Also via Gerry Daly, this NY Sun piece on the wit and wisdom of John Roberts:
As a young White House lawyer in the early 1980s, the future nominee ridiculed claims that the Supreme Court justices were overworked, suggesting instead that they lived a cushy life akin to that of schoolchildren.
“While some of the tales of woe emanating from the court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off,” Judge Roberts wrote in a April 1983 memorandum to his boss, Fred Fielding, the White House counsel, about a proposal to create a new tribunal to relieve the perceived pressure on the high court.
The memo was among those obtained by The New York Sun last week from the archives at the Reagan library in Simi Valley, Calif.
In the writings, the 28-year-old attorney’s thoughts seem informed by his experience a few years earlier as a clerk to Associate Justice Rehnquist. The young lawyer expressed the view of many conservatives that the court was intruding too often into matters properly left to the president and the Congress. “Even assuming the justices have reached the limit of their capacity, it strikes me as misguided to take action to permit them to do more. There are practical limits on the capacity of the justices and those limits are a significant check preventing the court from usurping even more of the prerogatives of the other branches,” Judge Roberts wrote.
At the time, the idea of a new court to resolve conflicts between the circuits had the strong endorsement of Chief Justice Burger. Despite the high-powered backing, the future nominee showed no compunction about dismissing the concept as “exceedingly ill-advised.” In addition, Judge Roberts decried one of the Justice Department’s rationales for supporting the court as “a total abdication of reason.”
Read the whole thing, and it appears that a much larger document dump is on the way:
The Bush administration plans to release documents from Judge John G. Roberts’s tenure in the White House counsel’s office in the mid-1980’s and his earlier job working for the attorney general, but will not make public papers covering the four years he spent as principal deputy solicitor general starting in 1989, two senior administration officials said Monday.
The decision fulfilled a request for disclosure of the documents made on Monday by Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, which will hold the confirmation hearings for Judge Roberts, President Bush’s choice to fill the Supreme Court seat being vacated by Justice Sandra Day O’Connor, said the senator’s spokesman, Bill Reynolds.
But it falls short of the disclosure sought by Democrats, who have been demanding access to files from the nominee’s work in the solicitor general’s office at the Justice Department from 1989 to 1993, under the first President George Bush. Democrats say those files could shed light on the nominee’s thinking about issues that could come before the court, and are especially important because Judge Roberts has not produced much of a paper trail when it comes to issues like abortion. Mr. Specter did not seek access to the papers from Judge Roberts’s work as deputy solicitor general, Mr. Reynolds said.
In other news, via the folks at Kos, we see this story:
Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court — a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.
The exchange occurred during one of Roberts’ informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person’s faith and public duties).
This, of course, has launched a frenzied pushback from the opposite side of the debate:
Jonathan Turley, a law professor at George Washington University, reported today in an LA Times op-ed that Sen. Richard Durbin (D-Ill) asked Judge John Roberts last week “what he would do if the law required a ruling that his church considers immoral.” Family Research Council President Tony Perkins released the following statement:
“Last April, I called on viewers and listeners who joined our nationwide simulcast — ‘Justice Sunday – Stopping the Filibuster Against People of Faith,’ to contact their senators and urge them to oppose the unconstitutional use of religious litmus tests. Unfortunately, Senator Durbin has chosen to ignore the Constitution and is seeking to impose a religious litmus test on Judge John Roberts.
“Repeatedly, judicial nominees have been blocked for ‘deeply held beliefs’ on moral issues. Senator Durbin’s questioning is clearly an attempt to place Judge Roberts in the position of choosing between his faith and the law. However, the Constitution forbids the disqualification of judicial nominees on the basis of religious and moral convictions.
“Once again, I call on Senator Durbin’s colleagues to immediately pledge that they will not oppose judicial nominees on the basis of their religious views.
I am not sure why this is such an issue. All Roberts needs to say to satisfy me is “I will rule according to the law, not church doctrine. My personally held religious beliefs are not and should not be an issue.” Of course, then, I expect him to abide by that statement. This formerly bland looking nomination is starting to heat up.
“…via the folks at Kos, we see this story….”
Funny, I’d have thought you might find it first in your own comments, yesterday….
Kos quoted the New York Sun? Does Conason know?
The confirmation hearings are going to have to be called off. Every question will be off limits by the time we get there!
John is right that so many of these “inappropriate” questions can be easily dispensed with in a matter of seconds. It just gives people something to argue about.
Anything strongly supported by Burger was prima facie a bad idea.
I’m fairly sure that Roberts’ statement about holding the Church above the Constitution was an attempt to bait Democrats into saying something that they could twist into “Democrats think no Catholics should sit on the Supreme Court.”
It seems like a very basic divide-and-conquer strategy. The small amount of people who actually care about jurisprudence, who by this point are all Democrats, will be seething if the Democrats don’t fight Roberts. The rather larger amount of people who don’t like anti-religious bias will be seething if they do.
This would explain why Durbin is quietly trying to make this go away. One would think that after five years of being baited by the Rove machine, the Democrats would have learned that the only way to win is not to play.
What’s the NY Sun’s angle in this? The less that is known about this guy, the better for the Republicans and especially the White House.
Anyhoo, it’s becoming clearer and clearer that this guy is a WASP edition of Clarence Thomas. Did folks really think that Bush would nominate a thoughtful, principled, and objective jurist to the SCOTUS?
That quote from Kos is a bit selective isn’t it? As indicated by the bold in the omitted portion, the thrust of the Kos story is not that Roberts is Catholic, but that Roberts would not rule contrary to his Catholic beliefs, even if the Constitution required it. Roberts said “he would probably have to recuse himself” when asked what he would do if the law required a ruling that his church considers immoral.
It’s not that Roberts is Catholic. It’s that Roberts has stated that his Catholicism would force him to recuse himself from, as the Kos story puts it, “abortion and gay-rights cases … and maybe the death penalty … and perhaps pornography cases … and possibly questions of church-state separation … and, I suppose, poverty and social justice issues … and then there’s the moral acceptability of war …”
Given the Republican mantra that Roberts should not answer any questions that would force him to prejudge an issue and thereby force him to recuse himself when those cases are before the court, obviously recusal from important cases is not desirable. If Roberts feels that he would have to recuse himself when issues on which the Catholic church has taken a position contrary to the Constitution people should know about it and it should be considered in the confirmation process.
A.) Every quote is ‘selective.’ That is why a link is generally provided.
B.) That isn’t a quote from Kos, it is a quote from the LA Times. I neglected to put in the LA Times URL.
My point is that the omitted portion directly contradicts your statement:
I am not sure why this is such an issue. All Roberts needs to say to satisfy me is “I will rule according to the law, not church doctrine. My personally held religious beliefs are not and should not be an issue.”
The omitted portion states quite the opposite, that Roberts reportedly said he would have to recuse himself if the law required a ruling that his church considers immoral:
“Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.”
Obviously, every quote is selective. I just think the selectiveness in this instance was a bit misleading.
Carpetbagger has a unique perspective on why the Federalist society flap matters. That is to say, it didn’t but now it does.
I’m fairly certain that the term WASP does not include Catholics, Geek.
Try acronymfinder.com before you try to use acronyms you don’t fully understand.
He’s an Anglo Clarence Thomas.
Why shouldn’t Roberts’ faith inform his jurisprudence? Lest we forget, the Founding Fathers were deeply religious men. The myth of their watery deism has been thoroughly debunked. I have a hard time believing John Adams and George Washington would have any kind of a problem with a judge who gave equal weight to the Bible and the Constitution. After all, the constitution is based to some extend on Biblical notions of morality. The two documents complement each other nicely.
It’s too bad this country is not mature enough to address this issue forthrightly. Are we a constitutional country or not? I had always assumed we were but I’m no longer sure that’s true.
The potential to be one, or not be one, always present.
The Constitution is a device for curbing power. It will always be under attack by power-seekers. Sometimes you’re the Louisville Slugger, sometimes you’re the ball. Somtimes it all comes together baby, sometimes you’re gonna lose it all. Apologies to Mark Knopfler.
At the moment, the Constitution is under relentless attack. But I have a hunch that it will make a comeback. When the people get weary of being fucked over, they fight back. The old document is the best weapon they have.
Presidents come and go. They’re eminently disposable, as they should be. The old document has all the time in the world.
How can one curb the power of a penumbra, ppGaz? Or an emanation?
Isn’t the conservative critique of the Court that it is no longer a device for curbing power and therefore modern jurisprudence allows the federal government to wield altogether too much power? Or perhaps you missed the history lesson that covered FDR’s threat to increase the Bench to 15 members to force his agenda through the court system?
This is absolutely true. We may currently live in an idiotic time but this country has survived many an idiotic moment.