Thursday, September 15, 2005

Now I'm confused

I've watched much of the hearings on the nomination of John Roberts to be Chief Justice. In fact, I've actually watched about 5 or 6 hours, and I've got a few more hours on my TiVo that I'm trying to catch up on. (I wasn't kidding when I said it's riveting television. This is the true "reality TV," with real life-or-death stakes. Yeah, you have to wait 30 or 40 years to find out the full score, but it's better action than watching golf on television, even with Tiger Woods, and only slightly longer than a game of cricket.) None of Judge Roberts' testimony that I've seen so far gives me serious pause, and I had until today not seen a convincing argument against him, nor have I even yet heard a clear indication from his opponents of what an acceptable nominee would look like. Furthermore, my Senators have not yet given me any indication that this nomination is worthy of a filibuster.

Democrats, it is time to shit or get off the pot.

Why is it that the American people have such a strong sense that the Democrats would oppose John McCain if he were the Chief Justice nominee?

John McCain never attended law school, but I think we could get him at least an honorary Doctor of Laws, based on just a wee bit of on-the-job experience in the field. I defy the American Bar Association to rate him unqualified. John McCain has an impeccable reputation for fairness and honesty, whether you ask Republicans or Democrats, or even independents! It is true that John McCain personally opposes abortion, but I trust him when he says he accepts that Roe v. Wade is the law of the land. (Beyond that, I can imagine John McCain facilitating the creation of common ground in the abortion debate. The phrase that appeals to me is "safe, legal, and rare." We have to find some middle ground — abortions available with some set of restrictions that all sides can agree to.) How about John McCain for Chief Justice? How about John McCain as Chief Justice and John Roberts as Associate Justice?

If the Democrats don't have some pretty dazzling alternative, it is time to get out of the way. You need to demonstrate not only that Roberts is bad, but that there is someone else who would be better.

I said that I support the confirmation of John Roberts. I have rendered a decision on that case. Based upon the principle of stare decisis (Latin for "to stand by that which is decided"), I must stand by that decision, even if I might decide differently if I were now reviewing the case de novo (from scratch), unless I am presented with substantive evidence that my previous decision is unworkable.

In other words, if you can't even convince a blogger, then how are you going to convince the American people that your opposition to John Roberts is something more than knee-jerk?

(As I was writing this, I saw Senator Biden comment that if he believes that John Roberts will be an Antonin Scalia, he would vote not to confirm; if he believes Roberts will be a Tony Kennedy, he would vote to confirm; if he believes Roberts will be another William Rehnquist, he would probably vote to confirm, since it would preserve the status quo. Senator Biden himself admits that he, too, is confused by the process, so I don't feel so bad about wondering what the blank is going on here.)

I also found Senator Feinstein's comments illuminating:

I think there was significance in the fact that [John Roberts] laid out [the factors to be considered when you look at a precedent of the Supreme Court] at all, because he didn't have to do that. I didn't really expect he would ever answer [whether he would overrule Roe v. Wade], one way or another. I think it's an unrealistic expectation. My interest is to see, would he be open to reviewing various things carefully and cautiously, or did he come in with a bias? (We all grant that he's conservative, and there's nothing wrong.)

The nominee that I would anticipate from this President would've been really conservative, would've come in here and said what he was going to do, and probably could've mustered the votes, but it would've been definitive. I see nothing definitive, but I do see things that provide a level to believe that this is a fine legal scholar, who will truly look at the law. I think he said he gives a serious regard to precedent. — Senator Dianne Feinstein, John Roberts confirmation hearing in the U.S. Senate, 2005-09-15
The other thing is, I would really like to hear from the Boy Scout troup that John Roberts spoke to the day after he was nominated as an Associate Justice. What did John Roberts say to a group of Boy Scouts about what he believes a judge's role should be? Let's get that on the record, so that if he violates his stated principles we can throw at him that he lied to a bunch of Boy Scouts.

I would also like to mention a quote from Senator Paul Simon (D-Illinois) at the confirmation hearing for Justice Ruth Bader Ginsburg, quoted this week by Dick Durbin (D-Illinois) in reference to nominee John Roberts: "You face a much harsher judge than this committee. That's the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you expand it?" [Thanks to Scoop Independent News for highlighting that quote.]

Still, it is telling that such an impressive array of African Americans, and others, came to speak of their lack of faith that the Supreme Court as an institution will treat them fairly. I single out African Americans in that comment because the simple reality is that African Americans have a unique perspective on oppression and inequality in the United States, as do Native Americans. Many segments of our nation have known oppression and unfair treatment, but only African Americans have been literally enslaved within our nation's borders, and only Native Americans have been the victims of genocide here.

Give me a convincing rebuttal to witnesses like Theodore Shaw, Nathaniel Jones, and also people like Judith Resnik, Marcia Greenberger, and Beverly Jones.
You [Senate Judiciary Committee] are considering, under the Constitution’s Advice and Consent clause, the fitness of a Supreme Court nominee who has, in the past, argued against the use of federal judicial power to eradicate the vestiges of slavery and badges of servitude. This record triggers serious questions and demands straight answers. — The Honorable Nathaniel Jones, retired federal judge, 2005-09-15
Whatever else you say, there are clearly large segments of our nation who are NOT satisfied that a Supreme Court chiefed by John Roberts would protect the legal rights essential in their lives.

And then there's Robert Reich. He is so brilliant that he gets his own thread.