The Battle Over the 2005 Supreme Court Nomination(s)

The Battle Over the 2005 Supreme Court Nominations

There are now two vacancies on the US Supreme Court. Just weeks after Justice Sandra Day O'Connor's retirement, Chief Justice William Rehnquist has died. Even though the Empire is reeling from the devastation caused by Hurricane Katrina, the liberals will still wage a vigorous battle over the two High Court nominees. (O'Connor's retirement won't take effect until a new Justice is confirmed, so she will continue to serve this fall.)

The full Senate began debating Judge John G. Roberts's nomination as Chief Justice on Monday, September 27, 2005. A vote is now expected on Thursday, September 29 (after first being scheduled for Wednesday, September 28.) The floor debate got off to a slow start, kicking off with Judiciary Committee Arlen Specter's opening remarks. Specter was forced to continually repeat himself before an empty chamber to fill up as much of his allotted time as possible, after no other Senate Republicans showed up to speak. (Sen. Jeff Sessions eventually did show up after an hour or two to give Specter a break.)

Roberts is virtually certain to be confirmed: 13 out of 45 Democrats endorsed him before the debate started and no Republicans have spoken out against him.

The floor action (if you can call it that) is available on CSPAN 2.

( Click here to see streaming video from CSPAN 2!)

The Senate Judiciary Committee voted 13-5 in favor of Judge John G. Roberts's nomination on Thursday, September 22. All 10 Republicans voted for Roberts, along with 3 out of 8 Democrats. This will be followed by a vote by the full Senate the last week in September. Some Senators (for example, John Kerry and Hillary Rodham Clinton, who will vote No) spoke about the nomination even before the nomination was sent to the full Senate. Roberts lost a little ground during the hearings, but he is still a safe bet to win a majority in the Senate. No Republicans have annnounced their opposition. A few Democrats have announced their support.

Now is the time to express your concerns to your Senators.

John G. Roberts's nomination hearings for the office of Chief Justice have been a little boring. I have only listened to and/or watched maybe at most 25% to 40% of the proceedings. But I will go ahead and comment anyway.

But first let me tell you that the most reliable TV outlet for the Roberts hearings has been CSPAN 3, which is not on my cable system, but is available on streaming video. Click here to see streaming video from CSPAN 3!

Even though Stephen Breyer was actually the most recent Supreme Court Justice to be confirmed (in 1994), the Republicans have been constantly referring back to the next-to-last confirmation process, i.e., Ruth Bader Ginsburg's 1993 nomination. Supposedly, the Republicans never ever would have even dreamed asking the very liberal Justice Ginsburg any questions even tangentially dealing with her views on specific cases— especially not the pro-choice Roe vs. Wade decision. So they keep congratulating themselves for their refusal to ask any specific questions now of Judge Roberts— although the Chairman of the committee, an old-fashioned pre-Reagan-era centrist named Arlen Specter, did hold up an amusingly large chart listing 38 cases which used Roe vs. Wade as a precedent. Roberts has said several times that he doesn't believe in overturning established precedent unnecessarily. He has also portrayed himself as a tolerant individual who believes in a personal right of privacy.

The boring hearings do come at an interesting (much too interesting!) time in our nation's political history. Roberts's confirmation process is the first political event since Hurricane Katrina. One of the side effects of Katrina has been to break up the unanimity of the coalition which has controlled the Republican Party since the 1994 midterm elections, or even since the Reagan Administration (in which Roberts served.) This makes the response to Roberts less predictable than it would have been normally.

Although this has little to do with the Roberts nomination— and even though Roberts appears to be relatively uninterested in socioeconomic theory— the hearings do come at a time when the world's fastest-growing economy happens to be that of Communist China. China's growing strength makes the continued Republican denunciation of even the most trivial proposed socioeconomic reform as “Socialism” seem a bit foolish. (The recovery from Katrina will— and already has— required Socialist-type solutions on a federal and even international scale. This is not a crisis which can be solved strictly by the private sector. And on a more trivial note, a large percentage of the goods used in rebuilding the Gulf Coast will be made in China.)

One interesting connection between the Katrina crisis and Roberts's nomination is this: In all likelihood, he would not have been nominated for the Chief Justice job were it not for the fact that the President and the Senate wish to minimize the number of confirmation processes going on during a time of crisis. If an Associate Justice had been nominated for Chief Justice instead of Roberts, the Senate would have had to fight over three nominations instead of just one (or possibly two if Bush II goes ahead and nominates a new replacement for Justice Sandra Day O'Connor.)

Roberts did a good but not great job of selling himself to the committee. He was amiable and articulate, but he gave generally vague, lawyerly answers. Even though he is a conservative, he did take on a number of liberal causes during his years as a private lawyer. He kind of blew the chance to score points with the liberals on the Judiciary Committee: instead of explaining why he sympathized with his liberal clients, he just claimed that he was simply giving them the same professional service as any other client. The only memorable quote from his hearings so far was his not particularly heartwarming statement that “[I]f the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that, I'll look out for particular interests, I'll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States. And that's what I would do.”

Read transcripts of John G. Roberts's Confirmation Hearings:

Watch reruns of John G. Roberts's Confirmation Hearings:

Real Player required. (Click here to get RealPlayer Plus!)

Thanks to CSPAN!

Senate Judiciary Committee hearings:

Day 1: Monday, September 12, 2005 (Opening statements.)
Day 2: Tuesday, September 13, 2005; Morning Session
Day 2: Tuesday, September 13, 2005; Afternoon Session
Day 2: Tuesday, September 13, 2005; Evening Session
Day 3: Wednesday, September 14, 2005; Morning Session
Day 3: Wednesday, September 14, 2005; Afternoon Session
Day 4: Thursday, September 15, 2005; Morning Session #1
Day 4: Thursday, September 15, 2005; Morning Session #2 (Outside witnesses)
Day 4: Thursday, September 15, 2005; Afternoon (Outside witnesses)
Day 5: Wednesday, September 22, 2005 (Committee vote)

In July 2005, Supreme Court Justice Sandra Day O'Connor announced her retirement (contingent on the confirmation of a successor), and Emperor Bush nominated Judge John G. Roberts Jr. to replace her. (Frankly, I never heard of the guy until he was nominated.) Then, in September, while the nation (with the possible exception of the Emperor Himself) was focussed on Hurricane Katrina, Chief Justice William Rehnquist quietly passed away at the age of 80. Within two days of Rehnquist's passing, Roberts was designated as the new Chief Justice nominee.

The three judges are connected to each other in all sorts of odd ways. O'Connor and Rehnquist were Stanford Law School classmates. Roberts was one of Rehnquist's law clerks shortly after he graduated from law school.

During the 2000 Presidential campaign, O'Connor was the swing vote who gave Bush II a Supreme Court majority over Al Gore, and he was part of Bush II's legal team during the legal and political maneuvers which culminated in the final vote in December 2000. Two decades earlier, during the Reagan Administration, Roberts was a key member of the team who vetted O'Connor's background before her nomination to the High Court.

If things go the way they currently seem destined to go, Roberts will be the first Chief Justice to have served as a law clerk to his predecessor, and he will also be the first Chief Justice to preside over the impeachment trial of the President/ Emperor who appointed him.

John G. Roberts is a “Double Harvard” (an alumnus of Harvard College and the Harvard Law School) who has served as a law clerk to the late William Rehnquist, an aide to Saint Reagan, as the Principal Deputy Solicitor General under Bush I, and in private practice. Finally, he was nominated in 2003 to serve on the U. S. Court of Appeals for the District of Columbia.

Roberts is a relatively little-known white male replacing a legendary Justice who was the first female on the High Court. His gender and obscurity notwithstanding, he appears to be an uncontroversial nominee. (However, it did take a full two years for his most recent appointment to be confirmed.)

The Roberts nomination seems likely to go smoothly, but the Democrats will ask some questions about Roberts' judicial philosophy and the nomination will be confirmed in something longer than the shortest possible time. So, the Democrats are already being accused of obstructionism and applying ideological “litmus tests.”

The Republicans are making much of the fact that Roberts has already been confirmed by the Senate once to be an appellate judge. This is a lifetime appointment, just like a Supreme Court nomination. Therefore, according to the Republicans, it would be unfair to vote against him now. (This evidently applies even to the Senators like Charles Schumer who voted against Roberts in committee, since the final vote by the full Senate was a unanimous voice vote with no roll call. So, Schumer effectively did vote for Roberts in 2003.) The Democrats, for their part, are trying to enforce a double standard: they are literally stating that it is possible for a person to be qualified to sit on the bench of a lower court but not on the High Court. Actually, they will be trying to enforce a triple standard: they claim that a Chief Justice nominee needs to meet an even higher standard than a mere Associate Justice nominee.

Roberts's judicial record is fairly short, although there are Supreme Court Justices who had shorter records before joining the High Court. He has written 49 decisions in his two years as an appellate judge. One of the most famous cases was Hedgepeth vs. WMATA, which involved an unfortunate 12-year-old girl who was arrested, handcuffed and prosecuted for eating a single french fry (ahem! The correct term is “Freedom Fry!”) on the Washington Metro. He wrote the unanimous decision upholding the transit police's right to arrest and jail any offender for any offense, no matter how minor the offense and no matter how harmless the offender.

He spent most of his career in private practice, where he represented both pro- and anti-Bush clients. His record as a political appointee in the Reagan and Bush I administrations will get much attention, from Democrats, at least. John Kerry is spearheading a drive to have the Reagan Presidential Library release files on Roberts' work back in the 1980s as a legal counsel in the Executive Office of the President.

In mid-August 2005, the Reagan Library released what has been variously described as 5,000 or 50,000 pages of documents from Roberts's time as a Reagan aide. (In adddition to the legal briefs and other items which Roberts actually worked on, these files also includes many random newspaper and magazine clippings which Roberts collected over the years.)

Click here to download PDF files of Roberts's released documents. (Warning: the Abortion files include some upsetting, albeit grainily reproduced, pictures of aborted fetuses.)

His personal views are little-known, but he appears to be fairly conservative, but not an extreme ideologue. He is evidently affiliated with a secretive conservative legal advocacy group called the Federalist Society. This group takes solidly pro-Bush positions, notwithstanding the line in its mission statement stating:
[The Federalist Society] is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

His supporters and the Federalist Society itself have for whatever reason refused to acknowledge that he has in fact been a member.

Speaking of secret societies, Judge Roberts's alma mater does have secret fraternities similar to Yale's infamous Skull & Bones Society. But it is not clear if Roberts belonged to such a club during his years at Harvard. On a less controversial note, he was (along with several dozen other fellow Harvard Law students) a member of the prestigious Harvard Law Review editorial board.

His wife, Jane Sullivan Roberts, is an attorney who used to be the Executive Vice President of anti-abortion group called Feminists for Life, and she still works there part time while raising two young children. This group generally takes pro-Bush stands, in spite of the fact that “Feminist” is part of its name.