senator seeks to pollute a dignified confirmation proceeding with cheap rhetorical theatrics and demagoguery.
As many of Judge Roberts' predecessors have explained, including, most recently, Justice Ruth Bader Ginsburg, it is ill-advised for a candidate for judicial office to express a formulated position on even the most fundamental questions that might later come before the Court. It may be expedient for a nominee to express support for Brown v. Board of Education or Marbury v. Madison or to reject the Dred Scott decision. Nearly everyone would nod approvingly, at least in the abstract. But where do such answers lead, and where does the pandering end? The simple fact is that there is no principled line to draw once a nominee starts down that seductive slope.
The most appropriate response to these questions is for the nominee to promise an open mind in every case, receptivity to the arguments of counsel, the views of colleagues and due respect for the written text, history, precedent, context and factual setting of a particular matter. And he should promise to render future decisions free from preconceived or pre-expressed opinions as to how a case should be decided. We expect no less from a judge; and that is the only response we should expect to hear during confirmation proceedings. Anything else bargains away future judicial independence.
As to the memoranda John Roberts wrote as deputy solicitor general, they are sensitive, deliberative analyses of cases pending at the time, inseparable from memoranda written by career Justice Department personnel. They candidly evaluate the positions taken or urged by government lawyers, comment on judicial decisions, and evaluate the strengths of the government's case. They are developed with the expectation that they will remain confidential. In Judge Roberts' case, they may even contain assessments of the justices with whom he may soon be serving. Failure to protect the integrity of these materials will not only damage the public interest in top-flight government lawyering, but will forever inhibit future officials from frank internal assessments of litigation strategy.
Solicitors-General for Presidents Kennedy, Johnson, Nixon, Ford, Reagan, Clinton and both Bushes have firmly emphasized the vital importance of protecting the confidentiality of these records. No partisan impulse motivated the uniform public expression of that position, and there is no justification for breaking with that tradition. The price for doing so will be paid by every future president--and the nation.
The Senate confirmation process should be conducted with the same dignity, restraint and professionalism that we expect from judges. Before the commencement of the impeachment trial of President Clinton, over which he was to preside, Chief Justice Rehnquist gathered members of Congress before him. He had only two words of advice: "Be fair." That simple yet wise admonition should dictate the tone of the Senate's confirmation of his successor.
Mr. Olson, solicitor general in the Bush administration from June 2001 through July 2004, is a lawyer in Washington.
Headline: I’ll be watching for three things during the hearings
By: Senator John Cornyn (R-TX)
Date: September 12, 2005
As the nation continues to mourn the passing of Chief Justice Rehnquist, we have the opportunity to pay tribute to Rehnquist's legacy of courageous public service by moving forward with the confirmation hearings for his former law clerk, Judge John Roberts. Today is the start of historic hearings on whether Judge Roberts should be confirmed to serve on the U.S. Supreme Court as chief justice. Although confirmation hearings may not necessarily make for the most exciting television, I think the American people can learn a great deal by tuning in.
At the same time, confirmation hearings do not occur very often, and they have a style all their own. As such, it may be helpful to know what to watch for. For this reason, I'd like to share a few of the areas that I am going to be keeping a close eye on myself during the hearings.
Will my colleagues misuse the term "judicial activism"?
In the past, when someone used the term "judicial activism" it referred to judges who make up the law as they go along instead of applying the law as it was written by the people's representatives. For example, the American people did not understand the Constitution to prohibit the execution of 17-year-old murderers because on the very day they ratified the Constitution, the laws in America permitted just that. Indeed, in 1989, the Supreme Court endorsed that understanding in a 5-4 decision. Yet, earlier this year, the Supreme Court reversed course, and held 5-4 that the Constitution prohibits this after all. Did the Constitution change? No. The only thing that changed was one justice now believes that, in his personal opinion, it is unjust to execute 17-year-old murderers, even though juries could impose this penalty only for the most hardened criminals who committed the most heinous crimes. That is judicial activism.
Some of my colleagues have misappropriated the term to mean something entirely different. For example, some use the term to describe judges who strike down acts of Congress. This definition is popular among those critical of the Supreme Court's recent decisions striking down laws because they exceeded Congress's power to regulate "commerce among the several states." The problem is that striking down acts of Congress has nothing to do with judicial activism. Supreme Court justices take an oath to uphold the Constitution. It is their duty to strike down laws that violate the Constitution. To say that striking down a law is "judicial activism" is to call into doubt the entire enterprise of a Supreme Court.
Some also use the term to describe judges who overrule Supreme Court precedent. I actually saw a law professor use the term in this way not too long ago, and this definition is often invoked when some of my colleagues worry about whether Judge Roberts will vote to overrule Roe v. Wade or another of their favorite decisions. But if a prior precedent is a misreading of the Constitution, what is "activist" about correcting the mistake? Do my colleagues think that Brown v. Board of Education is an activist decision because it overruled Plessy v. Ferguson? I think not.
Will my colleagues ask Judge Roberts questions they know he cannot answer?
It may seem strange to ask someone a question you know he cannot answer, but, from every indication, that is precisely what many of my colleagues intend to do. Some have said they plan to ask Judge Roberts about any number of issues that are likely to come before the Supreme Court once he is confirmed. The problem is that, according to the American Bar Association's Canons of Judicial Ethics, Judge Roberts is ethically forbidden from pledging to rule a certain way on any issue that is likely to come before him. Indeed, some have said they will not vote to confirm Judge Roberts unless he pledges not to overturn Roe v. Wade, even though that very issue is already pending on the Supreme Court's November docket, an undisputed violation of the ethics rules.
The reason the ethics rules forbid judicial nominees from making such pledges is that it threatens the ability of nominees to remain impartial once they have assumed the bench. One of the hallmarks of the judicial function is that our judges must be impartial when litigants come before them and argue their cases. If Judge Roberts pledges to us under oath to rule a certain way and he keeps his promise when the case comes before him, the losing litigants will feel as though they did not receive fair consideration. If Judge Roberts does not keep his promise, he has lied under oath. It's a no-win situation. For this reason, every member of the current Supreme Court declined to answer such questions. As Justice Ruth Bader Ginsburg has noted, it was "crucial to the health of the Federal Judiciary" to decline to do so.
But if my colleagues know Judge Roberts cannot answer these questions, why will they ask them? One reason would be to try to create the false impression that Judge Roberts is not being forthcoming with the American people. But, for the reasons noted by Justice Ginsburg herself, it would be unfair to Judge Roberts to suggest that he has not been forthcoming simply for following his ethical obligations.
Will my colleagues accuse Judge Roberts of being an extremist?
Two months ago, I read an article in the Washington Post reporting on the strategy that some of my colleagues might employ to resist whomever the president nominated. Prong three of that strategy was to accuse the president's nominee of being an ideological extremist. This article has turned out to be quite prescient because it looks as though some of my colleagues are gearing up to do just that.
Not too long ago, in fact, one of my colleagues called Judge Roberts a "radical" because he supported the policies of President Ronald Reagan, for whom he worked. Now, President Reagan was many things, but radical is not one of them. He was reelected by nearly 60 percent of the American people, winning 49 of 50 states. It stretches the truth to the breaking point to suggest that any position of the Reagan administration endorsed by Judge Roberts is "radical."
The liberal-special interest groups have been even more aggressive under this third prong of the strategy. Days ago, one group similarly labeled Judge Roberts "radical" for penning an opinion questioning whether Congress had exceeded its power to regulate "commerce among the several states" by regulating the habitat of a toad that never crossed state lines and that had never been used in commerce. Even a liberal law professor who often advises Senate Democrats has conceded that Judge Roberts's view in this case was at least "reasonable."
In my view, Judge Roberts is one of the best-qualified nominees for the Supreme Court in the history of that institution, and I think he should be confirmed. At the very least, however, I think we have a duty to the American people and to the memory of his former boss, the late Chief Justice Rehnquist, to conduct the confirmation hearings in a dignified and respectful way that shows due regard for the pursuit of truth rather than misrepresentation.
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