View From a Height

"Activists," Eh?

Jim Hughes of the Denver Post covers the local activists on both sides of the Robert nomination this morning. Sort of.

Of 18 paragraphs, three discuss the pro-Roberts Judicial Confirmation Network, four equate the two sides, and seven discuss NARAL and other left-wing opponents of a sane judiciary. (Four paragraphs are neutral, not mentioning the activists directly.)

While the Post is silent on the conservatives' desiderata, the coverage of the lefties includes the following:

NARAL "action teams" will be watching the hearings from Colorado, ready to cry foul if they don't like what they see, executive director Meg Froelich said.

"Let's not have a coronation with Roberts," she said. "Let's have a real, genuine process."

...

The Colorado Coalition for Fair Justices - a coalition of local activist groups, some opposing Roberts and others officially neutral - has asked Salazar and Allard to forward to the Judiciary Committee a list of questions it wants Roberts to answer on civil liberties and environmental matters.

"We're really looking for a transparent process, one that asks important and tough questions and demands clear responses," said Catherine Montoya, head of the coalition and a consultant who works with People for the American Way, a national group that opposes Roberts' confirmation.

...

"We expect our senators not to act merely as a rubber stamp to President Bush's nominees," NARAL-Pro Choice Colorado said in a statement shortly after Roberts was nominated. "Sens. Salazar and Allard have a duty to Coloradans and the American public to ask tough questions and only vote for nominees that support privacy, freedom, reproductive rights and personal responsibility."

The Post describes at length the positions and tactics of the leftist opposition to Roberts.

Hughes knew about Progress for America's position that prior hearings - specifically those of Ruth Bader Ginsburg - set a precedent for what nominees should be required to answer.

How do I know he knew this? Because he was in the roomwith Clay and me as we interviewed Ben Ginsburg and Bob Knauss:

All Together Now...

..."Supreme Court Justices do not make policy." What on earth are Ken Salazar and Wayne Allard doing quizzing Chief Justice nominee John Roberts about western water rights? Other than the proper roles of federal and state governments in setting the rules, the kinds of cooperation permitted to the states, and so forth, but these issues apply to lots of regional issues all over the country.

Roberts, however, has apparently seen The Incredibles:

[He], however, told Allard "all parts of the country are unique to one degree or another."

Salazar, though, seems to think of the Court as a legislature:

Salazar said Wednesday that he wants to get to know Roberts and find out whether he will work to “create unity” on the high court.

“We haven't seen that under the Rehnquist court,” Salazar said. “We've seen a very divided court, with many 5-4 opinions. I would hope that, if Judge Roberts becomes the chief justice, he can try to get the members of the court to act more as a body, as opposed to that kind of division.”

On major decisions, there is sometimes a desire to achieve unity. But this division is at least as much the fault of a recalcitrant and unreasoning Left as it is of the Chief Justice. Taking a look at the two Ten Commandments decisions last year, they were both 5-4 decisions, with the only swing vote being O'Connor. To expect John Roberts to get John Paul Stevens to vote more sensibly is asking a little bit much. And Salazar would make the situation completely impossible by replacing Justice O'Connor with her "clone," if possible.

The Chief Justice should try to achieve some level of amity and needs to be able to preserve the collegiality necessary for the Court to work. It's not his job to assure 9-0, or ever 7-2, decisions. One suspects (cough) that Salazar is really asking Judge Roberts to achieve unity through surrender.

Excuse me, How Do You Get To the Madison Building?

Woke up to this email this morning, which is either real, or the result of a phisher completely uninterested in personal information:

The United States Library of Congress has selected your Web site for inclusion in the historic collection of Internet materials related to the Supreme Court, and we request your permission to collect and display your Web site.

The Library of Congress preserves the Nation's cultural artifacts and provides enduring access to them. The Library's traditional functions, acquiring, cataloging, preserving and serving collection materials of historical importance to the Congress and the American people to foster education and scholarship, extend to digital materials, including Web sites.

The following URL has been selected:

www.jsharf.com/view/archives/cat_judicial_nomination.html

The Library of Congress or its agent will engage in the collection of content from your Web site at regular intervals. The Library will make this collection available to researchers onsite at Library facilities.

I'm sure this email is completely untouched by human hands, and the website has been completely unseen by Congressional Librarians' eyes, but it's still pretty nifty.

Adopt a Box of Docs

Here's my contribution to the Adopt a Box of Doc Project. I was lucky. Not only did my box contain stuff actually written by Roberts, but the stuff itself is pretty illuminating. Hopefully the Washington Post will find it helpful.

On February 6, 1983, Chief Justice Warren Burger used his State of the Judiciary address in New Orleans to discuss the Court's belief that it was overworked, and to float two proposals. Four days later, John Roberts wrote a two-pager which leads one to believe (although Roberts never even hints) that maybe the Chief had been down in the French Quarter a little too late the night before:

I suspect that there has been enough study of judicial problems and possible remedies, but certainly would not want to oppose a modest proposal for more study emanating from Chief Justice.

One of the beauties of Roberts's writing is that it requires virtually no interpretation, aside from what is now historical context. You have no idea how old typing that last sentence makes me feel.

The more significant afflatus from the Chief Justice is his proposal for immediate creation of a temporary court between the Courts of Appeals and the Supreme Court, to decide cases involving inter-circuit conflicts referred to it by the Supreme Court.

I had to go to by OED for "afflatus." It wasn't there. It did track it down in another dictionary, and it means 1) wind or breeze, and 2) inspiration. 2) is not altogether unrelated to 1), but there's just about no way this is complementary. You can almost see Roberts's eyes rolling and hear him sighing. "The Old Man has given air to another one of his brainstorms, and we're going to have to talk him down from it."

Roberts points out a few problems with the idea. First, the certiori process now becomes three-headed and thus more complicated, not less. Secondly, the National Court of Appeals, itself subject to review, risks becoming just another voice in the cacophany of conflicting opinions. Third, it may encourage more filings for appeal. Fourth, it may further depress morale on the Appellate bench. Fifth, having the Chief Justice appoint the members seems to violate traditional executive prerogatives.

He saves the best for last, and it provides some key insights into how the young Mr. Roberts saw a Court run amok and awry:

My own view is that the creation of a new tier of judicial review is a terrible idea. The Supreme Court to a large extent (and, if mandatory jurisdiction is abolished, as proposed by the Chief and the Administration, completely) controls its own workload, in terms of arguments and opinions. The fault lies with the Justices themselves, who unnecessarily take too many cases and issue opinions so confusing that they often do not even resolve the question presented. If the Justices truly think they are overworked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the "good faith" standard, and abdicating the role of fouth or fifth guesser in death penalty cases, would eliminate about a half-dozen argued cases from the Court's docket each term.

So long as the Court views itself as ultimately responsible for governing all aspects of our society, it will, understandably, be overworked. A new court will not solve this problem.

This reads so much like a blog posting itself that virtually no comment is necessary. It is neither judicially restraining nor activist, it just states that the Court is completely out of control. For those of you wishing to follow up on the Exclusionary Rule, SCSU Scholars and Joe Carter are working that box. Roberts's concern about muddy thinking and muddy writing is now very evident in the Court's handling of church-state questions, exemplified by the reasoning in the Texas and Kentucky cases of the very woman he's been nominated to succeed. One might also refer to the various and varied opinions in Bush v. Gore.

Box #2 is a memo to Roberts, dated 2/9/83, with prior testimony and study by the Administration that apparently informed his own two-pager. Interestingly, the second-to-last item is a January 1977 (pre-Carter) report by a special committee chaired by Robert Bork, but which also included Antonin Scalia, Bruce Fein, and Richard Thornburgh before he lost his critical faculties.

It's worth noting, though, that Roberts's opinion of the Chief's afflatus was not universally shared within the Administration. Treasury didn't seem to have any problem with it,for instance, and the DOJ came out with a report approving of the idea.

The second half of Box #2, and Box #3 were related to removing mandatory jurisdiction from the Court in certain cases. Except for a perfuctory note, there's nothing in Roberts's own writing from those boxes.

RMA Meets with Roberts Barnstorming Tour

This afternoon, the RMA, represented by Clay Calhoun and myself, met with Benjamin Ginsberg and Robert Knauss of the Progress for America Barnstorming tour, dedicated to reminding the country of how the judicial confirmation process is supposed to work.

I'll have comments and a transcript up tomorrow night, but for the moment, suffice it to say that the Colorado for Judge Roberts and PFA folks were very hospitable and enthusiastic, and that Messrs. Ginsberg and Knauss were informative and gracious. If this is representative of the kind of help the judge is getting, he's in good hands.

Dread Pirate Roberts

OK. So the Progress for America folks have reserved www.judgeroberts.com to help promote his confirmation. The Judicial Confirmation Network has reserved Confirm Judge Roberts.

Why not www.confirmroberts.com? Because that domain was already squatted last November by none other than one Brian Komar of the Leadership Conference on Civil Rights.

How - childish. Of course, Wade Henderson gets interviewed by every newspaper in the country looking for opposition to Roberts, but he needs to hijack a perfectly good site, months in advance. I don't suppose a third party can establish prior use on someone else's name, especially one as common as
Roberts, though.

If these people want to be taken seriously as anything other than political bullies and name-callers, they'll have to come up with some ideas that can stand on their own, without having to fly under a false flag to get attention.

UPDATE: I had second thought, hopes that the LCCR had some legitimate reason for wanting confirmroberts, especially as far back as November 17, 2004. Perhaps there was a Judge Roberts they liked, or a special election or local nomination or perhaps a state judge named Roberts.

Nope. They never fail to disappoint. They also took confirmluttig.com

ANOTHER UPDATE: Defeatroberts.com, along with rejectroberts.com and a host of related domains were also reserved yesterday by someone named Marcus Belk, claiming to be a democratic political consultant based in Hoboken. Maybe. Truebluedemocrats.com is the only reference I could find for him, but he is offering the domains for sale, rather than trying to deny access to his opponents.

Madame Justice Kourlis?

The Denver Post is reporting that the next Supreme Court Justice may come from the Colorado Supreme Court, Justice Rebecca Love Kourlis.

While Justice Kourlis was appointed by Gov. Roy Roemer in 1995, she has tended to be a strict constructionist and a proponent of judicial restraint. She wrote the dissent when then-Attorney General Ken Salazar went to bat for his party, getting the courts to usurp the redistricting power of the legislature. From that dissent:

I fundamentally disagree. Courts cannot be lawmakers under Article V of the Colorado Constitution. Courts do not enact or create laws; courts declare what the law is and what it requires. To hold otherwise violates the clear language of Article V and also the mandates of Article III of the Colorado Constitution, which delineates the separation of powers among the three coordinate branches of Colorado government.

The only authority that courts have to intervene in this purely political, legislative process is to review the constitutionality of existing districts, as we would review the constitutionality of any law, in order to protect the voting rights of aggrieved claimants. Within that limited framework, courts may enter emergency or remedial orders for the purpose of allowing elections to go forward. Such court orders are interstitial, and cannot then serve to preempt the legislature from reclaiming its authority to redistrict.

And in what's frequently a loser these days, she argues that the Colorado Supreme Court should have held off for a while:

I also note that I do not believe that this court should ever have chosen to accept original jurisdiction in this case. At the time this court did so, there was a case pending in the Denver District Court that raised all of the issues before us now, plus a variety of other legal and factual issues. If that case had been allowed to proceed, the trial court would not only have addressed all disputed issues of fact but would also have ruled on all legal theories presented by the plaintiffs. In that situation, we would be in a position to resolve the issues with a full factual record. By taking this case when we did, we unnecessarily circumvented the normal process of case resolution, and limited ourselves to addressing the constitutional issues first rather than as a last resort.

Interestingly, she also dissented in the case that overturned Colorado's voucher law on the pretext that that law violated local control over schools. Her dissent contained this paragraph:

Further, although I agree that this court authored four cases dated between 1915 and 1931 that appear to equate local control over instruction with local control over educational tax dollars, in my view, the court has already moved away from that strict formulation in our more recent cases and it would be inconsistent with those modern cases to hold the Pilot Program unconstitutional.

This would seem to place her more in the Scalia mold than the Thomas mold, since she relies on more recent precedent rather than an originalist reading of the state Constitution here. In both cases, though, she opts for actually reading the Constitution instead of making it up as we go along.

If there's one drawback to Justice Kourlis's career, it's that the words "Justice Kourlis joins Justice Coates in the dissent" appear frequently in Supreme Court opinions. No doubt some will complain that by not surrendering to the Will of the Majority, she doesn't play well with others. Naturally, there's no actual evidence of a personality disorder, just a penchant for sticking to principle.

As a side-note, this would create Governor Owens's first chance to appoint a State Supreme Court Justice. He could do worse, than MoHo, the Honorable Morris Hoffman of Colorado's 2nd District. Hoffman wrote the opinion in Common Cause's attempt to disrupt the 2004 elections by counting every ballot, valid or not. He's respected, and has a reputation in the legal community for doing his homework and taking his cases seriously.

On the downside, I have no idea how common it is for a judge to jump to the State Supreme Court straight from a district court. And while the governor would be replacing one conservative justice with another, I also don't know how obstreperous the Senate Democrats would choose to be. My personal guess is that with an 18-17 majority, there are any number of sane Senators willing to be reasonable.

Conference Calls

Yesterday, I had the chance to sit in on two separate conference calls concerning the upcoming Supreme Court appointment. One fulfilled the prophecy of the other.

The first was by the group Progress for America, working to support the President's nominee. The other was a call sponsored by the DSCC, featuring Howard Dean and Harry Reid, working to oppose the nominee.

Without a nominee yet, PFA has been able to play offense, ridiculing the Democrats' pre-emptive carpet-bombing of someone they haven't even seen yet. They unveiled the Rage Gauge, a catalog of Democratic and leftist hysteria. PFA has also published the rules of the game, as it's now played in Washington, in the hope that forewarned is both forearmed and inoculated.

Harry Reid, well, Harry pretty much read their script and his. His call was sponsored by the DSCC, and featued an introduction by Howard Dean wishfully calling him the majority leader.

I would point out that during his introduction, Dean noted that "there's thousands of people on this call." The invitation I received didn't say anything about not recording it. It explicitly suggested that I forward the email and the response link along to friends, to increase the participation. A screening process that lets a registered Republican participate in a conference call along with "thousands of people" can hardly be the result of an expectation of privacy.

I think the important thing is I recognize this first meeting is not "consultation." It's the beginning of consultation.

And who knows where it might end? The Democrats have a bit of a problem here, because nobody wants to formalize the process outside the committee hearings and floor devate, but it's completely unclear as to what "consultation" means. Rest assured that these are rocket-propelled goal posts on roller-blades.

I've said publicly this is a chance to unite the country. We've been through this waste of time, the nuclear option. He has tried to spend a lot of time on Social Security, and now people are just walking away from it, even Republicans. A little over 20% of the people think that's a good idea. We have intractable war in Iraq.

There's almost not a word of this that's true, and even less of it that's relevant. This is not a chance to unite a country, and not even clear that that's the role of a Supreme Court nomination. The nominations of Ginsburg and Breyer didn't unite the country - they passed because the Republicans didn't fight qualified, albeit very liberal - nominees.

What Social Security and the Iraq War have to do with this is beyond my imagining, except that they tell you something about where the Democratic Party has wandered off to. While conservatives point out that the Court will likely have to decide on cases inolving the conduct of the war, Reid simply uses it to undermine the effort and the Administration.

Does anyone really think that a Supreme Court nomination is going to unite the country? Is Reid really suggesting that the proper nominee will make it easier to work with the Democrats on Social Security and national defense?

We don't want this to be a show of, uh, consultation that really doesn't exist. The fact that reached out and called a lot of Senators saying, "what do you think, uh, give us some names" that's not consultation. We need to know the names of people he's talking about putting on this very, very important job to replace Sandra Day O'Connor.

So it's not consultation to come up with a list of names without talking, and it's not consultation to ask for names that the Democrats would consider acceptable. As I said, rocket-propelled goalposts. On rollerblades.

In response to a question about filibusters:

The nuclear option is gone. It's over with. It's history. Even Ben Nelson, probably the most conservative member of our caucus has said, if there is an activist judge, and he feels that's extraordinary, he'll move for filibuster.

It looks more as more as though this deal was a bad one fore the Democrats, and that Reid is trying to rein in his caucus. I'd be more than a little worried about Nelson staying on the reservation, especially since he's up in 2006.

That said, the nuclear option was never about what the Democrats would do, it's about what the Republicans would do. If the Republicans believe that the Democrats have acted in bad faith, or that they're looking up "extraordinary" in foreign dictionaries, it's pretty clear that there are two votes there to revive the nuclear option. Reid can't control that, so he has to try to talk the nuclear option to death by pretending there weren't two sides to the deal.

I am very concerned about Sen. Frist. Today, we had a good meeting in the White House. He comes to the Senate floor, half hour after the meeting ends, and annouces that he does not want "co-nominations." This is something that came directly from the mouth of Jim Dobson, I'm sure. There wasn't anything brought up in that meeting, no one suggests that that's what we're gonna do.

Ding! Another talking point, James Dobson. Now, either Reid is just making this up, or he's tapped Frist's phones. How does he know where Frist got this from?

Look, I'm very unhappy with James Dobson being the poster boy for the judicial nominations fight. I don't think he's good at it, and I don't think he understands the differences among conservative activism, judicial restraint, and originalism. But dragging him here in from right field is just wacky, something to keep the base riled up.

If the President sends us a consensus nominee, the Senate will confirm that nominee easily. If he sends us a divisive nominee, we will use all procedural tools at our disposal to protect the American people. And finally, let me say this. What kind of a message does President Bush want to send to the American people? A judge that's approved on a party-line vote? I don't think that's very good.

"Protect the American people." From what? Local governments kicking us out of our homes? Oh, wait. Never mind.

Actually, the President is getting ready to send up a justice who will, against the will of the rest of the Court, write such rulings that will have governments all over the country putting in orders to Hugo Boss for those smashing black uniforms with the little red-white-and-black logos on them. Right.

But notice that last line. If the nuclear option is dead, then a Justice couldn't get approved on a party-line vote. The only way that could happen is if the Democrats refused to filibuster, but then voted en bloc against the nominee.

Reid has just admitted that the nuclear option is still very much alive.

At this point, the host read a question asking how he could avoid having the nomination become hostage to competing litmus tests.

I'm amazed, all this talk about litmus tests. It's interesting. It's not Democrats who have a litmus test for nominees. Actually, there's been a lot of talk from the right wing about "litmus tests." President Bush has recently had to tell some of the more extreme activists to tone down the rhetoric when they attacked his own Attorney General.

Again, there's a process in place which nominees are evaluated. If the President, I repeat, nominates someone like Sandra Day O'Connor - we know she was a conservative - there shouldn't be a problem with getting him or her confirmed.

We're not here to pick a fight; it's up to the President to avoid a confrontation.

No Democratic litmus test? One word - abortion. Notice that all the Democratic, and left-wing activists, talk about political philosophy, while the Republicans talk about judicial philosophy.

And, um, let's leave the cognitive dissonance, the internal contradictions of that last sentence, to Sen. Reid and his analyst.

Finally, Reid commented on Sen. Frist's claim that Presidential consultation of the sort we saw yesterday was "unprecedented." He all but called Frist a liar, and then provided two historical examples.

Herbert Hoover had an ampening - opening, on the
Supreme Court. He called the very, very powerful Borah, senator from Idaho, down to the White House to talk about him. And in fact, the President gave Sen. Borah a list of people he was thinking about putting on the Supreme Court.

Borah looked it over and he said, "Mr. President, this is a great list except you have it upside-down. And he moved Benjamin Cardozo, who was last, first. And he became one of our great justices."

Except that Borah was a single member, a Republican, and a member of the President's own party, and in the majority at the time. Reid might want to win a few elections before he starts claiming those privileges.

President Clinton. President Clinton wanted very badly to have his friend Bruce Babbitt go on the Supreme Court. He sent that name to Hatch and the Republican members of the Judiciary Committee, Hatch said, "no, that's a battle that you will wish you hadn't gotten involved in." As a result of that we had a good Supreme Court justice. I don't know whether that was Breyer or Ginsburg, one of them stepped in there.

Again, the President is consulting with the majority party, not the minority here. He probably already had some idea of what the Democrats thought.

Bruce Babbitt was not known as a judge, he was known as a Senator and cabinet secretary. Objections to what could be interpreted as a political nomination to the Court were prefectly reasonable.

And the justice who got approved, whether it was Breyer or Ginsburg, was very liberal.

Harry, you're going to have to do better than following the other guy's script.