Tag Archives: John Roberts

EARTH TO A PATRONIZING PLANET

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The Netroots Nation conference has traditionally been an occasion for mainstream media types to take a whack at the unreasonableness of the left. Michael Grunwald offered up, if not a classic, a fairly representative example of the genre on Swampland yesterday. Take this paragraph designed to dispatch left criticisms of Barack Obama with patronizing parentheticals:

It’s true that President Obama is not as liberal as some Daily Kos bloggers would like him to be. (Although he has blogged at Daily Kos.) He continued some of President Bush’s national security policies. (Although he did end the war in Iraq.) He ignored left-wing calls to nationalize troubled banks. (Which turned out to be the right call.) He’s pushed for middle-class tax cuts and public-employee wage freezes that his base dislikes, and he’s outsourced most of the Republican-bashing that his base craves. (Which may be why he’s way more popular than his party.)

Let’s take the parenthetical potshots one at a time:

It’s true that Obama has posted on Daily Kos – although the most prominent instance was when he took to Daily Kos to criticize progressives for being too hard on senators that backed John Roberts (more on that one here and here).

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(POLITICAL) CHARITY CASE

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Much like a lot of people who opine for reasonably-sized audiences, Cass Sunstein deems Barack Obama and John McCain both more admirable than most US Senators. His reason:

Politicians who show respect–Senator McCain is a good example–tend not to attack the competence, the motivations, or the defining commitments of those who disagree with him. Politicians who show charity as well as respect–Senator Obama is a rare example–tend to put opposing arguments in the best possible form, to praise the motivations of those who offer such arguments, and to seek proposals that specifically accept the defining commitments of all sides.

In other words, McCain shows respect by criticizing just the reasoning and not the character of his opponents; Obama shows the greater virtue of charity by affirming the character of his opponents and stating their arguments in the most generous terms possible.

They do?

Of course, it would be tacky to just scrounge up a single example of McCain vituperatively attacking the character of an opponent. So let’s restrict ourselves to examples of McCain vituperatively attacking the character of the most charitable Senator in America (TM). Maybe this counts:

I concluded your professed concern for the institution and the public interest was genuine and admirable. Thank you for disabusing me of such notions with your letter… I’m embarrassed to admit that after all these years in politics I failed to interpret your previous assurances as typical rhetorical gloss routinely used in political to make self-interested partisan posturing appear more noble.

As for Obama, he’s certainly outspoken on the virtues of granting those you disagree with the benefit of the doubt. After all, that was the principle behind his criticism of liberal advocacy groups that criticized Pat Leahy:

The knee-jerk unbending and what I consider to be unfair attacks on Senator Leahy’s motives were unjustified…the same unyielding, unbending, dogmatic approach to judicial confirmation has in large part been responsible for the kind of poisonous atmosphere that exists in this Chamber…These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process…

Watch as Barack Obama rises to defend the character of someone he disagrees with and – all the better to strike a blow for political charity – calls out the critics for being so “knee-jerk…unyielding, unbending…broad-brush dogmatic…” In his zeal to defend Pat Leahy’s honor, you’d almost think he was criticizing the character of those he disagrees with about the appropriate way to criticize Pat Leahy – or at least failing to present their argument in “the best possible form.”

What was the argument that drove Barack Obama into a fit of political charity? He’s too much of a gentleman to name names, but he most quoted criticism of Leahy from the left for voting for Roberts came from People for the American Way:

His decision was inexplicable, and deeply disappointing. When John Roberts becomes Chief Justice and votes to erode or overturn longstanding Supreme Court precedents protecting fundamental civil rights, women’s rights, privacy, religious liberty, reproductive rights and environmental safeguards, Senator Leahy’s support for Roberts will make him complicit in those rulings, and in the retreat from our constitutional rights and liberties.”

I suppose it’s unyielding in that PFAW hasn’t changed its position on Pat Leahy voting for John Roberts. Knee-jerk? Well, maybe they could have saved themselves a lot of trouble if they hadn’t put together those many-hundred-page reports on the guy. The word “complicit” earned condemnation as “vicious” from the Washington Post. But all it means is he shares some measure of responsibility for the actions on the bench of a man he voted to put there.

The more interesting question, perhaps, rather than how well Cass Sunstein’s chosen paragons live up to his chosen virtues of political respect and charity is whether these virtues – however commendable in private life – are really virtuous in public life at all. Should people who dislike social darwinism and dislike laissez-faire conservatism call foul when Barack Obama suggests the former is motivating the latter?

WHAT IS BARACK OBAMA SAYING?

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Friday, Barack Obama wrote a response to blogospheric criticism of his criticism from the Senate floor of advocacy groups which were condemning Senators who voted to confirm Roberts (Obama himself voted against confirmation). He makes some points I agree with, and some I don’t. Most frustrating, though – and all the more so given his gift as a writer – are the arguments which sound nice but whose meanings are difficult to tease out at all. Like this one:

My colleague from Illinois, Dick Durbin, spoke out forcefully – and voted against – the Iraqi invasion. He isn’t somehow transformed into a “war supporter” – as I’ve heard some anti-war activists suggest – just because he hasn’t called for an immediate withdrawal of American troops. He may be simply trying to figure out, as I am, how to ensure that U.S. troop withdrawals occur in such a way that we avoid all-out Iraqi civil war, chaos in the Middle East, and much more costly and deadly interventions down the road. A pro-choice Democrat doesn’t become anti-choice because he or she isn’t absolutely convinced that a twelve-year-old girl should be able to get an operation without a parent being notified. A pro-civil rights Democrat doesn’t become complicit in an anti-civil rights agenda because he or she questions the efficacy of certain affirmative action programs. And a pro-union Democrat doesn’t become anti-union if he or she makes a determination that on balance, CAFTA will help American workers more than it will harm them.

There are several ways to read this argument:

One is that what matters is a politician’s values, and not individual votes, and so it’s wrong to call a politician “anti-civil rights” for casting votes which hurt the cause of civil rights. The problem with this argument is that we elect representatives to cast good votes, not to personally sympathize with us and our values.

Another is that none of us has the right to decide what these labels mean – that it’s arrogant and inappropriate for pro-choice activists to tell politicians what it should mean to be pro-choice. The problem with this argument is that there’s no point in working to advance the cause of “choice” in general if that excludes advancing a particular understanding of what is and is not pro-choice policy. While it’s arguable whether or not the movement would be served by more politicians claiming the pro-choice mantle without changing their policy positions, but it certainly be insufficient.

Another argument which could Obama could be making here is that is that immediate troop withdrawl from Iraq, opposition to parental notification laws, defense of affirmative action from “questioning,” and opposition to CAFTA are not in fact serving the goals of the anti-war, pro-choice, civil rights, and labor movements, respectively. In other words, he could argue against the positions he thinks Democratic senators are wrongly being held to on the merits. But if there’s any such criticism here, it’s only implicit (Obama, for the record, voted against CAFTA in the Senate, voted against parental notification in the Illinois Senate, and is not calling for an immediate withdrawl of all US troops).

Given that Obama seems not to be articulating that argument, he could be arguing that these particular issues are just not important enough to make a big deal of. But it’s hard to imagine the groups he names not putting up a fight over these issues, and it would be hard to believe that Obama would expect them not to. CAFTA was the first comprehensive trade deal to come before the Congress under Bush, crafted to erode worker protections which accelerating the race to the bottom. Parental notification policies are, along with denial of government funding, one of the major policy impediments to women’s substantive exercise of their right to choose.

A more spurious argument which Obama seems implicitly to be making through questionable word choice is that the problem with these left-wing advocacy groups is that they’re out to restrict elected officials’ freedom of expression by punishing them for not being “absolutely convinced” on parental notification or “making a determination” they don’t like on CAFTA. To the extent that advocacy groups criticize elected officials for critical public statements, they’re not chilling speech – they’re responding to it, and I’d say there are some criticisms which are deserved and others which aren’t. But phrases like Obama’s here aren’t really about speech – they’re about votes. To describe a pro-choice group as punishing a legislator for not being convinced of something conjures up Orwellian images, but what pro-choice groups are taking legislators to task for isn’t private thoughts – it’s how they legislate.

The final argument that I think could reasonably be read from this paragraph, is that advocacy groups shouldn’t expect politicians to vote the way they want all of the time. But why not? Certainly, it would be a poor tactical choice for such groups to predict that everyone they want will vote however they want all of the time. But given the premise that their positions are the right ones (and with the exception of immediate and total withdrawl, I believe they are, and Obama seems to as well), shouldn’t support of all of their positions be the standard against which they judge elected officials? Does Obama really expect the National Council of La Raza to make public statements like, “Sadly, the Senator is only 85% of the way to casting votes to extend rather than restrict civil rights at least 60% of the time”? Elected officials, locally as well as nationally, often revel in disparaging “activists” for failure to understand the necessity of compromise. The first problem with that critique is that too often, the compromises are bad ones. The second is that the way we get good compromises is by having leaders on our side who are willing to take strong stands in the face of opposition. Obviously, writing a politician off as not worth working with in the future because of a vote on a particular issue is just bad politics – if you’re not organizing them, someone else is. But there’s a difference between writing off politicians who cast bad votes and being willing to publicly point out that those votes are bad. Voting for CAFTA may not make an otherwise pro-union legislator anti-union for good, but those of us who believe voting against CAFTA is the right vote and the pro-union vote to cast are, it seems to me, obligated to regard a politician who votes for CAFTA as less pro-union than if she hadn’t. Otherwise, we might as well pack up and go home.

Or maybe all Obama was trying to say was that left advocates should soften their rhetoric. I don’t think describing a Senator who votes to confirm a nominee for Chief Justice as in some way “complicit” in particularly aggregious decisions that Justice makes on the court is in any way out of bounds (and yes, that means Russ Feingold, of whom I remain a big fan, bears some degree of responsibility for what Justice Roberts does on the court). And I don’t think the left or the country are well-served when advocacy groups whose fundamental mission is an ideological one, not a partisan one, hold their fire in taking politicians of one party to task for actions for which they would condemn members of the other. Is there some exaggerated, over-the-top, nastily personal rhetoric out there? Of course. But if that’s what Obama takes issue with, he could have found a clearer way to say it.

A HEARING HIGHLIGHT

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Russ Feingold cuts through the “not prejudging cases” farce:

FEINGOLD: In Hamdi there were four different opinions…We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court…Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision..Why shouldn’t the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process…You’re now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views…

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice…

FEINGOLD: I understand your view. I think it’s narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn’t have, as we say in Wisconsin, a snowball’s chance with a couple of the justices because of what they had ruled previously. But I didn’t think that made the process in any way tainted.

So first, John Roberts’ argument is that he can’t discuss past cases because it would be unfair to future litigants to go before a judge who was on the record about issues related to the case. Then, when confronted with the obvious but under-discussed point that every current Justice is on the record about prior cases by nature of having voted on them, his argument transforms into a new one: It’s unfair to future litigants to have to go before a judge who had publicly stated opinions about issues related to the case and hadn’t had them forged by the process of conferring with other justices. This argument is equally specious – certainly, judges views may change with time (though in some cases we may question how genuine the change of heart is), and no one asks an apointee to pledge not to listen to new viewpoints, but if the only people with well-reasoned, prudent opinions on Supreme Court decisions are Supreme Court Justices, then there isn’t much point in having judicial confirmation hearings at all. The idea that Supreme Court Justices, by nature of having to debate with their colleagues and write opinions, have earned some qualitatively different right to their judgments doesn’t seem in keeping with the humility which Roberts claims as the hallmark of his judicial philosophy. And if announcing positions on prior cases without having been on the Court for them is imprudent, his comments about Lochner and Brown are as much so as his comments on Hamdi. The real pattern in what he does and doesn’t discuss it seems, it which cases the public as a whole is likely to be reassured by his positions on and which ones he’d be safer keeping his mouth shut about.

THE OTHER SIDE OF ROE

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One of the more interesting points William Saletan makes in Bearing Right is that as long as a sizeable number of Americans believes neither that a woman has a right to choose nor that a fetus has a right to life, we’ll continue to see employers, judges, parole officers, and others pushing policies which should trouble those who believe in either – policies which deny pregnant women who want to carry a fetus to term, or women who want to retain the ability to get pregnant in the future, the chance to do so. The case studies Saletan explores show that when the issue is mandatory abortion, pro-choicers and “pro-life” activists have generally been united in defending a woman’s right to choose birth, though in cases where the issue is mandatory sterilization, “pro-life” organizations have too often stood with those who would take away a woman’s or man’s reproductive autonomy, whether permanently or for the duration of coercively-implemented injections.

The ultimate line of legal defense for women told that sacrificing the chance to have a child is the cost of a job or a parole is that much-maligned but nationally popular decision, Roe v. Wade. One of these women is April Thompson, who is suing Piedmont Management Associates for firing her over her decision to remain pregnant:

According to the lawsuit, when Ebert found out Thompson was seeing a fertility doctor, she told her she was “worried that she was trying to get pregnant.” “If you get pregnant, you will have to move because I am not putting up with any babies around here and you also won’t have a job,” the lawsuit says Ebert told Thompson. “The guys and I do not even hire single mothers because of the problems. I know you have some great delusion that you will be a great mother, but you won’t — you can’t even take care of your dog.”…According to the lawsuit, when Ebert found out, she demanded that Thompson get an abortion.

April Thompson is a poster child for the centrality of privacy and workers’ rights to the pursuit of happiness this country promises. And her case represents the danger of a jurisprudence which would elevate an ostensible “free contract” right to sign away your personal freedom over individual rights, and the judgment of the state over the bodily integriy and autonomy of the individual. It reminds us why, if John Roberts still sees Roe as “unprincipled jurisprudence” and scoffs at a “so-called right to privacy,” and plans to remain the “go-to lawyer for the business community, then America deserves better than John Roberts on the Supreme Court.

THE WEEK IN RESTORING HONESTY AND INTEGRITY TO GOVERNMENT

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If Roberts’ nomination was supposed to push perjury and the outing of an undercover agent off the front pages, it hasn’t been entirely successful. We now know that Ari Fleischer (don’t you miss him?) had the memo identifying Plame, that it was marked as secret information, and that he told the Grand Jury he never saw it. And we now know that Karl Rove and Scooter Libby are both under investigation for perjury over their own Grand Jury testimony. And now Time is casting further doubt on claims that Rove heard about Plame from media contacts and reporting one official’s account of “general discussion with the National Security Council and the White House and State Department and others” about Plame.” But they’re not the only ones failing to tell the truth under oath on an issue of urgent public concern. Turns out John Bolton falsely disclaimed having been interviewed about the original Niger forgeries which inspired Rove and company to smear Joe Wilson in the first place. Bolton’s truth problem, unsurprisingly, seems not to have given any pause to President Bush in his plan to bypass the Senate with a recess appointment.

As for Roberts himself, looks like he’s been less than upfront about his role in litigating Black Floridians’ votes out of existence in the name of equal protection. Same goes for his Federalist Society membership, which makes you wonder what other groups he doesn’t remember joining. And most troublingly, he may have told Dick Durbin that he would recuse himself from casting votes to uphold laws or rulings in accordance with the constitution and opposition to his faith, an especially eerie argument in light of his callous, anti-pluralistic advice that students who don’t feel comfortable with sectarian religious observance at their graduations just stay home.

ROBERTS’ RULES

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Good news: Edith Brown Clement is not, for the moment, a nominee for the Supreme Court.

Bad news: I’m starting to miss her already.

John G. Roberts’ America is not one which does the best traditions of this country proud.

People for the American Way has compiled some of the reasons why. Among the more troubling of his arguments:

School-sponsored prayer at public school graduations poses no church-state problems because students swho don’t like it can just stay home from their graduations.

Congress can ban flag-burning without a free expression problem because bans don’t prohibit the “expressive conduct” of burning the flag – they just remove the flag as a prop with which to do it.

Arresting minors for crimes for which adults are given citations poses no equal protection challenge because minors are more likely to lie.

On choice, Roberts authored a government brief in Rust v. Sullivan that Roe “was wrongly decided and should be overturned.” As for the Lochner litmus test, he dissented from a D.C. Circuit Court case upholding the constitutionality of the Endangered Species Act. And at least in Law School, he apparently took a very broad view of the “takings” clause, opening the door to dangerous judicious activism targeting popular economic regulations which protect the economic security of the American people.