Wednesday, September 07, 2005

Roberts: Don't Be Fooled By the Lack of Substantive Information

Or, that is, lack of substantive information getting through the press.

Here's the J-take from a letter I've sent to my Senators:
I am writing as a constituent of yours to implore you to reject the nomination of John Roberts as Supreme Court Chief Justice, using a filibuster if necessary, based on not only disturbing, and outside-of-the-mainstream conservative views, but also on ethical grounds.

What troubles me the most about the Roberts nomination is his behavior in the Hamdan case. As he was deliberating this case in the D.C. Court of Appeals, he was also secretly meeting with one of the defendants in the case to interview for a job. That defendant, of course, was President Bush, and the job in question is that of Supreme Court justice -- a job offer that requires your consent to be final. And his ruling in Hamdan supported a far too expansive view of executive power, a view in my case that is unconstitutional and frankly, frightening, a view allowing un-American detentions and even severe human rights abuses.

If confirmed as chief justice, John Roberts would be the most powerful judge in America for decades to come. If he can't clearly understand and apply the ethical guidelines that mandate he recuse himself from a case concerning a potential future employer, how can we ever trust him as a fair and impartial arbiter of the nation's laws? This is beyond duck-hunting with the Vice President. Judge Roberts has already demonstrated that he will put his own interests -- and those of the Bush Administration -- above the impartial ethics required of someone in his position. Political expediency vs. impartial ethics
and rulings is a recurrent theme in the Supreme Court -- and he has made his stance on that clear.

I'm also deeply troubled by what I know about Mr. Roberts so far -- including his viewpoint on a "so-called right to privacy," his dissembling with regards to Federalist society membership, and apparent inclinations to strike down national environmental laws based on a narrow interpretation of the commerce clause.

As one can see here (link:, or from Slate magazine's Dahlia Lithwick here (link: Judge Roberts seems to think that
civil rights, by and large, are not an appropriate area for the judiciary to intervene, when often it has been the last resort, or the only resort, for those overlooked in our society. From the Christian Science Monitor (link: he:

Believe[s] the Constitution empowers Congress to strip the US Supreme Court of jurisdiction in controversial areas such as desegregation, school prayer, and abortion. (Though he also wrote that any congressional effort to do so would be
"bad policy.") Nevertheless, such a broad view of Congress' power is startling in these days of a Republican-controlled Congress, willing to pass legislation to attempt to cut off the courts' repeated findings for _one_ person (Terri Schiavo) and with primarily the Court standing between the President and his claims of near absolute executive wartime powers.

? Was a strong advocate for presidential power, ranging from the commander in chief's ability to wage war without interference from Congress, to the president's authority to make recess appointments in in the face of congressional opposition.

? Consistently adopted narrow interpretations of civil rights and voting rights.

? Generally favored law enforcement over the rights of criminal defendants.

? Believed silent prayer in public schools did not necessarily violate the First Amendment's establishment clause.

Therefore, I ask that you oppose the nomination of Judge Roberts to the Supreme Court. I ask that you communicate your views on this matter to me as soon as possible.


This was adapted from a form letter from "Working for Change" -- or, I guess, technically ActForChange, a MoveOn-like group that allows one, like MoveOn and TrueMajority, to quickly send off letters to your Congresspeople, and encourages coordinated phone-calling drives to our Congresspersons when a necessarily urgent cause arises. (And for those of you who occassionally claim that none of this does anything, I'm told that they assume every caller represents X other people -- with numbers varying from 20 to 100 or so -- because others inevitably will feel the same but will not have called. I can't say this is true for sure, but it makes sense as a formula to keep tabs on your constituents as a rough estmation.)

Today in Slate, there are several new articles deserving of attention (for a change! Slate's been going downhill in my opinion for a couple years now), such as The Real World: Why Judicial Philosophies Matter by two professors of law (Goluboff and Schragger, if you were wondering). Their question: "The central debates of the nominations process mirror those concerning the government's response to Katrina: How much responsibility does the government, and in particular, the federal government, have in ensuring the safety and security of the inhabitants of this country?" They then analyze what they call "The Constitution in Exile" view, a prototypical conservative view. Highlights:

The answer to their question: "To conservative jurists who take a parsimonious view of federal power, the answer to that question is: not much. Their philosophy of limited government, states' rights, and local control belittles the place of the federal government in our system. To the conservative jurist, the federal government is inevitably something to be feared; they assume that centralized power only leads to a loss of liberty."

"The Constitution in Exile sees government as the enemy of individual rights. It insists that the preservation of such rights requires that government refrain from amassing power. And the individual rights it deems paramount are those of property and contract—" -- The rights of property and contract are not ones that J views as "natural" rights, or even the most paramount of human rights, if you recall. (In contrast to the views of Libertarians and Exilers.)

"The modern constitutional vision remembers that the purpose of the Constitution is to provide for the general welfare. The general welfare in turn requires the government to affirmatively ensure the safety and security of the person, to maintain the minimal material conditions necessary to sustain one's civil and political life."

"The outrage Americans on both sides of the political spectrum have expressed toward the sluggish federal response to Katrina suggests just how divorced the Constitution in Exile, and those who reify it, is from the expectations of the great majority of the population. Those left stranded in New Orleans felt acutely the absence, the national government's abdication of responsibility..."

"Were the Constitution in Exile to return to its allegedly rightful home in the Supreme Court, the national government would likely be prevented from taking on responsibility for any future Katrinas. After such a horrific display of what happens when the nation faces a disaster of national proportions and the national government falls short, it is clear that Judge Roberts, and Sandra Day O'Connor's replacement, should be asked if they endorse such a vision."

They go on to list a set of questions that Judge Roberts should be asked. I'll stretch Fair Use a little bit more to implore you to pass these along to your Senators, as well:
"Judge Roberts should be asked whether he believes in a Constitution that permits and even demands that national resources be brought to bear to protect the safety and security of the person.
He should be asked whether he believes that FEMA, or the Department of Homeland Security, for that matter, are constitutional.
He should be asked whether the notion of civil rights includes the right to a minimally competent federal presence in the lives of the people, and an affirmative duty on the part of government to ensure basic necessities.
And he should be asked whether the Constitution should be read as a document that has as one of its aims the promotion of the general welfare—as the Constitution's preamble states."

Go read the whole article, but first, write and/or call your Senators.

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