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Friday, July 22, 2005

Some Analysis of the Roberts Nomination from around the Blogs

From Tom Knapp of The Knappster (former LP member now DFC activist):

Gaming the Roberts nomination:

My opinion?
Smooth move, and I mean it, for Bush. He picked an appointee whose previous
Senate confirmation went well, even with Democrats. He's effectively put
Roberts's career prior to 2003 off-limits for criticism. ...
I don't think the Democrats can win on this one. As a matter of fact, I'm
not sure they should even try. Bush has nominated
Schrodinger's Justice. After taking a beating for obstructionism in confirmation, the Democrats either Bork him (and get bloodied for it) or he makes it (and then there's a very good chance that they'll like him as a Justice). Meanwhile, they'll have hemorrhaged huge amounts of credibility opposing him -- and there's a very good chance that they'll need that credibility in the next 2 1/2 years. Bush will probably have the opportunity to appoint replacements for Rehnquist and possibly Stevens before 2008 ... and he's hoping the Democrats step on their own collective crank this time so that he can roll over them with bolder appointments next time.

From the right (Daisy Cutter):

So, how will the Roberts' nomination play out?

The bottom lines here are: 1) Barring unforeseen developments, he will be confirmed, probably with strong bipartisan support; and 2) The nastier and longer the fight over Judge Roberts, the more the Republicans are helped and the more the Democrats are hurt.

This is not a battle that can be won. Yes, ask some tough questions. But save the big fight for another day. Concede this, and fight another day. Fight hard, and there's a very good possibility that freedom lovers will lose both the battle and the war.


I wanted to add an article from The New Republic here: [excerpt]

The question of Roberts's judicial philosophy--is he a conservative ideologue with a transformative agenda or a conservative incrementalist with a judicious temperament?--should indeed be the central question for senators to explore in Roberts's confirmation hearings. The difference between an agenda-driven conservative ideologue and a conservative incrementalist is notoriously difficult to define. But Dean John Jeffries of the University of Virginia School of Law provides a tool for identifying the difference by distinguishing between "top-down" and "bottom-up" judges. Top-down judges start with well-developed ideological commitments and apply them to the merits of each case. Bottom-up judges are more engaged by the facts of each case and are willing to follow the relevant legal precedents in whatever direction they happen to lead. Scalia, Thomas, and the liberal activist William O. Douglas are examples of top-down judges; Lewis Powell, Sandra Day O'Connor, and the conservative incrementalist John Marshall Harlan are bottom-up judges.

"Top-downs say bottom-ups are unprincipled, and bottom-ups say top-downs are rigid and closed-minded, and both are probably right," says Jeffries. Although there are important differences between them, Scalia and Thomas are top-down judges who believe that the Constitution should be interpreted in light of its original understanding and are willing (Thomas more than Scalia) to overturn decades of precedents that clash with their vision. Roberts, by contrast, has never openly embraced originalism as the touchstone of constitutional fidelity. He has been guided at every stage of his career by an effort to apply existing precedents rather than to transform them. So there are at least preliminary reasons to hope and expect that he may be a bottom-up, conservative incrementalist.

(For full access to the article, check out

Update 2:

Charles Krauthammer, a columnist about as Neo-con as they come:

Roberts's Blank Slate

John Roberts is obviously a brilliant lawyer with a history of attachment to conservative administrations. On constitutional matters, however, he is a tabula rasa. He's been an advocate advancing his clients' opinions and interests. That tells us little. And in just two years as a circuit court judge he's made no great, or even important, pronouncements. Nor does Roberts have significant speeches or law review articles to his name. If he has a judicial philosophy, we don't know it. Nor does he -- having told the Senate Judiciary Committee in 2003: "I think I'd have to say that I don't have an overarching, uniform philosophy." ...

Roberts is no Scalia. I think. Like just about everything else we can say about him, this guess is educated only by the meager record, and by Roberts's traditional, conventional life trajectory. And perhaps even by his opening remarks on national television, where he spoke with reverence of the institution to which he has been nominated -- from which one might infer (now we're really grasping at straws) -- that he might be reluctant to overturn precedent.

But if he is no Scalia, is he an O'Connor, who moved so steadily leftward through her Washington career that she has become a retroactive icon, a paragon of principled conservatism, to liberal advocacy groups today?

We know that Scalia and Thomas would overturn Roe v. Wade tomorrow. As would William Rehnquist, for whom Roberts clerked and to whom he is being most closely compared.

Sandra Day O'Connor, on the other hand, not only upheld the abortion precedent but invented an even more radical constitutional principle to justify her decision. The notorious pronouncement that "[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" opened the door to
the Texas case ruling anti-sodomy laws unconstitutional and Massachusetts's legalization of gay marriage on constitutional grounds.

It is almost impossible to imagine Roberts doing something as grand as that. He would not have the audacity. My guess? He upholds Roe , purely for reasons of precedent. And very quietly.

Wednesday, July 20, 2005

John Roberts, Nominee

I must admit, I'm cautiously optimistic about this nomination.

There a really good analysis of his likely role in forming a new center with Kennedy and Breyer over at SCOTUSblog (props to Chase at The Political Forecast for pointing me to it).

While there are large cries out there about his footnote in a brief while he was arguing a case as deputy solicitor general for the first Bush administration that Roe should be overturned, this was the position that he was advocating for his client, the Bush Administration, and not (necessarily) his personal belief. In fact, he stated during his confirmation hearings for his appellate court seat that Roe was "the settled law of the land."

I like the fact that his opinions show that he believes that current law far overconstrues the use of the Commerce Clause in the Constitution, which (might) help rein in Leviathan somewhat.

It really boils down to just one question for me: Does he see the government as the guarantor of rights or as the grantor of rights?

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Tuesday, July 19, 2005

Gotta get the news off Rove!

Supreme Court Announcement Tonight, White House Says.

By Peter Baker, Fred Barbash and William Branigin
Washington Post Staff Writers
Tuesday, July 19, 2005; 1:18 PM

The president is set to announce his Supreme Court nominee tonight at 9 p.m. ET, according to spokesman Scott McClellan.

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Monday, July 18, 2005

Another Avenue that Fitzgerald is exploring?

Perhaps Fitzgerald's Grand Jury is looking into violations of Title 18 of the US Code, Part I, Chapter 37, Section 793.

The burden of proof is certainly lower than the Intelligence Identities Act.

And this one could hit more than just Rove/Libby --

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

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