Benny's World

Wednesday, September 21, 2005

JRE, Kerry Oppose Roberts to be Confirmed

From JRE (of course, he goes first!)

Dear Benny,

The Chief Justice of the Supreme Court is the most important judge on the most important court in our country, responsible for protecting and upholding the rights and freedoms outlined in our Constitution. I have carefully reviewed Judge John Roberts' testimony and listened to him give unsubstantial, boilerplate answers and avoid answering even the most basic questions about his own views today.

Based on everything I have seen and read from Judge Roberts' work in the Reagan Administration, his past opinions, and his most recent testimony, I wanted you to be the first to know that I must oppose his nomination to be our country's Chief Justice.

I do so because we do know the views and positions he took prior to the recent hearings. Judge Roberts opposed efforts to remedy discrimination on the basis of sex and race. He opposed measures to protect voting rights. He denigrated the right to privacy and a woman's right to choose. He wanted to allow Congress to strip away courts' jurisdiction over controversial subjects.

Although he has presented himself as a supporter of judicial restraint, I do not see enough evidence that Judge Roberts would show restraint when his own political commitments are at stake. In light of his past positions, I believe he had an affirmative obligation to make the case to those who might confirm him that he repudiates the positions that he had previously advocated in his professional career. He made a choice and refused to meet that obligation. I cannot support someone who I am not convinced will preserve the liberties and freedoms that are enshrined in our Constitution and our laws.

Please join me in fighting for the principles and values that each of us cherish. Contact your Senators and tell them to vote no on Judge Roberts' nomination.


From John Kerry:

Dear Benny,

Monday, I shared with you my Brown University speech setting out what needs to be said and done at this critical moment for our country. Today, in that same spirit of clarity and conviction, I want to tell you how I will vote on the nomination of John Roberts to serve as Chief Justice of the United States.

I will vote against this vitally important nomination.

Win or lose on this vote, it is essential that we act on our deepest convictions. And I refuse to vote for a Supreme Court nominee who came before the Senate intent on demonstrating his ability to deftly deflect legitimate questions about his views, opinions and philosophy.

John Roberts owed the American people far more than that.

If he is confirmed - and he may well be - the Roberts Court will shape the course of constitutional law for decades to come. It will decide dozens of cases that will define the depth and breadth of freedom in America - our commitment to civil rights, our dedication to civil liberties, our devotion to privacy and a woman's right to choose.

With that much at stake, Judge Roberts needed to show us where his heart is.

Instead he recited case law and said little about what he really thought. He needed to engage the Senate Judiciary Committee and the American people in a genuine conversation. He failed that test. And, while I recognize that other members of the Senate will legitimately make a different choice, I will vote "NO" on the Roberts nomination.

Click here to read excerpts [provided below] from the statement announcing my position on the Roberts nomination. I urge you to read them - and, whatever the outcome of the Roberts vote, I encourage you to join me in insisting on a far more complete and extensive process on the critical nomination President Bush must now make to replace Justice Sandra Day O'Connor.

Please contact your Senators now. Tell them where you stand on the Roberts nomination and tell them that you insist on full, fair, and forthcoming hearings on the person George W. Bush puts forward for the pivotal seat now occupied by Justice O'Connor.


John Kerry

Judge Roberts' judiciary committee hearings continue an increasingly sterile confirmation process. No genuine legal engagement between the questioners and the questioned. No real exchange of information and no substantive discussion. The confirmation exercise has become little more than an empty shell.

“The Administration's steadfast refusal to disclose documents Judge Roberts worked on while serving as a Deputy Solicitor General in the first Bush Administration has only compounded the problem. They claim that disclosure of the documents will violate attorney-client privilege. This argument is absurd. What client are they trying to protect? The Solicitor General is charged with arguing cases on behalf of all Americans. We were Judge Roberts' client when he worked in the Solicitor General's office. We have a right to know what he thought about the arguments he made on behalf of the American people.

"When John Roberts served as a Deputy Solicitor General under Ken Starr, he was intimately involved in critical decisions that office made, like whether to intervene in pending cases; what legal arguments to advance in support of their position; whether to push the Supreme Court to review a particular case. These decisions helped shape how federal law was applied and how our Constitution was interpreted. Yet, we--the Senators who are constitutionally obligated to give consent to this nominee--do not know the positions that Roberts took or the arguments that he made.

“For example, the Solicitor General's office decided to intervene in Bray v. Alexandria Women's Health Clinic. The case had been brought against abortion clinic protestors during the height of clinic violence and bombings. The plaintiffs argued that the protesters were violating a federal anti-discrimination law by blocking access to clinics and inciting violence. The Government intervened and argued that the federal anti-discrimination law did not apply and therefore could not be used to stop the protesters. Judge Roberts briefed and argued the case for the Government. I believe that the arguments advanced by the Government--and the consequences of those arguments--are troubling. But, what we do not know is even more important: what role did Judge Roberts have in making them? Did he consider the consequences? Did he argue for a more narrow or more broad interpretation of the law?

“At the same time, the Solicitor General's office intervened in a district court case in Wichita, Kansas which raised the same issues that the Supreme Court in Bray was facing. The government tried to get the district court to lift an injunction put in place to protect the safety of the clinic workers and patients. They argued that the plaintiffs could not win and therefore the injunction was improper. The district court denied the Government's request and chastised it for unnecessarily endangering people's lives. The question is what role did Judge Roberts have in making that decision? What was the legal reasoning that prompted it? Did he consider the real life dangers that would result from his legal argument?

"The Administration's refusal to disclose these documents created a serious roadblock in the Senate's ability to evaluate Judge Roberts. But Judge Roberts' refusal to genuinely engage in the confirmation hearings created an even bigger one.

"This is not the first time that Supreme Court nominees have refused to engage in a meaningful discourse during judiciary committee hearings. Justice Souter refused to answer fundamental questions about his judicial philosophy. For that reason, I voted against him, and I am happy to say that I have been pleasantly surprised that my concerns regarding his views on civil rights and privacy did not come to pass. Justice Thomas also refused to answer fundamental questions about judicial philosophy. As I said at the time, Justice Thomas "found a lot of ways to say 'I do not know' or 'I disagree' or 'I cannot agree' or 'I can't say whether I agree.’" I voted against Justice Thomas because I did not know what kind of Justice he would be. And, I believe I was correct in making that decision.

“At the end of the day, I find myself much in the same position that I was with Justices Souter and Thomas. Notwithstanding his impressive legal resume, I cannot say with confidence that I know who Judge Roberts really is or what kind of Chief Justice he will be. In what direction will he take the Supreme Court? Will he protect the civil rights and liberties that we have fought so long and hard for? Will he support Congress' power to enact critical environmental legislation? Will he be an effective check on executive branch actions? Before I vote for a Chief Justice--particularly one who may lead the Court for potentially 30 years or more, I need to know the answers to these fundamental questions. Unfortunately, in the case of Judge Roberts, I do not.

"Another area of great concern to me is the area of privacy--an area where Judge Roberts skillfully answered a lot of questions without giving a hint as to his own legal positions. For example, while Roberts admitted that the Court has recognized that privacy is protected under the Constitution as part of the liberty in the Due Process Clause, he refused to give any indication of what he thought about the Court's most recent privacy-related decisions.

“The furthest he went was to say he had no quarrel with the decisions in Griswold and Eisenstadt, yet this kind of endorsement is hardly reassuring. In his confirmation hearings, Justice Thomas agreed that the Court had found a Constitutional right to privacy. Like Judge Roberts, he also stated that he had no quarrel with the Court's holding in Eisenstadt. Yet when he got to the Supreme Court, Judge Thomas disavowed the very rights he had said the Constitution protected. In fact, more recently, in Lawrence v. Texas, Justice Thomas stated that he could not "find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy." The bottom line is that I simply do not know how Judge Roberts will approach questions implicating our fundamental right to privacy.

"In addition to what I do not know, what I do know about Judge Roberts is very troubling. I know that in the early 80's while he worked in the Department of Justice and White House Counsel's Office, Judge Roberts took an active role in advocating on behalf of Administration policies that would have greatly undermined our civil rights and civil liberties.

“For example, Judge Roberts argued against using the "effects test" to determine whether section 2 of the Voting Rights Act was violated. Instead, he believed an "intent" test--requiring proof of a discriminatory motive--should be required, regardless of the fact that many victims of discrimination would be unable to prove a real discriminatory intent and therefore unable to enjoy the protections afforded by the Act. In some cases, the effect of Judge Robert's intent test meant that disenfranchised individuals had to prove the motive of long dead officials who crafted the election rules. That is a foolish standard when it comes between citizens and their constitutionally protected right to fair representation in our democracy.

"Mr. President, I realize that Judge Roberts took the positions I just described some time ago. And, I know he told the judiciary committee that he was simply advocating the views of the Administration at the time. Yet, I find it hard to believe that a staffer at Justice or in the White House Counsel's office never wrote a memo that represented his views rather than the Administration's positions. Particularly when the theme of those memos is consistent across the board: strict adherence to narrow principles of law despite their real world impact.

"Judge Roberts' more recent positions trouble me as well, particularly his decision to join Judge Randolph's decision in Hamdan v. Rumsfeld, the military tribunals case. That opinion gave the President unfettered and un-reviewable authority to place captured individuals outside the protections of the Geneva Convention. Six retired senior military officials with extensive experience in legal policy, the laws of war, and armed conflict have filed a friend-of-the-court brief in the Supreme Court arguing that Hamdan must be overturned immediately because it directly endangers American soldiers.

“I understand that Judge Roberts felt he could not discuss the case while it was pending before the Supreme Court, but, even when asked about his views of the scope of executive power unrelated to the Hamdan case, Judge Roberts was evasive. He did little more than describe the Court's current framework for analyzing assertions of executive power. As a result, I do not know whether he believes that the state of war is a blank check for the President or whether he will closely scrutinize the legality of Executive Branch actions at all times. Given the fact that his Hamdan decision placed our troops at risk, I am forced to conclude that Judge Roberts' future decisions may further threaten the security of our troops abroad and our citizens at home.

"Now, some may argue that Democrats should vote for Judge Roberts because he is the best nominee we could expect from the Administration. I cannot vote to confirm the next Chief Justice of the United States simply because the next nominee to the Court may be even less protective of our fundamental rights and liberties or less dangerous to our national security.

"The questions I have raised, the absence of critical documents, and the lack of clarity surrounding fundamental issues like how he would interpret the Constitution require me to fulfill my Constitutional duties by opposing his nomination to be the next Chief Justice."

Kerry's reasons are pretty convincing in many respects. He's still a superb Senator and debater...


I am also thinking we have gotten too much into the politics and paid little to judicial experience. I would argue simply that Roberts isn't enough a distinguished jurist to be confirmed--and I felt that way about Clarence Thomas too.

However, if Roberts is considered the faciliator of the court, he would do fine in that role. Changes in organizational structure of the court would have be examined, proposed, go through upteen committees, then laws or amendments for a vote might surface as a result.

Perhaps it is a good time to examine whether the current structure is relevant for now and future generations.

I get tired of seeing the court packed--period. It makes the judicial system less independent.


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