Supreme Court nominee: John G. Roberts Jr.

[SOS2008]

Thanks for providing the link. You did read the entire article that detailed which way each justice voted, didn't you?

In response to Skyhunter, my post focused on:

Originally Posted by Skyhunter
I oppose Roberts because he is a corporate attorney who has consistently supported and advocated for corporate rights over personal rights.

I believe you are referring to this sentence in the article:

She was joined in her opinion by Chief Justice William Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas.

Though these justices are conservatives, in this case they stood for individual rights. However, with Roberts background it seems questionable whether he would have joined them, and even more doubtful he would have played the swing vote role of O'Connor. What if there were, say four more Roberts weighing in on this decision? As for these conservative judges, how often are they the ones who usually favor individual rights?

And knowing how pro-business Bush is, I am suspicious of his nominees in such areas.

 

[Skyhunter]

So you're saying that Robert's past as a corporate attorney will put him in the same camp as the first five? Or his conservative background will put him in the same camp as the second four?

Edit: The second four were in the 'smaller' majority, probably more commonly known as minority.

Roberts' record may be opaque when it comes to Roe v Wade but on corporate issues it's as clear as daylight. When he was deputy solicitor general he ran the government's case when the Supreme Court issued what was probably the most devastating ruling on environmental issues in the last generation. This was the Lujan v National Wildlife Federation decision in 1990. It tightly restricted the doctrine of "standing" which gives environmentalists the right to challenge destructive practices on federal lands.

It would be hard for Roberts to argue that he was just doing his job as a government lawyer. Returning to private practice from the Solicitor General's office, he was swiftly picked as counsel by the National Mining Association, which had noted his victory in the Lujan decision. On behalf of the coal companies Roberts wrote a legal brief arguing that local citizens in West Virginia had no right to bring lawsuits challenging the most destructive form of mining ever devised, mountain-top removal. Later, going through confirmation to the Appeals Court, Roberts was asked what had been his most significant cases in private practice. In his response he proudly highlighted his work for the coal companies.

Here is the link for the whole article.

http://www.counterpunch.org/cockburn07202005.html

 

[kat]

hmm...just out of curiosity and relevant only because others are using them as a basis for arguement...
how many of you really consider newsmax as a reliable source of information...and uh...counterpunch, do you really consider that a reliable source?

 

[The Smoking Man]

hmm...just out of curiosity and relevant only because others are using them as a basis for arguement...
how many of you really consider newsmax as a reliable source of information...and uh...counterpunch, do you really consider that a reliable source?

I created a new thread 'Source vs. Content to explore this issue.

Hope you don't mind, Kat.

 

[Skyhunter]

Here are other sources, that one was more readable, and summarized my earlier point.

http://www.independentjudiciary.com/resources/docs/John_Roberts_Report.pdf

http://www.dkosopedia.com/index.php/John_G._Roberts

http://slate.msn.com/id/2121270/

http://www.law.umich.edu/library/news/topics/roberts/oralarg/89-640.pdf

I could add more and I looked for a right-wing view point on the Lujan v National Wildlife Federation case, but it doesn't seem to be a portion of his record they are highlighting.

This is as closest thing to a right wing biased news source I could find on google.

http://www.foxreno.com/news/4744355/detail.html

 

[BobG]

Here's an interesting article (well, at least if you're a nerd). Pattern Analysis of the Reihnquist Supreme Court[/url].

How significant is O'Connor's replacement?

47% of the time, the USSC decision is unanimous (that's interesting in itself, considering the USSC gets to decide which cases they'll even consider).

4.5% of the time, the decision is 8-1, with Stevens the lone dissenter.

3% of the time, the decision is 7-2, with Scalia and Thomas the two dissenters.

In fact, Scalia and Thomas vote the same way over 93% of the time, while Ginsburg and Souter vote the same way over 90% of the time (the only exceptions have almost always been when Ginsburg joined one of Stevens's dissents - Stevens is the minority more often than any other judge on the USSC.)

Those five justices represent the two extremes of the USSC and are never the deciding factor in a close case. The USSC most resembles a court with 4.68 ideal judges whose ruling on a case can't be predicted ahead of time.

15.3% of the time, the decision is 5-4. Of those (72 times for the current court), O'Connor voted with the majority 63 times. The other critical judge is Kennedy who voted with the majority in 54 of the 72 5-4 votes.

However, that's a little deceiving. The court is really aligned about 4-3 with the liberal side (Stevens, Ginsburg, Souter, Breyer) having a slight edge over the conservative side (Scalia, Thomas, Reihnquist). It only takes one (Kennedy or O'Connor) to side with the liberal side to swing the vote while both have to side with the conservative side to swing the vote.

With the current court, O'Connor and Kennedy are the two most important judges - with the future court (with an unknown Roberts excluded), Kennedy will overwhelmingly be the most important judge with Reihnquist the second most important (the fact that Reihnquist is the most likely 'conservative' judge, other than Kennedy or O'Connor, to side with the liberal wing should get liberals even more spun up, since he's the most likely 'next' replacement slot).

Of the 72 5-4 decisions, 18 (or 25%) of them were decided by O'Connor aligning herself with the liberal wing of the USSC. That means that if Roberts turns out to be a 'conservative' judge, it will have an effect on about 3.8% of the cases that go before the USSC.

Of course, the real issue for most people isn't how many issues a change of balance in the USSC will affect. Instead it's probably more about what one or two 'key' cases are affected.

 

[SOS2008]

BobG - Very interesting (oh no, does that make me a nerd?).

You hit the nail on the head that liberals are concerned about what judges are leaving the court. And as I stated earlier, they aren't so concerned about Roberts by himself (with exception of setting precedent) but that there may be as many as three more appointments like him added to the court. What might that do to the stats above?

 

[BobG]

BobG - Very interesting (oh no, does that make me a nerd?).

You hit the nail on the head that liberals are concerned about what judges are leaving the court. And as I stated earlier, they aren't so concerned about Roberts by himself (with exception of setting precedent) but that there may be as many as three more appointments like him added to the court. What might that do to the stats above?

Mmmm, they might be concerned about Roberts, depending on what they consider key issues.

I don't see much advantage to replacing O'Connor since most of the issues she flipped to the left on weren't very high priority for me. There's little chance of improvement and, if the Bush team has done their usual bang-up job in assessing things, a risk Roberts could wind up being as liberal as Stevens.

If abortion rights were the one key issue I was concerned about, I might be pretty leary of Roberts. With O'Connor, the court's opinion towards Roe v Wade was 5 in favor of protecting abortion, 3 believing it should be overturned, with Breyer's only position being that Roe v Wade is a settled issue (Breyer's one of the wild cards on the court, even if more predictable than Kennedy and O'Connor). With O'Connor leaving, it's 4-3 that can be counted before the issue ever comes up, with everyone waiting to see what Breyer and Roberts rule should the issue come up.

It really comes down to what special interests a person has as to whether they would be upset by the prospect of a most likely conservative Roberts on the court.

You have a big point about what happens if Stevens, Ginsburg, or Souter retire. The replacement would almost certainly be more conservative than any of those three. Someone like Stevens being replaced by someone like Scalia would be a dramatic change, for sure.

 

[Skyhunter]

Here are a few interesting tidbits about John Roberts.

A conflict of interest for John G. Roberts?
Imagine that you're a party to a lawsuit. Now imagine that, once the case is over and you've lost, you find out that the judge who ruled against you was interviewing for a job with your opponent at the same time he was presiding over your case.

Would you feel, just maybe, that the judge had a conflict of interest? And how would you feel knowing that the judge got the job he was seeking -- and that the job was a lifetime appointment as an associate justice on the U.S. Supreme Court?

Those are some of the questions raised by Jim VandeHei's report in this morning's Washington Post. On July 15, John Roberts joined two of his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit in holding that the Bush administration could use military tribunals to try detainees it is holding at Guantánamo Bay. What only Roberts and the White House knew the day the decision came down: At the very moment Roberts was considering the administration's appeal, he was also interviewing for a job on the Supreme Court.

Roberts and his colleagues heard the case of Hamdan v. Rumsfeld on April 7. Pursuant to the usual practice in the D.C. Circuit, Roberts would have known he was assigned to the case weeks if not months earlier. Yet on April 1 -- with the Hamdan briefs undoubtedly in his chambers -- Roberts met with Attorney General Alberto Gonzales about a possible Supreme Court nomination. In May, with a decision in the Hamdan case still pending, Roberts went to the White House to interview with Dick Cheney, Andrew Card and Karl Rove, the Post says. And on July 15 -- the same day the Hamdan decision was released -- Roberts interviewed with the president himself.

Federal law states that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Might Roberts' impartiality be "reasonably questioned" here? It's hard to see how it couldn't be. A White House official tells the Post that it would be unwise and unworkable to prohibit any judge who wanted a promotion from hearing cases involving the federal government; such cases are so common that the federal courts would just about come to a standstill. But there's a significant difference in degree here. While the federal courts are full of cases involving the federal government -- low-level drug prosecutions, tax cases, disputes over the decisions of administrative agencies on everything from telephone charges to workplace rules -- most of those cases aren't of particularly keen interest to the president and his senior aides. The Hamdan case was. As the Post says, the question of the propriety of military tribunals sits "at the heart of Bush's anti-terrorism strategy." Would the president have been less enthusiastic about nominating Roberts if Roberts had ruled against the administration in Hamdan? More important, might one -- say, a detainee at Guantánamo -- reasonably think that Roberts was thinking he would hurt his Supreme Court prospects if he ruled against the president in Hamdan?

But he was only representing a client, right?
The confirmation of John G. Roberts is probably a done deal, but that doesn't mean that it's a good idea. George W. Bush's Supreme Court nominee seems to be skating through the Senate on the feeling that he's not Janice Rogers Brown-weird and the pretense that the pretty consistently conservative views he has expressed to date were merely the work product of a lawyer representing clients who just happened to be conservative themselves.

But as papers from Roberts' past continue to dribble out, the latter argument is getting a little harder to make. As the Chicago Tribune reports today, Roberts, while working as a young lawyer in the Reagan White House, was extremely critical of the notion that women should receive equal pay for work comparable in value to that done by men. He said that it was "difficult to exaggerate the perniciousness of the 'comparable worth' theory," and he said it would require "nothing less than the central planning of the economy by judges." When three female Republicans in Congress endorsed the idea, Roberts was incredulous. "I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept," he wrote.

The analysis came in a memo that Roberts wrote to then-White House Counsel Fred Fielding -- which is to say, not in a legal brief he had to file on behalf of a client. In another such memo, Roberts said he thought a Supreme Court decision that prohibited silent prayer in schools was "indefensible." In another, he said he thought it would be "entirely appropriate" to hold a memorial service to call attention "to the abortion tragedy." The memo came, as the Washington Post notes, at the end of a court battle over whether 16,500 aborted fetuses should be turned over to anti-abortion activists for burial. In yet another memo, Roberts said abortion rights in America were based on the "so-called 'right to privacy.'" That is the same "so-called right" that stands between married couples and a state legislature's desire to outlaw contraception.

As the Post observes, the memos, which were among the documents released Monday by the Ronald Reagan Presidential Library, show that Roberts has "staked out conservative positions on a broader array of issues than has previously been known." And there is, presumably, more of the same to come. Among the documents that weren't released Monday: memos Roberts wrote about presidential pardons and the tax exempt status for Bob Jones University, approximately 20 pages from a Roberts file on the Equal Employment Opportunity Commission and other papers relating to affirmative action.

I wonder what is in the papers the White House is refusing to release?

 

[loseyourname]

Do you have a link for this? I got the impression that the Reagan library was releasing these papers, not the White House.

 

[Skyhunter]

You are correct. These memos are from the Reagan library.

Here is the article from the Washington Post.

http://www.washingtonpost.com/wp-dyn/content/article/2005/08/16/AR2005081601561.html?sub=AR


This is the article covering the White House refusing to release documents from George H. Bush's administration.

http://www.cbsnews.com/stories/2005/07/26/supremecourt/main711851.shtml

 

[loseyourname]

So what is the difference between the documents he prepared during the Reagan administration and during the Bush adminstration? Did he serve in a different capacity during each? I don't understand why one set would be protected by privilege and the other wouldn't.

 

[Skyhunter]

So what is the difference between the documents he prepared during the Reagan administration and during the Bush adminstration? Did he serve in a different capacity during each? I don't understand why one set would be protected by privilege and the other wouldn't.

I don't know either and I have not had the time to do much digging yet.

I think that the WH is using attorney client privilege as the reason for holding back the G. H. Bush documents.

The one that concerns me is his referring to the "so called right to privacy". As I believe I stated earlier, Roe v Wade is about privacy, not abortion.

A conservative gentlemen engaged me in a conversation about religious freedom by telling me that there is no separation of church and state in the constitution. I quoted him the first amendment. He told me that the separation of church and state was from a letter by Thomas Jefferson, when Jefferson wasn't president. A week later he showed up with a copy of the constitution, a copy of the letter that Jefferson wrote to the Baptist association in 1802, and another document explaining what Jefferson meant.

I pointed out to him that;

1) Jefferson was President from 1801-1809.

2) The in the letter to the Baptist association he cited the first amendment and said it "creates a wall of separation between church and state.

3) Jefferson was the primary author of the constitution.

4) Jefferson was quite clear in what he wrote and that the explanation of what he meant was BS.

I agreed however that the phrase "separation between church and state" does not appear in the constitution. Taking my acquiescence as agreement to his entire argument, he then went on to tell me how the Supreme Court has been rewriting the constitution and we need to get constructionist like Roberts on the bench to reverse 200 years of activist judges changing our constitution.

He was so sincere he scared the hell out of me.

 

[McGyver]

Roberts Vulnerable on UltraConserve Bus Views

Though it appears Roberts' abortion views may be that which tips the scales to/for his approval to the Supreme Court. My sources indicate his biggest liability may be his untra-conservative views in regards to corporate business and employment.

 

[Informal Logic]

...he then went on to tell me how the Supreme Court has been rewriting the constitution and we need to get constructionist like Roberts on the bench to reverse 200 years of activist judges changing our constitution.

He was so sincere he scared the hell out of me.

This is what has been being preached by the right wing fundamentalists, and was repeated in the "Justice Sunday II" BS. We all should be scared about this. These people are drawn to this kind of stuff, and wouldn't know the facts if it bit them in the arse.

 

[SOS2008]

Though it appears Roberts' abortion views may be that which tips the scales to/for his approval to the Supreme Court. My sources indicate his biggest liability may be his untra-conservative views in regards to corporate business and employment.

I agree, and have mentioned this as well, because this is what Bush is all about.

This is what has been being preached by the right wing fundamentalists, and was repeated in the "Justice Sunday II" BS.

They complain that the court has become activist, but what they really mean is they want the court to be activist in advancing their partisan agenda of a few. Then it's okay to be activist, don't you know.

 

[Skyhunter]

The more I learn about this guy the less I like him.

Democrats have devoted plenty of attention to scouring John Roberts's record. Yet to date they've paid surprisingly little attention to his support for perhaps the oddest legacy of the Rehnquist Court: its unprecedented expansion of the "sovereign immunity" doctrine to greatly restrict the ability of private citizens to obtain money from states that violate their federal rights. Raising the issue at next week's Senate confirmation hearings won't, of course, sink Roberts's nomination. But it just might give Democrats a rare opportunity to claim the mantle of anti-government reform at a time when the whole nation will be watching.

The Court's recent expansion of sovereign immunity, rooted in the dubious English common-law notion that "the King can do no wrong," has given states a virtual license to break the law with impunity. Thanks to the Court, you're out of luck if you try to sue a state for money when, in violation of federal law, it fires you because you're too old, demotes you because you have breast cancer, refuses to accommodate your disability at work, stiffs you on overtime pay, rips off your patent, or plagiarizes your copyright. The state technically still isn't allowed to do these things--you can get a court order telling it to stop, and, in the employment context, rehire you, assuming you still want the job. What you cannot do, however, is get the state to provide back pay if it wrongly fired you or damages if it stole your intellectual property. In other words, the state can violate federal law unless and until it gets caught, at which point it pays no price for its prior lawbreaking. It's like telling a car thief that he can keep your Honda, but he mustn't steal your Chevy.

What does Roberts think about this? In a 1999 interview with National Public Radio, Roberts lavished praise upon three sovereign immunity decisions handed down the previous day, describing them as a "big deal" and a "healthy reminder" that "we still live under a federal system" in which "states as co-equal sovereigns have their own sovereign powers." Roberts explained that "just because Congress has the power to tell individuals and companies that this is what you're going to do, and if you don't do it, people can sue you, that doesn't mean they can treat the states the same way."

 

[loseyourname]

Orff v. United States, decided on June 23rd of this year, was the latest Supreme Court ruling upholding sovereign immunity. Given that the decision of the court was unanimous, I'm not sure how exactly this sets Roberts apart from any other justice. Granted, the far more controversial Alden v. Maine case from 1999, which is probably the one Roberts was referring to in that NPR interview (ironically, also decided on June 23rd of that year) was ruled only 5 to 4. It is worth noting, however, that Sandra Day O'Connor was one of the majority justices that ruled in favor of sovereign immunity in that and the two other major cases from that year. In that sense, appointing Roberts isn't going to change anything.

I have to wonder how widely applicable this sovereign immunity thing is, though. When I worked on the Census in 2000, the workers successfully sued the government for failing to pay overtime wages.

 

[Skyhunter]

Orff v. United States, decided on June 23rd of this year, was the latest Supreme Court ruling upholding sovereign immunity. Given that the decision of the court was unanimous, I'm not sure how exactly this sets Roberts apart from any other justice. Granted, the far more controversial Alden v. Maine case from 1999, which is probably the one Roberts was referring to in that NPR interview (ironically, also decided on June 23rd of that year) was ruled only 5 to 4. It is worth noting, however, that Sandra Day O'Connor was one of the majority justices that ruled in favor of sovereign immunity in that and the two other major cases from that year. In that sense, appointing Roberts isn't going to change anything.

I have to wonder how widely applicable this sovereign immunity thing is, though. When I worked on the Census in 2000, the workers successfully sued the government for failing to pay overtime wages.

Good point. I hadn't done a lot of research into sovereign immunity. My thoughts were that when combined with imminent domain, we are screwed.

If you recall, what was the judgement?

 

[loseyourname]

Good point. I hadn't done a lot of research into sovereign immunity. My thoughts were that when combined with imminent domain, we are screwed.

If you recall, what was the judgement?

If you're talking about the Census case, I don't actually remember, as I wasn't involved in the case. I just remember receiving notice that settlement had been reached and that if I had been screwed on overtime, I was eligible to receive money. I never worked any overtime for them, however, so I just threw the letter away. The letter was from the state, though, with the seal and everything, so I don't think it was bogus.

Yeah, things like sovereign immunity and imminent domain are tough to swallow. I don't really like them either, but they are institutions that have been repeatedly upheld by judges and courts across the political spectrum. I'm sure they have their rationale.

Personally, I don't really fret over Roberts because, let's face it, one way or another he will be appointed. It's hard to believe that a man with so little judicial experience and almost no record was honestly the best choice, but, on the other hand, Bush could have done much worse, and probably still pushed through the appointment. The strongest impression I get from Roberts, and something I actually like about him, is that, though he has certainly shown that he has strong opinions that he isn't afraid to vocalize, he doesn't seem to let those influence his legal judgement. He upholds what he feels to be the true spirit of the law, whether he agrees or not. At least that's the impression I get. But again, with such a small sample of judicidial rulings to go off, it's hard to tell beyond these general impressions. You have to admit, though, the guy really comes across as a robot.

 

[Skyhunter]

Personally, I don't really fret over Roberts because, let's face it, one way or another he will be appointed. It's hard to believe that a man with so little judicial experience and almost no record was honestly the best choice, but, on the other hand, Bush could have done much worse, and probably still pushed through the appointment.

I think Bush & Co. know. And since Bybee, the guy who wrote this (http://news.findlaw.com/hdocs/docs/doj/bybee80102ltr5.html)
has been appointed to the ninth circuit, I worry about the type of judges they are looking for.

http://news.findlaw.com/hdocs/docs/doj/bybee80102ltr5.html

 

[loseyourname]

I think Bush & Co. know. And since Bybee, the guy who wrote this (http://news.findlaw.com/hdocs/docs/doj/bybee80102ltr5.html)
has been appointed to the ninth circuit, I worry about the type of judges they are looking for.

http://news.findlaw.com/hdocs/docs/doj/bybee80102ltr5.html

Yeah, as much as that sucks, I can't get riled up over the judge who wrote the ruling. He seems to be right legally, and it's only his job to uphold the law, not to make sure that we have the right laws. When something like that happens, I place the blame on the legislature. Loopholes like this that allow the US to torture detainees really need to be closed, and as far as I'm concerened, the honus lies on the executive and legislative branches, Bush and Congress, basically.

Then again, I've strongly considered going to law school and I tend to idealize the judicial branch of the government. I'll openly admit my bias in favor of them. I do loathe, Scalia, though.

 

[Skyhunter]

Yeah, as much as that sucks, I can't get riled up over the judge who wrote the ruling. He seems to be right legally, and it's only his job to uphold the law, not to make sure that we have the right laws. When something like that happens, I place the blame on the legislature. Loopholes like this that allow the US to torture detainees really need to be closed, and as far as I'm concerened, the honus lies on the executive and legislative branches, Bush and Congress, basically.

Then again, I've strongly considered going to law school and I tend to idealize the judicial branch of the government. I'll openly admit my bias in favor of them. I do loathe, Scalia, though.

Maybe you should. Close those loopholes.