The insanity of the Roberts hearings

Imagine if you will:

You are the hiring manager of a business. A man comes in for a job. Middle-aged, good-looking, very likable. You start quizzing him about his work background. He won't really talk about it. Only a couple years, in fact, out of all his life are on the public record at all. You ask him for more information and finally, grudingly, he produces a stack of 20-year-old memos taken from when he was only little more than an intern.

You say that's not enough, I need to know about your job performance. You try to contact his most recent employers, but they won't talk to you or discuss his job performance in any way. Except to say they "stand behind" him.

So you turn to the future. You ask the applicant what he plans to do with his new job... but he won't talk about that, either. In fact, about all he does say is that he'll do a really, really good job! I promise! So then, finally, in desperation, you ask what he'd like to be remembered for when he leaves this job.

His response?

"Well, first I'd like to be remembered for getting hired! Ha ha!"

Would any sane person even hire this man to be second assistant junior boot-licker?

I don't think so.

Post 1

Wednesday, September 14, 2005 - 6:58pm

Jason-
It is becoming more and more evident that you are a truly clueless troll.

How's THIS for a resume?

Only a couple years, in fact, out of all his life are on the public record at all.

Where the hell did you get this lie? Oh yea, sorry I almost forgot, it's a FUCKING lie. I almost accused you of damned ignorance for a second there, but there is actually a malicious liberal brain at work somewhere inside you.

Post 2

Wednesday, September 14, 2005 - 7:09pm

I don't believe I said one word at all about his political leanings either way.

... that's right, I didn't.

In fact, I don't care in the slightest at this point whether he's conservative, liberal, objectivist, or Jesus Christ himself.

I stand by my analogy of the stupidity of this entire process.

Post 3

Wednesday, September 14, 2005 - 7:14pm

Well sorry, but my question still stands. How do you account for this little lie of yours?

Only a couple years, in fact, out of all his life are on the public record at all.

Post 4

Wednesday, September 14, 2005 - 7:22pm

I'll also go ahead and ask this as well; do you think it would be ethical for a judge to pre-judge a case he has not heard and therefore commit himself based on the ramblings of a Ted Kennedy or a Joe Biden?

Post 5

Wednesday, September 14, 2005 - 7:52pm

People aren't asking for him to "pre-judge" a case or issue a ruling. They're just wanting an OPINION. In the "everyone's got one" sense. He's refusing to comment on ANYTHING.

And considering that he only sat on the bench for a couple years (which was what I was referring to when I talked about the public record, BTW; sorry if that wasn't clear) it's not like they have much of a paper trail THERE to go on either. IIRC he was involved in about three cases which were in any way notable.

That doesn't tell you much about him either.

And, of course, no one is releasing any information from his government work besides stuff from when Reagan was in office.

So they're being asked to confirm him based on virtually NOTHING except his word and some old memos.

And I find this - to use the word yet again - ABSOLUTELY INSANE. There is no check on the power of the SCOTUS outside of constitutional amendments. (and how often do those happen?) He - "he" being WHOEVER is nominated - can spend the next few *decades* reshaping national policy. You want to entrust this sort of power - beyond even that of President, in some ways - to a man who won't even stand up and tell you which civil rights he'll fight to uphold?

Really?

Post 6

Wednesday, September 14, 2005 - 9:02pm

Jason Blalock wrote: "You want to entrust this sort of power - beyond even that of President, in some ways - to a man who won't even stand up and tell you which civil rights he'll fight to uphold?"

Jason appears not to be aware that if Judge Roberts were to tip his hand on how he would vote on substantive issues, he would be ethically bound to recuse himself from sitting on those cases as and when they come up. It is not clear to me why Judge Roberts should kowtow to the "public's right to know" how he hypothetically ~would~ stand on an issue, and at the same time shoot himself in the foot so that he in fact ~could not~ take a stand when it came before the court.

Also, judges do not (or are not supposed to) ~make~ law. That is the function of the legislature. The obligation and function of judges is to ~interpret~ the law -- to uphold the Constitution and any laws that are consonant with the Constitution. But again, to telegraph which civil rights they think are Constitutional, and which are not, would result on their being benched (or, I should say, sidelined) as and when those civil rights came before the court for review.

Judge Roberts appears to be a very intelligent and ~sane~ man. I can't imagine him doing the stupid and insane things that Jason thinks he ought to do for our supposed benefit. If he did, he wouldn't deserve to be on any court, let alone to hold the position of Chief Justice of the Supreme Court.

REB

Post 7

Wednesday, September 14, 2005 - 9:38pm

Wait, Roger, are you ACTUALLY arguing that SCOTUS doesn't set policy?

I could REALLY insult you by running down the list of all the major cases, especially in the area of civil rights, that SCOTUS has decided or overruled Congress on. But I won't. We'll just let that one pass. And your comments that things "appear" to be so to you, or you "can't imagine" him behaving stupidly aren't even worthy of reply.

Truly, I am stunned. Absolutely stunned. On an Objectivist board of all places, we have people defending the right of the government to install a man with powers to grant OR remove civil rights without having ANY idea at all how that man is *actually* going to use his powers. And accusing me of being a "liberal" for pointing out that maybe, just maybe, we shouldn't be giving out that kind of power to an unknown. An unknown being given a *LIFETIME* appointment and who could only be removed by impeachment should he do something actively illegal.

And for another thing, your dichotomies are false. Want to talk about recusing? He has a stock portfolio which is a thing to behold. He'd have to recuse himself from ANY case involving those stocks or, arguably, even involving entire industries, given the amount of airline and auto manufacturer stock he owns. (shall we have a repeat of the Slaughterhouse cases? THOSE were sure great for American civil liberties!) Plus more political and legal contacts by way of his wife, who if I recall, is an anti-abortion activist. (and no politician's wife EVER influenced their thinking, right?)

But he can't go on record. That would mean he has to recuse himself.

And EVEN granting you the Ginsberg Excuse - which (if you can't guess) I personally do not buy, and which never existed until she was up for her seat - all this goes is to further prove my underlying point that Roberts is a POOR NOMINEE. You say a justice shouldn't have to say how he'll rule in future cases? Fine! Then give us someone with enough of a public record as a justice that we can see *for ourselves* as proof of his commitment to uphold the law and not legislate from the bench. But we don't even have that. He spent most of his time in private law, with his personal work tied up in Privledge.

Bush should have never nominated him in the first place. There is ZERO reason to confirm him as justice. Just because Bush says he's a good guy counts for absolutely jack when it comes to my life and my freedoms. If he isn't willing to prove it, then to hell with him.

This place, above all others, should appreciate that.

Post 8

Thursday, September 15, 2005 - 6:28am

I think Roger put it very well.

One of the beauties of the Anglo-American legal system is that judges decide only actual disputes that are placed before them. Unlike officials in the other branches of government, they don't go out looking for "problems" to "solve." They're there if people need them, and if people don't need them, they stay silent.

That's one reason why judges generally don't go around making policy pronouncements. They're trained not to decide an issue until it is clearly presented to them in a real (not ginned up) dispute. That way, when they do decide an issue, they base it on real people for whom the issue has real consequences.

Roberts appears to be exactly the kind of judge I want on the Supreme Court. He's smart, he's well trained, and (as far as I can tell) he's a minimalist. He doesn't use cases as jumping-off points for broad theorizing and sweeping statements. He decides the issue before him on the narrowest grounds possible.

Post 9

Thursday, September 15, 2005 - 8:32am

For what it's worth, I tend to agree with Jason. I think Roberts' resume is quite impressive...and inadequate. His opinions as circuit judge are nicely written, cautious, and clear - which is great - but they don't really illuminate his jurisprudence. Asking him some policy or precedent or principle questions might, and to be sure, not all such questions would warrant him to recuse himself. Asking for some of his more recent paper trail also might. I know some people think he's a strict constructionist and somewhat of a pragmatist, but how do they know? I wouldn't say he's a poor choice. I'd say we don't have enough evidence to say one way or other.

Jordan

Post 10

Thursday, September 15, 2005 - 9:16am

A judicial nominee certainly cannot tell us--or even give us a significant hint--how he or she would rule on an actual or hypothetical case that might come before the court, but, surely, the methodology and values of such a nominee can and should be identified.

From what I've seen so far on C-Span, I THINK (and we can always be surprised) that Roberts is a true conservative who probably respects stare decisis a bit more than Scalia or Thomas. Also like the late Chief Justice, he appears to endorse an "eclectic" mess of theories of judicial decision-making. The appropriate philosophy for the appropriate case (yes folks, it's pragmatism, that great American legal disease, with the means "made-to-order" for the end sought from the outset.) This approach IS his ultimate "method," I fear. And, yes, it makes predicting his future decisions difficult.

But, take heart, while he may not move fast in any good direction, he probably won't move very fast in the bad directions, either. (We can only hope.)

Post 11

Thursday, September 15, 2005 - 10:03am

My two cents.

While I think Roberts is a better candidate for the top post than a liberal judge who would feel no restraint in re-writing the Constitution from the bench, I'm not big on a nominee staying mum on how he would have decided past cases. The pretense that he has no idea about how he would is phony. Of course, a guy like Roberts knows what he thinks of Roe v. Wade, for example. Or how about the Kelo outrage? Aren't we entitled to know straight from the horse's mouth what he supports or doesn't support with specificity when it comes to our rights under the Constitution? If he doesn't know, then he shouldn't be a justice.

Also I don't there is any ethical compromise a nominee makes in telling us particulars like this. Nothing he has to say about a past case binds him on a future case. If that were true, judges could never reverse themselves, which they often do. It is one thing to be a nominee to a trial court, like the U.S. district court, where decisions on fact in addition to law must be made, and getting into particulars beforehand can get sticky. It's another thing to be a nominee to an appellate court, where the issue is only the law. So we are entitled to know what Roberts thinks is good constitutional law and what isn't before supporting his nomination.

Andy

Post 12

Thursday, September 15, 2005 - 11:27am

James,

That's impression I get too.

Here's some stuff I'd like him to address :

1. How would he go about identifying implicit liberties in the Constitution?
2. What is some of what it would take for him to overrule a precedent?
3. How will the original intent of the framers factor enter into his opinions?
4. Which Supreme Court Justice (dead or alive) do you admire most and why?
5. Why do you think you're most qualified for this job?

Jordan

(Edited by Jordan on 9/15, 11:27am)

Post 13

Thursday, September 15, 2005 - 11:58am

Andy,

I definitely agree that saying he "doesn't know" how he would have decided famous past cases is an absurd pretense, but a very recent case can be more easily revisited and overturned. The nominee should avoid it if necessary by simply saying "I cannot answer that." But, when a nominee, like Roberts, cannot tell us that the very principle behind the KELO case is odious, I think we have our answer.

Jordan,

Those are all fair and answerable questions--and nothing in any Code of Judicial Responsibility prevents answering them.

Post 14

Thursday, September 15, 2005 - 12:20pm

Here're some more:

6. What does he think is the role of commonlaw?
7. How should authorities outside the United States be considered when determining a constitutional issue?

Jordan

Post 15

Thursday, September 15, 2005 - 12:49pm

What I would like to know and likely will never know are the overall political reasons that led GWB and his inner circle to decide that this was the best candidate for them. How did their choice fit in with their main pockets of consituency, notably the moral right? How was it narrowed to him by his advisors?

On the other hand, GWB is an Evangelical, and if there is one thing you can say about him is that he usually is quickly decisive (with a couple of extremely large exceptions that I'll move by for now)- it's entirely possible he looked at everything presented to him, prayed on it, and then made a call.

Don't laugh- that is what he does, like it or not.

I'm not as interested in his personal opinions as I am where he fits into the power structure.

Strategically, if I were them, I'd be seeing some plusses, that's for sure... a great overall presentation, a strong professional record, great presentation as a candidate overall, and of course, the fact that he can very clearly articulate why he will not give personal opinions- he's shown real staying power in defending himself under major grinding.

I think it was a way more plusses than minuses issue. If there's anything under the covers in terms of power elite stuff, I don't think it's coming out anytime soon.

(Edited by Rich Engle on 9/15, 12:53pm)

(Edited by Rich Engle on 9/15, 12:54pm)

Post 16

Thursday, September 15, 2005 - 1:13pm

James,

I think we're on the same page regarding what a nominee should be able to tell us. I do think there are special circumstances in which a nominee would have to be circumspect about discussing a particular case - primarily one that he is likely to immediately review if appointed. In that instance, he should simply state his reservations about addressing the particulars, but he still can tell us what he thinks the underlying legal principles are.

The discussion of most cases would not fall in this narrow category. He should tell us how he would have decided them, or at the very least be clear as to what he thinks the contending legal principles are and which ones he supports. We should not have to practice Kremlinology on a nominee's minimalist statements about the law. That's how we got a wretch like Souter on the Supreme Court.

Andy

Post 17

Thursday, September 15, 2005 - 1:16pm

Andy,

Bingo.

Thursday, September 15, 2005 - 1:33pm

We should not have to practice Kremlinology on a nominee's minimalist statements about the law. That's how we got a wretch like Souter on the Supreme Court.

I've never seen anything done so well as far as not getting down to it. I don't know what is more annoying and repetitive- knowing that is the format, or all the pukey grandstanding that goes in front of almost every senator's question.

But, for pure entertainment, it's hard to beat the Bork hearings.

Post 19

Friday, September 16, 2005 - 11:48am