John Roberts is Bush Pick for SCOTUS

[RealGun]

So. No discussion of abortion. - Lawdog

I agree but can't help noting that the thread has no purpose without mentioning abortion. To say that this Supreme Court nomination has anything to do with the 2A is abstract at best, silly at worst. A discussion of an ideal nominee by a special interest group would be quite different than that of an actual nomination.

 

[Bartholomew Roberts]

Sorry for my over the top discussion last night, but I disagree that there should be a ban on any discussion of abortion.

THR is an open-door place. If you disagree with the policies of this forum, you are always free to find a forum where the policies are more to your preference. In the meantime, let's keep this thread on track with discussing John G. Roberts and take any issues with forum rules to PMs.

One thing that bothers me about Roberts is he is apparently a big fan of stare decisis. This is basically a fancy way of saying you should let prior decisions stand in all but the most extreme cases. I don't see him supporting any Supreme Court decision that would overturn the 1934 NFA or 1968 GCA. This means that any progress on the Second will be small and will come over decades, not with any sweeping ruling by SCOTUS.

 

[The Real Hawkeye]

One thing that bothers me about Roberts is he is apparently a big fan of stare decisis. This is basically a fancy way of saying you should let prior decisions stand in all but the most extreme cases. I don't see him supporting any Supreme Court decision that would overturn the 1934 NFA or 1968 GCA. This means that any progress on the Second will be small and will come over decades, not with any sweeping ruling by SCOTUS.

I share your concerns about stare decisis. It has no place on the Supreme Court. The Constitution should be freshly considered in each and every case. Otherwise we do not live under the rule of law, but under the rule of men in black, unrestrained by the law. That said, considering the arguments and reasoning behind the decisions of prior justices is always appropriate, but those prior decisions should not be binding in the least if their reasoning and arguments were not based on a strict construction of the constitution, and on the original intent of the framers.

 

[The Real Hawkeye]

For those who take comfort in how much Roberts is hated and resisted by the radical left, I will remind you that the position of pro choice groups such as Planned Parenthood regarding Justice Suiter was that "If Suiter is appointed to the Supreme court, women will die!" They hated him too. Now they love him. My sense is, however, that Roberts is no Suiter.

 

[Rebar]

Ann Coulter isn't very happy either:

Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.

http://anncoulter.com/cgi-local/printer_friendly.cgi?article=66

 

[publius]

Actually, there are a couple of ways conservatives have been identified. One (and the least legitimate) is that he just wants to preserve the status quo, stare decisis, and is therefore an advocate of preserving (conserving) the New Deal and all the rest. I don't mean it that way. When I say conservative, I mean someone who actively resists the leftist/judicial activist turn the Supreme Court has taken since the Great Depression, and wishes to restore the supremacy of the actual Constitution, which is a conservative document...I don't see how anyone who defends the leftist mess we've been in for the last 60 years could in any sense be called a conservative, except in the same sense that the leftist press used to call Brezhnev a "conservative," i.e., he wanted to "conserve" the status quo in the Soviet Union. That's way too shallow a definition of "conservative."

Well, I posted a link in which Justice Scalia is defending the statist mess based on preserving New Deal law. So, if Scalia is not a conservative, what is he? Whatever he is, I'm just hoping this new guy isn't the same. I'm encouraged that he doesn't think toads are interstate commerce. At least he has a line, somewhere...

 

[Waitone]

Lemme see if I got this right.

We have a group of people who in some opinions have grabbed control or society with legal decisions that have nothing to do with our founding documents.

We are told said group answers to no one or no other group in that there is no check on their power.

Said groups is free to change the intent of a freely elected legislature.

The group reproduces itself via selection and approval.

Because of the nature of the selection and approval process it is absolutely essential viable candidate have no paper trail in legal decisions and better yet not know anywhere outside a small group of people.

Sounds like a great plot for conspiracy novel. <Where's my tinfoil>

The modern day interpretation of a constitutional process is purely insane. Meanwhile, the great unwashed get all upset over whose jersey the candidate wears yet seems uninterested in the nature of the game being played.

 

[The Rabbi]

Lemme see if I got this right.

1)We have a group of people who in some opinions have grabbed control or society with legal decisions that have nothing to do with our founding documents.

2)We are told said group answers to no one or no other group in that there is no check on their power.

3)Said groups is free to change the intent of a freely elected legislature.

4)The group reproduces itself via selection and approval.

5) Because of the nature of the selection and approval process it is absolutely essential viable candidate have no paper trail in legal decisions and better yet not know anywhere outside a small group of people.

1) Except the founding document specifically empowers the Supreme Court.

2) Except that they must be nominated by the president and confirmed by the Senate. They can be impeached and removed for cause.

3) Except that this is only where a case is brought before them and they declare the act unconstitutional.

4) Except that they don't.

5) Except that it is not absolutely essential. And wouldn't you expect people in a field to be more familiar with others in the same field than people outside that field?
So aside from having totally erroneous ideas about the place of the Supreme Court and checks and balances as well as the political process I agree with your post 100%. Esp the tin foil hat part.

 

[RealGun]

Actually the whole thing is silly, because Congress abdicates power to the Court, avoiding Constitutional amendments that would bind the Court and settle an issue of controversy or avoiding moves to restrict the Court's jurisdiction. They also do not challenge rulings with no apparent Constitutional justification. The essential problem is that too many of them are lawyers, protective of their own fraternity and facade.

 

[CentralTexas]

Interesting-

In re: Richard B. Cheney, Vice President of the United States, 2003 U.S. App. LEXIS 18831 (D.C. Cir. 2003), cert. granted, 2003 U.S. LEXIS 9205 (2003): secrecy of Vice President Cheney's energy task force

Judge Roberts was one of the dissenters in the court's 5-3 denial of a petition for rehearing en banc (with one judge not participating) filed by the Bush Administration in its continuing efforts to avoid releasing records pertaining to Vice President Cheney's energy task force. This ruling came in litigation brought by Judicial Watch and the Sierra Club charging that the Vice President's task force had violated federal law by not making its records public. The court's ruling marked "the fourth time a judicial panel has rebuffed efforts to keep the information from the public." Carol D. Leonnig, "Energy Task Force Appeal Refused," Washington Post (Sept. 12, 2003). At the Administration's urging, the Supreme Court has agreed to review the case; a decision is expected by the end of June 2004.

This is from an opinion Roberts signed on to issued last Friday, July 15 2005 in the case of Hamdan v Rumsfeld:
"The trial and punishment of enemy combatants," the Court further held, is thus part of the "conduct of war." Id. We think it no answer to say, as Hamdan does, that this case is different because Congress did not formally declare war. It has been suggested that only wars between sovereign nations would qualify for such a declaration. See John M. Bickers, Military Commissions are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 TEX. TECH. L. REV. 899, 918 (2003). Even so, the joint resolution "went as far toward a declaration of war as it might, and as far or further than Congress went in the Civil War, the Philippine Insurrection, the Boxer Rebellion, the Punitive Expedition against Pancho Villa, the Korean War, the Vietnam War, the invasion of Panama, the Gulf War, and numerous other conflicts." Id. at 917. The plurality in Hamdi v. Rumsfeld, in suggesting that a military commission could determine whether an American citizen was an enemy combatant in the current conflict, drew no distinction of the sort.

 

[The Real Hawkeye]

So, if Scalia is not a conservative, what is he?

In my opinion, that would make him a highly flawed conservative. There are conservatives who would give absolutely no weight to stare decisis. Those are the ones we need on the Supreme Court. The proper role of stare decisis is to adopt principles from past decisions which are consistent with the Constitution without having to revisit them in whole. This is more efficient than starting from scratch every time, but stare decisis should never require anyone to accept past legal arguments and conclusions which clearly ignore the actual constitution.

 

[countertop]

THR is an open-door place. If you disagree with the policies of this forum, you are always free to find a forum where the policies are more to your preference.

I'm not going anywhere, I like THR too much and really don't worry myself about the other unmentionable issue enough to have it interfere with my activities - still, I think this is a bit of an overhanded response, but thats just my opinion and I understand having to make firm rules on occaision.

Now, back to the topic at hand - John Roberts. Trying to get some handle on his jurisprudence, I went to Lexis and did a search for his opinions on the DC Circuit that mention guns this morning. I found 16 - all of them discussed guns only in the context of describing the crimes being committeed (drug dealer in possession of a gun, robbery taking place with a loaded gun) as the defendants had been convicted of violant crime and were appealing the decision. I agreed with his decision in all 16 cases.

Beyond the 16 gun cases, he has also been invovled in a couple of war on terror appeals as well as the aformentioned ESA case (he drafted an especially snarky dissent) and the usual commercial and regulatory matters. Really, there is nothing that would be very obvious on any issue in his written decisions.

As for the question of whether he is a "stealth" candidate in the mode of Souter, I do not think he is. He is a well known in DC legal circles and while he has a short court record many people in town know him both personally and professionally and as a result know what he really thinks. The administration knows him very well. Souter, on the other hand, was not a known entity here in DC and came to the court - not with25 years of being a neighbor and work colleague, but rather he literally came out of left field. Plus, Bush is smarter than his father. Alot smarter.

I haven't made up my mind, but after reading half of Roberts decisions today, and speaking with a number of people who know him, worked with him, practiced before him, have hired him to represent them, and have lived in the same community with him I am not that nervous.

Of course, this isn't going to satisfy everyone. He is, after all, a reliably conservative mainstream Republican. He is confirmable and in another career, would be electable.

 

[Leatherneck]

Well. Alan Gottlieb has upped the ante.

SAF Challenges Senate Democrats to Prove Support of 2nd Amendment

Distribution Source : U.S. Newswire

Date : Wednesday, July 20, 2005

To: National Desk

BELLEVUE, Wash., July 20 /U.S. Newswire/ -- President Bush's nomination of Judge John G. Roberts of the U.S. Court of Appeals in Washington, D.C. to succeed retiring Associate Justice Sandra Day O'Connor on the U.S. Supreme Court will give Senate Democrats an opportunity to demonstrate their long-claimed support for the Second Amendment.

There have been no clear-cut rulings by Judge Roberts to suggest one way or the other how he looks at the Amendment, but his history shows a strict constructionist view of the Constitution. Alan M. Gottlieb, founder of the Second Amendment Foundation (SAF), suggested that during the confirmation hearings before the Senate Judiciary Committee, the nominee be quizzed on his interpretation of this important individual civil right.

"Senate Democrats have talked the talk, and now they can walk the walk," said Gottlieb. "Someone on that panel needs to ask whether the nominee believes the Second Amendment affirms an individual right to keep and bear arms, as originally envisioned by the Framers.

"If Judge Roberts supports the individual right interpretation, then Senate Democrats have a clear obligation to vote for confirmation," Gottlieb observed. "On the other hand, if Judge Roberts adheres to the fantasy that the Amendment is only written to protect some sort of 'collective right' of the states to organize militias, then those same Democrats have a duty to reject this nomination.

"For too long," he continued, "lower court judges whose nominations were supported by Democrats have gotten away with wrongly suggesting that the Second Amendment -- unlike any of the other Amendments in the Bill of Rights -- does not mean what it says. It is time for Democrats, who claim to believe the Second Amendment protects an individual civil right, to step up to the plate and prove it. The day is looming when the high court will rule on a Second Amendment case. When that day arrives, this country will need a majority on the court that has read and understands the Amendment as it was written."

 

[grampster]

If you doubt what the left thinks of the courts you should have heard Teddy Kennedy talking about Judge Roberts. He went on a rant about "who's side is he on? The side of the boss or labor, the side of the rich or the poor, etc. etc...ad nauseum.

This is a US Senator that thinks the purpose of the SCOTUS is to somehow have a bias to promote, a "side" to be on. He truly, and most of the left for that matter, do not grasp that the SCOTUS is one of 3 equal divisions of government and their only purpose is to decide whether things that come before them conflict or not with the Constitution. Senator Schumer says the appointment is critical because he will be "making law".

If you don't think we live in scary times, you better start thinking we do.

Marbury vs Madison put forth the concept of judicial revue; to have the power to declare a law unconstitutional. That is not making law, it is merely exercising a check and balance on a law that is not constitutional; to strike it down and send it back to the legislature and the president.
The left and the present rogues on the SCOTUS have carried that forward, with no challenge, to make law and countenancing the issuing of edicts from the bench.
Phahh!

 

[Beren]

Creating active links to forums like DU sometimes causes forum wars - not something I think we really want.

Not possible. DU immediately bans anyone who voices an opinion contrary to that of the group-mind. Therefore, no exchange of ideas is possible, nor anything approaching a "forum war."

I'm cautiously optimistic regarding Bush's nominee. If he does turn out to be a strict constructionist, obviously he's as good a pick as anyone of us could hope to see.

 

[publius]

stare decisis should never require anyone to accept past legal arguments and conclusions which clearly ignore the actual constitution.

Actually, it doesn't. It's a non-binding presumption that past rulings were correct. I think they take that presumption of competence a bit too seriously, but I guess it's considered impolite to point out mistakes in prior rulings.

Justice Thomas had the temerity to suggest that the court revisit their commerce clause jurisprudence. That could upset quite a few apple carts. May not be conservative, but I like the idea. Bruised apples are great targets.

 

[Coronach]

Stare decisis has it's place. Let's face it, if they had to build the case for/against all facets of decision from the ground up, it would be a nightmare. You think it's great now, wait until the liberals pack the court. We'd be through the "awkward stage" before you could say "I think we might be through the awkward stage." Also, it would be logically difficult to deny cert on many issues.

No, our caselaw is built upon many many many good decisions, and a few bad ones. SO long as our Supreme Court is willing to consider going back and undoing some real boneheaded decisions (Dred Scott, Plessy v. Fergusson, and hopefully that stupid eminent domain decision from the last cycle), we're ok. When it becomes ONLY stare decisis, we're in trouble.

Mike

 

[The Real Hawkeye]

No, our caselaw is built upon many many many good decisions, and a few bad ones. SO long as our Supreme Court is willing to consider going back and undoing some real boneheaded decisions (Dred Scott, Plessy v. Fergusson, and hopefully that stupid eminent domain decision from the last cycle), we're ok. When it becomes ONLY stare decisis, we're in trouble.

Interestingly, as a matter of law, both of those cases were decided correctly. We don't like the outcomes that this fact signifies, so we say they were bad decisions. Actually, Dred Scott was overturned not by a revisit of the decision, but by the post Civil War Amendments to the Constitution. Plessy was overturned by Brown v Board of Ed, which was as bad a piece of law as ever to come out of the Supreme Court, though most of us have been brainwashed into believing otherwise by 12 years of public school and four years of college. What Brown said was that the Federal Government has authority to regulate the state's public education systems, regardless of the fact that this authority is not present in the U.S. Constitution. As a result of that precedent, we now have "No Child Left Behind," where the Federal Government pretty much decides what each local public school is going to teach.

 

[The Real Hawkeye]

The Roberts Nomination: Presidential Power Uber Alles
by William Norman Grigg
July 20, 2005

Forget the abortion debate and other social issues: The Roberts nomination is part of the Bush administration's drive to create an executive branch dictatorship in the name of fighting the "war on terror."

Federal Judge John G. Roberts, Jr., who has been selected by President Bush to fill the Supreme Court vacancy created by Sandra Day O’Connor’s resignation, has been described as a conservative-leaning jurist with a thin and enigmatic record. Roberts has received cautious support from conservatives, and been received with subdued suspicion by liberals, both factions focusing chiefly on his views of abortion and other social issues. But little attention has been paid to the fact that Roberts has endorsed a view of presidential war powers that could fairly be described as dictatorial.

For at least the last two decades, every nomination to the High Court has focused obsessively on the 1973 Roe v. Wade ruling that struck down state abortion laws.

"Movement" conservatives applaud the fact that Roberts co-authored a brief against the Roe v. Wade decision during the first Bush administration. Some liberal commentators have expressed qualified optimism about the Roberts nomination on the basis of his assurances that he would uphold Roe as a binding precedent.

Roberts’ views of abortion have yet to be tested. However, his view of presidential power was expressed in an Appeals Court decision handed down just four days before he was tapped to replace O’Connor on the Supreme Court.

Roberts participated in a July 15 decision by a panel from the Washington, D.C. Circuit Court of Appeals upholding the Bush administration’s claim that the president can designate any individual as an "enemy combatant" and detain that individual indefinitely. The July 15 decision also assented to the administration’s claim that the president can create special military tribunals to conduct trials of enemy combatants, rendering decisions that are not subject to judicial review of any sort.

The Constitution specifies that Congress, not the president, can create federal courts inferior to the Supreme Court.Attorney General Alberto Gonzalez applauded the Appeals Court’s decision. "The president's authority under the laws of our nation to try enemy combatants is a vital part of the global war on terror," stated Gonzalez, claiming that the ruling "reaffirms this critical authority."

In fact, that decision deferred to a Bush administration putsch. By creating a court, the administration poached from the exclusive legislative powers of Congress; by claiming that the president can "try" anyone, the administration usurped the powers of the judiciary. This new doctrine of presidential authority effectively consolidates in one individual executive, legislative, and judicial authority. As Madison (quoting Jefferson) pointed out in The Federalist, number 48: "The concentrating of these in the same hands, is precisely the definition of despotic government."

By assenting to that doctrine as part of the Appeals Court panel, John Roberts has endorsed executive despotism as a "wartime" necessity – in a war that may last for a generation or more. His nomination thus represents George W. Bush’s effort at building what Rick Montgomery of the Kansas City Star calls "a wartime Supreme Court." Conservative legal activist Jay Sekulow of the American Center for Law and Justice (an organization created by Christian Right activists to confront the ACLU) points out that judicial deference to presidential power is "the hidden issue and, I think, a huge one…. The question of executive powers is part and parcel of any decision regarding the legal issues most critical to this administration.

Attorney General Gonzalez, who helped devise the administration’s sweeping claims of presidential power, is a longtime Bush confidant and was an early favorite for a Supreme Court nomination. His views on abortion and other social issues made him unsuitable to many Christian Right activists, who voiced their displeasure at the prospect of Bush nominating him for the High Court. Confronted with that criticism, Mr. Bush sternly rebuked the Christian Right, defending Gonzalez and warning his critics to modulate their rhetoric. The fact that Roberts, not Gonzalez, was chosen as nominee will probably be seen by Christian Right leaders as a conciliatory gesture.

However, it’s more likely that Gonzalez was passed over because of potential conflict-of-interest issues arising from challenges to the legal doctrines he helped create as White House Legal Counsel during the administration’s first term. Were Gonzalez successfully appointed to the High Court, he most likely would have been required to recuse himself when those challenges reached the Court. This would have jeopardized an outcome favorable to the administration’s view of executive power.

For those who support the Bush administration’s quasi-dictatorial view of "wartime" presidential powers, the best Supreme Court nominee would have been Alberto Gonzalez sans the potential conflict of interest. John G. Roberts, Jr., appears to be that man.

 

[The Rabbi]

hawkeye,
Was that a rightist fantasy-rant or a leftist fantasy-rant?

 

[The Real Hawkeye]

hawkeye,
Was that a rightist fantasy-rant or a leftist fantasy-rant?

Are those my only choices? How about a Constitutionalist reality-based rant?

 

[The Rabbi]

OK, so its a rightist fantasy-rant.
It is scary that posts on THR and DU seem to be merging into one paranoid ill-informed mush.

 

[The Real Hawkeye]

OK, so its a rightist fantasy-rant.

Yes, I suppose that Constitutionalists are rightests in the sense that they support the rule of law and limited government.

It is scary that posts on THR and DU seem to be merging into one paranoid ill-informed mush.

Do tell. Please state which part of the article you consider mistaken and why.

 

[Marshall]

The Roberts nomination is part of the Bush administration's drive to create an executive branch dictatorship in the name of fighting the "war on terror."

Bla bla bla..

If there was no war on terror and this same conservative man was nominated, what would it be called?

I would imagine it would be fill in the blank.

"executive branch dictatorship in the name of "fill in the blank".

 

[Aguila Blanca]

Uh, Rock Jock one little thing. Bush and congress already passed a partial-birth abortion ban two years ago. It would have become law except that a liberal activist judge in Nebraska I think, overturned it. Only liberals would see it as OK to keep convicted murderers off death row while saying it is Ok to induce labor on an INNOCENT child and then suck out it's brains. Actually I don't care if the government allows abortion as long as they call it what it is. MURDER! no other way around it.

WHOA!

Moderators, please watch this thread and keep it on topic -- which is Roberts' qualifications for the SCOTUS, not abortion.

FWIW, there are a great many people, from a great many different religions including some Christian denominations, who do not hold that abortion is "murder," for the simple reason that they do not accept that an unborn fetus is yet a "person."

What is it that separates Man from the other mammalian animals? Unless you are an atheist, the answer is the Soul, the spirit, the divine spark as illustrated on the ceiling of the Sistine Chapel being passed from God to Adam by the touch of a finger. Absent the presence in the body of a fetus of the Soul, all you have is a parasitic organism.

I recognize that you probably believe that the Soul enters the body at the moment of conception. I respect that ... as a belief. The Constitution guarantees you the right to hold that belief. It is not, however, incontrovertible fact, as evidenced by the reality that many people of faith and of good conscience do not accept this. Many people believe that the Soul does not enter the body until a few days before birth, or even a day or two afterwards. In the absence of incontrovertible proof as to which view is "correct" (and recognizing as well that in fact neither may be correct), it would be an unconstitutional restriction on the freedom to practice one's religion to legislate that abortion is "murder."

I don't bug you for living in accordance with your religious beliefs. Kindly don't bug me for living in accordance with mine.

Now ... can we get this thread back to the topic?