Politics: July 2005 Archives

Last I'd heard, the New York Times online had gone paid subscription only, but I was able to access this piece with a BugMeNot password. It's a surprisingly positive article on John Roberts. [Hat Tip: Orin Kerr]

Along the way, it lists a really strange critique of Roberts from one of the liberal special interests groups. Roberts, when he was working for the office of the Solicitor General under the first President Bush, was assigned the task of writing some arguments for the administration's (entirely reasonable, in my opinion) view that religious expressions can play a role in public life, including government activities, as long as they aren't setting up a state religion or coercing religious activities. The Supreme Court at the time voted 5-4 against the government's case, which means the strongest minority possible agreed with the case Roberts was arguing. The article says the following:

Barry W. Lynn, the executive director of Americans United for Separation of Church and State, said Wednesday that Judge Roberts's participation in the case makes him "unsuited for a seat on the U.S. Supreme Court." He said that if confirmed to the court, Judge Roberts would "open the door to majority rule on religious matters."

Who is Roberts? A link

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I wasn't going to say anything about the Roberts Supreme Court nomination, since it's mostly outside my area of expertise. But I thought this post at the Volokh Conspiracy, Who is John Roberts? Who Knows? was particularly insightful. It seems like it partly explains why he was nominated. I'll be interested to hear whether people think Randy Barnett is correct about this.

Over the last couple days we've been hearing about how Bush has changed his stance on what would bring him to fire someone over the Valerie Plame leak. Well, ThreeBadFingers and JustOneMinute correct the historical revisionism. Bush originally said that he would fire anyone who did anything illegal. In 2003 he said, "And if the person has violated the law the person will be fired." In 2004, he was asked if he stood by his original claim, and he said yes. Now when he's asked if he will fire anyone involved, he says he'll fire anyone who can be shown to have done something illegal. Where is this supposed change in stance? [hat tip: Instapundit, who refers to this as moving the goalposts]

This reminds me of when everyone was saying that Bush invented the humanitarian aid defense on the eve of the attack on Iraq, when he had been giving it in speeches months beforehand. Read the longer quotes from Bush in those two posts, and then read the Reuters story on this. I have a hard time reading this as anything but outright lying given what Bush had originally said in 2003, what they asked him in 2004 that he said yes to, and what they're now saying about those events. It's not just the media. Howard Dean is accusing Bush of lowering the ethics bar from where he had originally set it. But people will believe this revisionism and repeat it, so their willingness to lie about Bush will have its desired effect. I wonder if that's all that counts for some of these people.

[Update (7 April, 2006): Since so many people are finding this post due to Lewis Libby's testimony that the president authorized him to reveal classified information, I should link to my discussion of that information.]

"The next appointment, for Chief Justice, is not going to be a woman, so we're going to see two real conservatives on the court." So says Susan Estridge Estrich, who apparently doesn't think a woman can be a real conservative. This was after announcing that John Roberts is a nice guy, a friendly guy, but a hardcore conservative, as if that's an unusual combination. She's one of the better liberal analysts on cable news. This sort of thing is really out of character for her. I guess her acknowledged disappointment that a woman didn't get nominated has thrown her a bit loopy.

"The burden is on the nominee for the Supreme Court to prove that he is worthy, not on the Senate to prove that he is not." So says my senator, Chuck Schumer. Is this even a plausible view? The duty of the Senate is to examine the nominee to give their advice and consent to the president in his nomination if the nominee is to be confirmed. Where in that is there anything of the nominee having to prove anything to them?

Orin Kerr puts Clinton's consultation with Orrin Hatch about Supreme Court nominees into perspective. Clinton consulted with Hatch out of political necessity, because he wanted to be sure he didn't nominate someone who couldn't be confirmed, and he was worried his first choices wouldn't. If Bush needs to consult with senators for the same reasons Clinton did, I wouldn't call that the best of motives. It's not as if it would be about honoring the senators' advice. It would be a practical necessity. That's not how it's being painted, though. Al Franken was making comments on the air Wednesday about how Bush needs to do this and how Clinton didn't need to be told to do it. I don't see any reason why Bush shouldn't hear out the advice leading senators might have for him, but telling him that he must do this on the grounds that Clinton did isn't exactly the way to motivate it on moral grounds, not given Clinton's own motivations.

This one really shocked me. This is from Doug Wilson, of all people. Gay marriage is a judgment on our culture, and as God's people Christians should allow that judgment to play out. Now this shouldn't be too shocking from someone who thinks we need to make a strong distinction between the heavenly reality of the church (what Augustine called the City of God) and earthly governments. Wink and I disagree on how much the government has a moral responsibility to represent moral truth as taught by Christianity, which we both believe to get moral teaching correct, but we agree on the strong distinction between the two cities of Augustine. For those who don't know who Wilson is, he's a theonomist, maybe the most influential one in the world. That means he sees no such distinction. For him to say something like this sounds really strange, at least if you think of theonomy the way pundits complaining about conservative evangelicals' politics think of it. However, those complainers don't understand what the more sane versions of theonomy really amount to, and Wilson's stance on this issue demonstrates that. [Hat tip: World, whose weird code for links I can never get to work either in Internet Explorer or Firefox, which is why I'm not giving any links to Wilson himself.]

On the more general point about Theocracy Paranoia, Gene Veith said something a few weeks back that I thought was incredibly insightful. The primary things people are worried about are the unsuccessful attempts by conservatives, many of whom are Christians, to limit abortion and to prevent marriage from being gender-neutral. Consider the failed attempt to limit what can best be described as the most barbaric abortion procedure ever invented That description of it is almost a direct quote from a Norwegian atheist philosopher friend of mine who is thoroughly opposed to the pro-life position. He says he doesn't know how American politicians like my senators can defend such an barbaric procedure. Even after Congress passed it and the president signed it, judges wouldn't allow the ban, claiming that it might sometimes be healthier for a woman to kill her child during birth than to go ahead and finish delivery. If the so-called theocrats can't even accomplish that small and relatively reasonable restriction on a dreadful procedure, I don't know why there's such paranoia about the looming theocracy that we all need to beware of. Anyway, in the light of that point, Veith asks the following question. "A few decades ago, when abortion was against the law and homosexuality was assumed by all sides to be immoral, was that a theocracy?"

Update: I hadn't thought to run my mouse over the World link and then type in the URL. I've done that. Apparently it's a piece by Doug Jones and Doug Wilson together. My thoughts on the actual piece follow below the fold.

Outhouse Lawyers

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Juan Non-Volokh points out another case of assuming a judge's view on abortion from little to no evidence. This time it's Judge John Roberts, for whom the only evidence is that he worked in the solicitor general's office while the administration who put him there was pro-life. While working there, he had to give the best arguments he could come up with in defense of some pro-life positions, but that doesn't mean he endorses everything he said. It's a bit beyond the evidence to call him a real hardliner, which everyone seems to be doing.

This complements my own contention that we know next to nothing about Alberto Gonzales' views on abortion. Many people are saying he's liberal or moderate on abortion, but I don't think we have any reason to think that. We know one thing. He believes that when a state has a law that a judge should decide whether a girl is mature enough to make moral decisions that display awareness of the relevant issues, he believes that such a judge should make an accurate assessment of that girl's maturity. The only evidence of anything he's said about abortion is based on exactly that. He may have opposed the law in question, for all we know. All we do know is that he was following the law in determining whether this girl was morally mature enough that she was aware of the relevant issues. Of the two, I think the guesswork for Roberts is more likely to be accurate, but even there I don't think we should assume he agrees with all the positions that it was his job to write on behalf of the administration.

[For some evidence that Gonzales may oppose the law he followed, consider this quote: "While the ramifications of such a law and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view." (source: slate, though I think that column makes the very mistake I've been explaining) That quote suggests to me that his moral view is that such laws shouldn't exist and that parents should be able to restrict their children of this age from having abortions, no matter what judges think.]

Speaking of which, Another Man's Meat has just revised his Outhouse Lawyers from last year. This is not only my favorite post Phil has ever written, but it's my favorite term any blogger has ever coined. It's sort of like backseat drivers or armchair quarterbacks, only much more informative about what sort of advice or criticism is actually being given. I think it's pretty appropriate for many of the people deciding the views of judges whose records are at best not clear.

This one was good for a laugh. I'm looking through the latest issue of TIME, and there's a section on the Supreme Court. They've got an picture of the current justices with color-coding for where they stand ideologically. Scalia, Thomas, and Rehnquist are staunch conservatives. Anthony Kennedy is a moderate conservative. They claim O'Connor as neutral, though Kennedy is a little more often the swing vote to make the liberals the majority than O'Connor is (with abortion as the most famous exception, though I think the only recent case when he went with the conservatives was the partial-birth one). Then they list Souter, Ginsburg, Stevens, and Breyer all as moderate liberals and claim that there's no staunch liberal on the court in the mold of Thurgood Marshall "or even Harry Blackmun".

Are the four liberals really more conservative than Blackmun and Marshall, or are they really just more conservative with respect to the general outlook of their time? Blackmun and Marshall did say some pretty radical things for their time, but don't these current four basically assume those things that were radical thirty years ago? Also, is Kennedy really more conservative than O'Connor, or are they letting the abortion issue, the main issue with respect to which she's slightly more liberal, wholly define these two? The standard categorization of three conservatives, two moderates, and four liberals seems much more accuarate to me than trying to make the court look more conservative than it is. There's a statement in the article itself that says if Bush replaces O'Connor with a true conservative, the conservatives will have a "rock-solid majority". No, it will be dead even.

Update: After reading the TIME piece, I proceeded to Newsweek, and I found some interesting statements in comparison with the TIME ones I highlighted above:

She could generally be found in the center -- not of public opinion generally, but of so-called elite opinion, the consensus of the chattering classes that is often to the left of the rest of the country.

That sounds much more accurate to me, perhaps even insightful. There are a few other quotes that seem really strange, however, and I'm not sure they're from the same writer:

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