Robherts Hearings, Day 3, Afternoon Thread

Entire MyDD John Roberts archive.

When you embed John Roberts in a link, use either the John Roberts dkosopedia link or the MyDD John Roberts archive link. Both are rising rapidly in Google.

You can follow the hearings at Pacifica or at C-SPAN.

The most recent updates are at the top of the list.

  • Think I am done for the day. You can keep using this thread to discuss the hearings, of course.

  • Durbin is hitting Roberts on the "illegal amigos" comment, as well as education and Latino related rulings that he opposed in the 1980's.

  • The committee vote is expected to be on September 22nd, and the floor vote is expected for September 26th. Dems should consider delaying that by a week or two if Bush hasn't announced his nominee ofr O'Conner's seat by that time.

  • Durbin picks up where Feinstein left off. As she did earlier, Durbin is now asking about what is in Roberts's "heart," or is a just a legal robot.

  • A new schedule has been announced. Some Dems, such as Schumer, Kennedy and Feinstein, will get aditional 15-minute sessions with Roberts tonight and tomorrow morning.

  • After Cornyn is done, Durbin will be the final Democratic Senator to question Roberts during the entire hearings, I beleive. Tomorrow will feature witnesses talking about Roberts, rather than Roberts as witness.

  • Of course, I don't always, or even usually, feel that cynical and depressed. If I wasn't optimistic, I wouldn't keep fighting every day.

  • Covering these hearings for the last three days is slowly leaving me with the sinking feeling that I am watching the first real instance of just how badly we have been beaten by Republicans over these last many years. Bush nominates whoever he wants, then his administration doesn't release important documents about who he nominates, and Democrats on the committee are too passive to even ask about those documents. Then, the nominee, about whom we know almost nothing, even though he is probably a hard-line winger, is given a free pass by a complicit media and a lock-step, hard-line conservative Republican caucus (nine out of ten Republicans on the judiciary committee sounds exactly the same). Democrats can't even get their own base to pay much attention, there aren't even whispers of a filibuster, and they might have difficulty managing more than 25 “no” votes. Even if they did manage a lot of “no” votes, they have their lowest number of Senators in a century, so it wouldn't really be enough to stop him anyway. When our new alternative media tries to write about this, the blogosphere, the massive disorganization of that media shines through like never before (which reflects on no one more than me). And so there we are—beaten and cowed, scurrying around in a zillion different directions that all seem to lead nowhere, and the whole time highly organized radical conservatives do literally whatever they want in the plain light of day, and no one says or does much about it.

    For crying out loud, they gotta at least ask for a delay on the vote. At least do that.

  • Schumer: Roberts is the least forthcoming nomine ever. Schumer to Roberts: can you name for me any judge who was recused and biased because they gave their views on something during a hearing? He is really cooking.

  • Schumer on fire. He cuts into the heart of the so-called "Ginsberg Rule." He points out that every justice, save one or two has expressed their views during hearings. He points out that Ginsberg stated her views on Roe vs. Wade during the hearings. Roberts offers the lamest possible response--that Ginsberg had alrady ruled and written on related subjects, so we already knew her opinion. Thus, Roberts is arguing that he can't say anything becuase we don't know anything about him.

  • Schumer says that Roberts is arguing that the only place and time Roberts is arguing that he can't give his views on individual cases is during the hearing. He says he is confounded by this. He says that Roberts hasn't answered anything of substance. Says that there is a very good reason Roberts should state his views: this is the one time he goes before an elective body, and that the refusal to answer is an argument of convenience. Kick ass.

  • Roberts says that there is a substantive right to privacy. Schumer asks Roberts if he thinks Thomas argued that there was no substantive right to privacy in Lawrence. Roberts says no, he argued there was no general right to privacy. Schumer says that Roberts does not want to differentiate himself from Thomas, and seems to be constricting some things he said about privacy earlier in the hearings.

  • Schumer asks Roberts if he sees a general right to privacy. Roberts says that depends on what "general" means. Says he doesn't know what "general" means.

  • Biden with reporters:He accused the news media of coddling Judge Roberts: “Come on guys, you’re giving this guy such a free ride!” True dat, but it's because Roberts is, and has been for a long time, one of the Kool Kidz. He regularly is at the ultimate elite parties in DC(including the biggest elite party last night), and dweeby reporters just aren't going to challenge someone that "kool." More:Given that Roberts has refused to answer questions about Lawrence and about the right to end life-sustaining treatment, could Biden ever vote for him? “It ain’t over yet,” Biden said breezily.

    He added that it was “preposterous” for Roberts to argue that if he gave answers on specific cases that might come before him, he’d be trading his commitment on voting a particular way in a future case in exchange for a senator’s vote.

    Keep up the pressure Joe.

  • Feingold presses Roberts on his consistent refusal to answer questions. He is rather successful in doing this. He points out that the public already knows what the other eight justices think about important issues, because they have ruled on them. However, just because the public knows what justices think about certain issues does not disqualify them from participating in other similar cases in the future. Further, as Feingold points out, even when a justice recuses him or herself from a case because s/he mas made a comment on it outside of the court, they are sitll able to particiapte in other, similar cases in the future. Thus, Feingold argues, Roberts should be able to comment on cases like Hamdi, when that specific case will never come up again, since he has left the country.

    This forces Roberts to create a new argument for why he is playing dodgeball. In the Hamdi case, Roberts argues, he can't comment because he didn't participate in the judicial process for that case. This is an absurd blanket answer. If we accept this, then Roberts doesn't have to comment on literally every Supreme Court case ever, because he has never been a Supreme Court justice before. This is absurd dodgeball.

  • Feingold brings up an instance when Robets had a line in a late 1980's brief deleted. the line was about scientists concluding that HIV not being spread through casual contact. Feingold points out that was not in dispute then, nor is it now, but Roberts said it should be deleted because that is what the President wanted. If that isn't an indication that he is an anti-science conservative, I don't know what is. Very good question.

  • Sessions is already bringing up the pledge thing. I really want to wring the necks of the people who brought that case again.

  • Sessions: "Will you do a good job?"

    Roberts: "Yes."

    Amazingly tough questions by Sessions here.

  • Crap. Winguts handed huge red-meat judiciary issue by 9th District Court:The Pledge of Allegiance was ruled unconstitutional Wednesday by a federal judge who granted legal standing to two families represented by an atheist whose previous attempt to get the pledge out of public schools was rejected by the U.S. Supreme Court. Way to go whoever brought this case. You are fighting the big fights.

  • Bush Nominates First-Trimester Fetus To Supreme Court. He might as well. Teh fetus would offer about as much information as to how it would rule as Roberts has.

  • Feinstein points out how young Roberts is, and that he could be chief justice for a very, very long time. She emphasizes that she needs to know more aobut him for this reason, even if he won't discuss specifics of how he will vote on individual cases. She quickly pushes into privacy, both as it relates to individual autonomy of women over their bodies, and in end of life situations. Roberts evades, and Feinstein says "that wasn't my question. I want to know how you would feel."

  • With a 10-8, purely party-line vote on Roberts expected in committee, here is the basic Republican dare to Democrats:“It remains to be seen whether Judge Roberts will get any Democratic votes,” said Sen. John Cornyn, R-Texas, during a break in the hearings. “I think that would be a terrible message if, in fact, the Democrats make this a matter of party and partisan purity. To oppose a nominee like this would cause me to ask whether any nominee of this president could get any Democratic support” – echoing Hatch’s argument from about an hour ago. I say fine. Let's take the dare. What Cornyn and Hatch seems to be demanding is that Democrats not differentiate themselves for Republicans so, like in Iraq, when they screw up they can say we were complicit. Well enough of that. Let's distance and differentiate ourselves from Republicans. I mean, would it really be so bad if the public thought Democrats had a diamterically opposed view of the judiciary from Republicans? Of course not. As Ralph Neas says in explaining one reason for Democrats to vote no on Roberts:"This is a wonderful opportunity to articulate the differences between the right wing and progressive Democrats and progressive Republicans on issues that resonate with American people: equal opportunity, clean air and clean water, right to privacy, reproductive rights. If we can't differentiate ourselves from them and become complicit in their worst errors in government, we will have a difficult time ever regaining power in Washington. If Roberts ends up being the cause of major reversals in the Rights Revolution and/or the New Deal, any Democrat who voted for him will be complicit in those reversals. Considering how little we know about Roberts, that possibility alone should be enough reason for every Senate Democrat to vote no.

  • Armando rightly takes Kevin Drum behind the shed because Drum decided not to blog on Roberts.

  • I have added a poll on Roberts to the main page.

  • Kohl pushes on the umpire analogy as it relates to which cases the Supreme Court decides to hear. He manages to get Roberts to admit that his role will, in some areas, not simply be one of the umpire but also one of the coach or manager.

John Roberts Hearings, Day 3, Morning Thread

Entire MyDD John Roberts archive.

When you embed John Roberts in a link, use either the John Roberts dkosopedia link or the MyDD John Roberts archive link. Both are rising rapidly in Google.

You can follow the hearings at Pacifica or at C-SPAN. The New York Times has a transcript of yesterday's hearings.

  • Here an mp3 of the Supreme Court blogger conference call we held on Monday night:

  • The hearings are on break for an hour or so.

  • I can't emphasize enough just how important and how good Biden was this morning. It was easily the best round anyone has had since the start of the hearings on Monday. He emphasized how Roberts has actually said nothing of substabce, and how his statements on privacy do not differentiate him from Scalia. I cannot find a complete transcipt, but here is a partial and selective one:Biden: "We are rolling the dice with you judge," without knowing what you believe.....You've told me nothing if the public doesn't have a right to know.....This a kabuki dance here. That is the heart of the matter. We just haven't found out much of anything about Roberts, which is exactly what the Republicans who love him seem to be shooting for.

  • The end of the Biden and the start of Kyl have, at least for a time, turned the entire hearings into an argument over what Roberts should and should not answer.

  • Roberts starts getting testy as Biden tries to keep examining his views of privacy. Roberts tersely restates everything he said about privacy yesterday. Biden responds by laying the smack down: "Scalia says the same things judge, and draws different conclusions than O'Conner." Then he goes on to point out that we aren't gettting anything from Roberts at all, and that Republicans are saying we shouldn't expect to know anything about him and sitll appoint him to the highest court. Kick ass.

  • Roberts seems to indicate that he does not conisder suicide and euthanasia aspects of the constitutional right to privacy. This could be another crack in his privacy views.

  • Biden is talking about suicide, euthanasia, and other aspects of the right to privacy, with a strong hint at Schiavo. This is a strong line of questioning, but I think at times Biden is running into trouble because he talks too much. For instance, he had one really good question--asking Roberts if his view of the right to privacy is like that of Scalia or Thomas--but then he talked over himself and ignored it. Still, this is good.

  • Biden is re-starting the privacy questions, which Kennedy and Leahy largely avoided.

  • Jack Balkin on Roberts and Roe:As I've said before, this suggests that Roberts satisfied the "reverse litmus test" that President Bush's nominees have to meet. And as I also said before, I think the new mainstream conservative position on abortion is going to be something like "Roe is settled law, but we are going to read it very narrowly and chip away at it slowly."

    Nothing in Roberts testimony suggests anything different from this approach. He acknowledged the existence of a right to privacy, and even the soundness of Griswold v. Connecticut (he was not about to make Robert Bork's crucial mistake). But he did not say that the right should be construed expansively.

  • Hatch just said that no one has ever done a better job of explaining himself than Roberts. If that is true, then god only knows what level of noncommittal goo it usually served up at these thing. Check this out from Scouts blog:10:10 - Specter is on a riff about the "congruence and proportionality" test. He wants Roberts to state his views on it; Roberts won't.

    10:04 - Specter wants Roberts to discuss the correctness of the Morrison Violence Against Women Act decision. Roberts won't because similar issues can arise.

    9:20 - Brownback turns to abortion. He asks whether Roberts views a fetus as "a person or property." Roberts declines to answer.

    9:11 - Roberts reiterates the Court's statement in Calder that you can't take property from A to give it to B, but says Kelo holds that it is a legislative judgment. Roberts won't comment directly on whether it is right or wrong.

    That's not all. From MSNBC:“Do you agree with Scalia?” Specter asked. Roberts flailed around for a few moments, not wanting to answer, prompting Specter to say, “Do you disagree with Justice Scalia?”

    But Roberts said this issue would come before the Supreme Court again in this 2005-2006 term (which starts in three weeks) so he would not comment on it for fear of committing himself one way or the other.

    Specter is deeply annoyed and wanted Roberts to feel his annoyance – even if he can’t get any answer from the nominee.

    Roberts refused ot answer questions more than sixty times yesterday, and Think Progress documented quite a few of them. Perhaps Roberts expalined himself to Hatch sometime outside the hearings, and that is why Hatch is so confident Roberts will make a good justice. That is about all I can think of, because Roberts has done almost no explaining so far.

  • Now Specter is really starting to get angry with Roberts for his refusal to answer questions.

  • After a morning of wingnuttery from Brownback and Coburn, Specter asks Roberts if he feels the Constitution is a living document. Roberts says that concepts like "liberty," as written in the Constitution, were intentionally written in broad terms so that it they could change as time went on, but should be interpreted consistent with their intent. Oy vey--let the wriggling begin again.

  • Here was the exchange Roberts had with Durbin yesterday that I thought was a possible aproria:DURBIN: Let me just wrap this up by asking -- I think you've alluded to this -- is it your belief that what we are trying to establish in the constitutional protection on the exercise of religion is not only to protect minorities, religious minorities, but also nonbelievers?

    ROBERTS: Yes. The court's decisions in that area are quite clear. And I think the framers' intent was as well; that it was not their intent just to have a protection for denominational discrimination. It was their intent to leave this as an area of privacy apart -- a conscience from which the government would not intrude.

    Perhaps I shouldn't look to closely at what might just be a simply slip of the tongue. Still, in a hearing where the right to privacy takes such importance, I do find it interesting that Roberts started to say religious freedoms are a form of a right to privacy, but then changed his statement to a right of "conscience."

Roberts Hearings, Day 2, Evening Thread

Entire MyDD John Roberts archive here.

The John Roberts hearings will go until 8:30 tonight. When you embed John Roberts in a link, use the same link I did above.

You can follow the hearings at Pacifica or at C-SPAN. The New York Times has a transcript of the morning and afteroon hearings.

  • The hearings have adjurned until 9am tomorrow morning. Man, there must be fifty ways to leave a Senator hanging during a confirmation hearing, and Roberts knows them all. Here is the beginning of a draft of a press release to come from People for the American Way later one tonight:On the first day in which he fielded questions from the Senate, Supreme Court nominee John Roberts sounded more like a dodgeball player than the umpire he told senators they could expect.

    Roberts’ answers were evasive, selective, and, at times, misleading. He claimed that opinions he’d proffered in the past were not his own—and then contradicted himself. He tried to say that past nominees hadn’t answered questions—but they had. And when it came to some of the most important issues a Supreme Court justice could address, including Roe v. Wade, executive power, civil rights, and gender equity, Roberts was far from forthcoming. Indeed, he had already dodged more than 25 different questions when hours remained in today’s session.

    The bottom line? Roberts’ views on many important issues remain murky at best.

    I agree completely. As things are developing, the biggest issue with Roberts is that we just don't know much anything about his views on important judicial issues. Both Roberts and Republicans are working together seemingly to make certain that we know as little about him as possible, even though they want to have him head the American judicial system for decades to come. This is unacceptable. More tomorrow.

  • "John Roberts" has reached #5 on Technorati, it's highest position since the start of the hearings. The blogopshere is getting better, but still not good enough. Tomorrow, we need him to be #1. Please, if you have a blog or a diary, start writing about Roberts.

  • Here's a transcript of Durbin asking Roberts about Bob Jone University.

  • Armando has a new great post up about Roberts and privacy.

  • While answering a question from Durbin, Roberts started to say something like "the framer's intended to portect privacy--" but then he corrected himself and said "--conscience from government intrusion." I'll need to wait for the transcript on that one, but I think it might have been an important slip-up.

  • Here is a link to a page that contains all of the press releases sent out by the Democrats on the Judiciary committee during the hearings. Lots of good stuff.

  • Schumer smacked Robets around for what he feels is an inconsistent use of the "Ginsberg Rule." Pointed out that Roberts once used the term "illegal amigos" in a memo.

  • Roberts refuses to uphold the interpretation of the Commerce Clause in Wickard vs. Filburn in the same way he would uphold Brown, Gridwold or Marbury. This is starting to smack of the Constitution in Exile.

  • Schumer asks how Roberts will "divine" the right to privacy. Roberts says (emphasis mine):"The court...talked about the necessity of considering the nation's history, tradition and practices. As Justice Harlan always explained in his opinions, you always need to do that with limitations on the judicial role. You need to recognize that it is not your job to make policy, either under the constitution or under the statutes. The approp. judicial role focuses on those considerations as developed in the court's precedents. That's where I would start." More: "You begin with the precedents. You analyze them with the principles of stare decisis. All the justices recognize that in this area you need to be especially careful about the source of the content that you're giving to the right at issue because it is an area of the danger of the judges going beyond the limits of their authority." Um, all of the judges? Could he be any more vague? This is very similar to when, earlier, in response to a question from Biden about whether there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment, Roberts said (emphasis again mine): I do, Senator. I think that the court’s expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another. This demonstrates nothing about how Roberts views privacy, since he is including Thomas and Scalia in the group of justices who hold a belief in a right ot privacy. Considering this, I do not think we could be encouraged by his comments on a right to privacy at all.

  • Schumer: I have been pleasently surpirsed by some of your answers today."

  • Graham is aking about the anti-Roberts ads, trying to make him a victim, as though there aren't way more pro-Roberts ads. "We're persecuted all the time by evil liberals" is part of the conservative elevator pitch.

  • Lindsay Graham asks Roberts if he will be another Rehnquist. Roberts replies that his judicial philosophy is "in many respects similar to his."

  • This passage where Roberts gets testy with Feingold demonstrates, I believe, the main problem that is developing with Roberts (emphasis mine):"Senator, you keep saying 'what I supported' and 'what I wanted to do.' I was not shaping administration policy. The administration policy was shaped by the attorney general on whose act I served. It was to extend the voting rights act without was my job to promote the administration's position and that's what I was doing." We already know that Roberts, who has only been a judge for two years, has a very limited record of rulings through which we can understand his ideological slant. We also know that the Bush administration has refused to release many documents concerning Roberts. If we accept the argument in the above quoted passage, which Roberts has made consistently during the hearings and which many Republicans consistently made before the hearings, then we cannot take anything Roberts did when he was working for the Reagan and Bush administrations as representative of his personal views. Now, if we also accept the argument that Roberts should not discuss his view on any specific case, also put forward repeatedly by Roberts and almost every Republican on the planet, what the hell are we all supposed to know about this guy before making him the head of the American judicial system?

    This is absurd. Conservatives are demanding that we make Roberts the head of the American judicial system for decades as they simultaneously argue that we should not know anything about Roberts at all. That is unreasonable, and at least worthy of a no vote, if not a filibuster.

  • Think Progress has a brilliant post on Roberts: 25 Ways To Not Answer The Question

  • Feingold pushing hard on the Voting Rights Act, specifically the different types of tests. The point seems to be to argue that Roberts was wrong, more than anything else.

  • Confrim Them is splitting. One poster, Marshall, claims that Roberts is going to be a strong conservaive because of the following:The bottom line is this: the key in looking at Roberts’ answers today is not to look at what Roberts is saying. You must look at what he’s not saying. He’s providing careful answers that will be viewed as non-controversial by the general public and the Senators considering his confirmation. But he’s also carefully leaving critical openings on nearly every issue. That sounds like something I would write, except draw the conclusion that it was a bad thing. Another Confirm Them poster, Andrew, is growing discouraged about Roberts's conservative propects:I’ve looked over the transcript for today’s morning session, up through Senator Kennedy’s questions, and can make a few comments. For me, the answers from Judge Roberts were not encouraging.(...)

    It now appears very possible to me that President Bush has nominated a pro-Roe vote in place of an anti-Roe vote. It appears from this morning’s testimony — and I could be wrong about this — that Judge Roberts will probably affirm the so-called right to obtain an abortion all the way up until viability, even though 72% of women in the United States have consistently said that abortion should generally be illegal months before viability.

    Even conservatives are not sure what to think about Roberts. It is not surising, since we know basically nothing about what the guy thinks.

  • Roberts just rejected Korematsu. Good. At elast he isn't a fascist. It is interesting that he was willing to ofer a specific answer on that case, which he has repeatedly refused to do in these hearings. In fact, he just did it again on the Hamdi case.

  • Feingold up. In his typical Gogo (Good Government) fashion, which I much admire, his first quesiton is a non-ideological, reformer one: he asks Roberts to televise Supreme Court proceedings. That's a good idea--I'd really like that.

  • Over at Technorati, "John Roberts" has been doing mch better than ysterday,k hovering around sixth or seventh most of the day. It is sitll not good enough, but it is an imporvement.

  • If nothing else, this process has been personally instructive to me as to the degree that the progresive judicial philosophy rests upon the right to privacy, the equal protection clause and the commerce clause. "Right ot privacy," is easily and obviously part of the Democratic / progressive elevator pitch, and a powerful progressive frame. I'm glad we at least have that.

Roberts Hearings, Day Two, First Afternoon Thread

The John Roberts hearings are beginning again. When you embed John Roberts in a link, use the same link I did above.

You can follow the hearings at Pacifica or at C-SPAN. The New York Times has a transcript of the morning hearings.

  • Feinstein is really pushing a lot of important buttons. She gets Roberts to say that he does not look to the Bible or any religious source in making legal decisions. He does, however, refuse to say whether he believe in a absolute separation of church and state, because he doesn't know what an absolute separation of church and state is.

  • Big moment: Feinstein brings up the Commerce Clause, as it realtes to environmental regulation. Roberts is asked if he believes the Commerce Clause allows for enviromental legislation and regulation. Roberts answers that he has not decided yet. WTF? Hasn't decided yet? To me, that sounds like he was saying no, because simple "yes" would have washed away fears that he was a Constituion in exile type.

  • Feinstein moves to expand the privacy discussion back into reproductive rights--again Roberts evades. Feinstein then pushes to Stare Decisis about Roe, asking if Roberts agreed that Roe had indeed proved workable. This is exactly the ground that Confirm Them indicated earlier today Roberts would use to overturn Roe:Specifically, he indicated that Roberts said that precedent could be overturned on the basis of changing circumstances. Roberts replied: "that entitled to respect" other principles of stare decisis. "That is a precedent on precedent. In terms of a separate determination on my part, my review of what other nominees have done is that's where they draw the line, and that's where I draw the line."

    Also: "Settled expectations...people expect that the law is going to be what the court has told them it is going to be. That's an important consideration."

    Feinstein: Is the reliance or settled expectation sufficient?

    Roberts: "It certainly was the analysis of the joint opinion of the court entitled to respect. That is certainly be where I would begin. I would begin with the precedent that the court has laid out in this area."

    This could be conservative wiggle room, I'm not sure. This could be support for Roe, I'm not sure. This could be a confirmation conversion, I'm not sure. I'm not sure is becoming a theme about Roberts, since we still know so little about him.

  • Roberts keeps emphasizing that he support equality under the law--neither defends nor apologizes for the dismissive, written statements, except to once indicate that it was because of the "candid" environment of the office he worked in. At least that is what I think he said--waiting for a transcript.

  • Feinstein is delivering a catalogue of statement Roberts made concerning women, les focused on legal issues and mostly on what appears to be a generally dismissive view of women overall. This is, in fact, the question she asks. This is an interesting and, I think, welcome, as it de-wonkifies the hearing somewhat.

  • Feinstein up now. This is important, as she is the only woman on the panel.

  • Wow--a Republican complaining about "Free Speech Zones" alongside their typical complaints about religious persecution. I like that. No wonder DeWine is hated by the Republican base.

  • Roberts endorsing Griswald--good. However, Fred Thompson seems to clearly indicate that Roberts has not endorsed a general right to privacy, and instead only a specifically enumerated one:On CNN, Fred Thompson discussed Judge Roberts' testimony regarding the right to privacy just opened the door wide. He said that even though Roberts recognized a right to privacy, he was not committing to what the privacy right entails. Well, Mr. Thompson, if that is the case, then we must explore in great detail then what exactly are the specific rights Judge Roberts recognizes within the privacy/liberty interest. Agreed.

  • Kohl asks about Katrina, which must be a way of eventually hitting at a Constitution in Exile question via the Commerce Clause and the ability of the federal government to engage in broad social investment. From National Journal:Kohl asked Roberts what he would do to "right the wrongs" as revealed by Katrina.

    Roberts: "...equal justice under law. The most important thing the judicial branch can do is to uphold the rule of law. That's the key to making [rights] meaningful."

    As with Leahy's earlier innuendos on this subject, Dems are gonna have to be more direct to get an answer, or at least a hint, out of Roberts on this one.

  • Kohl brings up the umpire analogy again. We don't just need more women on this panel, we also need less men.

  • Right-wing code watch (emphasis mine):GRASSLEY: Well, is there any room in constitutional interpretation for the judge's own values or beliefs?

    ROBERTS: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case. But you don't look to your own values and beliefs. You look outside yourself to other sources.

    From what I understand, this is right-wing theocon code for deferring to God and hte Bible. Correct me if I am wrong and it is more mainstream.

    "But you don't look to your own values and beliefs. You look outside yourself to other sources."
  • You need to look no further than this passage from subscription only Hotline to learn why we are having such a difficult time with Roberts:A grand total of 21 people marched in protest of the Roberts nomination, chanting, among other things: "Two-four-six-eight, separation of church and state!" Police who were stationed "for crowd control, had no crowd to control." Sen Edward Kennedy (D-MA) shook the hand of Roberts's wife, Jane Roberts and said, "Congratulations." Both Judiciary Chair Arlen Specter (R-PA) and ranking Dem Patrick Leahy (D-VT) acknowledged they were acting out a bit of political theater, with Leahy noting during a picture with Roberts: "That is as staged a photo as you'll ever see" (Milbank, Washington Post, 9/12)." We are facing the twin problems of Roberts being one of the Beltway Kool Kidz for a long time now, and general apathy on the part of the left. The media and the chattering classes are not going to challenge him that seriously because, well, Roberts is one of them. The left does not appear very organized, and certainly does not appear energized. Obviously, there are other immediate concerns right now, but Roberts will be a concern for twenty-five or more years if he is confirmed.

    Even if he is confirmed, and later on ends up being the main cause for overturning important individual and civil rights, or for dismantling the ability of Congress to regulate the economy or create broad social investment, it is necessary that as many Democrats as possible vote against him. We can't end up being complicit with conservative debacles anymore, like we were when, combined, nearly half of all Senate and House Democrats voted for Bush's war. That vote has hamstrung us for three years now, and uniting the party to form an actual alternative to the wrath conservatives have wrought on America is one of the most important things in these hearings.

  • Kyl has just put the word "progress," as it relates to civil rights, into scare quotes three times in the last two minutes.

  • When Roberts made his statements about privacy earlier today, he notably left out the ninth amendment. As Lorraine Berry notes over at culture kitchen, it was actually the ninth amendment that was cited in the original right to privacy case, Griswold v. Connecticut. It was also the ninth amendment that" Robert Bork famously likened it to an inkblot, saying judges were not permitted to make up what was under the inkblot." Roberts needs to be pushed harder for a discussion of the ninth amendment, especially as to how it relates to privacy, and even to Griswold.

Roberts Hearings, Day Two, Morning Thread

The John Roberts hearings are beginning again. When you embed John Roberts in a link, use the same link I did above.

You can follow the hearings at Pacifica or at C-SPAN.

Use this thread to discuss them. I'll have a rolling commentary, with the newest comments the highest on the list of bullet points. My views are not representative of any organization whatsoever.

  • Biden's done. It's lunch. A complete transcipt of the today's hearings through's Kennedy's questions, which were the first that caused Roberts to drop his calm veneer, can be found here.

    Update: The transcript is being constantly updated, and should be completely caught up soon.

  • Specter: "they may be misleading, but they are his answers."

  • Of course, another major difference between Ginsberg and Roberts is that Ginsberg had a record of 700+ decisions when she was nominated, and Roberts has almost no history of rulings because he has only been a judge for two years. So, while Ginsberg did not answer 30+ questions, senators were able to look at a substantial body of rulings to understand what she was thinking. Also, as Biden pointed out, Roberts is being a lot less specific than Ginsberg was. Thus, Roberts not only refuses to answer questions, not only is he being even less specific than Ginsberg, not only does he repeatedly claim that everything he wrote in the 1980's was the opinion of his bosses rather than his own, and not only is the White House refusing to release important documents that he wrote, but he has almost no history of rulings. This evasion alone is worthy of a filibuster. How are we supposed to know anything about this guy?

  • Biden on the attack--really tearing the Ginsberg rule apart by pointing out where Ginsberg gave specific answers to questions. Says that Roberts is "filibustering" and says "go ahead and continue to not answer my question." Biden is doing something really important here--pointing out that the "Ginsberg rule," as defined by the right-wing, is not the way Ginsberg's hearings actually went. Roberts is engaging in this distortion right along with the Republican Noise Machine, from whom he clearly received this talking point.

  • Biden backing Roberts into a corner about thwy he isn't answering any questions, focused on the "Ginsberg Rule" that the right wing has focused on. This is a good way to end the morning hearings--focus on why Roberts isn't answering anything. Biden has pointed out an instance where Ginsberg said explicity whether or not she agreed with a minoirty or a majority opinion in a given case. Roberts continues to evade.

  • Biden is really going nuts on the baseball stuff. Says that mentioning baseball seems to have helped Roberts yesterday. He is also directly pointing out the problem with the baseball metaphor that Armando pointing out yesterday--namely, that the umpire metaphor isn't apt because "the founders never set a strikezone" on a large number of important decisions that will face the court.

  • Biden is up now. Makes a joke about the baseball metaphors from yesterday. He will be the last questioner before a lunch break.

  • Armando suggest that Roberts has undergone a confirmation conversion on the right ot privacy. I'm not so ure he even went on a conversion, as Confirm Them suggest that he would still have a lot of wiggle room on privacy.

  • Roberts says that he wants to be an umpire, but it looks more and more like he is a player in a game of dodgeball. Today alone, he has repeatedly refused ot answer questions on Roe, on the Voting Rights Act, and on war powers, including internment.

  • Think Progress reveals Coburn's crying hypocrosy from yesterday (includes a good video), which was already at least partly revealed through his crossword adventures.

  • Kennedy up now. Starts on civil rights. "John Roberts" has risen to #6 on technorati, the highest since he was nominated in July. Good. Keep writing and may it keep rising.

  • Confirm Them gushes about Roberts wiggling on privacy:Roberts’ answer was brilliant. He made a statement that will satisfy most Americans about privacy while leaving himself enough wiggle room to move the Court on that issue in the future. And if people have any doubt about what Roberts said on privacy, check out this piece from Confirm Them a few minutes later (emphasis mine):A top-flight, leading conservative pro-life lawyer with a vibrant Supreme Court practice whose name most readers of this forum would know just walked into the room where I’m sitting. He was thrilled about Roberts’ answers during the dialogue with Specter and indicated his strong approval and endorsement. He explained that Roberts’s answer was carefully framed to provide a basis for revisiting and overturning Roe in the future.
  • Best. Hearings. Ever.

  • Roberts avoids specifics on the internment of American citizens of certain ethnic groups, because that case might come before the court. Yikes. I wonder if he would refuse comment on the Dred Scott case as well, because that might come before the court.

  • The final two polls that were taken before the hearings began were two of the best ever for Roberts. ABC shows 55-26 confirm, and Pew 46-21 confirm. Roberts is a lot more popular than Bush.

  • "John Roberts" has dropped to eighth over at Technorati, after rising the seventh earlier today. This is the #1 story in the MSM, but not on the blogs. Go figure--for once they are covering the big story that we aren't dedicating enough time toward. Shame on us.

  • Bush's approval rating drops to 42-57 in ABC / WaPo, a new record low.

  • Leahy is up now. He is asking about Presidential powers, first in relation to war. Specifically, Leahy is arguing that Congress can end a war either through joint resolution or through overriding a Presidential veto of a concurrent resolution. Leahy argues that Roberts's writing indicates otherwise. Roberts refuses to answer the question, because he said it could very well come up before the court. I hope he is correct about the last part.

  • Specter asks Roberts if he believes the Constitution is a living thing. Roberts answers that he believes the tradition of liberty is a living thing.

  • Roberts says that his views on privacy now are not the same as his views in the 1980's. That is the frustrating thing about these hearings--how can you trust him? He hasn't spent enough time ruling in order to know if he is telling the truth.

  • Specter asks Roberts about the right to privacy. Roberts answers with a specific series of ways in which it does, which makes me dubious that he supports a general right to privacy.

  • Blue Oregon has a round-up of yesterday's blogger conference call on Roberts.

  • Roberts says that he will not discuss whether or nor he agrees with either Roe or Casey.

  • Specter opens with a discussion of Casey vs. Planned Parenthood and Stare Decisis. Roberts immediately states that he will not disucss specific cases.


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