Jurisprudence

Updated Nine questions I would like to see asked of John Roberts. (Information mostly via People for the American Way's initial report on Roberts and "The John Roberts Dossier" at Salon.com.)

1) Judge Roberts, the Constitution says the president can appoint judges to the Supreme Court "by and with the advice and consent of the Senate." What is your understanding of the phrase "advice and consent?"

- 1a) (If the answer is limited in any way to considering "qualifications.") Then what, in your view, is the point of these hearings? Wouldn't a resume serve equally well? Why are we here?

- 1b) (If the answer allows for considering "judicial philosophy.") Thank you, Judge Roberts, I'm glad we see eye to eye on this and that you recognize that we need to understand how you would approach issues on the bench.

- 1c) (If the answer is that it's for the Senate to decide its role.) I'm grateful for that recognition, Judge Roberts. I'm sure that as we proceed you will bear in mind that it's up to me to determine what areas I find it appropriate to inquire about in order to fulfill my constitutional duty as I see it.

2) You say you regard Roe v. Wade as "settled law." Yet in Rust v. Sullivan, you argued that Roe was "wrongly decided and should be overruled." Exactly what, then, does "settled law" mean if the case at issue can be overturned? Are you prepared to pledge that in the event you're confirmed, if an opportunity arises, as it did in Rust and doubtless will at some point again, to reconsider and reverse Roe that you will not take it? If not, then again, just what does, what can, the phrase "settled law" mean?

3) You are surely aware that over the last several years, the questions about abortion that courts have addressed have less been about the legal right to it than about access to it. Courts have considered and often upheld various restrictions on access to abortion, ranging from waiting periods, through "gag rules" of the sort you argued for in Rust and so-called "informed consent" laws that in effect demand that doctors try to dissuade patients from having abortions, to preposterously restrictive zoning and building code regulations applied to clinics. Do you think these restrictions are proper? What is your view of the courts' responsibility to protect access to a legal right as opposed to just its technical existence?

4) You have said you will be guided by precedent. But in your department's amicus curiae brief in Lee v. Weisman, you urged the Supreme Court to jettison the so-called "Lemon test," the precedent the Court has used in judging matters related to the Establishment Clause, and use instead another set of principles, those applied in Marsh v. Chambers, as the guiding precedent. What can it mean to say you'll be "guided by precedent" when you are free to dump established ones in order to pick and choose which case is the precedent by which you'll be guided?

5) In fact, your devotion to precedent seems questionable. In Rancho Viejo, LLC v. Norton, a three-judge panel of the Circuit Court denied a developer's challenge to the application of the Endangered Species Act to a project. The full court declined to reconsider the panel's decision. You dissented from that ruling and suggested applying the ESA could be unconstitutional, even though two years earlier, the Supreme Court had ruled that Congress did have the authority to protect endangered species on private lands. Would you care to explain that?

6) Indeed, more than questionable. Just last week, in Hamdan v. Rumsfeld, you joined in a decision by a three-judge panel that found that when Congress authorized the president to use "all necessary and appropriate force" in response to 9/11, it was giving him the authority to strip anyone his administration accused of being a terrorist of all due-process protections, leaving them only with such due process as the president in his sole authority chooses to grant. [This was on an appeal from a judge's decision to stop Hamdan's trial because he was barred from his own trial.] In so doing, you ignored a 200-year-old precedent known as the "Charming Betsy principle," which states that federal laws authorizing the government to do something have to be read so as to be consistent with international law, in this case the Geneva Accords. How does that square with your claimed devotion to precedent?

7) Should US laws be consistent with those of other nations? If not, why did you find it relevant to note in oral arguments on Hamdan that some other countries do not allow cross-examination of witnesses?

8) In line with that, what, in your view, are the limits, if any, on presidential authority in matters such as this? What about in a time of war? Can there be such a time without a formal declaration of war by Congress? If so, what is required to establish a time as a "time of war?" What about in a time of "war" such as a war on terrorism, where there is no objective way to determine an end to the conflict?

9) You have a consistent record of a politically-conservative personal ideology. After law school, you clerked for Chief Justice Rehnquist, certainly regarded as a conservative jurist. After that, you worked in the Reagan administration for four years as deputy White House counsel. In 1988 you were on the executive committee of DC Lawyers for Bush-Quayle. You then worked in the Bush administration under Kenneth Starr. In 2000 you were a member of Lawyers for Bush-Cheney and contributed $1,000 to their election campaign. You provided legal advice to Governor Jeb Bush during the legal battle over the Florida recount. In light of that record, can you expect us to believe that you would not be influenced by your political convictions in rendering decisions from the bench? How can we be assured that you will approach questions with a truly open mind?

- 9a) (After the inevitable "consider the facts; interpret the law, not make it" answer.) But that is exactly the point, Judge Roberts. You have to agree that any case that comes before the Supreme Court is not a matter of "settled law" and "established precedent." If it was, it never would have gotten that far. It's precisely because there are issues to be settled, judgments to be made, about the meaning of the law, about what constitutional principles apply and which ones outweigh others, that the case exists. Like it or not, you will be involved in "making law" because the Court's decisions make those determinations. I say to you, Judge Roberts, that in dealing with questions of interpretation of laws and legal principles, it is not possible for you, for any human being, to simply turn off their political, their ideological, their ethical, their social convictions and act as if they did not exist. It's simply not possible. So I ask you again, Judge Roberts: How can you assure us that someone with as clear and consistent a record of political beliefs as you have will approach the cases before them with a truly open mind?

- 9b) (After the inevitable repeat of the previous answer in a different form.) I'm sorry, Judge Roberts, but repeating your previous answer is not an answer to my question. I'm also sorry to have to remind you that at the start we agreed that I was the one to determine the appropriate scope of my questions. But leave that aside for the moment; do I take your answer to mean that your political convictions would be irrelevant to your role as a Supreme Court justice?

- 9c) (After the inevitable "yes.") Do you think they were irrelevant to the people who nominated you?

Footnote One: The rightwing, not surprisingly, is delighted. That should tell us all we need to know.

Footnote Two: The imbecility of some on the left continues to astound me. I actually saw someone who in all seriousness proposed that Roberts be given a free pass because that way it would be over and done with quickly and we could get the Rove business back on the front page. Right: Getting Karl Rove is so much more important than who is on the Supreme Court.

And yes, I say that knowing full well that the jackass Dummycrats - or at least enough of them - have already mouthed platitudes about his not being an "extraordinary circumstance," so even the possibility of a filibuster is doubtful and the possibility of a successful one remote. But dammit, sometimes you do things because you should. Not because you think you'll win, in fact, even if you know you'll lose. You do it because you should. And resisting this gift to reaction is something that definitely comes under the heading of "should." Supposedly, e. e. cummings said something to the effect that "the wise man fights for the lost cause, knowing all else is just effect." I haven't been able to confirm the quote, but I can endorse the sentiment.

Updated with the bit about advising Jeb Bush.