Saturday, August 06, 2005

Issues beyond the narrow fact of Roberts

I have argued that I like Roberts as a nominee, and expressed my belief that he will make a good Justice. There are arguments to be made against him, especially his apparent sometime disrespect for the rights of individuals over and against executive power. But there are also other issues the nomination process raises, that I would like to have on people's radar screens.

1. The next nominee. The President's choice was restrained and wise, on balance. The far-right social conservatives seem to be content with Roberts, who has suggested that Roe v. Wade was a dubious decision. (Are they aware of his statements that suggest he is unlikely to vote to overturn it? Of course they are: but what do they make of them? And what of his assistance to help gay people avoid discrimination?) Roberts is not a replacement for O'Connor, as a swing vote, and I am guessing that the President does not feel bound to maintain the current ideological balance on the court. But what does the President intend to do when filling Rehnquist's seat? Will he consider that he has chosen a solid conservative and now is the time for a centrist justice? Will he, alternatively, feel that Roberts was palatable to most and that he has built up the political capital to try to push through a real extremist? Is this kind of balancing act even something the President cares about?

2. The question of Chief Justice. I would like to add a plug for a non-judge, believe it or not, to fill this role. There are two reasons for this. First, the Supreme Court is most suited for a legal generalist, given the variety of cases that come before it. Most distinguished legal figures are specialists to some degree. Second, the Chief Justice's primary responsibility is to guide the decision-making process of the court. This means he must be able to guide discussion, build coalitions, etc. This particular set of skills is better developed in managerial and political positions. A Senator or Governor would make a good Chief Justice. (O'Connor, too, would have made an excellent Chief Justice, with her political background and consequent pragmatism.) The recent example that comes to mind is Earl Warren, appointed by Eisenhower in 1953. Warren had served as California governor for the previous decade and as state attorney general before that. He was never a judge until he became Chief Justice. In the early stages of speculation about whom President Bush would appoint, some Senators' names were in the mix, e.g., John Pryor of Texas. I wouldn't have wanted to see Senator Pryor himself on the high court, but I like that elected officials were being considered.

3. This is the most important and pressing extra-nominee consideration: the Senate's role and powers in the nomination process. Right now, that issue comes down to access to documents from the White House. The Bush administration has always been problematic in this respect. From the Washington Post:
Democrats had asked for memos and other documents related to 16 cases involving such sensitive issues as abortion, civil rights, environmental protection and freedom of speech. Roberts has said his personal views cannot fairly be inferred from a position he argued on behalf of an administration. This prodded Democrats to seek documents that might have revealed his opinions about the positions he took in internal deliberations about the merits of different arguments, and whether the government should intervene.
The real issue is not a substantive one, restricted to the question of whether Roberts would make a good Justice; it is rather the procedural question of how to define the Senate's role of advise and consent to presidential nominations. Denying the Senate access to documents they request clearly usurps the Senate's consitutional duty. The White House generally argues either that the documents are not relevant or important or that they must be kept confidential. Both arguments, of themselves, damage the separation of powers. The White House must not be allowed to decide for the Senate what is or is not important for them to consider. That too easily allows abuses of the process by the executive office. When the White House chooses what documents the Senate may see, it defines the nominee on its own, rendering Senatorial consent meaningless:
Sen. Edward M. Kennedy (D-Mass.) said in a letter to Bush that White House officials are dragging their feet in producing documents they had agreed to furnish, while engaging in "the leaking of highly selective documents" that are "intended to paint a better picture of the nominee."
Moreover, it has happened time and again that when we actually see documents that had been classified we realize that there was no reason to classify them in the first place; the purpose had been to shield them from the eyes of public watchdogs, not public enemies. (It should be noted, also, that a third argument of the Republican leadership -- that the Senate should not be able to question a nominee on his personal legal and political views -- is irrelevant to the question of the Senate having access to documents. It is also, in my opinion, bogus in itself.)

The John Bolton nomination is in some respects a good precedent for disagreement between the executive and legislative branches. The White House refused documentation that would have allowed the Senate to evaluate its nominee for ambassador to the UN and the Senate refused, on those grounds, to confirm him. That's the way it should work. But it is hard to stand on principle alone: Bolton was also clearly a miserable choice for the position, in a way that Roberts is not, and part of the Senate's ability to refuse confirmation depended on the political capital that Bolton's failings gave them. Roberts lacks such acute problems and the Senate consequently has less political maneuvering space.

Friday, August 05, 2005

John Roberts, we hardly know thee

This is just fantastic -- fantastic and hilarious. John Roberts gave invaluable, if behind-the-scenes, assistance in Romer vs. Evans, one of the most significant legal victories for gays rights activists. The decision declared unconstitutional that part of the Colorado legal code that denied gay men and women civil rights protections.

That's the fantastic part. The hilarious part is how those social conservatives, who consider gays somehow less than people, are now fretting and fulminating about it. I don't know that President Bush or his advisors knew about Roberts' work on behalf of gay rights, but I wouldn't be entirely surprised if they did. There have always been some indications that the President was personally sympathetic to the plight of prejudice that homosexuals face; it has only been that his feelings on this matter took back-seat to his willingness to take the political advantage he could derive from gay-bashing. (This is speculation, of course: it is always dangerous to ignore actions in favor of inferring sentiments.) It is also amusing to see how conservative legal commentators try to minimize the importance of this work for our evaluation of Roberts. NRO Bench memos has a series of posts in reaction to this news. The general theme is "Don't worry, Roberts was just doing his job. He doesn't really think gay people deserve equal respect." Whew.

But there may be something to what they are saying and it goes to the same point I have been trying to make about Judge Roberts on this blog. There is certainly no reason to think that Roberts is a gay-rights advocate in any strong sense of the word. Rather, he conducts himself professionally in strict adherence to his balanced conception of what his job entails. As a lawyer, that involves him in pro bono work taken on by his firm. As a judge, it commits him to decide carefully and with integrity how precedent, the Constitution, and other legal concerns direct him to rule.

It is not that he is ideologically inclined to defend the rights of gays. It is that he is someone who will not let his ideological inclinations direct his decision on whether or not gays deserve constitutional rights. I would much rather have someone of the latter disposition serve on the Supreme Court than the former. (Admitting, however, that I think the legal case for full gay rights is ultimately a no-brainer.)

Wednesday, August 03, 2005

Your privacy 0, executive privilege 1?

Something that I--and I imagine most individuals in this country--prize is my privacy. The freedom to guard your own thoughts, medical history, possessions, even your actions, within the bounds of the law. But what if the Supreme Court were to decide that the law itself may expand to deny you that freedom, that defense against e.g. unreasonable search and seizure in the Constitution does not support such an "abstract" notion as the right to privacy?

A recent article in Bloomberg News points toward Supreme Court nominee John Roberts very likely taking such a position both professionally and personally, when he served in the Reagan administration (U.S. Supreme Court Nominee's Memos Questioned Right to Privacy, Aug. 2):

The documents released by the National Archives also include a ``Draft Article on Judicial Restraint'' stating that courts should not ``discern such an abstraction in the Constitution'' as the ``right to privacy.'' ...Neither Roberts' name nor initials are on the document, though the same box contains a Sept. 30, 1981, memo to Roberts from Bruce E. Fein, an associate deputy attorney general, that suggested inserting a paragraph into ``your draft article on judicial activism.''

Some of the same people, however, who might be appalled at the thought of outside forces being given a free pass to intrude on you, me, and every other law-abiding citizen of this freedom-loving country are likely to feel conflicted about the fact that this right to privacy is what undergirds many legal decisions concerning reproductive freedoms--including abortion:

In a Dec. 11, 1981, memo to his boss, Attorney General William French Smith, Roberts referred to a comment by former Solicitor General Erwin Griswold that
derided the ``so-called `right to privacy''' that formed the basis of the Supreme Court's 1973 decision in Roe v. Wade that legalized abortion nationwide. Griswold, also a former dean of Harvard Law School, was ``arguing as we have that such an amorphous right is not to be found in the Constitution,'' Roberts wrote in the memo, among papers released by the National Archives and Records Administration in advance of his Senate confirmation hearings set to begin Sept. 6. Robert[s], then a special assistant to Smith, attached a draft thank-you letter that he recommended the attorney general send praising Griswold for sounding ``some of the themes I have been addressing recently'' about courts ``restricting themselves to the proper judicial function.''

In the way that our current political discourse draws the lines of allegiance, we as a nation may be asked to make an unholy choice: between the Constitutionality of your right to personal privacy--in medical as well as other matters--and the legality of abortion. People who look only or primarily at the issue of abortion when deciding where to place their political allegiance may have the best of intentions at heart, but to seek to overturn Roe v. Wade at the expense of the concept of Constitutionally-protected freedom is to also open the floodgates of invasive governmental AND industry forces, ravenous for our consumer information and god knows what else, on the entire population of this country.

We've already been asked, ever since 9-11 more vehemently all the time, to sacrifice some of our daily freedoms (and when John Ashcroft was attorney general, he tried to institute a neighborhood spy program, sending shivers down the spine of anyone who has heard of children in Nazi Germany being taught to inform on their own parents--including thoughts expressed privately in the home). But what is especially galling is that where we as private citizens are expected to submit to this new regime that allows for potential state and industrial abuse (remember: it is in the application of power, not power itself, where wrong-doing occurs), a number of Bush's most controversial judicial nominees--including John Roberts--support the increasing expansion of privacy for the Executive branch--what is referred to as "privilege". It was the very abuse of power by Richard Nixon that caused the executive privilege of the president to be scaled back a generation ago. Are we to forget yesterday's lessons so quickly that we will see confirmation of a nominee to the Supreme Court who believes in ever more protection for the already-powerful, and no protection whatever for you and me?

John Roberts, a Judicial Democrat

This one will be short, but not unimportant, I think. This from John Roberts' written reply to questions posed him by the Senate:
Precedent plays an important role in promoting the stability of the legal system, and a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.
I have written before that Judge Roberts seems eminently qualified to sit on the Supreme Court. My standard is to look not at his political inclinations but at the way his inclinations nest within his broader understanding of the role of the judge and the purpose and process of law. Another way of putting that is that a judge must keep procedural concerns foremost in his mind and not allow substantive inclinations to trump them. Roberts' statement evinces his deep appreciation of this principle. He speaks of the importance for a judge of modesty, and that is the keystone of democratic process. We each of us strive to affect our society and its circumstances in the way we consider best. But we must maintain in our minds the reminder that, despite our best intentions, we may not know what is best; our knowledge and experience, the perfect fact of our imperfect humanity, limits us in our comprehension. Others have opposing inclinations to our own; they have equal right to them and a good chance of being more right than we. This being the case, we agree, by our participation in a pluralist democracy, to respect contrary opinions and to allow them voice and action within the procedures we have established to enable the common project of moving forward together. "Other judges equally striving to live up to the judicial oath" seems to me to hit the nail squarely on its head.


First, apologies for the lack of recent posts. It's always a shock and a shame when real-life responsibilities intrude on the blissful world of the blogger. What better way to re-enter the conversation than:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.