Salvo 61 Against Roberts: Assertions He Broke The Law
I know the pointy ears of the Left just perked up with that title. It has been alleged that Judge John G. Roberts broke the law; the law in question being US Code 28, Section 455, sub-section a which states:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
For those that are lost, the accusation refers to his participation in the Hamdan case that came before the DC Court of Appeals. The case revolved around the question as to whether or not enemy combatants could challenge their incarceration, treatment, and military tribunal status in US federal court. In a blow to the fifth-column Left in the nation, the DC Court ruled against Hamdan, and in favor of the detainees and illegal combatants going through a military tribunal.
The tribunals are one hundred percent legal under the US Constitution. Congress has the power, under Article I, Section 8, Clause 9, "to constitute Tribunals inferior to the Supreme Court." In addition, Article III, Section 1 specifically states "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." So, such tribunals to deal with enemy combatants are legal, and the rights of the accused are protected.
But the question regarding Roberts surrounds a timeline of events that opponents of his nomination are pointing to. Let me elaborate on this. I will list the timeline below, and continue after it with the argument.
12/1/2004: The DC Court agrees to hear the Hamdan appeal. Roberts will be one of the three judges.
12/11/2004: The National Journal names Roberts among the ten short-list nominees the White House is looking at to replace any retiring justice on the Supreme Court.
3/8/2005: The originally scheduled date for oral arguments in Hamdan.
4/1/2005: Roberts meets with Attorney General Gonzales.
4/7/2005: Arguments in Hamdan. Under usual DC Circuit practice, each of the judges would cast their initial vote in conference that day. This follows the oral arguments, and any judge can change his mind up to the point where the opinion is agreed upon and drafted.
5/3/2005: Roberts meets with the Vice President and other White House officials.
5/23/2005: Roberts meets with the White House counsel, and her deputy.
7/1/2005: Associate Justice Sandra Day O’Connor announces her retirement.
7/8/2005: Roberts speaks with—via telephone from England—with the deputy White House counsel.
7/15/2005: The DC court releases its opinion in Hamdan.
7/15/2005: Roberts meets with President Bush.
7/19/2005: President Bush names Roberts as his nominee to replace departing Justice O’Connor.
Now, the argument being presented by the Left is that: A) Roberts spoke with Attorney General Gonzales prior to the arguments in Hamdan, which may show a level of impropriety (which is incredibly minute, as such interference in a pending legal case could put both in hot water), and B) That he participated in a case where the US was a party. Allow the pleasure of disseminating both arguments.
To the question of impropriety, first. Roberts met with Gonzales because he was a possible candidate for the Supreme Court. This is a standard procedure by the White House to let subordinates vet the candidate. My guess, as I was not privy to what occurred? That is what this meeting was about, and to back that up, Gonzales admitted that their meeting was about precisely that. This was a "shake-down" meeting where Gonzales got his initial perceptions of Roberts from.
Second, the idea that he could not participate in a case where the US was a party is preposterous. Did they expect him to sit on his hands after the National Journal article? Since when does the National Journal dictate "short-lists" for the president? This is an asinine argument, and for the rebuttal to it, I refer to Associate Justice Ginsburg.
The legacy of Justice Ginsburg could be a focal point in this confirmation process. Canon Five, or Ginsburg’s Rule, could be employed during the confirmation hearings. Canon 5 of the Model Code, among others, forbids judges or judicial candidates from indicating how they will rule on issues likely to come before the courts or making any statement that would create the appearance of partiality. This rule is critical to an independent judiciary. Justices must remain open-minded when an actual case comes before them. They must not even hint how they would rule. Roberts could invoke Canon Five in an effort to retain his impartiality, and block the committee from forcing him to reveal his beliefs.
The individual beliefs of a judge should never figure into a decision. The judge’s sole job is to render a decision that is based in the law. Justice Ginsburg invoked Cannon Five almost thirty times during her confirmation hearings, and no one uttered a peep about it. It was questioned by a member of the committee at the time, and it was explained to them what she was doing. The matter was dropped, and she was permitted to invoke the Canon as she saw fit.
But, when President Clinton was considering who to replace outgoing Justice Byron White, he opted for then-Judge Ginsburg over Judge Breyer. Roberts’ opponents claim that because Hamdan was sub judice (or under consideration for those unfamiliar with legal lingo) Roberts should have recused himself. This is another foolish argument as many cases sit as sub judice for months prior to being heard. A prime example of it is the docket for the Supreme Court. Their docket is revealed when a new session begins. Kelo sat as sub judice for a majority of the high court’s last session. This is just another excuse the Left is using, and it is not washing.
Prior to Justice Ginsburg’s confirmation hearings, she participated in over fifty civil cases that involved the US as a party, and over twenty-five criminal cases where the US was a party. In all of those records, never once did Justice Ginsburg recuse herself. And she was, like Roberts, on a president’s "short-list." Likewise, Justice Breyer went through almost a year of interviews with the Clinton White House and Justice Department. Throughout that year, he did not recuse himself once. Breyer was nominated in 1994, the year after Ginsburg was nominated, and approved by the Senate overwhelmingly.
In addition, the "short-list" had ten names on it. Did any of these potential nominees sua sponte (Of their own volition) recuse themselves? Of course not. Recusal from a particular case comes when a jurist has maintained that they will abide by their personal preferences rather than the rule of law. Many people carp about this when it comes to conservative justices, and their argument fails right there. So-called conservative jurists—like Scalia and Thomas—do not rule one way or another based on their personal beliefs. They render decisions based on the law. I suppose that for the Left that is a "radical" or "extreme" point-of-view.
This whole argument regarding judicial ethics was started by Professor Stephen Gillers, a professor of legal ethics at New York University. He accused that because Roberts was dealing with Hamdan, and that he had met with administration officials, that he should have recused himself. He based this argument on US Code Title 28, Section 455 (cited above). In it, he points directly to a specific phrase.
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
The emphasized section above is what Professor Gillers is pointing to in regard to Roberts. Gillers went further in stating that Roberts participation in the case gave "an appearance of impropriety," and on that supposed appearance alone, Roberts should have recused himself. As he did not, Gillers believes that Roberts broke the law. But what does the statute state? "Might reasonably be questioned" is as vague as "an appearance of impropriety."
The ALI and the ABA both have turned away from such vague terms. Indeed, in 2000 the ALI (American Law Institute) released the following statement in regard to such vague notions:
"The breadth of vague, catch-all provisions creates a risk that a charge using only such language would fail to give fair warning of the nature of the charges to a lawyer respondent and that subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it. That is particularly true of the ‘appearance of impropriety’ principle (stated generally as a Canon in the 1969 ABA Model Code of Professional Responsibility but purposefully omitted as a standard for discipline from the 1983 ABA Model Rules for Professional Conduct). Tribunals accordingly should be circumspect in avoiding overbroad readings or resorting to standards other than those fairly encompassed within an applicable lawyer code." –Restatement of the Law Governing Lawyers, Third Edition, Section Five, Comment C.
But Professor Gillers cannot seem to keep his logic straight. In a from Slate.MSN.Com from August 17, 2005, Professor Gillers states the following:
"Roberts did not have to sit out every case involving the government, no matter how routine, while he was being interviewed for the Supreme Court position. The government litigates too many cases for that to make any sense. But Hamdan was not merely suing the government. He was suing the president, who had authorized the military commissions and who had personally designated Hamdan for a commission trial, explaining that ‘there is reason to believe that [Hamdan] was … involved in terrorism.’"
But, the assertion he makes that Roberts should recuse himself contradicts this statement. And I disagree with Professor Gillers assertion that the president authorized the tribunals. Congress authorizes this. It is their job as dictated by the Constitution, as I cited above. Congress authorizes, the president approves. And as for the "reason to believe" that Hamdan was involved in terrorism, he was found on the battlefield, in the service of our enemy, by our troops. He wore no uniform. He had no identification as to what government he was fighting for. He was caught by our troops in Afghanistan in late 2001, and was later transferred to the Gitmo detention facility. As he was caught on the side of our enemy, he is an enemy combatant, and is therefore open to a tribunal, not a civil court trial.
This simpleton argument by the Left will have no wings. It cannot. It lacks any sort of reasoned logic. If we are to abide by Gillers interpretation of US Code Title 28, Section 455, then no justice who is ever under consideration for an appointment to the Supreme Court hear a case where the US, or her agencies, are a party. This goes against the traditions set by the judiciary since the founding of the nation.
In conclusion, I am left to wonder what Gillers proposes for Roberts. It is wholly obvious that he is against the confirmation of Roberts, but what does he wish further? In his opinion, Roberts broke the law, so, what punishment does "Judge" Gillers propose? Of course, there will be no answer to this. He would be satisfied to fulfill the mission of the Left now, and destroy the Roberts nomination before the hearings even begin.
Thomas and I have been following this, and we have come to the conclusion that there is nothing but straws that the Left is grasping at. There is nothing they will find. They are relying on the old Ted Kennedy trick of "Borking" Roberts if they can. The attacks in the beginning went straight to the personal level. The second level of attacks have gone after his personal beliefs. The third wave has attacked his professional behavior from his past, i.e. Solicitor General and Special Counsel to the Reagan White House. The fourth is now focused on his legal ethics and morals. We were both wrong in assuming, early on, that little ruckus would be raised over Roberts. It is now more and more apparent that the attacks will not stop, but they will stoop to levels of impropriety that would leave Professor Gillers speechless.
The Bunny ;)
I know the pointy ears of the Left just perked up with that title. It has been alleged that Judge John G. Roberts broke the law; the law in question being US Code 28, Section 455, sub-section a which states:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
For those that are lost, the accusation refers to his participation in the Hamdan case that came before the DC Court of Appeals. The case revolved around the question as to whether or not enemy combatants could challenge their incarceration, treatment, and military tribunal status in US federal court. In a blow to the fifth-column Left in the nation, the DC Court ruled against Hamdan, and in favor of the detainees and illegal combatants going through a military tribunal.
The tribunals are one hundred percent legal under the US Constitution. Congress has the power, under Article I, Section 8, Clause 9, "to constitute Tribunals inferior to the Supreme Court." In addition, Article III, Section 1 specifically states "The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." So, such tribunals to deal with enemy combatants are legal, and the rights of the accused are protected.
But the question regarding Roberts surrounds a timeline of events that opponents of his nomination are pointing to. Let me elaborate on this. I will list the timeline below, and continue after it with the argument.
12/1/2004: The DC Court agrees to hear the Hamdan appeal. Roberts will be one of the three judges.
12/11/2004: The National Journal names Roberts among the ten short-list nominees the White House is looking at to replace any retiring justice on the Supreme Court.
3/8/2005: The originally scheduled date for oral arguments in Hamdan.
4/1/2005: Roberts meets with Attorney General Gonzales.
4/7/2005: Arguments in Hamdan. Under usual DC Circuit practice, each of the judges would cast their initial vote in conference that day. This follows the oral arguments, and any judge can change his mind up to the point where the opinion is agreed upon and drafted.
5/3/2005: Roberts meets with the Vice President and other White House officials.
5/23/2005: Roberts meets with the White House counsel, and her deputy.
7/1/2005: Associate Justice Sandra Day O’Connor announces her retirement.
7/8/2005: Roberts speaks with—via telephone from England—with the deputy White House counsel.
7/15/2005: The DC court releases its opinion in Hamdan.
7/15/2005: Roberts meets with President Bush.
7/19/2005: President Bush names Roberts as his nominee to replace departing Justice O’Connor.
Now, the argument being presented by the Left is that: A) Roberts spoke with Attorney General Gonzales prior to the arguments in Hamdan, which may show a level of impropriety (which is incredibly minute, as such interference in a pending legal case could put both in hot water), and B) That he participated in a case where the US was a party. Allow the pleasure of disseminating both arguments.
To the question of impropriety, first. Roberts met with Gonzales because he was a possible candidate for the Supreme Court. This is a standard procedure by the White House to let subordinates vet the candidate. My guess, as I was not privy to what occurred? That is what this meeting was about, and to back that up, Gonzales admitted that their meeting was about precisely that. This was a "shake-down" meeting where Gonzales got his initial perceptions of Roberts from.
Second, the idea that he could not participate in a case where the US was a party is preposterous. Did they expect him to sit on his hands after the National Journal article? Since when does the National Journal dictate "short-lists" for the president? This is an asinine argument, and for the rebuttal to it, I refer to Associate Justice Ginsburg.
The legacy of Justice Ginsburg could be a focal point in this confirmation process. Canon Five, or Ginsburg’s Rule, could be employed during the confirmation hearings. Canon 5 of the Model Code, among others, forbids judges or judicial candidates from indicating how they will rule on issues likely to come before the courts or making any statement that would create the appearance of partiality. This rule is critical to an independent judiciary. Justices must remain open-minded when an actual case comes before them. They must not even hint how they would rule. Roberts could invoke Canon Five in an effort to retain his impartiality, and block the committee from forcing him to reveal his beliefs.
The individual beliefs of a judge should never figure into a decision. The judge’s sole job is to render a decision that is based in the law. Justice Ginsburg invoked Cannon Five almost thirty times during her confirmation hearings, and no one uttered a peep about it. It was questioned by a member of the committee at the time, and it was explained to them what she was doing. The matter was dropped, and she was permitted to invoke the Canon as she saw fit.
But, when President Clinton was considering who to replace outgoing Justice Byron White, he opted for then-Judge Ginsburg over Judge Breyer. Roberts’ opponents claim that because Hamdan was sub judice (or under consideration for those unfamiliar with legal lingo) Roberts should have recused himself. This is another foolish argument as many cases sit as sub judice for months prior to being heard. A prime example of it is the docket for the Supreme Court. Their docket is revealed when a new session begins. Kelo sat as sub judice for a majority of the high court’s last session. This is just another excuse the Left is using, and it is not washing.
Prior to Justice Ginsburg’s confirmation hearings, she participated in over fifty civil cases that involved the US as a party, and over twenty-five criminal cases where the US was a party. In all of those records, never once did Justice Ginsburg recuse herself. And she was, like Roberts, on a president’s "short-list." Likewise, Justice Breyer went through almost a year of interviews with the Clinton White House and Justice Department. Throughout that year, he did not recuse himself once. Breyer was nominated in 1994, the year after Ginsburg was nominated, and approved by the Senate overwhelmingly.
In addition, the "short-list" had ten names on it. Did any of these potential nominees sua sponte (Of their own volition) recuse themselves? Of course not. Recusal from a particular case comes when a jurist has maintained that they will abide by their personal preferences rather than the rule of law. Many people carp about this when it comes to conservative justices, and their argument fails right there. So-called conservative jurists—like Scalia and Thomas—do not rule one way or another based on their personal beliefs. They render decisions based on the law. I suppose that for the Left that is a "radical" or "extreme" point-of-view.
This whole argument regarding judicial ethics was started by Professor Stephen Gillers, a professor of legal ethics at New York University. He accused that because Roberts was dealing with Hamdan, and that he had met with administration officials, that he should have recused himself. He based this argument on US Code Title 28, Section 455 (cited above). In it, he points directly to a specific phrase.
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
The emphasized section above is what Professor Gillers is pointing to in regard to Roberts. Gillers went further in stating that Roberts participation in the case gave "an appearance of impropriety," and on that supposed appearance alone, Roberts should have recused himself. As he did not, Gillers believes that Roberts broke the law. But what does the statute state? "Might reasonably be questioned" is as vague as "an appearance of impropriety."
The ALI and the ABA both have turned away from such vague terms. Indeed, in 2000 the ALI (American Law Institute) released the following statement in regard to such vague notions:
"The breadth of vague, catch-all provisions creates a risk that a charge using only such language would fail to give fair warning of the nature of the charges to a lawyer respondent and that subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it. That is particularly true of the ‘appearance of impropriety’ principle (stated generally as a Canon in the 1969 ABA Model Code of Professional Responsibility but purposefully omitted as a standard for discipline from the 1983 ABA Model Rules for Professional Conduct). Tribunals accordingly should be circumspect in avoiding overbroad readings or resorting to standards other than those fairly encompassed within an applicable lawyer code." –Restatement of the Law Governing Lawyers, Third Edition, Section Five, Comment C.
But Professor Gillers cannot seem to keep his logic straight. In a from Slate.MSN.Com from August 17, 2005, Professor Gillers states the following:
"Roberts did not have to sit out every case involving the government, no matter how routine, while he was being interviewed for the Supreme Court position. The government litigates too many cases for that to make any sense. But Hamdan was not merely suing the government. He was suing the president, who had authorized the military commissions and who had personally designated Hamdan for a commission trial, explaining that ‘there is reason to believe that [Hamdan] was … involved in terrorism.’"
But, the assertion he makes that Roberts should recuse himself contradicts this statement. And I disagree with Professor Gillers assertion that the president authorized the tribunals. Congress authorizes this. It is their job as dictated by the Constitution, as I cited above. Congress authorizes, the president approves. And as for the "reason to believe" that Hamdan was involved in terrorism, he was found on the battlefield, in the service of our enemy, by our troops. He wore no uniform. He had no identification as to what government he was fighting for. He was caught by our troops in Afghanistan in late 2001, and was later transferred to the Gitmo detention facility. As he was caught on the side of our enemy, he is an enemy combatant, and is therefore open to a tribunal, not a civil court trial.
This simpleton argument by the Left will have no wings. It cannot. It lacks any sort of reasoned logic. If we are to abide by Gillers interpretation of US Code Title 28, Section 455, then no justice who is ever under consideration for an appointment to the Supreme Court hear a case where the US, or her agencies, are a party. This goes against the traditions set by the judiciary since the founding of the nation.
In conclusion, I am left to wonder what Gillers proposes for Roberts. It is wholly obvious that he is against the confirmation of Roberts, but what does he wish further? In his opinion, Roberts broke the law, so, what punishment does "Judge" Gillers propose? Of course, there will be no answer to this. He would be satisfied to fulfill the mission of the Left now, and destroy the Roberts nomination before the hearings even begin.
Thomas and I have been following this, and we have come to the conclusion that there is nothing but straws that the Left is grasping at. There is nothing they will find. They are relying on the old Ted Kennedy trick of "Borking" Roberts if they can. The attacks in the beginning went straight to the personal level. The second level of attacks have gone after his personal beliefs. The third wave has attacked his professional behavior from his past, i.e. Solicitor General and Special Counsel to the Reagan White House. The fourth is now focused on his legal ethics and morals. We were both wrong in assuming, early on, that little ruckus would be raised over Roberts. It is now more and more apparent that the attacks will not stop, but they will stoop to levels of impropriety that would leave Professor Gillers speechless.
The Bunny ;)
posted by Syd And Vaughn | 12:53 PM
1 Comments:
Excellent blog. Very good research, analyzing and written. You made mincemeat of that law "professor." Good work. Rawriter
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