RUSH: Speaking of the Supreme Court nomination of John Roberts, we’ve got some more great sound bites coming up. But I also like seeing this. This is by Alexander Bolton today from The Hill, the newspaper for and about the US Congress. “Conservative strategists are drafting a letter to Democratic members of the Senate judiciary committee demanding the release of hundreds of internal memos detailing contacts between the Democrat lawmakers and liberal interest groups opposing John Roberts’ nomination to the Supreme Court. By planning to press the Democrats on this sensitive subject, conservatives seem to be pulling a page from the Democrats’ own political playbook. In the weeks leading up to the confirmation hearings, the Senate Democrats have repeatedly called on the White House to give them memos that Roberts wrote while he was deputy solicitor general in President George H. W. Bush’s administration.
Senator Pat [Leaky] Leahy,” Senator Depends, “the ranking member on the judiciary committee,” That means he’s the Democrat, “raised the issue again yesterday by releasing a letter dated September 9th from William Moschella, an assistant attorney general. In the letter, Moschella declined to disclose legal memos from Roberts’ tenure in the office of the solicitor general.” Now, what’s being sought here? “Conservatives want access to what they estimate may be as many as 4,000 Democratic memos that are in Senate Sergeant-at-Arms William Pickles’ possession. Last year, Pickles seized Senate judiciary committee computers during an investigation. Democrats on the committee called for the probe after internal memos written by aides to Senator Kennedy and Senator Durban were made available to the press without Kennedy or Durban’s consent.
“In their letter to Democrats, conservatives plan to argue that the memos are not protected by attorney-client privilege, giving them stronger claims to the documents they assert than the Democrats have to the solicitor general’s documents. Roberts’ defenders have argued that a solicitor general’s relationship to a president is akin to an attorney-client relationship and deserves special privilege.” The solicitor general, by the way, that’s the person that actually represents the United States in cases before the US Supreme Court hence the designation of attorney-client privilege. But I think this is fabulous. Let’s see these memos! I mean, Democrats run around all over the place demanding this document and that document and these documents. Let’s see the documents they’re using. Let’s see what Ralph Neas and the boys are threatening them with. Let’s see what the ACLU is threatening them with. Let’s see what NARAL and Nan Aron and all these other wacko groups on the left are threatening them with.
I know these groups’ memos have been used. I mean, through much of Senator Kennedy’s questioning, he was reading talking points no doubt provided with these groups, or asking questions no doubt provided by these groups. In fact, I’ve got a sound bite here that will illustrate for you how they screwed their own friend, how they screwed Senator Kennedy. I’m going to interpret it that way. It could well be that Senator Kennedy himself was trying to do the screwing, but based on what I’ve seen up to this time, it seems that, “You know, one thing John…?”
Change of direction here just to make a point. One of the things I haven’t seen that I would have loved to have seen, because it would have proven the point, Kennedy asks one of these five- or six-minute questions, and I would love to hear Roberts say, “Senator, I’m not quite sure I get that. Could you go back and look and see if blah, blah,” and make Kennedy go off his script, and you would see a panic! You would see Kennedy turning around to an aide (Swimmer impression), “Er-uh, where — where are those… Where are those Ralph Neas talking points when I need them?” Here’s an example of it, I think. It’s up to you to decide whether Kennedy has been screwed by his team or whether he’s attempting to screw Roberts.
Here’s a question. This was during the morning session today. The Swimmer says, “You mentioned in your memoranda that we should — and you’re familiar, I think, with these words,” and that’s a Kennedy tactic. “As you well know… You’re familiar with these words.” This is an attempt to intimidate. It doesn’t work with Roberts. The Swimmer says, “You mentioned in your memoranda that we should — and you’re familiar, I think, with these words — they’ve been written up on the journals. You can probably recognize them. ‘We should ignore the assertion that the EEOC is un-American, the truth of the matter notwithstanding.’ Is there some reason that you would make a comment like that that the EEOC is un-American?” Now, listen to this answer.
ROBERTS: Well, Senator you do have to read the memo, I think, in its entirety to put it in context. That was not my language. That was the language, the “un-American” reference was the language that was employed by an individual who had a case before the EEOC. He actually won his case before the EEOC, but he didn’t like the difficulty and the time involved. He wrote to the president, and he said two things. One, that his treatment at the hands of the EEOC was un-American, and, two, that the president had promised in the campaign to abolish the EEOC, and he wanted to hold the president to that promise. It was my responsibility to figure out how to respond to this complaint that had been received. When you read the whole memorandum, you see two points.
The first is that I was unable to determine, in the short time I had to respond, whether or not the president had made such a pledge to abolish the EEOC. I simply didn’t know, and I said that in the paragraph if you read it, and that’s what “the truth of the matter notwithstanding” is referring to. The question of whether or not the president had promised to abolish the EEOC. I say right in the memo that we cannot determine that, and whether his treatment was “un-American” or not is beside the point; we don’t interfere with the activities of the EEOC. That was the conclusion, and that’s what we did in that case.
RUSH: All right, so what do we have here? We have Ted Kennedy who presents an entirely false picture, a false premise, half of a memo, and Roberts corrects Kennedy four times in this answer. He corrects him four times. “If you were to read the whole memo, you would find that I didn’t say it; a client of mine said it. If you read the whole story…” What did you also not hear in the Roberts answer? What did you not hear? Come on, somebody tell me. What did you not hear? You didn’t hear Kennedy try to interrupt! You didn’t hear Kennedy try to stonewall this, because Kennedy doesn’t know what he’s even asking about is my theory. My theory is that he got set up by a Ralph Neas type. “We’re going to nail this guy! We’re going to nail this guy. We’re going to say that he says the EEOC is un-American,” because their template is this guy doesn’t care about equal rights. “He’s un-American. He said it about the EEOC! You ask him, senator!”
So Senator Kennedy says, (impression) “Err-uh, yeah, that’s right! We’ll nail this SOB,” and Kennedy is left there hanging out to dry, literally hanging out to dry. Roberts has no notes in front of him during this answer. Kennedy does not ask for any further notes; it just is what you heard. So the question is, did Kennedy pull a fast one, or was a fast one pulled on Ted Kennedy? If Kennedy were informed and could have interrupted and tried to stem the damage that was happening here, he would have, but he was lost. He didn’t even know what he was asking about. Dianne Feinstein did the same thing the other day.
“You really think that more women need to be homemakers?”
“No, Senator, it’s a joke from Shakespeare about lawyers,” and so forth.
Now, “Turban” followed with the same question that Kennedy had asked after Kennedy. I’ll give you the details of that. I don’t have the sound bite of that — or do I? No, the next bite is from Kennedy himself. Where he says, Kennedy’s bite, he does have a response. Kennedy’s excuse is, “Well, parts of this are redacted,” and Roberts — wait ’til you hear this. Roberts nails him, again. “No, Senator, it’s just a couple of names that are redacted.” So, anyway, it’s just fascinating to watch this because we find out what true intellectual lightweights these guys are and how totally dependent they are on these left-wing groups, and these left-wing groups are setting them up because the left-wing groups are lightheaded as well. They can’t compete with this guy, and the age-old template of just saying, “He’s a Republican. He’s a conservative. He hates equal rights.” This is so great, folks. I cannot tell you how, to people watching this, this is literally destroying the Democrats, particularly on this committee.
BREAK TRANSCRIPT
RUSH: All right, we just heard the answer from Judge Roberts. “Senator Kennedy, if you read the whole memo, you’ll find out it wasn’t I who said the EEOC is un-American; it said the client who won the case said the EEOC was un-American.” So Kennedy says, “Well, as you know, this memo has been redacted, and I think, in fairness, in fairness to the committee, if we can get out the other redactions, it’ll be a more accurate kind of a complete record,” and then Specter says, “Well, if it’s possible for Judge Roberts to deal with the redactions…”
ROBERTS: I think the redactions simply identified the individual that was making the complaint who had his case. The only thing I would emphasize is that the language that was quoted was part of a sentence, and the question of what “the truth of the matter” is referring to goes to the first part of the sentence that was not read, which is the assertion, the assertion that the president promised to abolish the EEOC. That was the matter that I could not determine in the time available whether that was correct or not, so I said, “The truth of that matter notwithstanding…” and I’d also emphasize that any reference to the phrase “un-American” is always in quotes to make it clear that that’s what the writer of the letter said, and certainly not what I said, and it was certainly not my view then or now.
RUSH: So it’s patently obvious here that somebody is trying to trick the guy and they failed big time. Now, I just don’t know don’t know if Senator Kennedy is the architect of the trick or he’s one of the victims. (interruption) You think he’s the architect? I think he’s duped. I think that he’s relying on these left-wing groups and his staff to put this stuff together because they think, you know, “Roberts, he’s just a meathead conservative. Hell, it’s going to be easy to wipe the floor with this guy,” and the whole premise of the question is flawed; the facts in the question are incorrect. They’re wrong, and so Kennedy’s floundering. “Well, the memo is redacted. I didn’t get to read the whole thing.” It’s only the client’s name that’s redacted, senator!
So the Swimmer finally gives up in this next bite, but still thinks that Roberts thinks the EEOC is “un-American.” Arlen Specter said — and Specter is being nice here. Specter is saying: “Senator, you just got the floor wiped with your rear end. Do you want to answer that?” That’s not what Specter actually said, but, “Senator Kennedy, really, this is over. You want to keep pursuing it?” Kennedy said (impression), “Yes, I want to! I want to keep talking!”
KENNEDY: Uh, I think we’ve been over the — after all is said and done about finding out what, uh, President Reagan wanted to abolish or not abolish. That really wasn’t the, uh, the issue or question. And the question isn’t about whether the, uhhh, use of the “un-American” is obviously unacceptable. I mean (gasp) and they’re dismissing that. But the, uh, Judge Roberts said the assertion the EEOC is un-American, uh, quote, and he’s quite rate, saying that they were dismissing that word, but then he adds, “the truth of the matter notwithstanding.” I think it’s not unreasonable to assume that he somehow was disparaging the EEOC. That’s all.
RUSH: See, Senator Kennedy, he doesn’t even know how badly he has just been embarrassed! He literally doesn’t know it because the talking point on part of that question was “Roberts says ‘EEOC un-American,'” and so that’s the point he’s going to try to make, “The truth be damned! It doesn’t matter. Roberts thinks EEOC is un-American. Roberts is conservative. Roberts hates civil rights! Roberts is unfair to the little guy!” That’s the whole guiding light here for all of these guys, and particularly this question from Senator Kennedy. Jeff Sessions from Alabama then sums up this whole EEOC dust-up and slams the Democrats in the process.
SESSIONS: Judge Roberts, I commend you on your good humor, and even when they read a memo suggesting you said the EEOC was un-American when actually all you were doing was quoting a complaint and that you defended the EEOC and its rights, and defended it aggressively in that memo.
RUSH: So the die is cast here. These guys are just flailing away, and they’re not even making contact. It’s literally embarrassing these people. Steven in Rayford, North Carolina. I’m glad you called. Welcome to the program, sir.
CALLER: Hello, Rush. Rural letter carrier dittos to you. I’ve really enjoyed listening to the senator, listening to this whole process. But do you think that the Democratic senators who have been beaten by the ugly stick so badly by Mr. Roberts, will they be more prepared to come back the next time around, more vicious in their attacks?
RUSH: No question. You see, here’s what this sets up. I’m glad you called because this is an excellent question. This sets up a couple of possibilities. If the next nominee is able to replicate Roberts’ answers here, it doesn’t matter what the Democrats do. They’re going to be flummoxed. If the next nominee, whoever he or she is, is able to. I don’t mean replicate word-for-word, but replicate the style of the answers here. It’s going to be tough to find somebody this smart, but incident they’re out there. I bet they’re all over the place, these conservative jurists, Scalia, these people. They’re not rare. You can find them. But here’s the difference, and we gotta be honest about this. Roberts does not have a huge, long paper trail. He does have 50 opinions. He does have 50 opinions that he’s written, but he has not written them, say, in the style that a Robert Bork did.
So he didn’t present much of a target. The next nominee, we don’t know who it is, but if the next nominee has a much larger paper trail, has written many more opinions, and has been very forthcoming in these opinions, then that nominee will become a bigger target, and the Democrats will zero in even more. But I think the basic answer to your question is. They are going to be shell-shocked after this. The next seat is the O’Connor seat. They are really worried about this. That’s the “swing seat,” you understand, and the swing seat, that’s where a moderate’s supposed to go so that the moderate will side with the left more often than the right, and if Bush nominates a Roberts-type, I guarantee you because they don’t know how to be anything else they’ll come out with the howitzers. They’ll come out with the bazookas. They’ll come out with their shoulder-fired nukes. They’ll mount whatever they have got and they will tell lies in the questions like they’ve been trying to do with Roberts. They will mislead. They will take him out of context.
They will do everything they have trying to intimidate, and then as the nominee starts to answer, “Ah, ah, let me continue. I think we know the answer to that question is going to be, and we don’t want to hear it now. What do you say about something like this?” It’s going to be something like that, as they tried on the first day with Roberts but it didn’t work. But to expect these people to change the direction? They only one know direction, and that direction is backwards, and nothing is going to change their approach, their philosophical approach. Only their rancor will increase with the next nominee.
END TRANSCRIPT
Headline: Now Right Demanding Dem Memos
Source: The Hill
By: Alexander Bolton
Date: September 15, 2005
Conservative strategists are drafting a letter to Democratic members of the Senate Judiciary Committee demanding the release of hundreds of internal memos detailing contacts between the lawmakers and liberal interest groups opposing John Roberts’s nomination to the Supreme Court.
By planning to press Democrats on the sensitive subject, conservatives seem to be pulling a page from the Democrats’ own political playbook. In the weeks leading up to the confirmation hearings, Senate Democrats have repeatedly called on the White House to give them memos Roberts penned while he was deputy solicitor general in President George H.W. Bush’s administration.
Sen. Patrick Leahy (D-Vt.), the ranking member on the Judiciary Committee, raised the issue again yesterday by releasing a letter dated Sept. 9 from William Moschella, the assistant attorney general. In the letter, Moschella declined to disclose legal memos from Roberts’s tenure in the Office of the Solicitor General.
“It is regrettable that the Bush administration persists in keeping this information from the Senate,” Leahy said. “These documents, from the period of Judge Roberts’s most substantive work experience in the executive branch, would help illuminate his views and earlier decisions on a wide range of key issues that are of vital importance to the American people and to the Senate.”
In their letter, conservatives quote Leahy’s argument that the Senate should have access to the withheld documents. In the letter, they assert that the public is equally entitled to know what is motivating and directing Senate Democratic scrutiny of Roberts, according to a verbal summary given to The Hill.
“Given your demand that the Justice Department hand over John Roberts’s work documents during his time as deputy solicitor general, you should have no reservations about approving the release of the full complement of documents that make up all of the Memogate papers,” conservatives wrote in a draft of the letter, which will be circulated for signatures starting today. About 30 conservative leaders or more are expected to sign it.
A spokeswoman for the Democrats on the Senate Judiciary Committee declined to comment without first seeing a copy of the letter.
Specifically, conservatives want access to what they estimate may be as many as 4,000 Democratic memos that are in Senate Sergeant at Arms William Pickle’s possession. Last year, Pickle seized Senate Judiciary Committee computers during an investigation. Democrats on the committee called for the probe after internal memos written by aides to Sens. Edward Kennedy (D-Mass.) and Dick Durbin (D-Ill.) were made available to the press without Kennedy’s or Durbin’s consent.
The publicized memos detailed contacts between leading liberal members on the committee and groups that lobbied them on President Bush’s judicial nominees.
In their letter to Democrats, conservatives plan to argue that the memos are not protected by attorney-client privilege, giving them a stronger claim to the documents, they assert, than the Democrats have to the solicitor general’s documents. Roberts’s defenders have argued that a solicitor general’s relationship to a president is akin to an attorney-client relationship and deserves special privilege.
Mark Levin, president of the Landmark Legal Foundation, a conservative public-interest-litigation firm, said that he was familiar with the letter and plans to circulate it.
“I fully support it,” he said. “I’ve always thought that the Congress and the Senate Judiciary Committee in particular gets away with a hypocritical standard. They demand that the executive branch produce everything, and yet on the other hand they refuse to make anything public.”
Kay Daly, president of Coalition for a Fair Judiciary, a conservative group defending Roberts, said she was aware of the letter.
“There are some 4,000 memos locked away in the sergeant at arms’ office that the public has a right to know about,” she said.
Daly said that the since the taxpayers’ fund the salaries of lawmakers and their aides they have a right to know about their work.
Conservatives said their case is bolstered by a memo sent by the Senate archivist to all Judiciary Committee staff members instructing them to preserve all documents and e-mails related to Roberts’s confirmation proceedings, including correspondence with outside groups. Conservatives cite the archivist’s message to support their claim that the internal memos held by the sergeant at arms should be made part of the public domain.
Jeff Lord, who served as associate political director in the Reagan administration from 1985 to 1988 and is working with Progress for America, a pro-Roberts advocacy group, has called for the Democratic memos to be made public during recent trips to Washington state and North Dakota. He traveled to those states to promote a new book he has written about the contentious 2002 Senate confirmation battle over Judge Brooks Smith’s appointment to the 3rd U.S. Circuit Court of Appeals.
Lord called the memos “some of the most revealing things I’ve ever seen while in government,” adding that the evidence of coordination between Democratic senators and third-party groups in the memos made public was “eye-opening.”
One of the publicized memos, by a former aide to Kennedy and dated April 2002, reported that Elaine Jones of the NAACP Legal Defense Fund had asked Democrats to postpone the nomination of Judge Julia Gibbons to the 6th Circuit court until a key case on affirmative action had been decided. Conservatives consider it one of the most damning of the publicized batch.
The memo was downloaded from the Judiciary Committee server and made public in 2003.
Headline: Judiciary Panel Peppers Nominee with Pet Issues
Source: Washington Times
Date: September 15, 2005
By: Charles Hurt
With federal Judge John G. Roberts Jr.’s confirmation appearing more likely, members of the Senate Judiciary Committee have resorted to using the hearings to lobby the nominee about their own favorite issues.
Senators have pressed their views on the prospective chief justice about televising Supreme Court proceedings, the right to die and abortion, among other issues.
“Are you against cameras in the courtroom like [Chief] Justice [William H.] Rehnquist was?” Sen. Charles E. Grassley, Iowa Republican and longtime advocate of televising Supreme Court proceedings, asked bluntly.
Judge Roberts — sensing the prickly territory — made a lighthearted reference to former Sen. Fred Thompson, the Tennessee Republican and television star who has been ushering him through the confirmation process.
“Well, you know, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of,” he responded, before adding that he does not have a “set view” on the matter, but would listen to colleagues if confirmed.
After establishing that the opposite of being alive is being dead, Sen. Tom Coburn, Oklahoma Republican, went on to impress upon Judge Roberts his own view of abortion.
“I won’t press you on this issue,” Mr. Coburn said. “But for the listeners of this hearing, if in fact life is the presence of a heartbeat and brain wave, it’s important for everybody in the country to know that at 16 days post-conception, a heartbeat is present. At 41 days, right now we can assure ourselves, that brain activity and brain waves are present.”
Committee Chairman Arlen Specter, Pennsylvania Republican, took issue with the “denigrating comments” Supreme Court justices make about Congress. In particular, he was galled by one decision that ruled a law of Congress unconstitutional for its “method of reasoning.”
“Do we have your commitment that you won’t characterize your method of reasoning as superior to ours?” Mr. Specter asked in a tone that wasn’t terribly inquisitive.
“I don’t think it’s appropriate,” Judge Roberts responded.
For good measure, Mr. Specter added: “I take umbrage at what the court has said, and so do my colleagues. There isn’t a method of reasoning which changes when you move across the green from the Senate columns to the Supreme Court columns.”
But not all such exchanges were so friendly.
Sen. Joseph R. Biden Jr., Delaware Democrat, took the opportunity to lecture Judge Roberts about his own views of whether Congress has any say in whether feeding tubes are removed to allow a patient to die.
“My family faced — I’m sure many people in this audience’s families faced a difficult decision — of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive,” he explained. “It’s of great moment to the American public.”
Judge Roberts, as he had many times before, said it would be improper for him to discuss a matter pending before the Supreme Court.
Headline: Leahy Follows Orders
Subheadline: Ralph Neas says, “Jump.” He asks, “How high?”
Source: Wall Street Journal
Date: Saturday, August 20, 2005
It’s too bad there’s now a firewall in place on the computer system used by the Senate Judiciary Committee’s Democratic staff. We’d love to take a peek at the internal memos reacting to Tuesday’s Washington Post story headlined “Roberts Unlikely to Face Big Fight; Many Democrats See Battle as Futile.”
If the staff memos that were leaked on President Bush’s appeals-court nominees in 2003 are any guide, Democrats once again are taking dictation from liberal interest groups–this time on how to oppose Supreme Court nominee John Roberts. We expect Tuesday’s e-chatter went along the lines of: “Ralph Neas called . . .” and “Nan Aron wants . . .” In case you doubt us, we refer you to Wednesday’s follow-up story in the Post, headlined “Democrats Feel Heat From Left on Roberts; Groups Say Fight Should Be Stronger.”
It’s no news flash that organizations like the Alliance for Justice, People for the American Way and MoveOn.org are influencing Democrats’ attack on Judge Roberts. But the rapidity with which Senators Pat Leahy and Ted Kennedy jumped this week to follow the groups’ orders is nonetheless remarkable, and politically revealing.
Within hours of publication of the first Post story, Mr. Leahy hit the barricades with a statement calling Judge Roberts “an eager and aggressive advocate” of policies “deeply tinged with the ideology of the far right wing of his party.” During the Reagan years, the Senator added, the nominee held views “that were among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy, and access to justice.” At least he didn’t call Judge Roberts a member of the Taliban.
As for Senator Kennedy, he sent a letter to colleagues claiming the Reagan documents show that Judge Roberts “was on or beyond the outer fringe of that extreme group eager to take our law and society back in time on a wide range of issues of individual rights and liberties.”
It’s a sign of liberal frustration with the Roberts nomination that they are having to resort to the Gipper’s legacy to beat the judge. We remember Republicans who were still running against the New Deal in the 1960s, too, but not very successfully. If Democrats want to turn the Roberts confirmation into a referendum on the Reagan Presidency, the Bush White House will be delighted.
The Post also quoted Ms. Aron, president of the Alliance for Justice, as threatening Democrats with political retribution if they don’t oppose Judge Roberts. She specifically mentioned the defeat of former Illinois Senator Alan Dixon, who lost a Democratic primary in 1992 after he voted for Clarence Thomas. Never mind that there were plenty of other reasons for Mr. Dixon’s defeat, including anti-incumbent sentiment that recession year.
In any case, Democratic Senators up for re-election next year from the “red states” that elected Mr. Bush no doubt recall the more recent defeat of Tom Daschle and the five Democrats who failed to win open Senate seats in 2000 thanks in part to the judges issue. We also wonder how much Senators Robert Byrd (West Virginia), Kent Conrad (North Dakota), Ben Nelson (Nebraska) or Bill Nelson (Florida) appreciate being bullied by these liberals.
As more information emerges on Judge Roberts, it’s clear that he fits solidly in the judicial mainstream. Even a unanimous panel of the liberal American Bar Association gave the Supreme Court nominee its highest rating–well-qualified. And so the left is resorting to threats and made-up accusations, such as last week’s ad by Naral Pro-Choice America. Mr. Neas of People for the American Way says a number of liberal organizations will soon come out in formal opposition to Judge Roberts. We’ll be watching to see how many Senate Democrats follow him off the cliff.
Headline: John Roberts Deserves a Dignified Process
Subhead: An unseemly spectacle demeans us all.
Date: Monday, September 12, 2005
By: Theodore Olson
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.