| The One Democratic Moment (To Destroy Roberts) |
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September 12, 2005 |
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BEGIN TRANSCRIPT |
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 RUSH: Folks, I have detected a theme. And I haven't had a whole lot of time to watch this, but I have had the top-of-the-hour break here, checked in with the confirmation hearings of Judge John Roberts, opening statements by all the senators are still underway. The Democrats, every one of them that I have seen have sought to portray these hearings as the one democratic moment in the life of a judge, the one democratic moment.
In fact, Leahy has said, "It's the one moment in time that we, the people have to find out what kind of a scumbag you are." He didn't say scumbag. I'm reading his mind. But nevertheless, they're trying to envelope and embrace the American people by letting the American people know, "We're doing this for you, we're going to destroy this guy or try to, for you." It's the one democratic moment in the life of a judge. How many times has this guy been before this committee? Roberts has appeared before this committee at least in one other, two other confirmation hearings, or is it one? It's two, isn't it? He's been up there I know for at least one confirmation hearing. It was one. And he got unanimous approval coming out of the committee the last time. So, anyway, not much happening other than the opening posturing, as I said, all the networks that I'm watching. We don't have C-SPAN3 here. They're going gavel to gavel. We're watching back and forth on the three cable news networks, and they're all covering this as though its election night, and I'm just waiting for the first network to make the call, to put their projection up there on screen, predicting that Roberts wins or loses confirmation, because it's being covered in just that way.
BREAK TRANSCRIPT
Judge John Roberts still doing a fabulous job. It's been an hour and a half so far, still doing a fabulous job, hasn't said a word but looks more concerned and interested than any nominee I can recall in my life, folks, as he listens to these blowhards tell him, you know, what he's got to do and what they think. I'm a little down on Congress. I really am. Pass-buck artists extraordinaire, take responsibility for nothing, act as grand inquisitors, get the power and the right to go destroy other people's lives. I'm just down on Congress.
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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.
Headline: Specter Won't Ask Roberts About Abortion
Source: NewsMax
Date: September 11, 2005
The chairman of the Senate Judiciary Committee said Sunday he will not ask Supreme Court nominee John Roberts whether he would vote to overturn the landmark decision that legalized abortion.
Sen. Arlen Specter, R-Pa., did say he planned to ask Roberts, the president’s pick to succeed the late William H. Rehnquist as chief justice, whether there is a right to privacy in the Constitution.
Roberts’ confirmation hearings before the committee were to begin Monday.
Specter said he was uncertain whether Roberts would favor overturning the Roe v. Wade decision from 1973 that established a right to abortion. Specter supports a woman’s right to choose to end her pregnancy.
"I think it is inappropriate to ask him head-on if he’s going to overturn Roe, but I believe that there are many issues close to the issue, like his respect for precedent,” Specter told NBC’s "Meet the Press.”
"We’ll get a better idea of his views, but I think at the end of the hearings he’s not going to take a definitive stand on that question,” the senator said.
He said people are not wrong to want to know Roberts’ views on abortion, "but a judge ought not to have to make commitments in advance as to how he’s going to decide cases or (if) it impinges on his judicial independence.”
Asking whether cases such as Roe or Bush v. Gore, which cleared the way for George W. Bush’s election victory in 2000, were decided properly would be too close to asking whether Roberts would vote to overrule a case, Specter said. Such questions "ask a little too much,” the senator said.
But Specter said asking Roberts, now an appeals court judge, whether the high court correctly found a right to privacy in the Constitution when rationalizing its abortion decision would be fair "and I intend to ask it.”
Specter said he plans to delve into matters such as the court’s powers and how they relate to Congress’ authority.
"I believe Republicans as well as Democrats have an obligation to find out about Judge Roberts’ jurisprudence. There ought not to be a political tilt,” he said.
Critical of court rulings that question the reasoning of Congress, Specter said he will ask Roberts what he thinks of those issues.
Specter said he thinks Bush should choose a woman to replace retiring Justice Sandra Day O’Connor, the court’s first female justice. The only other woman to serve on the high court is Justice Ruth Bader Ginsburg.
Bush had nominated Roberts to replace O’Connor, then picked Roberts to replace Rehnquist. The president has yet to name someone to succeed O’Connor.
"I think that we ought to have more women on the court. Two is a bare minimum. We really ought to have more,” Specter said.
"I don’t believe in a quota system. And it may be that at this particular time President Bush would like to have someone other than a woman, and I don’t think his hands ought to be tied,” he said.
Specter said he thought it was "a little too soon” for Attorney General Alberto Gonzales to be nominated.
"He’s an able fellow, but we just went through a tough confirmation hearing, and my sense is that the national interest would be best served if he stayed in that job right now,” Specter said.
Some in the Republican Party have questioned Gonzales’ conservative credentials. He has been criticized by many liberals for decisions he has made as attorney general and for his role in administration policies while White House counsel.
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