Law: September 2005 Archives

Note: This post accidentally appeared for a few minutes yesterday when it was incomplete. I apologize to those who use newsreaders to read my blog who had it appear and then disappear. One person even sent a trackback during that brief window, and I don't know how making the post a draft again before returning it to published status will affect that link. As of yesterday, I hadn't finished the last few paragraphs, and I hadn't put in links to some of what I was citing. I lost some of the links I was going to use and had to spend some time this morning finding them again. I've edited a few other parts as well.

The Senate Judiciary Committee voted Thursday to send President Bush's nomination of John Roberts for Chief Justice of the United States to the full Senate. In expressing his opposition, Senator Joseph Biden (D, MD) basically claimed that we elect our Supreme Court justices. Biden also said, "I'm unwilling to take the constitutional risk at this moment in the court's history." This is from the man who at Clarence Thomas' nomination hearings, and more recently at the hearings for Alberto Gonzales' nomination as Attorney General, said that in his view the advise and consent function of the Senate, as instituted by the Constitution, was for senators to judge whether a nominee was qualified and not whether the nominee was ideologically on the correct side. That's the job of voters when selecting a president who would make such nominations. He understood that other senators had different views and encouraged them to vote according to their conscience, but he thought of advising and consenting as giving advice to the president beforehand and simply investigating to see if the nominee is indeed qualified. Apparently that only applies when he wants it to. So while Biden is worried about a yes vote threatening the Constitution, all the while he's violating his senatorial responsibility according to the very interpretation of the Constitution that he had explained something like eight months ago to defend a yes vote on an unpopular nominee.

In the last day of their questioning of Judge John Roberts in the Senate Judiciary hearings for his confirmation as Chief Justice of the United States, Senators Kennedy, Biden, Schumer, and to some extent Feinstein spent a good deal of time talking about why they thought they were rolling the dice with him. Schumer in particular expressed something clearly that all four of them were getting at in their final speeches. Schumer started by saying that he didn't expect Roberts to go against his stated intentions not to comment on cases that might come before the Court. He said he had hoped for a little bit more on Roberts the man, how Roberts as a person feels about certain sorts of things. Kennedy had accused Roberts of being mean-spirited due to certain of the views that he argued for as a lawyer representing the government position. Biden, Schumer, and Feinstein had insisted that they didn't have enough information to judge his character. Yet, on every issue their evidence that they didn't have a grasp of his character, it was because they didn't know what his view was on issues that concerned them. After hearing this all morning, Lindsay Graham stepped in to challenge the assumption behind all this talk about where Judge Roberts' heart lies.

What follows is Graham's speech, taken from the WAPO transcript:

John Roberts Hearings So Far

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John Roberts began his answers to questions from senators this morning, responding to Arlen Specter, Patrick Leahy, Orrin Hatch, Ted Kennedy, Chuck Grassley, and Joe Biden. Jon Kyl should be starting things off again at 2:30. My oveall impession is that he's extremely well-prepared, and those who are trying to corner him are having a very difficult time of it. Ted Kennedy was a lot nicer and much more fair than I expected (based on how he's treated other Bush nominees in recent years), though Arlen Specter did have to step in a few times to tell him to let the judge answer the question. If there was any loser in this morning's proceedings, it would have to be Joe Biden, who was just plain rude and needed to be reprimanded more than once by the committee chair. He called the nominee "Man!" in a way that really sounded morally condescending to my ear. Three times in a row he refused to let Roberts answer the question he had just asked, all the while complaining that he hadn't answered the question. If you interrupt someone before they finish answering, it's pretty stupid to claim that they were being evasive in not answering.

As far as I can tell so far, the only trouble spot for Roberts has been some memos he wrote 25 years ago that he doesn't now agree with that represented his employer's position and how best to approach defending such a position. Biden and Kennedy in particular have been pressing him on these issues, but Biden's got a stronger claim, I would say. There is some first-person language that at first blush sounds as if it's Roberts's own view, and and he was saying that he never endorsed some of the things he was recommending in those memos to be argued to support the official administration positions. Ultimately it matters little if he now doesn't believe something he might have believed then, but my suspicion is that Biden is trying to push an impression of dishonesty.

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