Wednesday, September 14, 2005

Attempting commenting on the first day of questioning of the Roberts confirmation hearings

A recap of the first day of questioning with hand puppets:

Specter: Do you agree, as I do, that you will refuse to say anything meaningful about Roe V. Wade?

Roberts: I would just like to say, stare decisis, precedents, stare decisis and precendents, precendents and stare decisis, and in closing, Casey.

Leahy: Is the president EVIL or just evil? And why you hate sick children?

Roberts: Could you at least pretend to have paid attention to what I wrote? And just so we’re clear, every time I say “with all due respect…” what I really mean is “Could you be any more of a d*ckhead?”

Hatch I’ve been in Congress a very long time and I know stuff.

Roberts: I believe judges should be thoughtful and pay attention to all issues under review.

Kennedy We all know you hate black people so get it over with and say somethng insulting.

Roberts: Reagan was right, you were wrong, the Supreme Court agreed with us, get over it.

Grassley I like flowers. Do you like flowers? I think flowers are pretty.

Roberts: Thank you for giving me the opportunity to bring the issue of precedents to the table. Also, sometimes the court has to decide hard cases and they should do so in a thoughtful manner. cough Precedents cough

Biden I would like to use my time to read these overly clever questions my staff wrote for me: baseball, baseball, baseball, Ginsburg, Ginsburg, Ginsburg....and now my Sam Kinison impression, SAY IT SAY IT AH AH AH AHHHHH!!!!!!!

Roberts: Once again, the Supreme Court concluded that it was a correct reading of the law, so talk to the hand, analogy boy.

offstage narrator: I'm tired and Rockstar: INXS is coming on. Screw this.


Summarizing with MS Word's autosummarize feature. I grouped all questions/statements/responses for each Senator and summarized thusly, as opposed to summarizing individual questions. Same for Roberts.

Specter, concentrates on Roe V. Wade:
Justice Scalia articulated, quote, The principal purpose of stare decisis is to protect reliance interest and further stability in the law. Justice Frankfurter articulated the principle, quote, Well, do you see any erosion of precedent as to Roe?

Do you agree with that statement, Judge Roberts?

Let me come to another key phase of Casey, where the joint opinion says a, quote, Terrible price would be paid for overruling Roe. One final citation from the joint opinion in Roe, quote: After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.

Do you think that the cases which have followed Roe fall into the category of a super stare decisis designation?

Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it's been widely quoted: Roe is the settled law of the land.

There have been questions raised about your personal views. With respect to going back again to the import of Roe and the passage of time, Supreme Court Chief Justice Rehnquist changed his views on Miranda.

I'm talking about Chief Justice Rehnquist on Miranda.


Roberts responds with stare decisis and precedents:
I'm happy to discuss the principles of stare decisis.

And the court has developed a series of precedents on precedent, if you will. The erosion of precedents, I think, figured more prominently in the courts discussion in the Lawrence case, for example. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.

I think one way to look at it is that the Casey decision itself, which applies the principles of stare decisis to Roe v. Wade, is itself a precedent of the court entitled to respect under principles of stare decisis. That is itself a precedent. It's a precedent on whether or not to revisit the Roe v. Wade precedent. Well, beyond that, it's settled as a precedent of the court, entitled to respect under principles of stare decisis. Well, I think those are some of the considerations the court applied in Casey when it applied stare decisis to Roe. I would repeat that the court has already applied the principles of stare decisis to Roe in the Casey decision. And that stands as a precedent of the court, as well.


Leahy wants to know is the president EVIL or just evil? And why does Roberts hate sick children?
Let's go to the president's power as commander in chief of the armed forces. Your memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war. 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?

I mean, isn't this kind of hornbook law? 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. Right. Let me ask you this question: Does Congress have the power to declare war?

Does Congress, then, have the power to stop a war?

We have the power to declare war. Do we have the power to terminate war?

It was entitled War Powers Problem. The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002 which argued the president enjoys, quote,

The Supreme Court held that unconstitutional.

Would you consider Youngstown settled law?

Congress cannot deprive the president of the command of the Army and Navy. Do you agree that Congress can make rules that may impinge upon the president's command functions?

In his book, All the Laws But One, Chief Justice Rehnquist, the late chief justice, concluded with this sentence, The laws will not be silent in time of war but they'll speak with a somewhat different voice.

The government was not enforcing the laws.

Roberts thinks it would be a swell idea if Leahy could at least pretend to have paid attention to what Roberts has written.
Well, Senator, that issue of -- and similar issues have, in fact, come up. Right.

Well, with respect, Senator..

Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority.

It consists solely of his authority under the constitution, less whatever authority Congress has. I just going to say the first issue for a court confronting the question you posed would be whether Congress specifically intended to address the question of the president's exercise of authority or not.

Certainly, Senator. I suppose a case like that could come before the court. The issue was an open one. The Supreme Court issued its ruling and cleared that up.

Well It's a precedent in the court. The court of appeals had ruled one way. The Supreme Court ruled the other way. The court saw the case the other way. And that issue is now settled. Those damages, actions are brought in courts around the country.

No, Senator, again, there was no issue in the case about condoning the behavior. The issue in the case is: Did Congress intend for this particular remedy to be available?

Other remedies were available under the provision at issue.

Hatch has been in Congress a very long time
Welcome you, again, Judge Roberts...

Now, he discussed various philosophies with regard to judging.

Our chairman asked if former Chief Justice Rehnquist's opinion in the Dickerson case upholding Miranda would apply to Roe v. Wade. I've been on this committee during the hearings on nine Supreme Court nominations. The question that needs to be answered is how you view the role of unelected judges in a representative democracy.

If a judge crosses the line between interpreting and making the law, he has crossed the line supporting his legitimate authority from the legislative branch's authority.

Now, the bottom line is that precedent is weakest in constitutional cases. Does this distinction make sense to you, Judge Roberts?

The Morrison case is a perfect illustration to me. Now, this argument gets even more complicated when the Supreme Court uses provision actually in the Constitution to strike down that a congressional statute, but provisions not in the Constitution to strike down state statutes.

America's founders were clear that the Constitution established a federal government of few and defined powers. Now, could you comment on the Supreme Court's duty to exercise judicial review regarding Congress and state legislatures and their enactments?

Well, thank you, Judge.

Roberts believes judges should be thoughtful:
They've looked at the same cases.

What it says is that they judges are to decide cases that arise under this Constitution -- this new Constitution -- and under and new laws that the Congress might pass.

And what Chief Justice Marshall explained in Marbury vs. Madison was that, well, if we've got to decide cases, that's our constitutional obligation. Now, judges have to decide hard questions when they come up in the context of a particular case. I appreciate the point that in some cases the question of whether you're interpreting the law or making the law -- that that line is hard to draw in some cases.

I would say not in most cases. I think in most cases, most judges know what it means to interpret the law and can recognize when they're going too far into an area of making law.

You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. I have been arguing cases against the executive branch and frequently arguing cases for the proposition of deference in favor of the legislature.

Obviously, the Supreme Court decides cases involving a range of issues and requiring application of different kinds of law, including regulations and statutes as well as the Constitution. Is precedent equally authoritative in, for example, regulatory or statutory cases as in constitutional cases? Now, the Supreme Court says, therefore, that precedent is weakest in constitutional cases.

Obviously, short of amendment, only the court can fix the constitutional precedents.

You and I can agree or disagree on whether the court is right in a particular case.

Kennedy asks Roberts if got his KKK robe from Senator Byrd or did his momma make it for him?:
That Street Law program is a marvelous program. We passed legislation that prevented racial discrimination in housing.

Every one of the new laws was tested in court, all the way to the Supreme Court.

Do you have any doubts as to the constitutionality of the '65 Voting Rights Act? All right.

Let's go to the Voting Rights Act. Let's start with the Voting Rights Act.

You do agree, don't you, don't you, Judge Roberts, that the right to vote is a fundamental constitutional right?

Judge Roberts, Republicans and Democrats overwhelmingly supported this legislation. Newt Gingrich, James Sensenbrenner voted for the House bill. It was the law of the land. That was the law of the land that court after court decided about the impact of the effects test. The Mobile case changed the Zimmer case.

No, that's not what -- I think it was wrong, but I also think the law of the land, decided by the Supreme Court in the Zimmer case, upheld in court after court after court after court, was the effects test

Do you support the law that Ronald Reagan signed into law and that was co- sponsored... Right. The 1988 Housing Fair Housing Act.

Let me, if I could, go to the Civil Rights Restoration Act. In 1981, you support an effort by the Department of Education to reverse 17 years of civil right protections at colleges and universities that receive federal funds.

Your efforts to narrow the protection of the civil rights laws did not stop there, however.

In 1984, in Grove City v. Bell, the Supreme Court decided, contrary to the Department of Education regulation that you supported, that student loans and grants did indeed constitute federal assistance to colleges for purposes of triggering civil rights protections.

You vehemently opposed the Civil Rights Restoration Act.

Roberts responds with “Reagan was right, you were wrong, get over it”:
Certainly, Senator.

There's a separate question that would be raised if the Voting Rights Act were extended, as I know Congress is considering. The Supreme Court had interpreted in the Mobile v. Bolden case, Section 2, to have an intent test, not an effects test.

It was the position of the administration for which I worked that the proposal was to extend the Voting Rights Act without change. Well, the Supreme Court...

I certainly agreed that the Voting Rights Act should be extended. Senator, you did not accurately represent my position. Our position, the position of the administration -- and, again, that was the position I was advancing. I was articulating and defending the administration's position. And the administration's position was, yes, you are covered if the students receive federal financial assistance and that the coverage extended to the admissions office. That was the position that the Supreme Court agreed with. The Supreme Court in the Grove City case agreed with that position. So the position the administration had articulated, the Supreme Court concluded, was a correct interpretation of what this body, the Congress, had enacted.
Congress then changed the position about coverage.


Grassley demonstrates what makes an effective softball pitcher:
I think this standard is important for all judges, even more so with Supreme Court justices. Do you agree with this role of the court?

Justice Souter responded to some of my questions by talking about vacuums in the law, specifically that the courts -- and these are his words -- fill vacuums that are maybe left by Congress.

In your questionnaire to the committee, you stated that, quote, Precedent plays an important role in promoting stability of the legal system, end of quote. You also said that a judge operates within, quote, system of rules developed over the years by other judges equally striving to live up to their judicial oath, end of quote.

Erroneous interpretations of the Constitution can be corrected only by this court. End of quote.

You now, as an appeals court judge, obviously are bound by Supreme Court precedent. But on the Supreme Court, a justice has much more freedom to re-evaluate prior Supreme Court decisions.

I'd like to explore the approach that you would take in your examination of Supreme Court precedents. So Senator Kennedy's words were not quoting you, but quoting words that Secretary Bell had in this memo. Ultimately, the Voting Rights Act was reauthorized with a provision expressly prohibiting courts from requiring racial quotas.

Roberts reciprocates with a little batting practice:
It is the job of the court to decide particular cases.

Again, it is the obligation of the courts to decide particular cases. The courts sometimes have to address that sort of question.

And if it's presented in a case, it's unavoidable.

It has precedent on precedents. It has cases talking about when you should revisit prior precedents and when you shouldn't. Those precedents become part of the rule of law that the judge must apply.

If the bases of the precedent have been eroded -- in other words, if the court decides a cases saying, Because of these three precedents, we reach this result, and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent. Again, the court's decisions in cases like Casey and Dickerson, Payne v. Tennessee, Agostini, State Oil Company v. Khan, it's an issue that comes up on a regular basis and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case.

Well, again, you would start the precedent of the court on that decision. Nobody would apply that approach. In other areas, the court's precedents dictate the approach. The issue was in the Grove City case, the court had said that receipt of financial aid by students triggered coverage under the civil rights statutes limited to the admissions office, the admissions policies.

Some in the Congress wanted to amend the Voting Rights Act, Section 2, to overturn the Supreme Court's decision in Mobile against Bolden.

Biden - baseball, baseball baseball, Ginsburg, Ginsburg, Ginsburg; and now my Sam Kinison impression, SAY IT AH AH AHHHHHH SAY IT:
Hey, Judge, how are you?

Rule two defines the strike zone. As you pointed out, some places of the Constitution defines the strike zone. The strike zone is set out. What's unreasonable?

Every justice has to infer.

I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: Judge, you don't have to answer that question.

Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. Do you think there's a liberty right of privacy that extends to women in the Constitution?

Let me quote her. Let's see if you can talk about them.

Do you agree with his statement?

Not my question, Judge.

Justice Ginsburg answered the question. Ginsburg rule: What do you think? You're not applying the Ginsburg rule.

Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on.

Did she, in fact, somehow compromise herself when she answered that question?

Oh, Judge...

Did Justice Ginsburg give a hint when she answered... on the specific question?

I don't have time, because we don't have as much time, but I could list you a half an hour the questions she answered, the questions Kennedy, Souter -- all of the justices almost, with one exception, answered specific questions which you're not answers.

Let me ask you a question then, Judge. My time's running out. I understand the answer.

The Supreme Court has three levels of scrutiny. Next question. You said: Look, we were arguing that it did apply, Title IX did apply. If a student got aid, it applied to the university.

What was your position on Reagan's civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?

Only to the office, right? It applies narrowly?

You said you, quote, strongly agreed.

Number two, you went on to say, and I quote, that if you have the broad interpretation, quote, the federal government will be rummaging, quote, willy-nilly through institutions. Thanks, Judge.

Roberts - talk to the hand, analogy boy:
I do, Senator. Justice O'Connor took the same position. Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints about how they might rule in cases that might... come before the court.

Obviously, issues of overlap as well.

Of course gender discrimination is a serious problem. The discrimination on the basis of gender, distinctions on the basis of gender, is subject to what the Supreme Court has called intermediate scrutiny. Referring to what you called strict scrutiny.

Strict scrutiny is the...And, Senator, the memorandum is using heightened scrutiny the way you use strict scrutiny, which is scrutiny that's limited to the basis of race.

Senator, I was a staff lawyer. The Supreme Court concluded that it was a correct reading of the law.

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