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September 16, 2005

Comments

Mark Windsor

Sad, but that's kinda what I got from the hearings too. I was hoping that I was wrong.

anon

If this ends up being the case, which may well be the case, then I am leaving the Republican party. I didn't vote for Bush to have the margin on the Court to overrule Roe go from 6-3 to 7-2 or even stay at 6-3 (unless of course Bush had only been faced with the Rehnquist vacancy).

That being said, I am not sure Krauthammer's conclusion (shared by Charles Fried, David Brooks, and others) is right. There are many good people who are staking their reputations on Roberts, people like the deputy White House Counsel Bill Kelley, Leonard Leo of the Federalist Society, Santorum, etc. I don't think these people who put their necks on the line if they thought it a good possibility that Roberts would vote to uphold Roe. Now we never could have been guaranteed what someone would do of course. But I just can't imagine what sort of pot these guys were smoking if they didn't believe based on good information that Roberts would be a vote to overrule Roe. If I am wrong, well, then Republicans really are as foolish as their opponents make them out to be.

T. Marzen

Roberts will get to show his hand in Ayotte v. Planned Parenthood of Northern New England, a parental notice to abortion case to be argued on November 30th. (The assisted suicide case to be argued October 5th is probably too technical to tell us much.) Ayotte is not "let's reverse Roe" case because no one is arguing reversal (which is not possible at present, in any event). But it has the potential to seriously erode Roe's practical effect because one of the questions presented has to do with the standards under which abortion statutes are reviewed and the other has to do with how the Court might permit a "health" exception to be defined (Doe v. Bolton's broad definition of health was made in the context of a saving construction of a state statute and is not necessarily the final word on "health").

Keep in mind that NO ONE could have improved on Rhenquist from a prolife perspective. We can only hope Roberts will equal Rhenquist's absolutely flawless record on prolife issues. The Big Tests are coming in the replacements for O'Connor and (God willing) another pro-Roe/Casey Justice.

Donald R. McClarey

Krauthammer is a pro-abort, albeit conservative on other issues. This is wishful thinking on his part. Based upon his judicial philosophy of strict adherence to the Constitution as written, and not as imagined by skillful judges, I think Roberts would join Scalia and Thomas to vote to overturn Roe.

WRY

I think Krauthammer is on the money. The GOP has nothing to gain politically by naming pro-life judges and plenty to lose. As for us pro-lifers, we can easily be taken for granted once again. Whatcha gonna do - vote Hilary? Sadly, the choice will always come down to, "Well, the GOP is the lesser of two evils and they favor *some* restrictions."

ricopadre

After the dog and pony show, that supreme court justice senate hearings have become after Robert Bork anytime a conservative is up for the Court, I don't think we can read anything into what Roberts said; however, if he turns out to be another pro-abort Republican nominee in the lines of O'Connor, Kennedy, and Souter, I also am done with the Republican party. You got to walk the walk boys, as well as talk the talk. We will see if G.W. Bush comes through on Roberts and his next nominee. After all we conservative Catholic pro-lifers were the deciding factor in getting him elected by the skin of his teeth.

Mike Petrik

With all due respect, Krauthammer doesn't know what he is talking about. Just another talking head feeling the need to weigh in. Besides, Roberts is not the key vote. We will need at least two more assuming Kennedy doesn't change his mind. For some strange reason people seem to think that Roe can be reversed if we secure the right replacements for O'Connor and Rehnquist. That just isn't so. Indeed, the worse thing that can happent is to tee up another chance for Roe to be affirmed therefore further enhancing its stare decisis weight. It is pretty obvious that Roberts sees Roe as wrongly decided but precedent worthy of being accorded weight under stare decisis nonetheless. He probably has a private view on whether that weight is sufficient but knows that sharing that view would be foolish because (i) it departs from the wise practice of not expressing views on matters likely to come before the Court, (ii) it is premature since he may change his mind, and (iii) it would further politicize a process that is already far too political. My hunch is that Roberts would vote to overturn Roe if the votes are there to do. But I admit that I know no more than Krauthammer.

Slurms McKenzie

he respects precedent, that he finds Roe itself worthy of respect . . . Which means while he will never repeat Roe, he will never repeal it and be the cause of the social upheaval that repeal would bring.

As opposed to the social peace that has existed for the last 32 years??? We have had nothing but upheaval ever since Roe was decided. There was a major flaw with all this questioning of whether Roe is "settled precedent." Simply asking the question is proof that it is not. Although Roe has, concededly, garnished the support of a majority of the Court since it was announced, a substantial number of justices have never accepted it, and at least half of the American people have never accepted Roe. The fact that, after 32 years, at least half the country is still vehemently opposed to Roe and substantial numbers are dedicated to its burial are proof that it is not and never has been and never will be "settled."

Contrast Roe with Brown v. Board of Education -- within a relatively short time after that decision, nearly every American has supported the end of segregation. That decision is what "settled" looks like. Roe has never been settled, but has only been the cause of social upheaval, not to mention a corruption of the judicial confirmation process, ever since its announcement. So long as Roe exists, there will be animosity and malice in, not only the judicial confirmation process, but politics in general. Roe was the foundation for our current state of judicial supremacy, rule by tyrranical overlords in robes, rather than self-rule in a republic.

The test of stare decisis and "settled precedent" is not limited to the decisions of the Court itself -- it does and must consider the social impact, and whether the people themselves have developed a consensus that the decision is correct. Roe fails that test miserably.

Mike Petrik

Well said, Slurms.

Christopher Sarsfield

Dear Mr. McClarey,

Could you tell me where Roberts tell us that he proposes a "judicial philosophy of strict adherence to the Constitution as written." I would say that his philosophy would be precedent first, then "constitution as written." Do you believe that his talk of precedent is just political "exaggeration/lying" to get confirmed?

DarwinCatholic

I think that Krauthammer may be engaging in wishful thinking here, but it is, sadly, impossible to tell. Authors like Brooks and Krauthammer seem convinced both that a) while Roe was a badly reasoned decision that has caused huge amounts of negative political and cultural fallout, it's somehow better to keep it in place and b) the majority of the conservative movement is interested in "conservative temperment" but not in social conservative issues.

It's point b) which I think he has far wrong. I don't think there's actually that much interest in the population as a whole in the core "conservative philosophy" elements regarding limitted government, federalism, etc. I suspect 80+ percent of those who vote GOP do so because they care about 1) robust/aggressive foreign policy, 2) immigration restrictions, 3) social conservative issues, 4) gun ownership.

Of these, only number one hits Krauthammer's radar. And if he's right that the GOP is following his model, then they're about to lose all their new found success.

TSO

Can't be a good sign that he supports Griswold v. Connecticut because there's the basis for the "right to privacy" not found in the Constitution and the bulwork upon which Roe was built.

DarwinCatholic

I wasn't clear reading the questioning how solid his support for Griswold was. If I recall, the question was roughly: "Do you support the right to privacy as found in Griswold" and his reply was along the lines of: "There is clearly a right to privacy in the constitution elements of which are found in the first, second and fourteenth ammendments among others." That's totally going from memory, but it was almost like he intentionally answered a different question.

austin

If Roberts is not going to overturn Roe, why are Fr. Pavone, James Dobson, and other pro life, social conservatives so strongly behind him? I assumed they knew something I didn't know about Roberts.

Dennis

Unfortunately, I fear Krauthammer may be right. I've never been convinced Roberts was a solid choice in the mold of Scalia or Thomas, and was hoping his answers at the hearings were just artful dodges to avoid a serious confrontation. Sadly, I think his stated support for Griswold, Roe, the "right to privacy" as interpreted by pro-aborts, etc., does probably reflect his real views. As someone above said, he's an "establishment" conservative, who's main goal is not to rock the boat, rather than to boldly advance a clear set of principles. His main principle appears to be the advancement of John Roberts' career.

This is a disgrace. The GOP now has control of the House, Senate, and White House, yet it doesn't have the backbone, apparently, to make a real effort to move the court in a sane and decisively constitutional direction. Add to this Bush's massive bloating of the federal budget, and what reason is there left to be a Republican?

Donald R. McClarey

"Dear Mr. McClarey,

Could you tell me where Roberts tell us that he proposes a "judicial philosophy of strict adherence to the Constitution as written." I would say that his philosophy would be precedent first, then "constitution as written." Do you believe that his talk of precedent is just political "exaggeration/lying" to get confirmed?"

As to the precedent question read his remarks carefully. They were all a long and fairly dry discussion of when a case should be overturned based upon the case law of the Court. The discussion revealed absolutely nothing about the deference he would give to any particular precedent.

As to his strictly adhering to the Constitution as written that was the clear message from his testimony. Especially note his statement that if the Constitution says that the little guy is to win on a legal point in his Court then the little guy wins, but if the Constitution says the big guy is to win then the big guy wins. I have no doubt that Roberts will be a strict constructionist.


Jim

Krauthammer is brilliant, but he's probably wrong on this. Roberts left a number of clues for attentive lawyers that he is ready to overturn Roe. For example, he noted that a precedent's workability is a factor is deciding whether it should be overturned; well, in Casey, Scalia made a point of showing how unworkable Roe has been. On close inspection, Roberts's apparent support of Griswold dissolves into tautology: he said he agreed with Griswold's conclusion that marital privacy extends to contraception; sure it does, assuming there _is_ a right of marital privacy in the Constitution, which he carefully did not say he thinks. Well, _is_ there a right of privacy? Oh, yes, there is -- and all the current justices think so (including, significantly, Scalia and Thomas).

You can say this reading is too subtle, but John Roberts is a very subtle lawyer. There's every indication that his instincts are deeply conservative, but he's made a career of using his unassuming, reasonable manner to blend into the liberal legal establishment -- without backing off his own beliefs one jot.

Anon is right that there are no guarantees, but I'd say that, except for the very outspoken Edith Jones and possibly Garza, Roberts is as likely to overturn Roe as anyone Bush could have picked, including Luttig and McConnell.

Donald R. McClarey

Excellent post Slurms, one of the best I've read on the Roberts hearings!

RP Burke

From outside the echo chamber, there is an increasing view that Roberts represents a classic Republican bait-and-switch, as documented in Thomas Frank's "The Trouble With Kansas."

The view is that Roberts is not a radical social conservative but a radical pro-business judge whose intent is to eliminate any control whatsoever by the government on the activities of large corporations.

A classic George the Lesser move - a response to his real base, "The haves and the have mores," as he put it.

Mike Petrik

All this negative bloviating about Roberts based exclusively on aggressive surmise and inference is really pretty funny.
In any case, for the record Roberts did say that he believed "*marital* privacy rights extend to contraception," which certainly suggests some recognition of a privacy right beyond the 4th Amendment, though libs are very agitated about his careful and perhaps surprising marital qualifier.

Mike Petrik

The views outside the echo chamber are in this case just ill-informed, but they get accorded weight much like the moral instincts of the noble savage and with the same degree of justification.
If Bush nominated someone who just shouted "I intend to overturn Roe," he would be rejected by the Senate (with every Dem voting against joined by just enough Repubs). Indeed, this is exactly what the pro-aborts are trying to get Roberts to say, and yet amazingly some of the allegedly pro life commentators on this Blog want Roberts to do just that. Y'all are either extraordinarily naive or transparently disingenuous.

Rich Leonardi

With all due respect, Krauthammer doesn't know what he is talking about.

Evidently no subject is too specialized to be exempt from the comments of the distinguished Dr. Krauthammer. Not politics, not jurisprudence, not even Vatican II.

Bernardo

Great post, Slurms.

Add me to the list of folks who will abandon the GOP (and maybe the ballot box altogether) if Roberts votes to preserve Roe.

But I'm not going to put much stock in the opinions of pro-aborts - the ability to rationalize legal abortion requires a willful blindness that taints a person's judgment in all matters. Men lacking moral character usually fail to recognize it in others.

John Farrell

Is it necessarily a bad thing if conservative judges, mindful of precedent, don't outright overturn Roe, but bleed it to death through a series of decisions that return the issue to the states in the next 5 years or more.

I'd accept that approach.

Donald R. McClarey

"Indeed, this is exactly what the pro-aborts are trying to get Roberts to say, and yet amazingly some of the allegedly pro life commentators on this Blog want Roberts to do just that. Y'all are either extraordinarily naive or transparently disingenuous."

Mike, I'd say the proportions are about 50-50.

Mike Petrik

My guess as well, Don.

RP Burke

Mike, I wouldn't be so quick to characterize the views of those who have different information and different analytical frameworks than yours as similar to "the instincts of the noble savage."

You are not the only one who knows anything.

Jim

Just guessing from the comments, it seems that the other lawyers on this thread (or at least the closest readers of the testimony) are Donald R. McClarey and Mike Petrik -- and all three of us think that Roberts will vote to overturn Roe. That should encourage the rest of you.

Another point: Roberts is an extremely careful and meticulous lawyer -- the kind that just detests Roe, an abysmal opinion. This guy isn't Anthony Kennedy or David Souter -- he doesn't crave the approval of the New York Times because he knows full well he's five times smarter than anyone at the Times. His well-practiced humility routine is just a way of fitting into a society where hardly anyone, even other Harvard Law grads, is nearly as smart as he is.

For the cynics: I'm sure there are people in the Republican party who would be cynically glad to let Roe stand, but I see little evidence that George Bush is one of them, and no evidence at all that John Roberts is the well-chosen tool of these people.

Slurms McKenzie

Clearly, Roe and its progeny have proved unworkable and a disruptive force in the law, not to mention the judicial process. It has throughly corrupted the process, and Roberts, like Rehnquist, Scalia, and Thomas, should have little compunction about re-examining the issue anew and returning the abortion issue to the people or their elected representatives.

For all you worry-worts getting hung up on this "settled law" business, I would recommend reading some of the cases regarding stare decisis, including the joint opinion in Casey (O'Connor, Kennedy, and Souter) --
"Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an "inexorable command," and certainly it is not such in every constitutional case. Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proved to be intolerable simply in defying practical workability, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." (citations omitted)

In his dissent in Casey, Robert's mentor, C.J. Rehnquist, said -- "In our view, authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact. 'Stare decisis is not . . . a universal, inexorable command,' especially in cases involving the interpretation of the Federal Constitution. Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that 'depar[t] from a proper understanding' of the Constitution. '[I]n cases involving the Federal Constitution, . . . [t]he Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.' Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation isunsound we are obliged to reexamine the question." (citations omitted)

Rich Leonardi

Mike, I wouldn't be so quick to characterize the views of those who have different information and different analytical frameworks than yours as similar to "the instincts of the noble savage."

This from a guy who seldom goes more than 48 hours without tarring his opponents with that witty, insightful epithet "the echo chamber."

WRY

John,
The problem is that every decision in which a supreme court reaffirms Roe becomes another brick in the wall of stare decisis. You might could whittle away on parental consent or nibble at the edges of fetal viability, but the kind of abortions that kill 99 percent of the unborn would be ever further ensconced in the legal system. I think some prolifers believe that no court case should be brought to the SupCo until it is has a good chance of overturning RvW.

David Kubiak

I actually took Roberts' willingness to say he supported Griswold as a positive sign, since although I doubt he would be anxious to say so publicly I suspect Pope Benedict does not believe that the sale of contraceptives should be illegal either, with a footnote to the long discussions here earlier about St. Thomas and the relationship of the positive and moral laws. I viewed this as Judge Roberts throwing the social liberals a bone that did not compromise him.

It still surprises me that people think a nominee to the the high court who, if he thought Roe should be overturned, should be expected to say so, when the result would without doubt be his failure to be confirmed. All I can make of this is that some believe a kind of public hari-kari should be performed to vindicate the Republican party's promises. No matter how the soon to be Chief Justice turns out, I think the administration did absolutely the best they could with this appointment. Everything else was in place for Judge Roberts (at least for me, since I think that absolute strict constructionism is untenable), and the one thing they cannot for political reasons have talked to him about, the abortion issue, I think they relied on the kind of Catholic life he and his wife lead to know what he thinks morally. Legally the Church is hardly necessary, as Justice Rehnquist's opinion demonstrated.

I honestly don't know what more people could have asked for, unless what they wanted for the Republican party is the reputation of the Spartans at Thermopylae rather than a judge on the court.

He'sNoBork

Dennis: "His main principle appears to be the advancement of John Roberts' career".
I agree.

Slurms McKenzie

I think some prolifers believe that no court case should be brought to the SupCo until it is has a good chance of overturning RvW.

Well, no case directly challenging and seeking to overturn Roe should be brought before then, but there will be plenty of cases short of that brought, including the infanticide cases (erroneously also known as partial birth abortion).

However, I believe that the winning argument for overturning Roe will have less to do with abortion itself, then the proper rule of the judiciary, and the improper expansive role that judges have taken. That is, it will be issues like same-sex "marriage," the pledge of allegiance, and other over the line cases that have demonstrated that the judiciary is out of control. The logical ramifications of the Anthony Kennedy test -- "at 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" -- will be a stake in the heart of Roe.

Roberts is smart enough to know that it is the Constitution that he owes allegience to, not Supreme Court precedent. Prior caselaw is not the Constitution, the Constitution is the Constitution. Stare decisis ("settled law") is a value only when the rule of law has support in logic, is workable, and is accepted by the people. In Casey, the Court essentially admitted that Roe has no support in the Constitution itself. Casey upheld Roe only as a matter of stare decisis, and Roe has only lost public support in the 13 years since that decision.

Given the caustic consequence of Roe on the judicial process, the fact that it has no support in the text of the Constitution, or in the common law or 2,000 years of human history, and the fact that it has never been accepted by substantial portions of the public, Roberts will not feel bound by precedent. He will see the wisdom of jettisoning a rule that has caused more trouble than it is worth, and will see the wisdom of allowing the people a voice in their own government. He will see the wisdom of allowing women a say in whether abortion should be legal or not, rather than denying them any voice in the matter and leaving it to nine despots to decide for us.

WRY

What about the notion that you can't do evil (lie about your opposition to RvW) so that good may come of it (overturn RvW)? Does that apply here? I'm not saying it does. I've read Catholic moral theologians who argue, for instance, that a criminal has the right to plead not guilty when he is certainly guilty of a crime, on the grounds that a "not guilty" plea means "It is up to you to demonstate that I am guilty and not for me to say."
Would the same logic apply to judicial candidates dancing around their opinions? Should it?

Simon

[i]From outside the echo chamber, there is an increasing view that Roberts represents a classic Republican bait-and-switch, as documented in Thomas Frank's "The Trouble With Kansas."[/i]

Perhaps one of the least intelligent books written about contemporary American politics. Thesis: "What's wrong with those ignorant rubes in flyover country who aren't voting solely according to their material/economic interests (as we on the Left perceive those interests)?"

Jim

Nice post by Slurms on stare decisis. I add two points: first, Roberts himself made the point Slurms cites in the Casey dissent that stare decisis has greater force in statutory than in constitutional interpretation. It's not a controversial issue, but Roberts didn't have to bring it up, and he may have meant it as a little signal to our side.

Second, "settled law" doesn't mean (or at least doesn't necessarily mean) that a precedent is unusually well established -- it means only that there _is_ a clear precedent, as opposed to several conflicting precedents. Well, Roe/Casey is clear enough, but on the critical question of whether it or any other precedent should be overturned, I don't think Roberts yielded an inch to the Senate Democrats.

BlastFurnace

I just don't see it. GWB appointed Roberts specifically to narrow the gap to 5-4, hoping one more liberal will leave the court during his term and tipping the balance the other way once and for all. He would not have made the appointment without such an iron-clad commmitment. If Roberts is going to uphold Roe, he sure knows how to play possum and has played the GOP for fools.

Then again, Eisenhower was wrong about Warren and Brenner, Nixon about Blackmun, Ford about Stevens, Reagan about O'Connor and Kennedy and the first Bush about Souter. None of those Presidents expected any of their justices to go the other way on social issues.

Remember when Randall Terry slammed the Casey decision by saying O'Connor, Kennedy and Souter had "stabbed the pro-life movement in the back?"

On the other hand, JFK got the wrong read from Whizzer White.

My guess is like some others here, Roberts will try to get the court to strip down the Roe decision without saying that's what they're doing ... turn it into, as the later Rehnquist called it, a "Potemkin Village."

Mike Petrik

Excellent post, Slurms.
And RP, Perhaps you don't understand the meaning of a metaphor.
In any case I took your reference to "echo chamber" to mean those who run in political or legal circles, but perhaps I misread you. Frankly I'm not too interested in the uninformed opinions of those who know little or nothing about law or politics when it comes to assessing the legal aptitude and philosophy of a Supreme Court nominee. Yet, others seem to view lack of knowledge as a fresh perspective worthy of special weight due to its purity, much the way literature has often accorded special weight to the moral sensitivies of the uncivilized because they have not been corrupted by society. It is a stupid view, and I stand by that.

Dan

Krauthammer may be right but there are some things that are cause for hope that he is wrong. It is true that Roberts is probably an establishment Republican, and establishment Republicans are not usually hardcore pro-lifers, but on the other hand his wife appears to be solidly pro-life and I do not think that this is insignifcant. Another possibly good sign is that Michael Luttig was the best man at the Roberts' wedding. Luttig is a 4th Circuit Judge often mentioned as a possible Supreme Court nominee who would be sure to trigger a Dem fillibuster. So the people Roberts appears to be closest to in his personal life appear to be pro-life and this in turn means that at a minimum he is regularly exposed to a sympathetic expression of the pro-life worldview by people he respects and cares for. I don't think the Krauthammer view takes this into account.

L.T.

Is it just me, or do the Roberts' hearings bear an eerie resemblance to St. Thomas More's interrogations in A Man For All Seasons? His tenacity to remain silent on his personal views was unmatched except by that of his interrogators to pry them out of him. Lest we play the role of Chapuys or young Roper who presumed to know the mind of Thomas, we should humbly reserve judgment. The pro-life neighsayers who are already declaring a loss before Roberts is even confirmed sound exactly like Roper when he chided Thomas for giving the Devil the benefit of the law. "Will Roberts overturn Roe?" is about as flatfooted a question as "Will Sir Thomas publicly reject the Act of Succession?"

Simon

The view is that Roberts is not a radical social conservative but a radical pro-business judge whose intent is to eliminate any control whatsoever by the government on the activities of large corporations.

That may be the view among the Move-on.org crowd, but not among any significant number of reasonable, informed observers.

It is stunning that the Left is so deeply entrenched in its views of the judiciary as results-oriented and of law as a mere instrument of power that Lefties are unable even to consider what a nominee actually says about his own jurisprudence.

I do not know whether Roberts will vote to strike down Roe (we're at least 2 more justices away from that possibility anyway), though I strongly suspect he will.

What I do know is that what matters in most appelate decisions is the court's reasoning -- not whether the victorious party happened to be a corporation or an environmental group or a labor union or whatever. But all this is lost on the materialist ideologues of the Left.

Mike Petrik

WRY,
I'm not sure I understand your question, unless it is intended as a pure hypothetical. There is no reason to believe that Judge Roberts has lied or would lie about RvW.

Jim

WRY: the whole business of being a lawyer is a matter of distinguishing between telling lies (which good lawyers almost never do) and telling the truth very, very carefully. Roberts did the latter. He said nothing inconsitent with voting to overturn Roe. To you it may be "dancing around"; to him, it's precision of speech.

Again to echo Slurms: the fact that there's a new abortion case before the Court seemingly every year is a sign of Roe's weakness -- more evidence that Roe _didn't_ settle things. Roberts knows this, and it's not inconceivable that even Anthony Kennedy will eventually figure it out.

Mike Petrik

Dan's suspicions are correct because Simon's post is correct. The notion that Roberts is some type of pro-business lover of large corporations is laughable. It really is.

hieronymus

When I read the transcripts, I was disappointed. But I'm not a lawyer. Every pro-life lawyer or legally knowledgeable analyst I've read has said that Roberts conducted himself exactly as he ought, and that we have no reason to be despairing.

You really are worry-warts.

Jeff

FWIW, as a naive non-politician non-lawyer, I was extremely impressed with Roberts' explanation of the role of lawyers and judges and the Democratic Senators' lack of acceptance of his explanation. As Roberts said, his job as a lawyer is to defend anyone who comes to him who has a legal case, whether he agrees with it or not. This is the way our system should work, and gives voice to everyone without a decision being made prematurely.

The Democrats (and many others, I'm sure) are so used to policy being made from the bench, that they couldn't come close to comprehending his view.

Donald R. McClarey

"Again to echo Slurms: the fact that there's a new abortion case before the Court seemingly every year is a sign of Roe's weakness -- more evidence that Roe _didn't_ settle things. Roberts knows this, and it's not inconceivable that even Anthony Kennedy will eventually figure it out."

Precisely! Roberts is clearly a man who loves the Supreme Court. I believe he understands the damage that Roe has done to the Court: destruction of the credibility of the Court in the eyes of many Americans, unending cases dealing with ramifications of Roe, the politicization of the Court, etc. The negative consequences of Roe to the Court are unending. Roberts may well vote to overturn Roe at least in part to save the institution he will lead.

Mike Petrik

Jeff,
I have no doubt you'd make a fine lawyer. But we need you more in politics. :-)

WRY

Mike,
It was hypothetical. There's a side of me that wants to say to a prolife nominee, "say anything, do anything to get on the court" so that you can overturn RvW.
On the general issue of the future of the court, I take Bush at his word, that he has no litmus test for judges on abortion. Not good for our side, since we know the other side definitely has a litmus test. So over the long haul, we should, I guess, see a court that stays about 6-3 to uphold RvW. Which is probably pretty close to American opinion on the subject.

Yvonne

Roberts is Opus Dei.. what in the world do we have to worry about? lol

Roberts Did not reveal who he really is, he kept em guessing. considering the parish he belongs to and his circle of friends, I really think he is a man of his own standing guided by humility and virtue.

He played it cool- almost too elequently in front of the committee. There is no way he could have come across as a total federalist as Scalia and Thomas did, he had to play it neutral.

I think we will be pleased at least Ive been praying that the Lord Guides him and of course his higher up's within Opus Dei..lol

Mike Petrik

WRY,
Understood. For what it's worth I seem to recall a very erudite and robust debate on either this blog or Mark Shea's regarding whether if is ever morally acceptable to lie. One side argued that lying was intrinsically evil and morally unacceptable, even in hard coercive cases. The other argued otherwise. Both cited Scripture and Catholic teaching, and I don't recall either convincing the other. But I do believe that both sides would say that the circumstances of Roberts' nomination could not justify a lie.

c matt

Krauthammer is brilliant, but he's probably wrong on this.

Was it this "brilliant" fellow that said there was a moral difference between experimenting on an embryo slated for destruction and one created specifically for experimenting?

We will know next to nothing about Roberts until he gets on the bench and actually decides a case. This is a job interview. Until he actually starts working, no one will know how good/bad he really is. What's more, once he's on the bench, he has no practical restraints. During confirmation, he has to walk a minefield. And of course, if he turns out bad, that will factor into the next election - either because the GOP intentionally mislead, or it has proven that it is all a crapshoot anyway.

David Kubiak

L.T.:
I have been talking about Judge Roberts and Thomas More from the start; perhaps there have been others too. But you are right, the comparisons are close to eerie, and not flattering to our government.

One thing that surprised me a little was that the pro-abortion Catholic senators I thought had modified their rhetoric on the issue, talking about privacy rather than abortion, and generally making much less of the matter than I thought they would. Can they possibly have realized the grotesque irony of them as objective bad Catholics persecuting a judge objectively a good one?

It will be very interesting to see how many Democratic votes Judge Roberts gets. If many at all it may be a sign that the party realizes it has to stop being defined by NARAL if it intends to regain national influence.

Slurms McKenzie

There's a side of me that wants to say to a prolife nominee, "say anything, do anything to get on the court" so that you can overturn RvW.

Just from a broader perspective of this issue, it is wise to keep your personal views of abortion to yourself. For those of you merely wanting to be an everyday lawyer, far removed from the Supreme Court, an absolute certain way to get blacklisted by at least 80 percent of the law firms out there is to be actively pro-life, or to voice pro-life opinions. As it no doubt is the case in the college classroom, or the newsroom, or other places infested with pro-aborts, you'd better keep quiet if you want a prestige job. Otherwise, you'd better be willing to scrounge around for those few firms that don't care, but even then, you'd better keep quiet if you want to keep the peace in the office. That is one reason why Roberts has not been active in this area, especially when he can act vicariously or otherwise assist his wife. -- The American people may not be pro-abortion, but far too many in the legal profession are.

Bernardo

American opinion on the subject is not well-informed thanks to the distortions and lies of the pro-Roe side. I doubt most Americans understand that overturning Roe would not outlaw abortion.

My reading of the polls is that the majority in addition believes that there is room under Roe to outlaw the infanticides and other distasteful results of the abortion culture. Neither of these is true - the current reading of Roe is much closer to a declaration that no abortion can be denied for any reason at any time.

Jim

c matt:

Krauthammer's pieces are almost always fresh, original, insightful, and well written -- in short, brilliant. He's wrong about stem cell research, but as my original post implied, there's no inconsistency between being brilliant and being wrong on a particular point.

More broadly, we know quite a bit about Roberts, and what we know is almost all encouraging. There's just no possibility that "the GOP intentionally misled": no one really knows how Roberts will vote except Roberts, and even he may not know. But he's given every sign of being both a genuine conservative and genuinely faithful to the Constitution, and he's as good a bet as anyone could be who hasn't denouned Roe by name -- and who would therefore be very difficult to confirm.

Larry

The thing is, even if Roberts is pro-life, it's just a wash for our side: he's just placing Rehnquist, who was definitely pro-life. By switching Roberts to the Chief Justice slot, Bush punted. Roberts for O'Connor was a (possible) gain. Roberts for Rehnquist is (at best) a push. And it might be a loss of a vote, if Krauthammer is correct.

Bush wanted an easy confirm, after the Katrina debacle (and tragedy). He figured the Dems wouldn't be THAT upset over a conservative for conservative swap in the Chief's chair.

The real test will be who he nominates now for the O'Connor seat, the "swing" seat.

Mike Petrik

Sadly, I fear that Slurms may be right about many of the large prestigious law firms. I am pleased to be able to report that I am proudly pro-life and it has not hurt my career at my firm one iota. I do have the impression, however, that my experience may not be common at other firms. I honestly hope my impression is wrong. After all, impressions often are.

Dan

There is zero chance that Bush will nominate someone who has explicitly called for the reversal of Roe. Bush has shown time and again that he will not go to mat on the issue of abortion. His unwillingness to do so means that he will seek to avoid a Democratic fillubster by nominating someone who, like Roberts, is a wild card concerning Roe.

Dan

There is zero chance that Bush will nominate someone who has explicitly called for the reversal of Roe. Bush has shown time and again that he will not go to mat on the issue of abortion. His unwillingness to do so means that he will seek to avoid a Democratic fillubster by nominating someone who, like Roberts, is a wild card concerning Roe.

Mike Petrik

Dan,
Do you read or just post?

Papabile

One does not sleep next to the woman he does without being pro-life.

Mark Adams

Papabile, That's exactly what keeps popping into my head. The woman actively worked in the prolife movement. I just can't believe that she could be that passionate about the subject and be married to a man who would uphold Roe.

Dan

Mike, I read, I read, I was responding to Larry's comment that "The real test will be who he [Bush] nominates now for the O'Connor seat, the "swing" seat."

DarwinCatholic

RE: swing seat

I guess it all depends on what you think Bush is doing. Personal opinion (though not as informed as our lawyers present) is that Bush always intended Roberts as the next CJ -- whether he was first confirmed as an AJ or not. Roberts looks like a legacy pick: someone intended to be a very well respected CJ and sit on the court for 30 years or more.

There are two lines of thought on the AJ pick he has left to replace O'Connor. One is he'll pick someone more explicitly conservative but who's female or a minority. If Owens were nominated to replace O'Connor, the Democrats would be stuck either letting her through or filibustering a woman because she was "anti-woman" would would seem like a hard sell.

On the other hand, the cynics figure one Roberts is in Bush will nominate someone that conservatives _really_ won't like.

I tend to belong to the former group rather than the latter.

Eric

"One does not sleep next to the woman he does without being pro-life."

Ever heard of Anthony Kennedy?


Eric

"One does not sleep next to the woman he does without being pro-life."

Ever heard of Anthony Kennedy?


Ed the Roman

Was it this "brilliant" fellow that said there was a moral difference between experimenting on an embryo slated for destruction and one created specifically for experimenting?

Only someone who is brilliant can be wrong so subtly.

By switching Roberts to the Chief Justice slot, Bush punted. Roberts for O'Connor was a (possible) gain. Roberts for Rehnquist is (at best) a push. And it might be a loss of a vote, if Krauthammer is correct.

Bush wanted an easy confirm, after the Katrina debacle (and tragedy). He figured the Dems wouldn't be THAT upset over a conservative for conservative swap in the Chief's chair.

You're not even CONSIDERING the possibility that Bush thinks he's the best choice for Chief? That Bush thinks about what's best for the country in the long run? That he does not think that the Judiciary ought to be a political branch, and is thereore not making appointments as if it were?

c matt

As much as Bush is lame duck and can nominate who he wants without (too much) personal repercussion, he has to know and be under pressure from the GOP establishment. The GOP, unless Rove has suddenly u-turned from being a brilliant strategist to a drooling lunatic, knows a bad swing seat pick would piss off a large part of the base. He, as well as future GOP hopefuls for high office, know that. My best guess is either a relative stealth, or a "quota" pick that makes it hard for the Dems not to swallow.

And again, we will not really know if the pick is good or bad until some actual opinions are penned. On Roberts, though, the main indicators point to good "at this juncture."

DarwinCatholic

"One does not sleep next to the woman he does without being pro-life."

Ever heard of Anthony Kennedy?

Is Anthony Kennedy's wife noted for taking part in pro-life advocacy? Honest question. I have not idea what Kennedy's wife does.

Mike Petrik

Got it, Dan, sorry. I think that Bush will appoint a textualist who is as likely to overturn Roe as possible and still be confirmable. There are no certainties in this world, but anyone who thinks Bush would consider another Kennedy or Souter to be acceptable simply does not understand the man.
Finally, O'Connor's seat is not the swing seat for Roe. Unless Justice Kennedy's wife can "get his mind straight" as we used to say in my fraternity, the key seat will be Stevens, Ginsburg, Souter, or Bryer -- whichever opens first.

Mike Petrik

My last post assumed that Eric knows what he is talking about. I have no knowledge about Mrs. Kennedy one way or the other.

Slurms McKenzie

Ever heard of Anthony Kennedy?

I have heard of Anthony Kennedy, the one who echoed the lie of the serpent, that Eve can be her own god ("at 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"), but I have NEVER heard of Mrs. Kennedy. Is there a Mrs. Kennedy???

Tim

Nothing says that these guys (Supreme nominees) have to stand by what they testify to at the hearing. They're elected for life. Absent some grevious personal failing, no impreachment process will work.

David Kubiak

Surely Karl Rove must realize what any academic can tell you: when push comes to shove ideology will trump race and gender every time. I don't see any option as brilliant as the Roberts one was -- either the President alienates his base with the next appointment or faces a Democrat filibuster.

Jim

Bush has to live the rest of his life with his mom and his wife.

At root, he's a country club Republican, not a radical.

Just watch the tape of last night's speech...he's starting to sound like LBJ...only more needy for our approval.

Slurms McKenzie

At root, he's a country club Republican

My vote for dumbest and most uninformed comment here.

chris K

I believe Roberts summed up the founders' intent towards a right to privacy as "a right to be left alone". I doubt, therefore, that this common sense kind of generalized privacy could be extended to the right to abortion in the mind of Roberts.

It doesn't look like Fr. Pavone has read Mr. Krauthammer.

That humility quality of Judge Roberts appears to include the quality of not suffering fools gladly when it came to defending himself and qualifying the comments of those bloviators such as the Bidens of politics!

Jim

"'At root, he's a country club Republican'

My vote for dumbest and most uninformed comment here."

Only if all you know about "W" is what the spinmeisters have told you.

Who's his mom? Who's his daddy?

Boniface McInnes

"Who's his mom? Who's his daddy?"

So someone wants to make a competition out of dumb and uninformed comments around here, I see.

Not a Bush fan, by a long shot, and yet, this one is definitely in the running.

Peggy

I agree w/Mike Petrik and others that I have not seen/heard anything from Roberts that indicates he'd uphold RvW if given the chance. He's clearly committed to the intended meaning of the constitution ("constructionist"). If he so is, he cannot accept what even some liberal lawyers have conceded is lousy legal analysis in establishing RvW in the first place. So, I think he's more likely to find opportunities to widdle away at, if not outright turn back to states, RvW.

I also thought he was good about making some general statements favoring some right to privacy as others described above, but he was very careful to avoid conceding any "absolute" right to privacy or what have you in the constitution. All committee members were looking for absolutes on one thing or another. Just can't do that. Even some Pubbies on the committee were trying to pin him down to take socially conservative positions to please their constituents, which was just stupid. The committee members were all about bloviating for their own benefit and attempting "gotchas."

I think Roberts is briliant and very well-tempered. I have to echo the thought that, how can he be married to such a pro-life activist who has been involved in the Red Mass, a mass for the Court on the first day of a Court session in October.

Yes, he has been involved in much corporate law, but he has had cases before him in DC circuit in which one segment of an industry was pitted against an other; any side is "pro-business." The question is which business segment "wins" or, more typically, which way is an industry to be governed. He prefers market forces determining outcomes, rather than govt gerrymandering, which I, an economist like, too! [Don't mean to get into Rerum Novarem etc, here. I know the Church's views and the limits of markets.]

[I'm no lawyer, but have worked in litigation support before regulatory agencies and courts and have followed the 96 Telecom Act from Congress to FCC to states to DC Circuit to SCOTUS and back and forth since! Actually, the most recent DC circuit order, which I believe Roberts had a part in, finally settled most major issues--9 years after the law passed. Oh, and economists do not appear to be terribly pro-life, either, that I know of.]

Scott J

This article http://www.lifenews.com/nat1619.html
at lifenews.com is informative.

Pro-life Lawyer Jay Sekulow is happy with Roberts' answers, specifically with regard to abortion-related cases.

Also, (see http://www.lifenews.com/nat1618.html), Planned Parenthood now officially opposses Roberts.

Peter

We will end abortion through our proLife unity regardless of who is in office or on the bench. Join us for the Monthly Call for Life at http://www.marchtogether.com.

Speak up and speak out! Even if you already have a proLife calling, unite with us to deliver the ProLife message to our representatives until they end abortion.

Pass it on

Peter
http://www.marchtogether.com

RP Burke

Rich, you are wrong again. For starters, I hadn't posted in nearly a week, and hadn't made reference to the 'echo chamber' in a month. As usual. Wrong.

Mike, earlier this year there was a long article of analysis in the New York Times magazine about the legal philosophy that I described, and that Bush is seen as the best chance to have that perspective included on the Supreme Court.

Eric

Hi All,

First, concerning my comment about Justice Kennedy, I heard that his wife was prolife from a group of Notre Dame law students last year. I have heard it repeated in other places, too, though I don't remember where.

Here are my thoughts--First the positive. Considering Roberts' background--he goes to a pretty openly conservative church in the D.C. area. The type of conservative where heterodox Catholics would feel out of place. The website has a the text of a homily denouncing abortion. Second, Roberts is 50 years old--born around 1955. It seems that by the time he "came of age" individuals his age would either be fairly set in their ways concerning the culture wars on either side. For instance, I doubt a man who in high school gave a three day lecture to his class on theology and still to this day would change parishes when his conservative priest was reassigned would be the type to be gung-ho for abortion. That's just an assumption.

Negative things--His temperament and humility scare me a little bit. Sure, Thomas threw a bone to Griswald in his confirmation hearings and minced words. Still, Roberts gives me pause as having too much of an even temperament. Will that cause him not overturn despicable precedent? I'm not sure. Perhaps some of the lawyers in the room can shed some light on this man's personality. Does Roberts strike you as the type who would be so overly cautious as to not disrupt something like Roe? Or, is this sort of melancholic humility normal for certain lawyers?

The way I see it, Roberts will either be a dream come true or our worst nightmare.

Eric

Jim

"Negative things--His temperament and humility scare me a little bit."

No doubt about it ...... nothing scarier than humility.

Mike Petrik

I'm sure Eric is just concerned that Judge Roberts' humility will somehow manifest as insufficient confidence to do what he believes is right in the face of widespread opinion to the contrary. Myself, I'm not concerned. Humility is in rare supply on the bench. Trust me on this. All too often judges allow their considerable power to go to their heads. Indeed, one can argue that this phenomenon contributed to Roe. Roberts will not vote to overturn or limit Roe because abortion is wrong (though of course it is and I'm convinced he believes that as well), but because abortion simply is not a constitutional right. His humility, however, would likely impede any effort to locate a right to life within the Constitution. If a state wishes to legalize abortion, I don't see a Justice Roberts invalidating such a law or somehow extending murder statutes to include the unborn. Instead, I would see him opposing such a legalization as a political matter.

Richard

Well...

I voted for Bush, and my greatest reason was the judges he'd appoint vs. Gore or Kerry.

To be fair, his lower court appointees have been very solid. Not activists. Better than any modern president according to one study I saw.

But if the best we can do for a Pubbie SC nominee is another Anthony Kennedy clone, I have to wonder what the point is - why I should waste my vote on a more principled third party candidate. With Gore or Kerry you could at least make the point that their judges would be so extreme as to provoke a popular revolt against the judicary. Or failing that, at least we'd be getting honest billing.

But I withhold judgment til I see how the guy votes on the Court. And hope that Bush's guys really did their job on vetting Roberts. You can't absolutely predict - or guarantee - how justices will act once they get there, but you can sure as heck maximize your odds.

Jim

Just remember that rock-solid conservative John Sununu recommended the appointment of Justice Souter to Poppy Bush. The rest, as they say, is history.

Soon to be Chief Justice Roberts has "polite conservative" written all over him. The Court, with his appointment, will move half a tick to the left.

Eric

Mike,

Yes, I was concerned about Roberts' humility or, as one writer put it, "politeness". Jim, it is certainly not my intent to go around looking for reasons to rain on everyone's parade. Note how I presented the ups and downs of my impression of the man. I do think that a conservative pro-Roe justice would be much more devastating than a liberal one because it gives more legitimacy to that ruling.

Mike, I also wanted to state that I see myself as an originalist; not a conservative who thinks that the court should flip in the other direction and decide to carte blanche outlaw abortion altogether.

I put a lot of weight on the opinions of lawyers on this forum who watched the hearings. I am only an aspiring applicant to law school; not an actual lawyer.

Eric

Mike Petrik

Understood, Eric. I thought your post was very fair and measured.

Richard, I am close friends with the fellows assigned to vett Judge Roberts. Trust me, you would be very impressed and very comfortable with the job they did.

Richard

Hello Mike,

Glad to hear it. Hope you're right.

I'm not ready to slit my wrists yet. I like the Roberts I read in his Reagan Administration memoes. I hope he's still around.

Nonetheless, part of me would like to see another (albeit more charismatic) Bork: Wjhich is to say a nominee willing to make a bold, principled case for not just restraint but originalism, and not unwilling to puncture a few senatorial egos - and let the chips fall where they may.

Someone like Garza or Jones or Pryor for the O'Connor seat might fit the bill.


Mike Petrik

Richard,
I appreciate your sentiment, really I do, but on important matters such as this where the chips fall is very important. If we are shrewd now, there may be time for boldness later.

David B

c matt,

"The GOP, unless Rove has suddenly u-turned from being a brilliant strategist to a drooling lunatic, knows a bad swing seat pick would piss off a large part of the base."

I hope the GOP also takes this into account when it comes to who they throw their weight behind for the 2008 GOP presidential nomination. Choosing a Giuliani or Pataki will piss off a large part of the base, as well. Personally, I'm pinning my hopes on Sen. Sam Brownback, Catholic from Kansas, for the nomination. He is passsionately pro-life. I had the opportunity to hear him yesterday at a GOP function in Des Moines, IA, and to speak with him for a few minutes after his speech. I believe him to be the real deal, with regard to pro-life issues.

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