Deja Vu: Secretive Nominee Becomes Right-Wing Justice
Deja Vu: Secretive Nominee Becomes Right-Wing Justice
The day of the Roberts nomination felt like one minute to Doomsday–until John Roberts’ name was announced. Washington was expecting a slash-and-burn conservative like Edith Jones or Janice Rogers Brown. Instead we got a tabula rasa, a man with virtually no record.
This is hardly an unfamiliar position.
Fourteen years ago, the last President Bush nominated an equally blank slate to sit on the Supreme Court.
Like Roberts, Clarence Thomas had a long record of government service, a very short career on the bench, and an almost non-existent paper trail. In less than two years as a judge, Thomas authored only 25 opinions, 22 speaking for the majority, 2 in concurrence, and one lone dissent. His record revealed someone who was doubtlessly conservative, but no more so than, say, Chief Justice Rehnquist.
No one could have guessed what Justice Thomas was keeping secret. In a series of decisions beginning with U.S. v. Lopez, Justice Thomas would have restricted Congress’ power to enact economic regulation to a point unheard of since the Great Depression. It’s difficult to count the laws which would cease to exist under Thomas’ approach, but one commentator lists “the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the sick leave portions of the Family and Medical Leave, the Freedom of Access to Clinics Act, as well as minimum wage and maximum hour laws” as likely suspects. In Clarence Thomas’ America, whites-only lunch counters are permitted, but basic labor protections are forbidden.
Justice Thomas’ stance on religion is equally radical. In Elk Grove Unified School District v. Newdow, Thomas argued that the Establishment Clause, which prohibits the government from establishing an official religion, does not apply at all to the states. Under Thomas’ framework, the state of Alabama could not only display the Ten Commandments in its courthouses, but it could fund such displays with taxpayer dollars, and even require students to learn conservative Christian doctrine in public schools. Parents upset by such a curriculum would have no recourse except to move to another state and pray that similar policies weren’t adopted in their child’s new school.
Newly released documents from Roberts’ tenure in the Reagan Administration are consistent with, but are not necessarily proof of, an ideology just as radical as Clarence Thomas’. Regretably, Judge Roberts’ record is far too sparse to determine whether he would join Justice Thomas’ most radical opinions, but the American people still have a right to know whether Roberts would join Thomas’ crusade against the New Deal, the Civil Rights Movement, and the Separation of Church and State.
When the Senate considers Judge Roberts’ nomination this September, the burden must be on Roberts to prove his rejection of Thomas’ radical ideology. We know exactly as much about John Roberts now as we knew about Clarence Thomas in 1991, and America cannot afford to play Russian Roulette with the Supreme Court.
– Ian Millhiser
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Roberts may well be largely a blank slate. But while his views are disagreeable, there at least seems to be a consensus that he’s a first rate legal mind, unlike Clarence Thomas.
Given the distastefulness of virtually any Bush nominee, the question is whether or not Roberts’ past or partisan politics should make him a priori unacceptable to Democrats.
My take: the panoply of progressive groups should hold their fire on Roberts – for now.
July 28th, 2005 at 11:33 amIf Roberts is so wrong for the court, why do 60% of Americans support him. We can’t all be sheep. Could it be that liberals are out of touch with how the rest of America feels about him?
July 28th, 2005 at 11:35 amNo
July 28th, 2005 at 11:45 amIf Roberts is so wrong for the court, why do 60% of Americans support him. We can’t all be sheep. Could it be that liberals are out of touch with how the rest of America feels about him?
Wow, so that’s our standard now? Okay, now, let’s discuss Duhbya’s approval ratings.
July 28th, 2005 at 11:48 amWhy did 60% of Americans think Saddam planned 9/11 and we found WMD in 2003? Does that make it true?
July 28th, 2005 at 12:11 pmcurious what poll you are using that shows 60% support for Roberts?
July 28th, 2005 at 12:50 pmKrazny,
Here is the link:
http://www.usatoday.com/news/washington/2005-07-25-roberts-rove-poll_x.htm
July 28th, 2005 at 1:11 pmI think Bush should rethink his decision to nominate Roberts. Think about this scenario:
July 28th, 2005 at 1:30 pmIf Roe v. Wade never happened, then there wouldn’t have been as many abortions in the last 37 years. If conservatives, in general do not support abortion, they are probably not having them. Conversely, liberals are having the abortions. There have been around 35 million abortions since 1973 and lets say the majority of those babies, if born, would have been democrats. Given a 60% voter turnout in the last election, there could have been 6-8 million more votes for Kerry. Maybe Bush should select someone pro-choice.
The law is not concerned with who wins the fight, only with the fairness of the fight. Judge Roberts will be an excellent justice in this time-honored tradition.
July 28th, 2005 at 1:32 pmo/~ Troll, troll, troll your boat….
July 28th, 2005 at 1:33 pm(To clarify, my previous comment was addressed to Always Wrong, not to OWH whose post and mine crossed.)
So, OWH, explain the logic and evidence behind your latter conclusion, please. If any.
July 28th, 2005 at 1:37 pmGary: The “french fry case” is a good example. Judge Roberts clearly thought the DC Council’s law was stupid. But he stressed that the only question before the Court of Appeal was the law’s constitutionality – not its wisdom. This is a classic example of judicial restraint, that is, of limiting the decision in a case to the legal issues presented by the facts, without imposing the judge’s personal views, one way or the other.
This example illustrates Judge Roberts’ typical approach. He will not question the wisdom of the Endangered Species Act, the federal partial birth abortion ban, or any other federal statute. He will only address the constitutional issues raised by the statute under the facts of the case before him. This is a sound, conservative approach to judging. Cases decided in this manner tend to be decided narrowly on their own facts, without sweeping applications to other cases.
This approach is likely to result in the invalidation of very few federal statutes, and in the overturning of even fewer constitutional precedents. That’s the way judicial review, under Marbury v. Madison, is supposed to work.
The trouble today is that most liberals (and some conservatives) are not content for judicial review to work this way. These people tend to favor outcome-based rulings that help to advance their preferred policy agenda. They ignore the fact that the Supreme Court is NOT a policy making body.
That is why a nominee’s personal views are irrelevant: a good judge is guided by the law, not by his policy preferences. If the activists of the right and (especially) the left would just back off and let nominations be decided on the nominee’s judicial qualifications, rather than the nominee’s policy views, cases would be much more likely to be decided on their merits, and the nation would be much better off in the long run, regardless of the results in those cases.
July 28th, 2005 at 2:12 pmRe #12: Someone has WAY too much time on his hands!
July 28th, 2005 at 2:13 pmAlwaysWrong,
65% of americans believe Roe shouldn’t be overturned, so that trumps any sentiment they might have for this smiling schmuck… The fact is the right wing doesn’t care about public opinion except when it serves their purposes – and we both know that… You’re a farse and a fanatic!
July 28th, 2005 at 2:26 pmRoberts defended ‘Operation Rescue’, a home grown Christian Terrorist Organization – he’s unfit to serve!
July 28th, 2005 at 2:31 pmOWH: Roberts ruled in favor letting Bush detain prisoners indefinitely without trial or even formal charges. Please explain how this ruling was “guided by the law” when it’s blatantly contrary to the Geneva Convention (which was signed and ratified and is therefore US law) not to mention the US Constitution.
July 28th, 2005 at 3:26 pmGary, if we were dealing with enemy combatants, the Geneva Conventions would apply. But since terrorists forgot to put on their terror uniforms issued from their terror countries it’s a little hard to pick them out of the crowd. I don’t care if we keep people we are trying to us in Gitmo until they are old, impotent, gout filled or dead
July 28th, 2005 at 3:40 pmRyan: This is where you lefties always drive into the ditch. Lots of excellent lawyers have represented lots of undesirable clients. It’s called making sure your client gets a fair trial. Think “To Kill A Mockingbird.” What’s your problem with that? Are pro-life activists not entitled to the same constitutional rights as other citizens?
By the way, I believe the case you are referring to was a 1st Amendment case, involving the right of pro-life activists to demonstrate outside abortion clinincs. Correct me if I’m wrong, Ryan, but if I’m thinking of the right case, I believe the Supreme Court ruled in favor of protecting Operation Rescue’s 1st Amendment rights in that case. Isn’t that why we have a Supreme Court?
July 28th, 2005 at 3:54 pmGary: In the Hamdan case the DC Circuit (including Judge Roberts) decided that the President, as Commander-in-Chief, is entitled to extra latitude under Article II in making wartime enemy combatant determinations, and that trial by military commission pursuant ot such a determination does not violate the comabatant’s due process rights. This is not contrary to the Geneva Convention, which makes no specific reference to the treatment of ununiformed stateless terrorists like Mr. Hamdan.
July 28th, 2005 at 4:08 pmTo Kill a Mockingbird? Are you serious? Have you even read that book?
If Roberts ever defended a black man being railroaded in the old south, we wouldn’t be having this discussion.
July 28th, 2005 at 4:28 pmOoops, Ryan, we were both wrong. In Bray v. Alexandria Women’s Health Clinic, John Roberts did not represent Operation Rescue. He represented the Bush I administration as Deputy SG, whose office filed an amicus brief.
Bray was not a 1st Amendment case, per se – the issue was whether the Civil Rights Act of 1871 confers a private cause of action allowing private lawsuits against pro-life activists who demonstrate at abortion clinincs. The Supreme Court ruled, 5 to 4, that it does not, in part because abortion does not qualify alongside race as a basis for “invidious discrimination” – a position urged by Roberts in the SG brief.
FYI, one justice from the Bray majority (White) and two justices from the dissent (Blackmun and O’Connor) have now left the Court. On this issue, at least, the confirmation of Judge Roberts will do nothing more than solidify an already-existing majority.
July 28th, 2005 at 4:34 pmWell, first of all this isn’t wartime. Wartime would take a formal declaration of war by Congress, which hasn’t been made.
Secondly, the Sixth Amendment (which supersedes anything in Article II, not that anything there is really relevant anyhow) doesn’t list any exception for wartime. By pulling such an exception out of his ass, Roberts is doing exactly what you are commending him for supposedly not doing.
Thirdly, you can’t have it both ways: either this guy is a prisoner of war, in which case the Geneva Convention applies, or he is just a prisoner, in which case he has the same Constitutional rights as any other prisoner. I’ll also add that he is only an alleged terrorist until he’s proven guilty in a proper court of law (which Bush’s kangaroo courts are not).
July 28th, 2005 at 4:42 pmOne overly literal interpretation deserves another, cynical, so I take it a nominee must be old enough to have defended “a black man being railroaded in the old south” to be qualified for the Supreme Court, right?
Of course not. But John Roberts has represented – free of charge – many poor clients, including welfare recipients in Washington, DC. Since race is so important to you, you may want to note that a fairly high proportion of DC welfare recipients happens to be black. Is that good enough for you?
July 28th, 2005 at 4:52 pmGary,
When are liberals going to get it? These are bad guys. They want to kill you. They want to kill me. They don’t make any distinction on your political affiliation before they detonate a bomb or drive a plane into a building. There is a reason as to why the democrats cannot be trusted with running this country and you are part of it. I am not aware of anyone who feels their privacy is being affected by the Patriot Act. I only hear it from the left. We put you guys back in charge, we might well as give the keys to our cities to the terrorists because you seem to be more concerned with their rights than our right to live!
July 28th, 2005 at 4:55 pmActually, Gary, “wartime” exists any time hostile forces attack. When Germany attacked Russia without warning a state of war arose between them. Likewise, when Japan attacked Pearl Harbor a state of war arose. Neither Russia nor the U.S. was any less “at war” on the dates of those attacks because there were no formal declarations of war involved.
I think you will find that declarations of war have not always been required in American history, and that during the 20th century – especially since 1945, they have fallen into disuse for a variety of reasons. Military conflict is now commonly initiated without any declaration of war, as was the case when President Clinton initiated devastating air attacks on Serbia without any such declaration. In fact, we still have troops in Kosovo to this day. The absence of a war declaration simply has never deprived the President of his powers as Commander-in-Chief during wartime.
Bottom line: you may want to argue that we are not “at war” – but the existence or non-existence of a declaration of war has nothing to do with the proposition.
July 28th, 2005 at 5:10 pm#8 Always Right–
And who’s the party of morality?
Define morality.
You’re a perversion at best.
If you want abortions to decline, fight poverty! and support pratical sex education.
July 28th, 2005 at 5:10 pmpractical*
July 28th, 2005 at 5:10 pmIf liberals are out of touch with Americans, then what’s to say for conservatives?
The majority still treat politics with a grain of salt and neither party supports the ideals of the modern day American.
Furthermore,
An idealist politician is the last thing America needs. Politicians shouldn’t lead; they should get the job done.
July 28th, 2005 at 5:14 pmGary and/or other “war illiterates” – Where did the term ‘enemy combatant” come from – the vast right wing conspiracy?? Got news for you – we are at war, it has worldwide fronts,it began decades before 9/11 (and we foolishly thought the Islamofascists were flies to be swatted at). We are fighting people who are crazier than the kamikaze pilots, and just as full of s**t as Hitler, Stalin or Pol Pot. In this latest assault on the West, not every Muslim is a terrorist, but so far,all the terrorists have been Muslim. And before all you bleeding hearts whine about George Bush, arch-terrorist, remember who starved his people. Please show me a war w/o innocent civilian caualties – can’t be done -
July 28th, 2005 at 6:43 pmSimple question: if the Guantanamo Bay people are ‘all bad guys’ who want to kill me – why do they keep letting them go?
It’s down to this: how do you know that they are all bad guys? You simply don’t. And those people that are now free from Guantanamo, do you think the a**-f***ing with the brooms is going to help them think of America favourably or not?
July 28th, 2005 at 6:57 pmAlexa, you don’t understand your enemy nor have you read your Orwell. Quiz for you:
Why are the ‘terrorists’ attacking the US?
Clue: you may not answer that they are crazy, because they are not.
July 28th, 2005 at 6:59 pmAnd when you;ve finished thinking about that one – I have a couple more:
What country did Osama Bin Laden single out because he did not apparently have plans to attack them?
What were his reasons?
How will you know when the ‘war on terr’ is over?
July 28th, 2005 at 7:22 pmDear Turtle – It is YOUR opinion that they are not crazy – an opinion that demonstrates a narrow focus to me. The terrorists are attacking becausethey are extreme jihadists – similar to extreme Christian fundamentalist, Eric Rudolph (note both groups justify through extreme religious bastardization their crimes. As for Orwell, Put down 1984 for a minute and pick up “Animal Farm” – an illustration that your espousals have been tried and fail. I’ll know the “War on Terror” is over when wack job Islamofascists are dead. For over thirty years we have seen hijackings and bombings – too bad it took us soooo long to learn that you cannot kiss a snake – you must chop off it’s head. And as for Osama Bin Laden’s reasons – who would care except somebody who gives a shit what that murderer thinks. Will talk tomorrow – but I have ONE q for you – How do you think you would be treated as an enemy combatant by those animals before they chopped off your head and burned your body or dragged it through the street? Believe me – they don’t want to understand you (or have us understand them) – they want you and me dead. They could care less if you’re a “progressive” – you’re still dirt to them.
July 28th, 2005 at 8:51 pmI hate to be vulgar here, but right-wingers are such pussies. “Oh my God, there are people who want to kill poor pitiful me!” Never mind that it’s only a handful of fanatics against the biggest military and police machine the world has ever known — which would’ve prevented the attack on the World Trade Center if not for the Bushies being either incompetent or complicit.
Oh, and they’re either willing to take it completely on faith that the people who are locked up and being tortured are the same people who are plotting to kill them. Either that, or they don’t particularly care.
None of which changes the fact that there’s no legal basis for Roberts’ decision in the case that we were discussing. Apparently wingnuts don’t mind “outcome-based rulings” if the outcome is one that they want to see.
July 29th, 2005 at 9:45 amThey don’t care if the police or military kill the wrong people, as long as they kill somebody. I heard it on talk radio.
July 29th, 2005 at 10:32 amWhen are liberals going to get it? These are bad guys. They want to kill you. They want to kill me. They don’t make any distinction on your political affiliation before they detonate a bomb or drive a plane into a building.
No, but they do pick certain well-populated targets. And the people living near these targets do not agree with you. Furthermore, you continue to insult these people and call them stupid. Do you live near a terrorist target? How would you feel if someone far from danger was usurping your right to determine your own method for self-defense?
July 29th, 2005 at 10:36 amActually, Gary, “wartime� exists any time hostile forces attack.
In that case, we truly are in an Orwellian state of perpetual war.
But for most of us, wartime is a legal term that requires a declaration of war. In a practical sense, wartime means we ration gasoline, sugar, and everything else. And we’d all be signing up to fight. In wartime, people drive their SUVs up to the gas station and say, “No, no, give my 30 gallons to the troops. I’m glad to take the bus if it means we can bring our boys home sooner.” In wartime, old ladies would say, “Shame on you, why aren’t you over there fighting for your freedom?” Get a history book and look it up if you don’t believe me.
By that standard, this is not war. This is a Bush League Quagmire.
July 29th, 2005 at 10:42 amHipster,
Dubya told you to sacrifice: he told you go get out and hit the mall, hit the Wal-mart, go to Disneyworld. Didn’t you get the memo?
July 29th, 2005 at 10:59 amFor those of you citing “war” to justify all manner of things,we’re not in a war anyomre; it’s now a struggle. Try to keep up. Thanks.
July 29th, 2005 at 11:40 amBack on topic: roberts looks like another stealth candidate, much like Bush himself in 2000: say nothing, and make sure those might know something shut the hell up and stay shut up. It just does not seem like this guy has been on the bench long enough to be offered up as a candidate for a life-time position on the nation’s highest court. What is so wrong with putting forth a candidate with an established record? And his work in Florida 2000 should disqualify him from serving on any bench.
July 29th, 2005 at 11:44 amTurtle or Ostrich – take your pick – Am a proud veteran – but just past the age of re-enlisting. My youngest brother will be returning this Sunday from his third deployment since 9/11 – we are proud , and I will send him your heartfelt thanks – HA! The policies of Osama are a re-introduction of everything I thought “progressives(?)” abhor – the “cultural and religious superiority” of Islam inequality between the sexes, amplification of ignorance through madrasa schooling, inability to carry on constructive dialogue etc. The government policies you dislike so (i.e. perhaps US support of Israel?) “fueling” Islamic hatred of the West)- but fail to name – could that be anti-Semitism rearing it’s ugly head?
July 29th, 2005 at 1:50 pmTurtle or Ostrich: what does making a statement like this sound like “And as for Osama Bin Laden’s reasons – who would care except somebody who gives a shit what that murderer thinks” – as a military veteran, don’t they talk to you about Sun Tzu? “If ignorant both of your enemy and of yourself, you are sure to be defeated in every battle.â€? If the feather fits, wear it.
Aha, you are going to play the ‘anti-semite’ card. Ad-hominem attacks calling me a racist don’t fill in the holes in your argument, they simple point out their bankruptcy. You also seem to think I support OBL for some reason: I did not say I agreed with any of the policies advocated, I don’t. I will stand up against totalitarianism in any form, Islamic or Christian or Jewish, communist or fascist. Do you think I want to live in a country like Saudi Arabia?
You want me to name the goverment policies that I think are causing this. Once again I will provide the facts and you will provide the ad-hominem insults: first OBL http://news.bbc.co.uk/2/hi/middle_east/3966817.stm
Next Michael Schuer, who has spent more time than you or I on this:
Here is a list of Scheuer’s main points:
“1) Osama bin Laden (OBL) is neither an evil madman or just a criminal — he is a highly competent, religiously motivated, charismatic leader who we had best take seriously.
2) Al Qaeda is not a terrorist organization, but is rather part of and attempting to lead a global Muslim insurgency.
3) OBL & Al Qaeda are not opposed to the U.S. because of “who we are,” (ie, “we stand for freedom”), but because of what we do — because of specific aspects of U.S. foreign policy.
4) The doctrine that informs OBL/Al Qaeda is that of DEFENSIVE JIHAD — they see the Muslim world under attack by the U.S., and call upon scripture to support defensive military action by all faithful members of the “umma” (the universal body of Islam).
5) OBL has repeatedly stated five demands for changes in U.S. foreign policy: i) end all aid to Israel, ii) withdraw military forces from the Arabian Peninsula and all Muslim territory, iii) end all involvement in Afghanistan and Iraq, iv) end U.S. support for the oppression of Muslims in China, Russia, India and elsewhere, and v) restore Muslim control of the Islamic world’s energy resources for the benefit of Muslims. A sixth point is to replace U.S.-backed regimes in the Muslim world with Islamic regimes, but that is really a demand on the Muslim population.
6) The war in Afghanistan was a failure from the beginning, because OBL & the other leaders were allowed to escape at the beginning, and because the U.S. is just propping up Karzai in Kabul while the rest of the country is still in the hands of warlords and the Taliban.
7) The offensive invasion and occupation of Iraq was a huge gift to OBL — it has just tied down more U.S. forces that otherwise could be fighting Al Qaeda, and it has become potent evidence for OBL’s claim that the U.S. is aggressively targeting the Muslim world.
8) Scheuer concludes that at this point there is no choice but to resolve to fight a relentless war against the Al Qaeda-led insurgency. However, if the U.S. took action on the list of demands, it could undercut the insurgency dramatically. Scheuer argues that the U.S. should move to energy sufficiency, stop propping up corrupt regimes like Saudi Arabia, and remove itself as a target of the so far effective-because-largely-true propaganda campaign of the insurgents. There is no contradiction here, as some readers think. Changing political policies AND waging a more effective military campaign are both parts of an overall strategy, and only one-dimensional thinkers would imagine that it’s an either/or choice.”
Oh and don’t thank your little brother on my behalf, I think he’s making matters worse not better – and I am not alone. I don’t happen to think that killing thousands of people, calling them ‘collateral damage’ and treating them like ‘untermensch’ will do anything but encourage more of them to take up arms. http://thinkprogress.org/2005/07/29/strategy-failing/
I’m done here. I’m off to burn down a synagogue.
July 29th, 2005 at 2:47 pmDear Turtle or Ostrich – You do make a couple of good points, credit I am willing to share and apparently you are not. My main point of contention with Michael would be his failure to label abhorrent behaviour as evil. I guess moral relativism can go too far! (Can’t help but think of Osama’s tape in Nov. 2001 bragging about the success of “his mission”. That’ll win the hearts and minds of his enemy – kill innocent office and service workers). Can you imagine the bloody rampage in the Phillipines with that insurgency unchecked or unchallenged? Michael buries his Israel argument smack dab in the middle – but that is the underlying “bone in the throat” for most Osama apologists. Can you imagine Israel without support, surrounded by people who wish to annihilate every last Jew? This may gall you, but I never refer to the West Bank and Gaza as “occupied territory” – I refer to them as “won territory” after a three pronged attack. Shalom!
To the topic – and I apologize for tangential arguments – when progressives win the Presidency and more seats in the Senate, you will succeed at adding more Brennans and Marshalls and I will moan -no whiners, please.
July 29th, 2005 at 3:39 pm