A Man Among Boys: Judge Roberts, Day Two
http://www.confirmthem.com/?p=1211
http://www.confirmthem.com/?p=1218
http://www.confirmthem.com/?p=1226
(The links above will take you to the full transcripts of the day. They had to be broken down into three separate entries, usually broken down by the recesses of the committee. This explains why tonight's post is so long, and why it took us so long to get it up.)
Somebody get the referee in this fight before the Democrats get hurt. Yep, it’s time for the New Clouseaus to call it a day, and throw in the towel. Roberts played nice with them today. I expect nothing less from a man so professional, so right, and so polite. No, he won’t take swipes like we do. No, he won’t be insulting. But I get the distinct feeling that Roberts is firm in the belief that he is telling the Democrats to go to Hell, and he’s doing it with a smile on his face. And guess what? They have no idea how to handle him.
Tonight we were planning on doing a repeat of last night, giving our readers a sort of "greatest hits" from the Democrats. However, this soon got to be too long. Thomas and I are no strangers when it comes to long posts, but this took long to the extreme. So, you will be entertained by our synopsis of the day. We will only touch on the notable exchanges. This includes both Republicans and Democrats, as even Sen. Specter was befuddled by Judge Roberts.
So, since we’re already on Specter, let’s just keep it going. Specter, despite his better angels, decided to get right down to business this morning, and asked Roberts about Roe without actually invoking Roe. Of course, this pro-choicer couldn’t help himself. He tossed out the case name in his first sentence, and wanted to know where Roberts stood on a woman’s right to choose. He then brought up Casey, and followed up with a debate over stare decisis. He invoked other cases for Roberts, including Brown, and continued to question the stance of stare decisis by the court.
What Sen. Specter failed to pick up on was two important points the Judge Roberts distinguished. First, that when questioned regarding a particular case, like Roe and Casey, he was not going to render any sort of decision. He was not going to be openly critical of it, nor would he criticize the decision. He even made it clear that when the question revolves around how the case was decided, he would answer a simple question. Second, that stare decisis does have its place in jurisprudence. As far as he is concerned, as things stand now, Roe and Casey are precedents set by the court that must be adhered to. We may not like it, but the "law" is the law. Precedent is equal to law because it either reinforces or weakens the law in question. He stated that stare decisis—the precedent of the court—stands now as it is, which is equally and equitably enforceable.
"Leaky" Leahy stepped up next, and was struck down quickly. He brought up the pension question regarding soldiers returning from Lebanon, where he questioned the conflict in the power of Congress and the president. Roberts answer is below. Leahy also brought up the Youngstown case revolving around Truman’s seizure of steel mills. And then, obviously taking a page from Kennedy yesterday, brought up the infamous case of Korematsu.
LEAHY: And then you explained even parenthetically that even if the president vetoed such a joint resolution, of course, Congress could override it by two-thirds majority. I find that troubling; I’ll tell you why. Before I read your memo, I thought everybody agreed there would be only one answer to the question of whether Congress could stop a war. Your memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war. I really find that extremely hard to follow. And I imagine most Americans would. I’ll give you a hypothetical. Congress passes a law for all U.S. forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, You must withdraw by a certain date. Now, is there any question in your mind that the president would be bound to faithfully execute that law?
ROBERTS: Well, Senator, I don’t want to answer a particular hypothetical that could come before the court, but I’m happy to comment on the memorandum that you’re discussing.
LEAHY: No, wait a minute. I mean, isn’t this kind of hornbook law? I don’t know of any cases coming before the court; I mean, this is kind of hornbook. The Congress says to the president, You got to get out, and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn’t the president have to — charged as he is under the Constitution to faithfully execute the law, why wouldn’t he have to follow that law?
ROBERTS: Well, Senator, that issue of — and similar issues have, in fact, come up. There were, for example, lawsuits concerning the legality of the war in Vietnam; various efforts. And certainly the arguments would be made on the other side about the president’s authority. And that may well come before the court.
LEAHY: Judge, with all due respect, the cases in Vietnam were not based on a specific law passed by Congress to get out. I mean, Congress did cut off the funding…
ROBERTS: Right.
LEAHY: … in April, 1975, by a one-vote margin in the Armed Services Committee. I know because I was the newest member of the committee at that time — voted to not authorize the war any longer. But are you saying that Congress could not pass a law that we must withdraw forces?
ROBERTS: No, Senator, I’m not. What I’m saying is that that issue or issues related to that could well come before the court, and that’s why I have to resist answering a particular hypothetical question. The memo you refer to — I was working in the White House Counsel’s Office then. The White House Counsel’s Office is charged to be vigilant to protect the executive’s authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch. I believe very strongly in the separation of powers. It was a very important principle that the framers set forth that is very protective of our individual liberty and make sure the legislative branch legislates, the executive executes, the judicial branch decides the law.
Sen. Leahy just felt the hand of the next Chief Justice across his face. No, not in reality, but he fells like he has just been slapped. And from Sen. Leahy, we jump to Sen. Kennedy. Thomas likes to call him the Massachusetts swim coach, but as I am a swimmer, I would not let this man within 100 feet of me. So, I will simply be nice, and refer to him by his title. Sen. Kennedy first brought up the suffering of those in New Orleans, as if he were trying to connect Judge Roberts’ to the poor people down there. I would wager he was almost claiming Judge Roberts were racist. He quickly shifted towards Brown, and specifically asked Judge Roberts whether he agreed with the decision. Then Kennedy brought up the Voting Rights Act, and questioned whether Judge Roberts believed in that law. But the highlight of the day was the pissing contest that he, Judge Roberts, and Sen. Specter got into when Sen. Kennedy refused to let him answer his question.
Roberts got his say in then, finally, once the big windbag shut up. It only took a half dozen interruptions by Specter to put an end to it. Roberts answered the other questions quickly and eloquently, and it was to be expected that Roberts would answer them. As far as he is concerned, the movement forward in providing and recognizing civil rights is set law. There is no ambiguity in the law. There is no segregation. There is no disparagement in the rights of one person over another. He supported Brown. He supports the Voting Rights Act. And he had absolutely nothing to do with the poor people in New Orleans. But after the swim coach was done, it was time for Grassley to have his say. Out of all the senators on the committee, Grassley was the only senator to cite the following:
I’m impressed by your record, your public service. Obviously, you demonstrate your intellect very well. And we ought to be satisfied with that.
Let me remind everybody that Judge Roberts was confirmed unanimously to the D.C. Circuit Court just two years ago by the Senate and that the ABA, the American Bar Association, has recommended him to be, in their words, unanimously well-qualified for this position on the Supreme Court.
So I believe, with everything we have seen demonstrated, you’re obviously as qualified a nominee as I have seen in the 24 years that I have been on this committee.
Kennedy was on CNN at the time Grassley was working, and I’m surprised he didn’t "leap from the Capitol dome" after hearing such praise. But Grassly asked perhaps the most pointed question of the day. He asked Roberts what he thought the role of judges should be on the federal bench. For that matter, any bench that they are assigned, appointed, or elected to.
I think what he meant was that judges operate as judges when they are confined by the law. When I became a lawyer, the proclamation they read for the graduates were — they referred to the law as the wise restraints that make men free.
And judges are the same way. We don’t turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law.
They are constrained when they do that. They are constrained by the words that you choose to enact into a law — in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply.
And that cabining of their discretion — that’s what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.
And then their job is interpreting the law. It is not making the law.
And so long as they are being confined by the laws, by the Constitution, by the precedents, then you’re more comfortable that you’re exercising the judicial function.
It’s when you’re at sea and you don’t have anything to look to that you need to begin to worry that this isn’t what judges are supposed to do.
Beautiful answer, and he touched on the very Federalist that Marcie and I cite quite often when it comes to what judges are required to do. It is also the same Paper written by Hamilton that warns of judges who misbehave, and the consequences when they do act improperly. Roberts full understands what is required of a judge, and he is dead on.
Sen. Biden provided some of the comic relief today. Not only in his down-home, "aw shucks" sort of demeanor, but also because the man continued to use baseball analogies after he screwed up a fundamental rule in baseball. That being a strike zone. It is not from the shoulders to the knees, as he proposed. It is from the numbers—the mid-chest—to the knees. But the crux of Sen. Biden’s questioning revolved around whether or not Judge Roberts would fall back on activism. His analogy being that the rules in baseball are set, as is the law. Would he be willing to change that idea. Roberts answered repeatedly that he would not act in such a manner.
Kohl was all over the map, starting first with Brown, moving onto Hurricane Katrina, the role of judges, and finally to Roe. But there was one particularly telling exchange that caught my ear.
KOHL: You have today suggested on numerous occasions that the things that you represented in writing or an opinion back in the ’80s and into the ’90’s, working for the Reagan administration and working for the attorney general and then finally working as deputy solicitor attorney general, were, in many cases, the opinions of people for whom you worked, not necessarily your own.
I assume, therefore, there are — those are opinions that you are prepared to disavow?
ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
KOHL: I appreciate that. And now that we are talking about you in an entirely different situation, of course, our curiosity is: Which of those positions were you supportive of or are you still supportive of and which would you disavow?
ROBERTS: Well, at this point, of course, we’re now 23, 24 years later. I would not — I would have to address each of those positions anew. I wouldn’t try to transport myself back 24 years and say: What did you think 24 years ago?
And that would require me to look at and examine all those things.
And of course, it’s not how I would look at the issue if I were a judge. If I were a staff lawyer advancing a particular view, it’s one thing. And a judge, I would want to confront the issue with an open mind, to fully and fairly consider the briefs and arguments of all parties, to consider the record — we’ve talked today about how important a record is in a particular case — consider the law and the precedent.
But, of course, the law and the precedents have changed in many of these areas dramatically over the past 24 years.
ROBERTS: I’d have to consider all those before reaching a conclusion in any of those particular areas.
KOHL: It would be helpful to many of us to know which of those positions you took then no longer represent the position that you would take today. I think that would show a change as we grow and develop and experience life. That would be illuminating and enlightening, to many of us, to hear what some of those positions you took then no longer are represented in your thought process today.
This was another nice little trap that the Democrats tried to set that Roberts refused to give them anything. Remember: Roberts went to the table with no notes whatsoever. Everything he said, that he stated, that he cited came straight from his memory. Had he wished to announce a particular topic that he would have been willing to disavow, then he would have. And there was one more exchange between Kohl and Roberts over a memo he drafted explaining the Constitutionality of curtailing the federal jurisdiction on certain issues. Roberts wrote the brief in favor of the idea being Constitutionally sound. But, he admitted he disagreed with it. He called it bad policy. And he’s right. There is a right way to curtail such things, and a wrong way. For those missing this point, it is called "separation of powers" and "checks and balances."
Senator DeWine was next, and he brought up, I think, an interesting point regarding the freedom of speech under the First Amendment. Roberts easily deals with this question, and does so with the same eloquence he exhibited all day.
DEWINE: Judge, in light of that question, here are my questions. Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain’s Huck Finn ? And how would you, if confirmed to the Supreme Court, decide what protection, if any, certain kinds of expressions are entitled to under the First Amendment?
ROBERTS: Well, Senator, it’s my understanding, under the Supreme Court’s doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not. That question is, sort of, antecedent to the question of what the level of protection is, to determine whether it’s entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment.
There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don’t think I can give a more precise answer.
The powers in the First Amendment are not all encompassing. Certain speech should not be protected, such as child pornography, or pornography in general, in my humble opinion. The First Amendment is purely political in its protections. It was designed to ensure that government could not interfere with religion, and vice versa. It guaranteed our freedom to speak out against the government, both with our voices, and the written word in newspapers. We are guaranteed the right to protest; another form of political action. And, we have the right to demand a redress of grievances to the government. The First Amendment’s protections on speech were not meant to extend to such petty things as pornography, or offensive art. It was meant to protect us from any repercussions from the government when we called them on the carpet for some slight to the people that they derive their power from.
And then, the wicked witch of the West swept in on her broomstick, and attempted to berate Roberts over a memo he wrote involving women’s rights as they pertained to the workplace. This was the only exchange I really focused on because the old bat was really pushing this, and Roberts not only handled her efficiently, but professionally. That was the one thing that impressed me more than anything. He had a calm, cool demeanor the entire day. Even I admit that there were times that, if I were Roberts, I would have wanted to throttle some of these idiots. Diane Feinstein was one of them, especially after this exchange:
In a September 26th, 1983 memo to Fred Fielding, you rejected an alternative proposed constitutional amendment guaranteeing equal rights to women.
In 1982, you wrote a memo to then attorney general in which refer to the task force which was to conduct a government-wide review to determine those laws which discriminate on the basis of gender as the ladies’ task force. I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way. Did you really think that way, and do you think that way today?
ROBERTS: Senator, I have always supported and support today equal rights for women, particularly in the workplace. I was very pleased when I saw, for example, the report of the National Association of Women Lawyers, who went out and talked and interviewed with women lawyers who have worked with me, who have appeared before me.
And the conclusion was that I not only always treated women lawyers with respect and equal dignity, but that I had made special accommodations for life/work issues to ensure that women could continue to progress, for example, at my law firm, and had always treated women who appeared before me in a perfectly professional way.
FEINSTEIN: Then why say those things?
ROBERTS: Well, let’s take the first one you mentioned.
I’m — it is to me, obvious, in the memo that I wrote to Fred Fielding that it was about whether or not it’s good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it.
The point was, is it good to have more lawyers? That’s the way I intended it, and I’m sure that’s the way…
FEINSTEIN: And you don’t think it was good to have more lawyers?
ROBERTS: I think there were probably — the point that Mr. Fielding and I had commented on, on many occasions, was that in many areas there were too many lawyers.
And that’s a common joke that goes back to Shakespeare. It has nothing to do with homemakers.
The notion that that was my view is totally inconsistent and rebutted by my life.
I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.
FEINSTEIN: I don’t want to belabor it.
I’m just trying to understand how you think, because you appear — you know, you speak about modesty and humility, and yet none of these comments are modest or humble.
ROBERTS: Well, those comments were in the nature of the tone that was encouraged in our office.
It was a small office. They expected return projects around very quickly. We were expected to be candid. And if making a joke about lawyers would make for a more enjoyable day on the part of the people in the office, that’s what we did.
FEINSTEIN: So it’s fair to say you don’t think that way? Is that correct?
ROBERTS: Well, I don’t think in any way that is based on anything other than full equal citizenship rights on the basis of gender.
I might tell a lawyer’s joke that there are too many lawyers today, but that’s all it was back then.
You can tell he’s trying to joke with her here. Too bad that she didn’t crack a smile, or even utter a laugh. Of course not. Her face might have broken otherwise. And of course, she just couldn’t resist bringing up my favorite non-Constitutional provision.
FEINSTEIN: Thank you very much. I would like to ask a question or two on church and state. I mentioned in my opening statement that, for centuries, people have been persecuted for their religious beliefs. And our country grows more diverse every day, and tensions among different beliefs have grown. I really believe that there is a brilliance in what the founding fathers did in drafting the First Amendment and how it protected an individual’s right to practice their belief, whatever it may be, but also protect against using religion against individuals by prohibiting the government from becoming and/or imposing religion. In 1960, there was much debate about President John F. Kennedy’s faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one’s religion.
And he even said, I believe in an America where the separation of church and state is absolute. My question is: Do you?
ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers’ experience. Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers’ experience.
FEINSTEIN: You can’t answer my question yes or no?
ROBERTS: Well, I don’t know what you mean by absolute separation of church and state.
For example, recently in the Ten Commandments case, the court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it. They struck down the posting of the Ten Commandments in a Kentucky courthouse.
Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?
So I don’t know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don’t look to the Bible or any other religious source.
Personally, I would have given the old battle-axe a Constitutional lesson on the fact that "separation of church and state" doesn’t exist. It’s nowhere in the Constitution. It is a blatant misinterpretation carried out by Hugo Black—an admitted racist and ant-Catholic—not of the text of the Constitution, but of a letter sent by Thomas Jefferson to the Danbury Baptists. As I would have pointed out, a letter is not fundamental law. The Constitution is, and that provision is nowhere within it’s context.
And we will conclude with Sen. Schumer. (Mostly because both of us are dead on our feet right now, and we need a bit of rest before tomorrow starts up.) Sen. Schumer decided to bring up the idea of impeaching judges, and even cited Pat Robertson in making the insinuation. Now, I would like to point out, and Judge Roberts does, as well, that Pat Robertson is a citizen. He is not the government. Were he so, this nation would be in a world of hurt. The man has more whims than Bill Clinton, and many of them being equally bad. However, I will let Judge Roberts explain his thinking regarding this issue.
I don’t agree with that. And all I’m saying is that I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges — and certainly even judges with whom I disagree on the results or particular merits — they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate.
Senator, I said yesterday that if confirmed I would be vigilant to protect the independence and integrity of the Supreme Court and the judicial branch, and that is true. An independent judiciary is one of the keys to safeguarding the rule of law. Again, I said that yesterday and I believe that. And to the extent the judiciary is attacked, I will be vigilant to respond and defend it.
But it’s a free country. They’re free to say what they wish.
But the issue of impeachment was resolved in the Salmon Chase hearing. The basic principle was established: You don’t impeach judges if you disagree with their decisions.
That’s not what the impeachment provision is for.
And he is correct. Again, the process of impeaching a judge is not to be carried on a whim. It must be deemed as worthy. Article III, Section 1 of the Constitution states that judges shall hold their seats in "good Behaviour." That applies to something tangible, such as the corrupt Abe Fortas. It does not apply to justices who misinterpret the law, unless it is so egregious that no other avenue exists. A hypothetical, as so many senators dropped that idea in his lap, would be if the Supreme Court ruled that murder was Constitutional. As it is not a supported right, either enumerated within the Constitution, nor is that set in the morals and traditions of the nation, I would seriously have to call for the impeachment of any justice in the majortiy of such a moronic display of jurisprudential ignorance.
Point being, today Roberts handled himself superbly. The Democrats have got to be scratching their heads as to how they can trip him up. There’s only two ways that can happen. Either some deep, dark skeleton has to come out of his closet, or he has to make a serious gaffe in his answers. The first is unlikely. He has been through the FBI background checks and investigations seven times. I doubt anything is there. And as he didn’t screw up in his answering today, I doubt tomorrow will be any easier on the Democrats. And as I watched this unfold today, only one thing came to mind, and it’s a line from a very famous athlete. Judge Roberts did "float like a butterfly, and stings like a bee."
The Bunny ;) & Publius II
http://www.confirmthem.com/?p=1211
http://www.confirmthem.com/?p=1218
http://www.confirmthem.com/?p=1226
(The links above will take you to the full transcripts of the day. They had to be broken down into three separate entries, usually broken down by the recesses of the committee. This explains why tonight's post is so long, and why it took us so long to get it up.)
Somebody get the referee in this fight before the Democrats get hurt. Yep, it’s time for the New Clouseaus to call it a day, and throw in the towel. Roberts played nice with them today. I expect nothing less from a man so professional, so right, and so polite. No, he won’t take swipes like we do. No, he won’t be insulting. But I get the distinct feeling that Roberts is firm in the belief that he is telling the Democrats to go to Hell, and he’s doing it with a smile on his face. And guess what? They have no idea how to handle him.
Tonight we were planning on doing a repeat of last night, giving our readers a sort of "greatest hits" from the Democrats. However, this soon got to be too long. Thomas and I are no strangers when it comes to long posts, but this took long to the extreme. So, you will be entertained by our synopsis of the day. We will only touch on the notable exchanges. This includes both Republicans and Democrats, as even Sen. Specter was befuddled by Judge Roberts.
So, since we’re already on Specter, let’s just keep it going. Specter, despite his better angels, decided to get right down to business this morning, and asked Roberts about Roe without actually invoking Roe. Of course, this pro-choicer couldn’t help himself. He tossed out the case name in his first sentence, and wanted to know where Roberts stood on a woman’s right to choose. He then brought up Casey, and followed up with a debate over stare decisis. He invoked other cases for Roberts, including Brown, and continued to question the stance of stare decisis by the court.
What Sen. Specter failed to pick up on was two important points the Judge Roberts distinguished. First, that when questioned regarding a particular case, like Roe and Casey, he was not going to render any sort of decision. He was not going to be openly critical of it, nor would he criticize the decision. He even made it clear that when the question revolves around how the case was decided, he would answer a simple question. Second, that stare decisis does have its place in jurisprudence. As far as he is concerned, as things stand now, Roe and Casey are precedents set by the court that must be adhered to. We may not like it, but the "law" is the law. Precedent is equal to law because it either reinforces or weakens the law in question. He stated that stare decisis—the precedent of the court—stands now as it is, which is equally and equitably enforceable.
"Leaky" Leahy stepped up next, and was struck down quickly. He brought up the pension question regarding soldiers returning from Lebanon, where he questioned the conflict in the power of Congress and the president. Roberts answer is below. Leahy also brought up the Youngstown case revolving around Truman’s seizure of steel mills. And then, obviously taking a page from Kennedy yesterday, brought up the infamous case of Korematsu.
LEAHY: And then you explained even parenthetically that even if the president vetoed such a joint resolution, of course, Congress could override it by two-thirds majority. I find that troubling; I’ll tell you why. Before I read your memo, I thought everybody agreed there would be only one answer to the question of whether Congress could stop a war. Your memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war. I really find that extremely hard to follow. And I imagine most Americans would. I’ll give you a hypothetical. Congress passes a law for all U.S. forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, You must withdraw by a certain date. Now, is there any question in your mind that the president would be bound to faithfully execute that law?
ROBERTS: Well, Senator, I don’t want to answer a particular hypothetical that could come before the court, but I’m happy to comment on the memorandum that you’re discussing.
LEAHY: No, wait a minute. I mean, isn’t this kind of hornbook law? I don’t know of any cases coming before the court; I mean, this is kind of hornbook. The Congress says to the president, You got to get out, and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn’t the president have to — charged as he is under the Constitution to faithfully execute the law, why wouldn’t he have to follow that law?
ROBERTS: Well, Senator, that issue of — and similar issues have, in fact, come up. There were, for example, lawsuits concerning the legality of the war in Vietnam; various efforts. And certainly the arguments would be made on the other side about the president’s authority. And that may well come before the court.
LEAHY: Judge, with all due respect, the cases in Vietnam were not based on a specific law passed by Congress to get out. I mean, Congress did cut off the funding…
ROBERTS: Right.
LEAHY: … in April, 1975, by a one-vote margin in the Armed Services Committee. I know because I was the newest member of the committee at that time — voted to not authorize the war any longer. But are you saying that Congress could not pass a law that we must withdraw forces?
ROBERTS: No, Senator, I’m not. What I’m saying is that that issue or issues related to that could well come before the court, and that’s why I have to resist answering a particular hypothetical question. The memo you refer to — I was working in the White House Counsel’s Office then. The White House Counsel’s Office is charged to be vigilant to protect the executive’s authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch. I believe very strongly in the separation of powers. It was a very important principle that the framers set forth that is very protective of our individual liberty and make sure the legislative branch legislates, the executive executes, the judicial branch decides the law.
Sen. Leahy just felt the hand of the next Chief Justice across his face. No, not in reality, but he fells like he has just been slapped. And from Sen. Leahy, we jump to Sen. Kennedy. Thomas likes to call him the Massachusetts swim coach, but as I am a swimmer, I would not let this man within 100 feet of me. So, I will simply be nice, and refer to him by his title. Sen. Kennedy first brought up the suffering of those in New Orleans, as if he were trying to connect Judge Roberts’ to the poor people down there. I would wager he was almost claiming Judge Roberts were racist. He quickly shifted towards Brown, and specifically asked Judge Roberts whether he agreed with the decision. Then Kennedy brought up the Voting Rights Act, and questioned whether Judge Roberts believed in that law. But the highlight of the day was the pissing contest that he, Judge Roberts, and Sen. Specter got into when Sen. Kennedy refused to let him answer his question.
Roberts got his say in then, finally, once the big windbag shut up. It only took a half dozen interruptions by Specter to put an end to it. Roberts answered the other questions quickly and eloquently, and it was to be expected that Roberts would answer them. As far as he is concerned, the movement forward in providing and recognizing civil rights is set law. There is no ambiguity in the law. There is no segregation. There is no disparagement in the rights of one person over another. He supported Brown. He supports the Voting Rights Act. And he had absolutely nothing to do with the poor people in New Orleans. But after the swim coach was done, it was time for Grassley to have his say. Out of all the senators on the committee, Grassley was the only senator to cite the following:
I’m impressed by your record, your public service. Obviously, you demonstrate your intellect very well. And we ought to be satisfied with that.
Let me remind everybody that Judge Roberts was confirmed unanimously to the D.C. Circuit Court just two years ago by the Senate and that the ABA, the American Bar Association, has recommended him to be, in their words, unanimously well-qualified for this position on the Supreme Court.
So I believe, with everything we have seen demonstrated, you’re obviously as qualified a nominee as I have seen in the 24 years that I have been on this committee.
Kennedy was on CNN at the time Grassley was working, and I’m surprised he didn’t "leap from the Capitol dome" after hearing such praise. But Grassly asked perhaps the most pointed question of the day. He asked Roberts what he thought the role of judges should be on the federal bench. For that matter, any bench that they are assigned, appointed, or elected to.
I think what he meant was that judges operate as judges when they are confined by the law. When I became a lawyer, the proclamation they read for the graduates were — they referred to the law as the wise restraints that make men free.
And judges are the same way. We don’t turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law.
They are constrained when they do that. They are constrained by the words that you choose to enact into a law — in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply.
And that cabining of their discretion — that’s what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.
And then their job is interpreting the law. It is not making the law.
And so long as they are being confined by the laws, by the Constitution, by the precedents, then you’re more comfortable that you’re exercising the judicial function.
It’s when you’re at sea and you don’t have anything to look to that you need to begin to worry that this isn’t what judges are supposed to do.
Beautiful answer, and he touched on the very Federalist that Marcie and I cite quite often when it comes to what judges are required to do. It is also the same Paper written by Hamilton that warns of judges who misbehave, and the consequences when they do act improperly. Roberts full understands what is required of a judge, and he is dead on.
Sen. Biden provided some of the comic relief today. Not only in his down-home, "aw shucks" sort of demeanor, but also because the man continued to use baseball analogies after he screwed up a fundamental rule in baseball. That being a strike zone. It is not from the shoulders to the knees, as he proposed. It is from the numbers—the mid-chest—to the knees. But the crux of Sen. Biden’s questioning revolved around whether or not Judge Roberts would fall back on activism. His analogy being that the rules in baseball are set, as is the law. Would he be willing to change that idea. Roberts answered repeatedly that he would not act in such a manner.
Kohl was all over the map, starting first with Brown, moving onto Hurricane Katrina, the role of judges, and finally to Roe. But there was one particularly telling exchange that caught my ear.
KOHL: You have today suggested on numerous occasions that the things that you represented in writing or an opinion back in the ’80s and into the ’90’s, working for the Reagan administration and working for the attorney general and then finally working as deputy solicitor attorney general, were, in many cases, the opinions of people for whom you worked, not necessarily your own.
I assume, therefore, there are — those are opinions that you are prepared to disavow?
ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
KOHL: I appreciate that. And now that we are talking about you in an entirely different situation, of course, our curiosity is: Which of those positions were you supportive of or are you still supportive of and which would you disavow?
ROBERTS: Well, at this point, of course, we’re now 23, 24 years later. I would not — I would have to address each of those positions anew. I wouldn’t try to transport myself back 24 years and say: What did you think 24 years ago?
And that would require me to look at and examine all those things.
And of course, it’s not how I would look at the issue if I were a judge. If I were a staff lawyer advancing a particular view, it’s one thing. And a judge, I would want to confront the issue with an open mind, to fully and fairly consider the briefs and arguments of all parties, to consider the record — we’ve talked today about how important a record is in a particular case — consider the law and the precedent.
But, of course, the law and the precedents have changed in many of these areas dramatically over the past 24 years.
ROBERTS: I’d have to consider all those before reaching a conclusion in any of those particular areas.
KOHL: It would be helpful to many of us to know which of those positions you took then no longer represent the position that you would take today. I think that would show a change as we grow and develop and experience life. That would be illuminating and enlightening, to many of us, to hear what some of those positions you took then no longer are represented in your thought process today.
This was another nice little trap that the Democrats tried to set that Roberts refused to give them anything. Remember: Roberts went to the table with no notes whatsoever. Everything he said, that he stated, that he cited came straight from his memory. Had he wished to announce a particular topic that he would have been willing to disavow, then he would have. And there was one more exchange between Kohl and Roberts over a memo he drafted explaining the Constitutionality of curtailing the federal jurisdiction on certain issues. Roberts wrote the brief in favor of the idea being Constitutionally sound. But, he admitted he disagreed with it. He called it bad policy. And he’s right. There is a right way to curtail such things, and a wrong way. For those missing this point, it is called "separation of powers" and "checks and balances."
Senator DeWine was next, and he brought up, I think, an interesting point regarding the freedom of speech under the First Amendment. Roberts easily deals with this question, and does so with the same eloquence he exhibited all day.
DEWINE: Judge, in light of that question, here are my questions. Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain’s Huck Finn ? And how would you, if confirmed to the Supreme Court, decide what protection, if any, certain kinds of expressions are entitled to under the First Amendment?
ROBERTS: Well, Senator, it’s my understanding, under the Supreme Court’s doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not. That question is, sort of, antecedent to the question of what the level of protection is, to determine whether it’s entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment.
There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don’t think I can give a more precise answer.
The powers in the First Amendment are not all encompassing. Certain speech should not be protected, such as child pornography, or pornography in general, in my humble opinion. The First Amendment is purely political in its protections. It was designed to ensure that government could not interfere with religion, and vice versa. It guaranteed our freedom to speak out against the government, both with our voices, and the written word in newspapers. We are guaranteed the right to protest; another form of political action. And, we have the right to demand a redress of grievances to the government. The First Amendment’s protections on speech were not meant to extend to such petty things as pornography, or offensive art. It was meant to protect us from any repercussions from the government when we called them on the carpet for some slight to the people that they derive their power from.
And then, the wicked witch of the West swept in on her broomstick, and attempted to berate Roberts over a memo he wrote involving women’s rights as they pertained to the workplace. This was the only exchange I really focused on because the old bat was really pushing this, and Roberts not only handled her efficiently, but professionally. That was the one thing that impressed me more than anything. He had a calm, cool demeanor the entire day. Even I admit that there were times that, if I were Roberts, I would have wanted to throttle some of these idiots. Diane Feinstein was one of them, especially after this exchange:
In a September 26th, 1983 memo to Fred Fielding, you rejected an alternative proposed constitutional amendment guaranteeing equal rights to women.
In 1982, you wrote a memo to then attorney general in which refer to the task force which was to conduct a government-wide review to determine those laws which discriminate on the basis of gender as the ladies’ task force. I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way. Did you really think that way, and do you think that way today?
ROBERTS: Senator, I have always supported and support today equal rights for women, particularly in the workplace. I was very pleased when I saw, for example, the report of the National Association of Women Lawyers, who went out and talked and interviewed with women lawyers who have worked with me, who have appeared before me.
And the conclusion was that I not only always treated women lawyers with respect and equal dignity, but that I had made special accommodations for life/work issues to ensure that women could continue to progress, for example, at my law firm, and had always treated women who appeared before me in a perfectly professional way.
FEINSTEIN: Then why say those things?
ROBERTS: Well, let’s take the first one you mentioned.
I’m — it is to me, obvious, in the memo that I wrote to Fred Fielding that it was about whether or not it’s good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it.
The point was, is it good to have more lawyers? That’s the way I intended it, and I’m sure that’s the way…
FEINSTEIN: And you don’t think it was good to have more lawyers?
ROBERTS: I think there were probably — the point that Mr. Fielding and I had commented on, on many occasions, was that in many areas there were too many lawyers.
And that’s a common joke that goes back to Shakespeare. It has nothing to do with homemakers.
The notion that that was my view is totally inconsistent and rebutted by my life.
I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.
FEINSTEIN: I don’t want to belabor it.
I’m just trying to understand how you think, because you appear — you know, you speak about modesty and humility, and yet none of these comments are modest or humble.
ROBERTS: Well, those comments were in the nature of the tone that was encouraged in our office.
It was a small office. They expected return projects around very quickly. We were expected to be candid. And if making a joke about lawyers would make for a more enjoyable day on the part of the people in the office, that’s what we did.
FEINSTEIN: So it’s fair to say you don’t think that way? Is that correct?
ROBERTS: Well, I don’t think in any way that is based on anything other than full equal citizenship rights on the basis of gender.
I might tell a lawyer’s joke that there are too many lawyers today, but that’s all it was back then.
You can tell he’s trying to joke with her here. Too bad that she didn’t crack a smile, or even utter a laugh. Of course not. Her face might have broken otherwise. And of course, she just couldn’t resist bringing up my favorite non-Constitutional provision.
FEINSTEIN: Thank you very much. I would like to ask a question or two on church and state. I mentioned in my opening statement that, for centuries, people have been persecuted for their religious beliefs. And our country grows more diverse every day, and tensions among different beliefs have grown. I really believe that there is a brilliance in what the founding fathers did in drafting the First Amendment and how it protected an individual’s right to practice their belief, whatever it may be, but also protect against using religion against individuals by prohibiting the government from becoming and/or imposing religion. In 1960, there was much debate about President John F. Kennedy’s faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one’s religion.
And he even said, I believe in an America where the separation of church and state is absolute. My question is: Do you?
ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers’ experience. Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers’ experience.
FEINSTEIN: You can’t answer my question yes or no?
ROBERTS: Well, I don’t know what you mean by absolute separation of church and state.
For example, recently in the Ten Commandments case, the court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it. They struck down the posting of the Ten Commandments in a Kentucky courthouse.
Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?
So I don’t know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don’t look to the Bible or any other religious source.
Personally, I would have given the old battle-axe a Constitutional lesson on the fact that "separation of church and state" doesn’t exist. It’s nowhere in the Constitution. It is a blatant misinterpretation carried out by Hugo Black—an admitted racist and ant-Catholic—not of the text of the Constitution, but of a letter sent by Thomas Jefferson to the Danbury Baptists. As I would have pointed out, a letter is not fundamental law. The Constitution is, and that provision is nowhere within it’s context.
And we will conclude with Sen. Schumer. (Mostly because both of us are dead on our feet right now, and we need a bit of rest before tomorrow starts up.) Sen. Schumer decided to bring up the idea of impeaching judges, and even cited Pat Robertson in making the insinuation. Now, I would like to point out, and Judge Roberts does, as well, that Pat Robertson is a citizen. He is not the government. Were he so, this nation would be in a world of hurt. The man has more whims than Bill Clinton, and many of them being equally bad. However, I will let Judge Roberts explain his thinking regarding this issue.
I don’t agree with that. And all I’m saying is that I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges — and certainly even judges with whom I disagree on the results or particular merits — they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate.
Senator, I said yesterday that if confirmed I would be vigilant to protect the independence and integrity of the Supreme Court and the judicial branch, and that is true. An independent judiciary is one of the keys to safeguarding the rule of law. Again, I said that yesterday and I believe that. And to the extent the judiciary is attacked, I will be vigilant to respond and defend it.
But it’s a free country. They’re free to say what they wish.
But the issue of impeachment was resolved in the Salmon Chase hearing. The basic principle was established: You don’t impeach judges if you disagree with their decisions.
That’s not what the impeachment provision is for.
And he is correct. Again, the process of impeaching a judge is not to be carried on a whim. It must be deemed as worthy. Article III, Section 1 of the Constitution states that judges shall hold their seats in "good Behaviour." That applies to something tangible, such as the corrupt Abe Fortas. It does not apply to justices who misinterpret the law, unless it is so egregious that no other avenue exists. A hypothetical, as so many senators dropped that idea in his lap, would be if the Supreme Court ruled that murder was Constitutional. As it is not a supported right, either enumerated within the Constitution, nor is that set in the morals and traditions of the nation, I would seriously have to call for the impeachment of any justice in the majortiy of such a moronic display of jurisprudential ignorance.
Point being, today Roberts handled himself superbly. The Democrats have got to be scratching their heads as to how they can trip him up. There’s only two ways that can happen. Either some deep, dark skeleton has to come out of his closet, or he has to make a serious gaffe in his answers. The first is unlikely. He has been through the FBI background checks and investigations seven times. I doubt anything is there. And as he didn’t screw up in his answering today, I doubt tomorrow will be any easier on the Democrats. And as I watched this unfold today, only one thing came to mind, and it’s a line from a very famous athlete. Judge Roberts did "float like a butterfly, and stings like a bee."
The Bunny ;) & Publius II
posted by Syd And Vaughn | 12:20 AM
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