The hearings are on C-SPAN. (9 am ET)
Welcome to day 3 of the John Roberts confirmation hearings at the Senate Judiciary Committee as he vies for the supremo job on the Supreme Court.
As we all suspected, trying to get Roberts to give his opinion on almost anything is like trying to nail Jello to the wall. Whether you’re liberal or conservative, you’re probably frustrated by Mr Mystery because his judicial record is so stark. Oh – everybody likes Roberts – he’s a nice man from what we’ve seen, but that’s not the point of all of this. Lots of people say that Bush is nice too and we all know where that’s gotten us.
The Democrats on the panel who have questioned Roberts so far have done a good job. It’s hard to stuff matters of grave importance into 1/2 hour of questioning per person – not to mention all of that Latin stuff and those many precedents.
Speaking of precedents, Roberts’ answers can be summed up under 3 categories: 1) he believes in the importance of precedents (stare decisis) 2) he says he will judge according to the rule of law and 3) he refuses to answer with much of anything else because issues may come before him.
Roberts will be confirmed due to the power of the Republican party. The only question is how many Dems or Independents might vote against him. That’s unfortunate. When it comes to choosing someone for the top judicial job who will serve for the rest of their life, this ought not be partisan. Once again, though, the Republicans are marching in lockstep and the country will have to live with this judge for a very long time.
Please don’t post any pics. Thanks.
Update [2005-9-14 12:36:51 by catnip]: You can view video of the hearings to date on C-SPAN’s site.
I apologize for not having this diary up earlier. One of my cats just would not let me sleep last nite – she likes to step on my hair for fun – so I slept in.
I missed Brownback’s questions.
Coburn is up now and tried to catch Roberts in a logical trap. He asked him if he believed that the opposite of life is death – which Roberts answered cautiously with a “yes”. Coburn said that since, medically, life means having a heartbeat and brain waves and since fetuses display these things in the womb – logically they are alive. He actually said that to think otherwise is “schizophrenic”. Coburn is a doctor. Obviously, he’s not a very good one if he doesn’t know the difference between schizophrenia and a split personality. They are not the same thing.
Regardless, Coburn tried to back Roberts into a corner to have him answer that abortion, according to his logic, must therefore be illegal. Roberts gave his stock answer – since that issue might come before him, he was not at liberty to answer.
What a sack of shit. Jon Stewart SKEWERED him last night and oh, it was sweet.
He showed that bit where Coburn broke down, and ended the clip on “partisain rhetoric that seems hateful to the ears of Americans”
Then Jon put up some of Corburn’s more hateful quotes and broke down himself (a nice phony paraody of Coburn’s bullshit), then he showed a clip of Coburn doing a crossword puzzle during the hearings — to show how “passionate” he was about the whole thing….it was a brilliant bit, Stweart at his best!!
I’ll have to watch that rerun today. Thanks!
FYI, Bush is speaking at the UN – on CNN right now.
All senators on the committee have now completed the first round of questions. The second round comprises of 20 minute segments.
Leahy is up now.
that was bad English – “is comprised of”
(catnip isn’t awake yet…this began at 7 am my time)
Leahy opened with questions re: Miranda
L.: asks about the decision in the Casey case
R.: can’t answer that
L.: Morrison case – court in a 5-4 decision said that methods to protect women from violence unconstitutional – accusations of congressional incompetence…you said you would be respectful of congress…will you then carry that to not saying that your reasoning is not superior to congress’s? “We don’t like being treated as schoolchildren”.
R.: I don’t think the court should be the taskmaster of congress. The const. (I’m tired of typing up “constitution”) is the court’s taskmaster.
L.: In the Morrison case, there was a mountain of evidence. What more does the congress have to do? Isn’t that record palpably sufficient?
R.: I don’t want to comment
L.: Let me interrupt you – why not? The case is over…this is not likely to come before the court again… I liked your answers better yesterday…
R.: I disagree…the likelihood that the matter of [congressional fact-finding] is likely to come before the court again…blah blah blah…I don’t feel it’s appropriate to comment on Morrison…
L.: I have to disagree with that…I don’t believe the issues in Morrison are likely to come before the court again…moving on to the Americans With Disabilities Act…(a bit of history related to court cases)…speaking to “congruence and proportionality”…you told me you didn’t find those in the 14th amendment…neither did I…Scalia differed…isn’t this congruence and proportionality test which comes out of thin air judicial activism?
R.: these issues come out of the (?) amendment…(relates some cases that uphold the role of congress)…
L.: do you agree with Scalia?
R.: ummm
L.: do you disagree with Scalia?
R.: there’s a case before the courts right now
L.: That’s why I’m asking
R.: that’s why I can’t answer
L.: I’m asking because the test of congruence comes out of thin air and is used in 2 decisions and the country and the congress are supposed to figure out what that means…moving on…ability you would have to try to bring a consensus to the court…we have 5-4 decisions as a hallmark of the court…(basically – how would you deal with that?)…(reviewing some recent cases that have been closely split)…I asked how you would be able to handle Scalia who is 18 yrs older than you and Thomas who is (?) yrs older than you..
R.: need to try to work on the opinion of the court..you don’t obviously compromise strongly held views but you need to [review] those opinions..the function of the Supreme court is to provide guidance…the chief justice has an obligation to try to achieve consensus…
(oops I had an error and my browsers closed)
Leahy is asking about the 1st amendment – specifically about the attempts by the administration to limit access coffins of the war dead, prisons in Iraq and the hurricane dead.
Roberts bascially says there must be a balance.
R.: says he’s not familiar enough with the precedents
L.: I think we’re going to see more and more of us in the digital age…some of us want to be able to find out what is being collected on us (re credit cards etc)…I would hope that you would be committed to [protecting privacy]…on to capital punishment…sleeping lawyers…100 prisoners exonerated…Durbin mentioned the situation in Ill where the gov extended clemency to death row inmates…brings up case of Anthony Porter who was within 2 days of being executed…students took up the case and found evidence needed to overturn the case…you said 2 years ago that the system worked in exonerating death row inmates…I was bothered by that…I found that statement almost mechanical…I’ll tell you why…Day O’Connor said that when we find that death row inmates have been exonerated the systme is not working…you said “does the const. have a right to seek…in the face of new evidence?”…bascially Roberts said “no”…
R.: that was about Herrera
L.: asking about the generalities
R.: I don’t think anyone who is innocent should suffer as a result of a false
L.: does the const. allow for the execution of an innocent person?
R.: I would think not…the question is whether someone who has (brought up 5 or 6 appeals) should have the right again…
L.: I’m asking whether the const. says that in the face of new evidence a person is allowed to appeal their case
R.: the court has said “no”
(more back and forth between the two)
L.: will you recuse yourself based on the brief you wrote in (?)
R.: basically “no”
(more back and forth on what Roberts’ role was in the Herrara case)
L.: question about whether in a close decision to grant execution, what would the chief’s role be? If there are 4 for a stay, would you follow the if 4 then 5 rule? (granting cert)
R.: this may come before me
(I don’t have enough info about this issue to transcribe this properly)
I tried to listen yesterday and all I could do was go “huh?” I could barely understand any of it.
Thank you for translating it for us.
You’re welcome. Don’t forget my warning though. I’m not a lawyer and you get a better feel for what’s going on by watching the actual hearings and checking out the links to cases I’ve provided. I sure have learned a lot the last couple of days. 🙂
That’s fine. I like the non-lawyer interpretation.
Thanks. This whole exercise frankly seems like a waste of time because I can’t see how we’ve learned any more about Roberts through these hearings. What we have learned is where the senators stand. The process seems really useless when it comes to questioning a candidate like Roberts who has so little history to draw from. Then again, perhaps Rove knew exactly what he was doing by choosing this guy for that very reason. They obviously wouldn’t have chosen him if they thought he’d lean to the left.
I just don’t trust Roberts.
Hatch must have had too much caffeine. He’s really cramming in the questions, which are actually more commentary than anything.
He asked how Roberts would handle dealing with terrorists. Answer: according to teh rule of law. He asked about the results of the Title 9 case. Answer: I was just a staff member – now I’m a judge – rule of law. Voting Rights Act question – missed the complete answer but basically Hatch is giving Roberts softball questions so he can further explain his previous positions.
(contining with his questions from yesterday on civil rights issues – reviewing some of the history)
As Kennedy goes on about the effects test and what happened during Roberts’ tenure in the Reagan admin., here’s an article on the history of affirmative action for you to read.
K.: do you believe that the effects test under the Voting Rights Act is “constitutionally suspect” (as Roberts had written before)?
R.: I’d have to look at the context of that paragraph…what I’m referring to is Section 5 which applies to jurisdictions with a history of (?)…the concern was that if you extend the effects test nationwide – that would be a const. issue…
(this is all a bit confusing)
R.: I would confront that issue as a judge – not as a staff attorney – if it came up before me…
K.: there hasn’t been suspicion as to the constitutionality in legal circles as to Section 5…do you think that provision is constitutionally suspect today? that is the backbone of our voting system today…which was passed overwhelmingly by the congress and was signed by Reagan…
R.: That has not been brought up through cases since then..I have no reason for viewing it as const. suspect today…
K.: affirmative action cases…no one is talking today about quotas..we’re talking about affirmative action…in (?) (Gruder?) decision, the court gave its opinion about racial diversity in the military…
R.: there was a compelling govt interest to support that decision…that was the weight that the court gave it…there were 2 other access (higher education) where the situations looked like quotas..
K.: Do you agree with justice O’Connor who gave real weight to affirmative action…we know where all of the other justices stand because they’ve all written about it…
R.: I think I can answer the questions you’ve asked on real world impact…
(then they called a break and he didn’t answer)
I never liked Bush..but then I don’t drink. Maybe that has somethign do do with it?
btw, Great job Catnip!
I never liked Bush..but then I don’t drink.
lol I don’t drink either, but I think that if I still did I wouldn’t like the bastard anyway.
LOL.. too true! and he doesn’t even drink now, anyways.
Read the testimony that the center has submitted to the hearings.
G.: what is your opinion – how important is legislative history to you? how have you sued it? did you refer to any congressional debates in your 39 appearances before the Supreme court?
(oops – there goes my streaming – I need to reboot – brb)
I’m back.
They’re talking about the False Claims Act decisions, specifically the Halper case.
On CNN now
Hmm…guess he doesn’t trust John Bolton to speak on behalf of the country….
B.: I asked you yesterday if you believed there was a right to privacy in the 14th amendment…bascially you said yes…(compliments Roberts as being one of the best witnesses he’s ever seen because both Dems and Repubs think he’s right for them)…Scalia on Casey said that abortion is not a right…O’Connor, Kennedy and Suter said the liberty of a woman is at stake…Cruzan(sp?) – right to refuse unwanted medical tx…Scalia said the feds have no right…only states…Kennedy said that liberty presumes an autonomy of self..includes a freedom of thought etc…fundamentally different (from Scalia)…the point I’m making is obvious – there are very disparate views..can you tell me which side you come down on? I’m not asking you to comment on any specific case.
R.: There are judges and jurists who believe that the right of privacy does not go beyond that of physical restraint..that is not my opinion…it includes certain other protections including the right to privacy (cites cases)..
B.: interrupts..that’s not the question I asked you…do you side more with Scalia and Thomas that consenting adults have no right to privacy…my family decided about (end of life for a family member)..Scalia expressed there is no fundamental right for a family member to make that judgment…he says the state leg can make that decision..what do you think?
R.: there’s a case pending right now whether state legs have the right to (deal with those issues)…(cites previous cases)…
B.: just talk to me as a father…philosophically…what do you feel? do you feel personally that the decision to remove a feeding tube..should be one that the leg has the right to decide that?
R.: I’m not going to comment on that…
B.: well you just did
R.: these issues are affected by deeply personal and moral views but the purpose of a judge is not to view these issues from (that standpoint)…the personal views of the judge are not to be considered…
B.: okay let me ask you from the constitutional viewpoint…do you agree that my father ahs that right?
R.: I can’t answer that in the abstract
B.: that’s not abstract – that’s real
R.: (missed that)
B.: the idea that a state leg could decide that a person’s feeding tube can’t be removed (against the wishes of the person)…(do you agree with that?)
R.: there are cases that are in play…I will confront those issues with the law in mind…they’ll be dealt with via precedents and teh rule of law
B.: that’s what I’m concerned about (since we don’t know anything about your views on that)…the law is about life – it’s about facts…that’s what I’m asking you..if a person wants to remove a feeding tube..is that a fundamental right?
R.: (getting testy) repeating his beliefs about the right to privacy, the use of precedents and the rule of law…blah blah blah
B.: I understand that…Scalia says the same thing so you’ve told me nothing judge..it’s kind of interesting this kabuki dance we have here..the public has the right to know (how you think about these things)…pontificates on how members of the congress are expected to answer these types of questions but how judges aren’t..(watch the video – it’s Biden at his best)
R.: senator…
B.: I still have the floor and you can speak after time’s up so…(let me finish basically)…it sounds wonderful to the undeucated ear that you’re going to follow traditions..(cites a case in which the question of a natural father’s rights were in question where Scalia said “have bastards ever been protected by the law”…the question is one of fatherhood…Scalia went back and looked at cases involving bastards and couldn’t find where they’ve been protected)..do you look at the narrowest interpretation (like Scalia) or do you look at the broader picture?
R.: the point has precedents on how you define the level of generality
B.: there are competeing precedents
R.: (cites Loving case)
B.: (tries to get a more specific answer)
R.: you look at a broader level of generality
B.: you’re good
R.: as you pointed out, I’m not elected..judges go on the bench according to the judicial practices – not based on promises…
B.: no one is asking for promises
K.: we love you – we love everything about you – we all want to have your baby
R.: yes, I am wonderful, aren’t I?
For those who aren’t watching or listening, Kyl complimented Roberts at length on the way he’s answered questions and Roberts agreed with him and even said that’s been been more open that some previous candidates.
(Yeah – well at least those previous candidiates had more written history t draw from so the public could make a more informed decision.)
Attempts to correct the record re the Herrara case ie. the matter was not one of new evidence, rather it was about evidence presented that the real killer had just died.
More blah blah blah on how wonderful Roberts is…yawn
Point of personal privilege:
Biden cites testimony from statement he made to Ginsberg about the scope of her answers because so many have referred to how he handled her.
Great job as usual Catnip. I was just able now to catch up on the goings on thanks to you. I hate that I missed Biden. As much as I dislike alot about him he can get his points across well and with a stinging tone and that $10,000 smile of his. Now go get something to eat girl. How is your back holding out?
I did have some “luch”. lol Me and my spelling mistakes.
My back is doing okay so far. It was tough going by the end of the day yesterday though. I have my heating pad on constantly and I’m taking my meds, so we’ll see how it goes.
Hopefully, C-SPAN will have the video of the morning hearings up soon and you’ll be able to see Biden in action. He’s one tough cookie and I don’t really think he’ll vote to confirm at this point – but, he’s Biden, so you never know.
Roberts has been rather direct and unequivocal on Equal rights, gender rights, Constitution and prrecedent, and several other issues. Those unequivocal statements put him much more in the middle, nearer to O’Connor (than I had previously thought)
He was more circumspect on Roe, but, IMHO, in the context of his other statements, didn’t look likely to overturn Roe unless the the legislature forces it on him. Which makes a Democratic win of vital importance as Boo is always saying.
You’ll kill me, but…..Roberts is a less dangerous choice than many that Bush might have nominated. The fact that he has been promoted over Scalia will also lead to interesting tensions on the bench.
Shoot me now – get it over with 😉
Relax – I won’t kill you. Everyone’s entitled to their opinions. I just wish Roberts would be more open about his.
He’s definitely a less dangerous choice, however, considering the extremism of Bushco, that’s not saying much since they overwhelmingly endorse him. What do they know that we don’t? That’s what bothers me.
….That repubs like him because they need to win something badly.
Hey, but I’m a foreigner, and as Roberts clearly stated, he ain’t gonna take any notice what foreigners say.
(though you might)
Maybe even the Dems might look a bit nicer if Roberts goes thru. They have plenty of chances during hearings to score points off the system in general, (not necc. Roberts), stake out some territory, look efficient and probing, and then not antogonize a nation in grief with filibustering etc. Unless something comes up, of course.
There are far more easy targets than Roberts that can be focused upon. In fact too many.
If we’re waiting for Bush to nominate an outspokenly pro-choice, anti-death penalty progressive we’re living in fantasyland. If we automatically trash every nominee the Republicans put up we look, and we are, indiscriminate.
Should they put up another Clarence Thomas for the O’Connor seat, our objections will be met with – “well, they said the same things about Roberts”.
(began with questions about eminent domain – which I mainly missed…now he’s on to anti-trust matters)
K.: asking about anti-trust actions and the protection of consumers
R.: gave an explanation of how consumers can be protected via current statutes and practices
K.: what would your role be as head of the judicial conference?
R.: I was slated to be chair of that conference in November so I’m familiar with the process…very exhaustive and responsive process…blah blah blah…affects all levels of the courts…other issues like security are addressed…matters of leg duty are addressed…if conformed, my primary job would be to listen…
Somebody needs to fix his mike…lots of background noise
D.: blah blah blah…yadda yadda yadda…
R.: talking about the role of the judicial branch to interpret the const….consistent with the intent of the framers…judges should be very careful to make sure they have a real case before them…a real case is not simply “I’m interested in what the gov’t’s doing or I don’t like what the gov’t’s doing”..a real case involves injury by the gov’t…it can be aesthetic or environmtal… cases are not for voicing gripes…
D.: what’s surprised you during the last 2 years as judge?
R.: my first day surprised me…sitting in a room full of judges and books etc for the conference…I waited and they were still waiting and finally they advised me that the jr judge goes first…the judges roll up their sleeves to find the right answer…if someone says there’s something about that in the Smith case, you get out the Smith case and read it (well, duh)…no one goes in there with preconceived views…no place for rhetoric…no one is invested in getting anything but the right result…(well I should hope so)
D.: what is there in the text in the history of the const. that supports the growth of the admin state that we presently live in?
R.: we begin in high school civics learning about the branches of gov’t and later look at which agency is conencted to which branch etc…activities of the agencies are the bulk of the cases on the DC circuit court…seeking to ensure that their activities are consistent with the const…basic premises of justice used…blah blah blah…judging why agencies did things (basically)…(this is boring)
D.: anti-trust…history provided…Dewine loves the anti-trust laws…in fact he’s the chair of the anti-trust committee…what challenges do the courts face with using old anti-trust laws as they apply to new technologies?
R.: faced that issue in the Microsoft case…new area..can’t apply the old rules..new paradigm…basic principles are the same…Sherman Act gave principles of freedom…(this is boring too)…(catnip is bored)…the principles are there..the issue is just application in a new context
D.: yesterday Grassley if you beleive there’s room as a judge for your own principles and beliefs…quotes Roberts’ answers (black robes…no personal preferences etc)…putting on a black robe does not eman that a judge should lose his character…you sir have a perfect resume and an outstanding career…but a Supreme court judge is (more than that)…Pres Bush nominated John Roberts The Man…the public has gotten to know John Roberts The Man…blah blah blah…by becoming Joh Roberst the justice please don’t forget to be Joh Roberts The Man…please don’t forget that…we need you to bring to the court your compassion – your equal justice for all…your values you learned from your parents etc…(he’s going to make Coburn cry again if he keeps this up)…oops., he mispronounced “automotons”…
he’s up and I’ve had a helluva time getting this page to load so I’m going to reboot again. brb
Sorry…
That last post should have said “she”.
Due to the site loading problems I’ve had, I will not be able to transcribe her Q & A session.
S.: butt-kisses Roberts… says to Feinstein that he hopes they are moving away from divisiveness (she had commented on the fact that previous SC judges got a lot of votes, but times are very different now)…
R.: speaking about the importance of humility of judges and exceeding their authority to set policy
S.: I do love the law…concerned about activist cases…is the idea of blindfolded justice as being as a neutral arbiter naïve?
R.: as a practical and pragmatic matter judges know the difference between applying the law and making the law…that’s the ideal…blah blah blah
S.: commerce clause cases (specifically Lopez and (?))….as they relate to gun cases…interstate clauses…Lopez is a good decision…(Sessions was involved in dealing with those types of cases – he’s giving his views on the interpretation of the statutes)…blah blah blah…wouldn’t you agree if someone in Penn picks up a rock and murders their neighbour that is a crime that is untouchable by the feds?
R.: yes, unless there are special circumstances
S.: (agrees with that)…(cites a case in which a woman who was raped wanted to pursue damages through federal court – Morrison case)
R.: ?
S.: Garrett case…claimed a liability of Americans W/ Disabilities Act…do you recall where the doctrine that says the power to sue equals the power to destroy?
R.: in the tax law maybe
S.: attorneys general see that under sovereign immunity…(Sessions is really just going on and on about how he feels about all of these cases)
R.: medical marijuana decision…court looked at Lopez and Morrison…court said those are only 2 of our precedents and need to be put into context pf the many other cases…case concluded that the marijuana case was within the scope of congress…
S.: these are some difficult areas but some limitations to federal reach must be noted…are you aware of the salary of this job…so you won’t be back here next week asking for a pay raise, will you?
R.: no (laughter in crowd)
S.: drones on about the deficit and how senators wouldn’t be getting pay raises…(he likes to ramble)…asks about how Roberts would take care of the bureaucracy of the court…
R.: basically says he’ll listen
S. : a lot of judges have problems with the system and wanted to be treated special…wants a lean and mean court system…re stare decisis…it’s a bit circular…isn’t it true that your first oath is to enforce the constitution as God gives you the ability to understand (and that sometimes you have to reverse the law)?
R.: yes, we take an oath to the const, consistent with the principles of stare decisis…
S.: cites a case in which reciting the Pledge of Allegiance was struck down…he was confused by the many decisions on the Supreme court…breaking news…court in San Francisco decided today that the phrase “one nation under God” is unconstitutional…will you exercise the free right of citizens to exercise their religion and to be free from such establishment?
R.: we talked about that already re 1st amendment…that is an area where the court can redouble its effort to (explain how that works – the establishment clause and the free exercise clause)…
F.: asking why R. had a line deleted in a memo which related to the scientific basis for the AIDS virus back during the 1980s when the CDC had already verified the scientific facts by that time
R.: deleted it because he didn’t want Reagan to be appearing to be giving medical advice
F.: how much research did you do on that before you wrote it?
R.: the flip of that is that if Reagan said it and it turned out to be untrue (the consequences would have been horrible)
F.: I think that was a great opportunity for the pres to act as a leader in the cause
R.: (missed that answer)
F.: Do you believe the fed gov’t has the power to discriminate against gays & lesbians in employment
R.: I don’t know if that’s come up in congress…could come before the courts…shouldn’t be expressing an opinion on that
F.: 2nd amendment (this is all going very quickly!)…F. says he sees this as an individual right o keep and bear arms not a collective right…what’s your view?
R.: you’re right that there is a disagreement between the courts…9th circuit ahs a different view that it protects only a collective right – that of a militia…that’s the sort of issue that will probably come before the Supreme court…
F.: would you anticipate that in such a case an interpretation of that would come before the court? (collective v individual)
R.: Basically yes
F.: Hamdi v Rumsfeld…there were 4 different opinions that referenced the Youngstown case and they acme to completely different conclusions so your citing of that precedent doesn’t help in this…we know the other justices’ opinions but we don’t know yours…
R.: each of the other justices came to their views through the judicial process…heard the arguments, read the facts, debated etc…you’re now asking me for my opinion outside of the process…blah blah blah…
F.: what would be the harm if we got your views at this point and you changed your views later?
R.: the harm would be that it might affect future cases if they knew how I testified under oath here…
F.: I understand your view…I think it’s narrow… Hamdan case…you refused to answer any questions about your role in this case…(asking questions re the timeline of that acse and how they meshed with interviews he had for a possible supreme court appointment)…never informed the people involved in that case about those meetings, did you?
R.: no and I don’t want to talk about that case because it’s pending
F.: Bush was named as a defendant in that case, wasn’t he?
R.: yes
F.: questioning the timing of the release of the concurrence of the opinion released in July…when did the issue that you should recuse yourself from this case happen?
R.: I saw an article…don’t recall when…
F.: you don’t recall?
R.: I don’t remember the date
F.: you don’t remember the approx. time?
R.: no
F. submits articles by professors that appeared in Slate and the LA Times…urges people concerned about this recusal issue to read those articles…moves ion to death row issues…mentions 121 people who were sentenced to death for crimes they didn’t commit…differs with Roberts view of the Herrera case (in which the case was denied appeal based on no new evidence)…do you still agree with your opinion of the Herrera brief?
R.: that was the admin’s position and O’Connor was in the majority…disputes the technical aspects of the case…
F.: running out of time – yes or no?
R.: that was the admin’s position at the time
F.: pushes to get him to be more specific on the death penalty issue
R.: responds with the process that is designed to reduce the risk of wrongful executions…most effective way to minimize that risk is for people at every stage to have effective counsel…
………
NOTE: Lindsey Graham was up but I missed transcribing his questions.
Next, I’ll post Schumer’s lively questioning session.
Please catch the video of this exchange. IT;s well worth it!
(missed the beginning while trying to post the Feingold transcript on BT)
Schumer is asking Roberts about the limits of the right to privacy…
S.: is there a substantive right to privacy?
R.: yes
S.: In Lawrence, Thomas said there was no substantive right to privacy under the liberty clause
R.: no, I think whatever it was that he said, it was relative to the issues involved in Lawrence
S.: IOW, you agree with Thomas?
R.: can’t answer that because it’s a matter that may come up
S.: you’re cutting back on your answered and you refuse to say that you disagree with Thomas on that case…in general there are disagreements among judges
R.: there are a lot of unanimous decisions
R.: but there are disagreements
R.: yes
S.: law officers often disagree with decisions in general right?
R.: yes
S.: you’ve signed your name to briefs that have disagreed with Supreme court cases, right?
R.: yes
S.: but in this hearing room, you refuse to talk about your opinions of decided cases…you could do it as a sitting judge, you could do it as a lawyer, (you could do it eating ham, you could do it eating spam), …but basically) you can’t do it here…why this room should be some sort of cone of silence is confounding me…(Schumer is really coming down on him for refusing to state his views in these hearings)…there’s s good countervailing reason you should state your views – as the founders said – this is the one time you’ll answer questions before an elected body…why is the bias…why is the fact that you’ve already stated your opinions (different in this room)? I think it’s bothering a lot of people in this room and outside of this room…Ginsberg gave her opinions…do you think she was unable to keep an open mind in cases relating to Roe?
R.: (defensively) she had written extensively on that subject
S.: but she would be expressing an opinion that might be showing bias…she did it over and over again…(expressed opinions of things she didn’t write about – as did many judges)…you can make a distinction to every single example I give…but when you add it all up you are being less forthcoming than just about anyone else who has come before this committee…you’re so brilliant…you’ve set up your own little construct here – it’s not the Ginsberg principle…has there been any judge who had to recuse themselves because of the opinions they expressed at a confirmation hearing?
R.: (disagrees and points out cases Ginsberg refused to comment on…)
S.: she commented on many cases
R.: only the ones she hadn’t written on
S.: (basically – are you sure?)
R.: yes
S.: you have commented on Marbury, Brown and Griswald and not much else…you could have easily said that those cases could have come before the court…Bush said he wants to nominates judges in the mold of Thomas and Scalia…are you in the mold of (them)?
R.: I will be my own man on the court
S.: do you think they’ve been activist judges?
R.: I’m not going to criticize them
S.: you did criticize 2 other judges as activist judges
R.: well that was a reflection of the views of the attorney general at that time
S.: it wasn’t a Reagan admin policy
R. It was the attorney general’s views
S.: (disses the whole process) it’s like I’m asking you if you which movies you like but you’re responding in terms of cinematography etc…it’s like I’m asking you if Casablanca and you answer by saying that everyone thinks Casablanca is a good movie (laughter in crowd)
Specter wants to break…Roberts interrupts
R.: Dr Zhivago and North by Northwest…expands on why he won’t give his opinions… he says this shouldn’t be a bargaining process where judges are expected to state their opinion in exchange for votes…I’m more pragmatic…blah blah blah…
(According to C-SPAN)
3 senators left in this round – 20 minutes of questions each:
Cornyn, Durbin, Brownback
There may be a third round of questioning if it’s needed.
Thursday morning: closed panel to discuss Roberts’ FBI file.
Thrusday afternoon: interested witnesses such as the ABA, a theological society etc – questions will be evenly divided between Democratic and Republican concerns/groups.
Yup. It sucks. Watch the videos! 🙂
They’re late in starting and the camera just showed Roberts having a little strategery session with his advisers and the Majority Counsel, after which they all left the room. Hmmm…
There is a negotiating session going on between Leahy and Specter over whether there will be a third round of questioning, how long those question sessions will last and who will participate. There is also a vote currently happening on the senate floor.
I want chocolate.
G.: do you believe that every citizen who meets the qualifications under the Voting Rights Act ought to vote?
R.: basically yes
G. the Supreme court has repeatedly stated that (C-SPAN announcer interrupted here – grrr)
Specter interrupts and says it’s Cornyn’s turn.. (??)
Cornyn
C.: I believe you’ve been completely bipartisan by the way you’ve answered questions..I have to tell you though that some people are keeping score as to what you are or are not answering from each side (this is silly)… citing from code of judicial conduct re nominees… is that your understanding?
R.: yes
C.: gives the numbers on the questions that he ahs answered under each category…ie. how many on abortion etc…are you going to answer these questions in a different way if they keep being asked?
R.: no
C.: (gives excuses for why Roberts shouldn’t answer certain questions)…mentions Biden asking about the right to die and how Roberts said he can’t answer in the abstract (and agrees with him)…cold you explain why the adversarial process is important and that people have and actual stake in the outcome? (gives example of how senators are asked about their opinions on base closings)
R.: goes back far in history to John Jay when he was asked about his opinion on a matter and determined it was inappropriate and how was the start of the separation of powers..
C.: is that a const. limitation?
R.: it’s in article 3…there are some instances that are prudential
C.: back to Biden’s right to die question…you’d have to determine there was a case or controversy or whether a person had standing (in order to have an opinion)…
R.: it’s hard to know whether (an issue) will trump something (without more info on the case)…I’d like to know if legislatures have expressed an opinion…difference between asserted right and asserted legislative right…
C.: in many cases juries are the fact finder and their decisions are binding…citizens would feel their (job) is futile if they felt the appeals judge would just throw out their decision
R.: when a case comes before a judge they want to know the factual issues, other judge’s opinions etc, not just what the const. amendments say…
C.: intrigued by how poorly senators, presidents and others try to predict at how a tenured judge may look at issues 10 or 20 years down the road…many examples of (how judges’ views have changed over time)…Teddy Roosevelt said of Oliver Wendell Holmes “I could carve more backbone in a banana”…says he sees futility here (no kidding)… brings up Hamdan case in which Roberts participated…do you know for a fact that Justice Breyer when he was being considered for an appointment was sitting on 7 cases?
R.: No
C.: So, if Breyer could participate in cases when Clinton appointed him, ergo we shouldn’t hold Roberts to a different standard…I worry when I see that the Supreme court’s opinions are so fractured and divided…brings up 10 Commandments case…there were 10 opinions for 9 justices in that case…it strikes me that one of the goals of any court ought to be that decisions should be written in a way that any educated person (should be able to figure out just what in the world the factual information is)…causes more litigation etc…leads some observers to wonder if the Supreme court is grounded in reality when these decisions are read by lower courts and litigants to make plans for deciding on what’s legal
R.: I hope we haven’t gotten to the point where Supreme Court decisions are so obtuse that the average educated lay person can’t pick them up and understand what they’re about…expands a bit on that
C.: I hope your experience will help you understand the importance of that…talks about the difference in the outcomes of the two 10 commandment cases…I hope they don’t take out their blue pencils and try to edit that
Specter said he’s personally opposed to a third round and that no Republicans will participate in one.
Feinstein and Kennedy will use a third round option.
Feinstein will be up at 6:30-6:45pm ET and tomorrow morning she’ll have another 15 minutes.
Kennedy will be on at 9am ET (20 minutes).
Schumer wants to use the third round option too.
Committee will vote on his confirmation next Thursday.
D. : praises Roberts legal skills…we know you have a great legal mind and have proven it here but the questions that have been asked more and more here today look more to your heart…when you look down from the bench do you just see precedents etc or do you see people?…you’ve lived a comfortable life…many of the litigants have not…what would the powerless, the disenfranchised etc see that would tell them they have a fighting chance in your court?
R.: you said I had a comfortable life…that’s fair…grew up in Indiana…worked at the steel mill…middle class family…mixed with many different kinds of people…comfortable yes, isolated, no…blah blah blah…as far as someone going into court and wanting a fair hearing it’s hard for me to imagine what their case is about that I haven’t been on their side at some point in my life…I’ve been on the side of those looking for welfare benefits, looking for environmental rights, both anti-trust sides etc…I’ve not just represented one side or the other…those people will know I’ve represented all of their perspectives…
D.: follow up on that…brings up a case that Roberts worked on…cites HMO case where client denied coverage…you challenged this law on behalf on an HMO involving one of my constituents…you lost the case thankfully…it could have impacted the rights of individuals all over the US
R.: I lost the case – a decision of 5-4…it has always been my position that I don’t decide as a lawyer which cases I will take – I took the cases that came to me
D.: you didn’t step back and think that this was a case that might impact millions?
R.: the lawyers aren’t the judges…there were fair judgments on both sides…the 5-4 decision shows that…example: when I was asked to take a death row case in Fla, I didn’t sit back and decided whether I should take the case…I took the cases that came to me
D.: you’re opposed by a Hispanic group (?) and their opposition goes beyond the “illegal amigos” comment…cites Texas case that restricted illegal immigrants from attending school (?)…on the day it was decided you wrote a memo which didn’t reflect the Reagan administration’s position on the case…
R.: if I remember the memo correctly, it was that the decision that was made showing inconsistency in the attorney general’s approach (?)
D.: do you agree with the decision of that case now?
R.: I haven’t looked at that case since then…
D.: 23 years later millions of kids have benefitted from this law…they’re now soldiers etc…is this settled law about our commitment in education?
R.: I haven’t looked at the issues for 23 years…it’s not my area…uses the 5-4 division again to justify his memo again…
D.: I think you have actively taken refuge in the fact that you were working for someone but the memo was written one day after the decision.
R.: (non-responsive again)… explaining this away again by blaming it on the fact that he was just doing his job…
I have a headache and couldn’t finish transcribing the Durbin Q & A.
Brownback is up now…
I need a break so I’m not transcribing his Q & A.