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In his questioning of Judge John Roberts this morning, Senator Arlen Specter asked detailed and searching questions on the right to choose, the right to privacy and the power of stare decisis. Judge Roberts, in a surprise to me, was surprisingly forthcoming and detailed in his answers. In particular, in answering whether he believed the Constitution recognized a right to privacy, Roberts stated expressly and unequivocally that he accepted and agreed, without reservation, that the Constitution does recognize a right to privacy. He mentioned specifically privacy rights emanating from the 1st, 3rd and 4th Amendments and the liberty interests recognized and protected by the due process clause of the 5th and 14th Amendments.

What does this mean? Is this a confirmation conversion? Perhaps. But right now what it means is that Roberts accepts that he must answer questions on the right to privacy. He can not refuse now.

So I suggest that Democratic Senators take Roberts up on this opening. I suggest the following line of questions on Griswold.

Originally posted to Daily Kos on Tue Sep 13, 2005 at 07:48 AM PDT.

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Comment Preferences

  •  n/t (none)
    what about the ninth amendment?

    What's madness but nobility of the soul at odds with circumstance?

    by slinkerwink on Tue Sep 13, 2005 at 07:42:59 AM PDT

    •  See my link (none)

      The SCOTUS is Extraordinary.

      by Armando on Tue Sep 13, 2005 at 07:45:40 AM PDT

      [ Parent ]

    •  I agree completely.... (none)
      It seems to me that liberals need to work at bringing back the 9th and giving it some life.
      •  Great point on the Ninth amendment (none)
        This actually is the best defense to Scalia's argument of textualims. The ninth amendment needs to be revived and law professors and appeals court judges need to run with this.

        Also, I admire Armando's work on this, and I admire even more his acknowledgement that Roberts is answering questions. I think Roberts will show that he is a choice that liberals can be content with. He is NOT an ideologue like Scalia or Thomas. He has no agenda. He frankly is more in the tradition of O'Connor. He will bring real professionalism to the court, and I expect him to clash with Scalia.

        Gerardo Orlando www.orlandoreport.com

        by orlandoreport on Tue Sep 13, 2005 at 08:49:50 AM PDT

        [ Parent ]

        •  I'm not sure that we can say yet (none)
          that he has no agenda.  He might well have one, and as someone pointed out down the thread, it may have to do with corporate interests.  We just don't know enough about the guy yet, and the more questions he answers the better.  I'm reserving judgment for now.

          although it's getting late, you still have plenty of time

          by maracuja on Tue Sep 13, 2005 at 08:56:18 AM PDT

          [ Parent ]

          •  Fair enough (none)
            That's fair. I intend to keep listening as well.

            That said, he just completely contradicted Scalia's theory of textualism. Roberts essentially said that a judge does not wake up every day by taking a fresh look at the meaning of the language of the Constitution. Rather, one must take a more modest approach that starts with the Constitution as interpreted by ALL precedents. Scalia instead does not take a modest approach, and he is thus much more dismissive of precedent.

            He was also just asked about originalism (another term used for textualism) and he made it clear that he does not subscribe to any one theory. Approaches vary, and it's clear that precedent is very important to him.

            Roberts appears as a real pro. Being a lawyer myself, I'm as impressed with him as any other judge I have ever studied.

            Gerardo Orlando www.orlandoreport.com

            by orlandoreport on Tue Sep 13, 2005 at 09:09:20 AM PDT

            [ Parent ]

  •  Glued to the Hearings (none)
     Great questions by Leahy and Specter.

    Not so much by Hatch.

    Looking forward to Kennedy and Biden.

    inspire change...don't back down

    by missliberties on Tue Sep 13, 2005 at 07:44:18 AM PDT

  •  Mostly because I am too young to know... (4.00)
    But what is stopping him from lying about these decisions and ect?

    "Hindsight maybe be 20/20, but foresight can be too, assuming your head isn't up you ass" -me

    by WHSwarrior87 on Tue Sep 13, 2005 at 07:44:54 AM PDT

    •  Back in the old days, kid, there (4.00)
      used to be this thing called 'integrity.' Oh, I know you whippersnappers laugh at the idea nowadays, when you're not egging my house, what with the Bush administration's constant, blatant lying and spinning, and the media's fascination with 'Shape of the Earth: Views Differ' truth claims instead of truth. Really. Honest. Hey, stop laughing! And sit up straight, dammit.

      Let there be sharks - TracieLynn

      by GussieFN on Tue Sep 13, 2005 at 07:50:35 AM PDT

      [ Parent ]

      •  Sadly, I must differ. (4.00)
        Back in the old days there was this thing called "pretending people had integrity." It was bad manners to call someone a liar.

        From what I know of history, there has always been blatant lying and spinning. The difference now is that we have the ability to record and replay history with audio and video, and to hold our elected leaders at least partly accountable to the facts.

        --
        The neocons will not give us our country back. If we want it back, we'll have to take it.
        --Lila Garrett

        by peacemonger on Tue Sep 13, 2005 at 08:54:15 AM PDT

        [ Parent ]

    •  Perjury is a sacrament to these people (none)
      The only way to derail this will be with proof of unethical or illegal behavior, it's out there but it must be found quickly now.
    •  Also loss of respect and influence... (none)
      ...on the Court itself.

      Even if he were so lacking in integrity -- which I do not believe -- others (not all) on the Court would shun him after such a stunt. Close cases where a respected and influential Chief could sway the Court would not be swayed.

      I've got blisters on my fingers!

      by Elwood Dowd on Tue Sep 13, 2005 at 08:06:49 AM PDT

      [ Parent ]

      •  But still... (none)
        as we've seen, the need to portray themselves as one thing takes precedent over all else...I have no doubt that, like his boss ("I'm a uniter, not a divider"), he will show his true colors in no
        time flat.

        "Stop comparing Bush to Hitler. Hitler was a decorated war veteran who saw front line combat." - Bill Maher

        by Jank2112 on Tue Sep 13, 2005 at 08:19:48 AM PDT

        [ Parent ]

    •  Reversing Roe would kill the GOP (none)
      And they know it.  Bush will not give us a court that will kill the GOP golden goose.
      •  Nope (none)
        ...it would just throw the issue to the states, and the Rethuglicans would exploit it at that level.  

        They'd get the best of both worlds:  appear to be rewarding their base, while allowing them to beg for donations to 50 separate fights.  It would be a windfall for the 'Thugs.

        Rubus Eradicandus Est.

        by Randomfactor on Tue Sep 13, 2005 at 08:45:58 AM PDT

        [ Parent ]

      •  Balkin's point (none)
        Professor Balkin has said as much, as well. (I'm too lazy to look up the link right now, but Balkinization should have some archives on this.)

        Reversing privacy protection would have devastating long-term effects for the GOP, as it would open the door to banning birth control, abortion, and the scant gay rights protections outlined in Lawrence and based on Griswold's precendent. That's tempting red meat for the social wingnut base, but it would be devastating to the GOP if lost the ability to stir up its crowd with inflamatory emotional language about dead babies and wanton sex fiends.

        No, Roe and privacy are fairly safe, in my opinion. The GOP likes to keep that carrot around to wave in front of its social base.

        I'm much more worried at this point on the ever-growing unchecked powers of the police granted through PATRIOT I/II and the too-corporate friendly decisions coming down from the court recently. On the social base, the one issue that remains a troubling question mark to me is affirmative action. I'll be the first to pop the champagne when we can do away with affirmative action laws because we've truly built a society where opportunity is not colorblind, but we sure ain't there yet.

    •  N-O-T-H-I-N-G! (none)
      The guy is not some moron. Does anyone think he's going to outBork Bork?

      Does anyone think he's going to say, I don't think there is a right to privacy?

      http://www.epluribusmedia.org/donate.htm

      by nyceve on Tue Sep 13, 2005 at 08:34:19 AM PDT

      [ Parent ]

      •  He could have dodge... (none)
        He could have said something to the effect of:  "That matter deals directly and indirectly with cases currently pending or likely to arise in the future and therefore I am barred by the cannons of legal and judicial ethics from commenting on the matter.."
    •  Impeachment (none)
      Isn't there an impeachment process for Justices? I recall the "Impeach Earl Warren" posters of years ago.

      He's got 30, 40 years ahead of him and possibly more depending on medical advances. That's a very long exposure to a possible Democratic resurgence if he becomes widely agreed to have lied in these hearings, or grossly misbehaving in office going forward.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Tue Sep 13, 2005 at 09:04:52 AM PDT

      [ Parent ]

  •  Yep. (none)
    I was stunned that Specter opened this way and Roberts walked right in the door.

    These may be interesting hearings after all.

    Democrats may be thinking, "Now, where'd I put that spine"

  •  Specter did a good job, Roberts dodged (none)
    I'm guessing you're not a lawyer Armando. Roberts was very careful to say that he believed in a right to privacy in the stated amendments. But he did not say that there was a broad right to privacy as found in Griswold and Roe. He hedged using lawyerly tricks. To the untrained ear he appeared to be saying more than he was. But he is a powerful intellect and appears to genuinely believe in stare decisis (unlike Thomas) so I would recommend the Senate confirm him. This is the price we pay for losing the election.

    Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

    by BrianVA on Tue Sep 13, 2005 at 07:47:17 AM PDT

    •  You guessed wrong (none)
      Armando's a lawyer.
      •  Ouch (none)
        that's a shame. No offense intended.

        Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

        by BrianVA on Tue Sep 13, 2005 at 07:50:02 AM PDT

        [ Parent ]

        •  None taken (none)
          Your comment was rather off the mark frankly. I sugest your reread Griswold. It seems to not have been on your radar.

          The SCOTUS is Extraordinary.

          by Armando on Tue Sep 13, 2005 at 07:52:06 AM PDT

          [ Parent ]

          •  Well I'm glad to see your ego is intact. (none)
            It's fine for us to disagree.

            Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

            by BrianVA on Tue Sep 13, 2005 at 07:56:47 AM PDT

            [ Parent ]

          •  Griswold notwithstanding... (none)
            ... and keeping in mind that I am NOT a lawyer...

            What I'm not sure of is whether it is possible for Roberts to agree with the words but not with the scope.

            What I mean is, Conservatives believe in the validity of the 1st, 3rd, 4th, 5th and 9th amdendments just as much as anyone else (which could mean "a lot" or "not at all" depending on your level of cynicism.) The difference is that, to the conservative mindset, those amendments aren't as broad as everyone else interprets them to be... and instead tend to be very limited in scope, at times hamstrung to the point of offering no significant protection at all.

            So when he says there is a right to privacy that comes from those amendments, what is he saying exactly? To someone who agrees fully with Griswold, it implies that he agrees with the courts thinking. But you can technically agree with the process that went into that decision and simply append "... but I think the court went too far" and suddenly that's not necessarily the case. I'd like to know whether he thinks the amendments were written in order to protect the right to privacy, or whether the right to privacy exists only under the situations covered by those amendments.

            Again: not a lawyer, just paranoid.

            The Baptist Death Ray (bdr[at]baptistdeathray[dot]com)
            "We are all born originals -- why is it so many of us die copies?"
            - Edward Young

            by The Baptist Death Ray on Tue Sep 13, 2005 at 09:11:00 AM PDT

            [ Parent ]

      •  Armando is a lawyer? (none)
        Thanks.  I didn't know that.  Is there a place where people talk about who they are and their life-experiences and blah-blah?  It would be interesting to know.

        "In the beginning the universe was created. This has been widely criticized and generally regarded as a bad move." -- Douglas Adams

        by LithiumCola on Tue Sep 13, 2005 at 08:03:50 AM PDT

        [ Parent ]

      •  Saying "Armando's a Lawyer" (none)
        is like saying "President Bush is not known for his intellect" or Herve Villechaize is Vertically Challenged.
        ;-)
      •  I strongly suspect he's not a trial lawyer though. (none)
        I can just see him doing a summation:

        And if you don't agree with me that my client is innocent, then you are a bunch of ignorant assholes, and it's a waste of time to continue this discussion.

    •  Well (none)
      I am a lwayer and he dodged nothing. He stated expressly and unequivocally "The Constitution recognizes a right to privacy." He then detailed where there privacy rights emanate from. He omitted the 9th Amendment. But the 9th does not create substantive rights - it recognizes unemerated rights.

      Frankly, I have to question YOUR legal skills and whether you have ever read Griswold v. Connecticut because Roberts' answer is practically a cribbing of Griswold v. Connecticut.

      The SCOTUS is Extraordinary.

      by Armando on Tue Sep 13, 2005 at 07:51:26 AM PDT

      [ Parent ]

      •  Read the transcript (none)
        he specifically enumerated what that "right to privacy" constituted. And as you point out, he did not extend it to the broad right to privacy we progressives believe in by omitting the 9th. We may be saying the same thing. But if we are you have to know that his recognition of the right to "privacy" in the enumerated amendments is nothing new even for a conservative.

        Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

        by BrianVA on Tue Sep 13, 2005 at 07:54:12 AM PDT

        [ Parent ]

        •  Then you should read Griswold (none)
          The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

          Roberts basically restated this paragraph. The last sentence must be pursued and can be pursued. And frankly, the language is clear and unequivocal.

          Due respect, you have made a mistake here.

          The SCOTUS is Extraordinary.

          by Armando on Tue Sep 13, 2005 at 07:56:21 AM PDT

          [ Parent ]

          •  You're right (none)
            if he had recited this paragraph, or even paraphrased it, that would have been news. If he had mentioned zones of privacy or even said "ninth" it would have been significant. But he didn't.

            Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

            by BrianVA on Tue Sep 13, 2005 at 07:58:33 AM PDT

            [ Parent ]

            •  I am sorry (none)
              But you are missing the point. Do you think he will deny the 9th?

              And did you not hear him say that right to privacy has been recognized by the SCOTUS for 80 years?

              He was unequivocal.

              I think you are now grasping at straws.

              Which leads me to this question, do YOU believe in the right to privacy as recognized in Griswold?

              The SCOTUS is Extraordinary.

              by Armando on Tue Sep 13, 2005 at 08:01:14 AM PDT

              [ Parent ]

              •  Yes McCarthy (none)
                what the hell are you talking about? Of course I do. You doubt my stripes b/c we don't agree on parsing his words? Come off it.

                Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

                by BrianVA on Tue Sep 13, 2005 at 08:05:29 AM PDT

                [ Parent ]

                •  McCarthy? (none)
                  I asked you a direct question. I accused you of nothing.

                  You have 13 comments, including those in this thread, for history.

                  I have no idea what your views are. And your comments gave me no evidence of what they were.

                  See, I base my judgments on evidence. You had no evidence of your views.

                  The SCOTUS is Extraordinary.

                  by Armando on Tue Sep 13, 2005 at 08:25:30 AM PDT

                  [ Parent ]

              •  sorry to intrude in a lawyers' argument (none)
                but I think the issue is whether he believes that "the right to privacy" is protected THROUGH the 9th, i.e. whether it's a broad fundamental right inherent in the Constitution and underlying the specific enumerated rights rather than a narrow general term that describes only what's been explicitly mentioned in these enumerated rights. As you've suggested, I think this point is what needs to be hammered on now that the door has been opened.

                remember your humanity, and forget the rest

                by human on Tue Sep 13, 2005 at 09:53:28 AM PDT

                [ Parent ]

            •  I'm not a lawyer, but the fact that he (4.00)
              outlined the others, but specifically not the ninth seemed particularly odd to me, too.

              By omission on purpose.  The unenumerated rights is the area where he can fudge.

              Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshall

              by bronte17 on Tue Sep 13, 2005 at 08:17:54 AM PDT

              [ Parent ]

          •  I mean think about it (none)
            Roberts has spent hundreds of hours preparing for these hearings. You don't think he considered how he would answer the question: "Do you believe there is a right to privacy in the constitution?" The way to answer that question and be honest is to say yeah and then enumerate the 1st, 3rd, and 4th, and call that privacy. What was he going to do otherwise? Say   "No". Not likely.

            Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

            by BrianVA on Tue Sep 13, 2005 at 08:03:36 AM PDT

            [ Parent ]

            •  Precisely (none)
              Think about it. He had hundreds of hours to formulate a weaselly answer and didn't give it. He has opened the door.

              We get to pursue the subject at length.

              Roberts is simply not all that you folks suggest I terms of clever lawyering, if his intent was to avoid the subject.
               

              The SCOTUS is Extraordinary.

              by Armando on Tue Sep 13, 2005 at 08:06:41 AM PDT

              [ Parent ]

              •  It sounds (none)
                like you are fairly impressed with Roberts, at this point.  I haven't been following the hearings (I don't have cable) . . . is it possible that Roberts is actually a good guy?

                "In the beginning the universe was created. This has been widely criticized and generally regarded as a bad move." -- Douglas Adams

                by LithiumCola on Tue Sep 13, 2005 at 08:09:37 AM PDT

                [ Parent ]

                •  No I am not (none)
                  I actually am less impressed with his cleverness at this time.

                  I am merely reacting to what he stated in his testimony.

                  He said what he said. Now we get to pursue it in depth.

                  The real point of my post. Hence, "Opening the Door."

                  The SCOTUS is Extraordinary.

                  by Armando on Tue Sep 13, 2005 at 08:22:42 AM PDT

                  [ Parent ]

                •  Yes (none)
                  As much as some here would deny it, I suspect he will end up being a moderate conservative swing vote with more intelligence than O'Connor.
              •  Armado, I think it is a well conceived strategy . (none)
                To make Roberts appear more benign than he actually is. If the MSM, portrays him as a moderate or a mainstream conservative in the mold of O'Conner (which I sincerely doubt he is), then this could give Bush cover to nominate a true hate monger like Janice Brown for the next slot.

                Armando, this guy is a slick as they come, like Mayor Nagin.

                http://www.epluribusmedia.org/donate.htm

                by nyceve on Tue Sep 13, 2005 at 08:17:50 AM PDT

                [ Parent ]

              •  Compare his response to Ruth Bader Ginsburg's (none)
                There is a constitutional right to privacy composed of at least two distinguishable parts. One is the privacy expressed most vividly in the fourth amendment: The Government shall not break into my home or my office without a warrant, based on probable cause; the Government shall leave me alone. The other is the notion of personal autonomy. The Government shall not make my decisions for me. I shall make, as an individual, uncontrolled by my Government, basic decisions that affect my life's course. Yes, I think that what has been placed under the label privacy is a constitutional right that has those two elements, the right to be let alone and the right to make basic decisions about one's life's course.

                Close enough for me.

          •  did he use the word "emanate"? (none)
            That would be a big deal indeed, as the conservatives have always made fun of the notion of privacy (or any other right) emanating from the Constitutional words.

            If he merely said - yes there is a right to privacy in the 4th, 5th, 3d amendments - that would be nice but unremarkable.  But if he said "emanate" this would be an express signal that he claims to buy into the whole Griswold/Roe theoretical framework

            •  Exactly my point (none)
              but you cut to the matter much more skillfully than me.

              Progressives believe in a strong, effective American government: balancing budgets, empowering people, & helping the least among us.

              by BrianVA on Tue Sep 13, 2005 at 09:36:01 AM PDT

              [ Parent ]

          •  What I would looooove to see... (none)
            ...is somebody digging up some of the more odious opinions of Scalia, Thomas, or Rhenquist (RIP) and having Roberts either defend or repudiate them.  THAT, my friends, would be Must See TV.

            What did we do to deserve George W. Bush?

            by republicans are idiots on Tue Sep 13, 2005 at 09:27:26 AM PDT

            [ Parent ]

      •  aoeu (none)
        If Roberts is parroting Griswold he could think that while there is a right to privacy from Griswold, abortion of fetuses is not a private matter.

        box turtle hatchlings
        are still proficient with teeth
        watch out John Roberts

        by TealVeal on Tue Sep 13, 2005 at 07:56:09 AM PDT

        [ Parent ]

        •  I do not agree (none)
          Take the opinion of Justice Potter Stewart, voting with te majority in Roe after dissenting in Griswold:

             Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a Connecticut birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution. 2 So it was clear [410 U.S. 113, 168] to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. 3 As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

                    "In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 . The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -239; Pierce v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390, 399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v. Guest, 383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v. Secretary of State, 378 U.S. 500, 505 ; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v. Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 . [410 U.S. 113, 169]

              As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speakingincludes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).

              Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 , we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person [410 U.S. 113, 170] as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F. Supp. 224, 227 (Conn. 1972).

          Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment.

          The SCOTUS is Extraordinary.

          by Armando on Tue Sep 13, 2005 at 07:58:59 AM PDT

          [ Parent ]

          •  But (none)
            that passage doesn't mean that Roberts cannot accept that a right to privacy exists, even as to abortion, and yet still hold that the state's interest in protecting life (even in the case of an unborn fetus) supercedes that right or at least allows the state to restrictr its exercise.

            Roberts might just balance the interests balanced by the Roe majority differently, using the same analytical frame work.

            In other words, while I find his apparent acceptance of Griswold encouraging, it does not signify to me that abortion rights are safe if he can be taken at his word.

            •  Fetus rights? (none)
              That would be new and unprecedented.

              The SCOTUS is Extraordinary.

              by Armando on Tue Sep 13, 2005 at 08:37:12 AM PDT

              [ Parent ]

              •  Roe itself allows prohibition in the 3rd trimester (none)
              •  I don't think fetus rights (none)
                are directly mentioned in the cases, but I believe the standard is the balancing test of the State's rights in the unborn, as discussed in Casey.

                The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State's interest with the woman's constitutionally protected liberty.

                although it's getting late, you still have plenty of time

                by maracuja on Tue Sep 13, 2005 at 11:07:05 AM PDT

                [ Parent ]

                •  Correct (none)
                  The notion that the state has an interest in protection of potential life is hardly unprecedented.  It is a theme than runs through the jurisprudence in this area.  Armando is correct that an express recognition of fetal rights would be unprecedented, but the practical effect of recognizing a state interest in the area amounts to the same thing if taken too far.
            •  Word (none)
              What I think is missed a lot in all this is that its not Roe that is under threat directly, its that it is under threat indirectly.  The wittling away at Roe, via Parental rights to know, requirements for judicial review  - ie teens must request permission from the court, first, second, third trimester restrictions, limits on drugs, etc....all these things are the real threat.  

              I learned this listening to someone from one of the right-to-choice groups talking about the court and Roe etc.  Their feeling is that Roe is too much of a political hot button to be directly over-turned...so it is secure.  But there is much damage being done to rights at the state level and with the SCOTUS support.  This where I want to know where Roberts stands.  When it comes down to it, you really need to know the candidate's ideology.  If they dont have one, they are lieing....even not having one would mean you still have one by default even if that means indifference.  The fact that this guy worked hard for Regan, Bush, and clerked under Rhenquist is all a big tip off.  He didn't have to do those jobs just to pay his rent.  So I dont buy this BS about being forthcoming today - its all hoo-ha.  Look at his carrer record and the things he has spent his time on, thats what he cares about.  Anyone can say anything on a given afternoon.

              onnyturf.com - Collective Political and Community Journalism by NYers for NYers

              by atomicBirdsong on Tue Sep 13, 2005 at 09:23:42 AM PDT

              [ Parent ]

          •  Substantive due process?? (none)
            Potter Stewart reconciled his dissent from Griswald and his concurrence in Roe based on a substantive due process argument.  See eg http://www.yalelawjournal.org/pdf/112-5/StevensFINAL.pdf
            As you may well know, the concept of Substantive Due Process is no longer the coin of the realm in the Supreme Court.  While it was used as "filler" in the past when the Supremes wanted to achieve a particular result but couldn't find the textual basis for the result, it has fallen on hard times of late.  I wouldn't cite to these quotes expecting any of the current Supremes to give you a high five.  Stare Decisis is the way to go, not substantive due process.
      •  Stare decisis (none)
        I suspect that a question about his views on stare decisis will be more revealing than this vague question about the right to privacy. Personally, I think that Griswold was a badly reasoned decision that came to the right result and should be upheld as a matter of stare decisis ... and Roberts may too even if he would not have agreed with the original decision.
      •  I have to disagree with Armando on this (none)
        Armando says

        He stated expressly and unequivocally "The Constitution recognizes a right to privacy." but then he specifically omitted mentioning the 9th Amendment.  

        Armando says that's ok because the ninth doesn't create rights it just recognizes unenumerated rights. But note that in Roberts' answer he wasn't talking about where the constitution creates privacy rights but where it recognizes privacy rights.  Words matter, especially when chosen with as much care as in this matter.

        Consider - he had to the chance to mention the Ninth and chose not to. That's significant.  A nod to Griswold is not an embrace of Griswold.  You should be careful not to fall for a feint.

        Let me put it another way.  If Roberts believes that the Constitution recognizes the right to privacy specified in certain amendments to the Constitution but does not believe in a generic unenumerated right to privacy under the Ninth - how would his answer have been any different?

        If you want something other than the obvious to happen, you've got to do something other than the obvious...

        by trillian on Tue Sep 13, 2005 at 09:10:01 AM PDT

        [ Parent ]

      •  You hear what you want...not what Roberts said (none)
        Recognizing a right of privacy founded in, for example, the 4th amendment is hardly earth shattering...it opens the door to nothing that hasn't been settled law since the days of Blackstone.  I think that BrianVa has it exactly right-Roberts recognized the obvious "privacy" protections that are enumerated in the Constitution, and avoided any express recognition of the "penumbras" of a right to an abortion.  He hasn't opened any doors to a free-weeling discussion of the extent and scope of unenumerated privacy rights-hence his failure to cite to the 9th Amendment.  He has given the Democrats a sound bite to feel good about, while assiduously avoiding the "A" word.  Noteable, Ginsburg took a similar approach during her confirmation hearing.  She never expressly stated she supported a constitutional right to an abortion.
        •  Yeah... (none)
          I agree - I think Armando's hearing what he wants to hear - I think it's what Roberts WANTS the "left" to hear as well - and it's a clever side-step.  

          RBG was much more explicit in her discussion of autonomy as a part of privacy doctrine.  Roberts wasn't.  And he said nothing which would prevent him (he of the Imperial Presidency) from finding a compelling state interest which supercedes personal autonomy.  The view of privacy he suggests is of a cloth with the interpretation which has allowed, except for Kyllo, the recent trend of gutting the 4th.  A reading which finds that dog-sniffs aren't "searches" within the meaning of the 4th.  

          Roberts has also armed the Republican committee members and Vast-Right-Wing-Noise-Machine with a "I recognize and support a right to privacy" that completely undercuts the existing personal autonomy meme.  The average half-wit will most certainly not grok the distinction - even those of us who pay very close attention are in disagreement.  

          Finally, all the previous moderates-in-wolves-clothing appointees (Warren and Black leap to mind) had significant life experience outside the courtroom.  Roberts is a true Bushie in this respect: he's only lived inside the rarified Whitehouse atmosphere since leaving the Ivory Tower.  This guy will not overturn Roe outright, but he's gunning for it, and he knows how death-by-a-thousand-cuts works.

    •  has he said anything about the scope (none)
      of the privacy right?  I understand that someone can quote or even invoke a few lines from a favorable case, but unless he comes out and says, "I agree with the reasoning of case X" or "I believe that the right of privacy includes the right to do y," then the statement means little in the grand scheme of things.
    •  agreed (none)
      He was effective in citing specific privacy rights without mention the right to abortion
  •  It looks like (none)
    you can think the bloggers, in part, for what's going on. Or blame them, if you're Chuck Grassley.

    "'My country, right or wrong,' is a thing that no patriot would think of saying except in a desperate case." --G. K. Chesterton

    by Omen on Tue Sep 13, 2005 at 07:49:46 AM PDT

    •  Chuck's ground (none)
      I lived in Iowa for thirty-odd years (and yes, some of them were plenty odd.)  Senator-for-life Grassley is popular in Iowa for his down-home image -- hey!  He mows his own lawn! --  but not exactly renowned for his intellect.

      Really, people.  Iowans are smarter than Chucky G. would lead you to believe.

      "Life is too important to take seriously."

      by Tommy Allen on Tue Sep 13, 2005 at 08:19:34 AM PDT

      [ Parent ]

      •  What's Sad... (4.00)
        ...is that when Chuck Grassley was elected to the Senate, he was widely (and correctly, IMO) seen as the dumbest man in that body. Now he's not even close.  For instance, he could run intellectual laps around my two Senators, Inhofe and Coburn.

        "This war is an ex-parrot." - The Editors

        by GreenSooner on Tue Sep 13, 2005 at 08:35:59 AM PDT

        [ Parent ]

        •  How about Conrad Burns? (none)
          Conrad Burns isn't exactly a member of Mensa either!
        •  So...completely off-topic... (none)
          but, I'm just wondering: when can we revoke the statehood of Oklahoma and other gradually de-populating territories (which, IIRC though this part of my US history is weak, had some difficulty making the population requirements in the first place)?  Inhofe is particularly bad and Coburn is just a joke (the crying over partisanship crap).

          Really, those small (population) states are increasingly like small island-countries: easily dominated and controlled by a very few wealthy folks.  They're kind of like corrupt burroughs or wards where the party machines could sell their seats.  Both of your Senators are "owned" by coporate lobbyists, IMHO, and their wacky policy proscriptions (the ones not controlled/written by corporate lobbyists) are aimed for the fringe right, who wield disproportionate power in your state, since your population is badly skewed.  Coburn is just the guy for a major expose - I want someone to find evidence that he's impregnating teenage girls.  

          •  I Think You're Confusing Oklahoma... (none)
            ...with states like the Dakotas and Wyoming.

            Oklahoma is currently something like the 28th most populous state, and the U.S. census bureau predicts that it will still be the 28th most populous state in 2025. This is hardly a depopulated state.  Although our population is growing more slowly than the national rate, it is still very much growing.

            Nor are only small states controlled by monied elites. Indeed, the biggest states often offer less possibility for "retail" politics, thus putting a premium on being able to do big TV ad buys, which is all about money.

            This is not to say that actually small states aren't overrepresented.

            The Senate is, of course, an inherently undemocratic institution. But it's hardwired into the Constitution (it essentially cannot be changed without all fifty states agreeing to do so).

            However, truly small states (i.e. those with a single Congressperson) are currently also overrepresented in the House. This is relatively easy to change. Congress just needs to expand itself, and make the average district the size of the smallest state (which is currently Wyoming).

            "This war is an ex-parrot." - The Editors

            by GreenSooner on Tue Sep 13, 2005 at 02:44:32 PM PDT

            [ Parent ]

            •  You're right (none)
              Although I'm surprised...what in the heck is there?  Oil?  I assumed OK was one of those places that folks streamed into during the last of the land rushes and had begun draining.  Yes, I am speaking more of the Dakotas, etc.

              The question of retail politics is complicated, but the disproportionate representation of social and economic reactionaries from welfare states (Trent Lott is representative of this) seems to be a feature of the smaller, poorer states.  I may be wrong.

              Boy, after I saw the crossword puzzle bit with Coburn, geez...yeah, he's taking this very seriously...

  •  The Judiciary Committee (none)
    takes the constitution and the Supreme Court very seriously, especially as the activist court, and the activist evangelical right has been trying to undermine the authority of Congress.

    I hope Specter's first lines of questioning gives the neo-con Christians fits and seizures. Specter is furious with the courts efforts to over rule Congress and offers strong support for Supreme Court TV, to guarantee that the judiciary remians independent.

    inspire change...don't back down

    by missliberties on Tue Sep 13, 2005 at 07:50:14 AM PDT

  •  If he's doing well... (4.00)
    ...it's because he's lying his ass off.

    Part of a comment I posted over at My Left Wing:

    Uh-huh.  Suuuuuuuuuuuuuure, Johnboy.  You'll forgive me if I don't believe you there, Mr. Roberts, it's just that no one in your party has told the truth since the Eisenhower Administration.

    TBogg has it right:  Justice Trojan Horse.  Don't be fooled by his plastic hair and impossibly square jaw or his Xanaxed wife and marionette children.  The man is evil.

    On sleepless roads the sleepless go...

    by Raybin on Tue Sep 13, 2005 at 07:50:57 AM PDT

    •  Exactly! n/t (none)

      Reason obeys itself; and ignorance submits to whatever is dictated to it. -Tom Paine

      by Alumbrados on Tue Sep 13, 2005 at 07:53:42 AM PDT

      [ Parent ]

    •  I agree he may be lying but . . . (none)
      let's give the guy the benefit of the doubt for a moment.

      Let's say Armando is correct and the wingers may be in trouble.  I'm more inclined to think the guy is a skillful liar.  But that said, if Roberts comes off as more benign than originally thought (likely a carefully conceived strategy), doesn't this make a real winger like Janice Rodgers Brown probable for the next slot?

      http://www.epluribusmedia.org/donate.htm

      by nyceve on Tue Sep 13, 2005 at 07:57:57 AM PDT

      [ Parent ]

      •  I'm sorry, but I just can't (4.00)
        I respect what you're saying and I see your point, but I can't and won't ever be able to give anyone associated with this gang of thugs the benefit of the doubt.

        I'd be HAPPYHAPPYOVERJOYED to be wrong and have John Roberts turn into David Souter or Harry Blackmun or John Stevens.  But until that happens, I'll expect the worst.

        On sleepless roads the sleepless go...

        by Raybin on Tue Sep 13, 2005 at 08:03:02 AM PDT

        [ Parent ]

        •  I certainly understand your point (none)
          and maybe I'm grasping at straws.

          But Bushco has proven to be to so spectacularly incompetent at picking folks, that maybe Roberts is a stand-up guy, despite their expectations.  Any thoughts?

          "In the beginning the universe was created. This has been widely criticized and generally regarded as a bad move." -- Douglas Adams

          by LithiumCola on Tue Sep 13, 2005 at 08:12:52 AM PDT

          [ Parent ]

        •  Raybin, you misunderestimate me . . . (4.00)
          I do think Roberts is a good liar. What I am saying, is if he comes across as more moderate than expected (although this is all deceit and lies) doesn't this give Bushco cover to nominate a super extremist like Janice R. Brown. What I've read about Janice Rodgers Brown is truly horrifying. Waorse than Thomas.

          http://www.epluribusmedia.org/donate.htm

          by nyceve on Tue Sep 13, 2005 at 08:13:32 AM PDT

          [ Parent ]

        •  B of D my A (none)
          yeah, when did they ever earn the benefit of the doubt?!

          I start with extreme distrust of this gang and they have to dig themselves out from there.

          onnyturf.com - Collective Political and Community Journalism by NYers for NYers

          by atomicBirdsong on Tue Sep 13, 2005 at 09:26:50 AM PDT

          [ Parent ]

        •  look to history (none)
          Eisenhower appointed Earl Warren expecting a rubber stamp for his conservative policies.  Things certainly didn't turn out that way.  You seem to yearn for an ideolog who will rubber stamp your political views.  California had one in Rose Bird-yet she was eventually drummed of the bench precisely because her decisions pandered to her political base.  I would rather have a smart independant Justice, than one who ignores the law in order to deliver political pablum at the expense of sound reasoning.
    •  I'm sorry but... (none)
      I have a bit more respect for Judges then that.

      I don't think that even a right wing one is going to get up there and lie.

      If he would have instead just avoided answering the question... but outright lying?  That's a stretch.

      •  No Lies? (4.00)
        I don't think that even a right wing one is going to get up there and lie.

        Allow me to introduce you to Justice Clarence Thomas.

      •  Five years ago I would have agreed with you (none)
        This bunch considers the Constitution naught but toilet paper.

        The Movement is more important to them than anything.  You're not a judge...you're a member of the Movement, duty bound to use your power to advance the goals of the Movement.  

        On sleepless roads the sleepless go...

        by Raybin on Tue Sep 13, 2005 at 09:31:38 AM PDT

        [ Parent ]

    •  It's called obfuscation (none)
      Not lying, just not fully revealing his true self.

      Rather like an assassin hidden in the folds of the shadows.

      Our... constitutional heritage rebels at the thought of giving government the power to control men's minds. Thurgood Marshall

      by bronte17 on Tue Sep 13, 2005 at 08:53:00 AM PDT

      [ Parent ]

    •  Exactly! (none)
      Didn't your Mama always tell you to go by what a man does instead of what he says?  Your Mama was right (as always).  Roberts can say whatever he likes today, but once on the court, he can do whatever he likes.  Actions, not talk, are the true measure.
      •  Unearth the docs, turn over the rock (none)
        WH is still stonewalling and Roberts didn't fully explain his personal view ("we were burned") to TK -- just reiterated what his job was with Reagan at the time. Yeah, but that didn't answer the question.
  •  I'm sorry to say this, but I believe (4.00)
    that the only thing it means is that Roberts will say anything to "sail" through the confirmation process.

    He'll say anything he knows Democrats are looking to hear so as to interpret it for what they want.

    If dems are looking for acknowledgement of a right to privacy, then he'll say that he believes there is one.

    Once he is confirmed and in the seat, he will then do whatever the hell he pleases.  Whether or not it bears any connection to what he said he believed in during his confirmation hearing.

    I am sure that Roberts is, like most intelligent people, a man of certain principles.

    But he is also a religious conservative and one committed to a Republican majority and to "family values."

    I believe that that commitment is uppermost for him and for those supporting him.  And thus, he will say anything needed in order to advance the cause of that commitment.

    •  Agreed (4.00)
      this guy is just a little too slick, much too perfect for me not to worry.

      "This ain't no party, this ain't no disco, this ain't no foolin' around!"

      by demkat620 on Tue Sep 13, 2005 at 08:00:19 AM PDT

      [ Parent ]

      •  He's slick, but... (4.00)
        I don't really think that is an issue.  I would prefer a smart conservative that sees the consequences of his rulings rather than the ideological Scalia or Thomas.  I am just glad that we didn't get another one of those.  

        Point being, there will be some justice put on the court.  Though I would prefer an 80 year old with heart trouble, given what I have seen from Roberts, I can deal with him much better than some of the other potential nominees (such as the recent extreme nominees who went through the pseudo-filibuster).

    •  My fears exactly. (4.00)
      That's why I diaried how it only took the Presidon't 33 hours after the passing of Rehnquist to elevate Roberts' nomination to Chief Justice.

      Keep in mind, during this same timeframe, it took him 120 hours after the federal State of Emergency was declared to actually talk about Hurricane Katrina.

      We all know the Presidon't is more chattel than cattle, but for him to be that far out-of-whack in his priorities leads me to believe Roberts is more dangerous than we know.

      "I'm not an actor, but I play one on TV."

      by zeitshabba on Tue Sep 13, 2005 at 08:07:13 AM PDT

      [ Parent ]

      •  My take on that ,,, (none)

        is that the White House had private information about Rehnquist's death being imminent, and as such was prepared well in advance.

        I think that's also why they didn't push to have the hearings sooner, because they really wanted Roberts as CJ from the start.

        Hopelessly pedantic since 1963.

        by admiralh on Tue Sep 13, 2005 at 08:20:47 AM PDT

        [ Parent ]

        •  And They've Had 70 Years to Work On (none)
          the Court problem generally. It's not as though there was anyting on the planet even 1% as important to them for this Presidential term.

          We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

          by Gooserock on Tue Sep 13, 2005 at 09:09:08 AM PDT

          [ Parent ]

    •  Come off it (none)
      Do you honestly think that an attorney as intelligent as Roberts would risk his future credibility to appease members of a 45-seat minority party?  When there is doubt they could mount a filibuster in any event?  Or that the nuclear option would not be invoked?  He is saying what he believes.  Look for gaps and weasel room, don't assume outright lies.
      •  In a word, yes. (none)
        Yes, I believe he would (as you put it) risk future credibility, because the senate gives members and justices and folks like this a LOT of leeway historically in the "credibility" department.  He knows that.

        Yes, I believe that he knows they would save any filibuster for something really big... whatever that might be.  They have always, until now, in the last few years, negotiated through any filibuster threat and worked with republicans.  I truly do not believe that there are any teeth whatsoever in any potential democratic filibuster at this point, Harry Reid's persistence and feistiness notwithstanding.

        For the same reasons I believe that the "nuclear option" would not be invoked in this case.

        I do still assume an outright lie.  The Republicans have redefined "integrity" and "honesty" in the last decade.  Actually, since 1996, they have perverted the meanings of those things for the sake of political expediency-- consistently, steadily, and without impunity.  They have done so for the sake of power-- gain of, and retention of, political and financial power.  Thus I no longer think any conservative Republican incapable of an outright lie under oath.

      •  weasel room and lies (none)
        this really just gets to be semantic doesn't it?

        The point is it's all smoke screen.
        Label it as you like.

        onnyturf.com - Collective Political and Community Journalism by NYers for NYers

        by atomicBirdsong on Tue Sep 13, 2005 at 09:35:35 AM PDT

        [ Parent ]

    •  pin him down (none)
      He'll say anything he knows Democrats are looking to hear so as to interpret it for what they want.

      That's why he needs to be pinned down. His vague affirmation of a "right to privacy" needs to be the beginning, not the end.

      remember your humanity, and forget the rest

      by human on Tue Sep 13, 2005 at 10:05:23 AM PDT

      [ Parent ]

  •  So what does this mean? (none)
    His views on stare decisis and Griswald were our main concerns, correct? Does this mean his legal philosophy passes our criteria or not? What should we be looking for/worried about in the questioning?
    •  several things (4.00)
      the scope of Executive power (including the authority to indefinitely detain "enemy combatants") and the scope of the Interstate Commerce Clause are biggies (the ICC is the sole source of constitutional authority for much of Congress' social legislation; the Rehnquist Court had been in the process of narrowing this scope in the name of states' rights).
  •  Bush's Problem (none)
    Prior to Rhenquist's passing, I was ready to go to the mat against this guy, but now we have an opening. We could let Roberts pass on the condition Bush nominate someone closer to O'Connor.

    "We must all hang together or assuredly we will all hang seperately." - Ben Franklin

    by RandyMI on Tue Sep 13, 2005 at 07:56:06 AM PDT

    •  maybe (none)
      if they turn over the documents. But the senate Dems still need to establish that he's a winger and vote against him so they can say "you got your winger, now we want our real moderate".

      remember your humanity, and forget the rest

      by human on Tue Sep 13, 2005 at 10:10:05 AM PDT

      [ Parent ]

  •  Wow (4.00)
    Dobson must be punching the walls right now.

    The sleep of reason produces monsters. Francisco Goya

    by Dire Radiant on Tue Sep 13, 2005 at 07:56:32 AM PDT

  •  here's my line of thinking (4.00)
    The common wisdom seems to be that we should never trust Bush because he always has our worst interests at heart. I'm taking the opposite tact, and saying that Bush is simply serially incompetent in doing everything he has ever tried:

    *Running an oil company
    *Owning a baseball team
    *Invading a country
    *Democratizing said country
    *Interpreting intelligence
    *Cleaning up after disasters
    *Managing the economy

    And so on. Hopefully this track record carries over when he tries to:

    *Appoint a wingnut to the Supreme Court

    C'mon people, there's hope here.

    souter souter souter souter

  •  lol! (none)
    Roberts just brought up defending welfare recepients. This is too funny. It's like he's throwing a big bone at the Democratic Party.

    What's madness but nobility of the soul at odds with circumstance?

    by slinkerwink on Tue Sep 13, 2005 at 07:58:06 AM PDT

  •  "Judicial Activism" (none)
    I appreciated the fact that he politely dismissed the term "judicial activism" when Hatch was trying to push it.
    •  I wish I was near a TV (none)
      I can see Hatch turning deep red. Roberts is just too smart for some of those knuckle-draggers to converse with and may wind up with GOP votes against him.

      "We must all hang together or assuredly we will all hang seperately." - Ben Franklin

      by RandyMI on Tue Sep 13, 2005 at 08:01:02 AM PDT

      [ Parent ]

  •  Stare Decisis (none)
    So I took Latin in college and I actually passed the class.

    Decisis was an easy one, as it's the base of our word Decided.  But I had to go look up Stare, which means to stand beside.

    So this phrase means to stand beside things decided.

    There's more on it at wikipedia.

    Seems to be a fancy phrase for precedent. :-)

    That's interesting in the wiki article about Scalias view that we have only Civil Law in this nation and not Common Law.  I've always been of the mind that we have both, that our Common Law derived from our British heritage as a nation.

  •  Anyone wander over to Freeperville? (none)
    I can't, by doctor's orders; but I'm wondering if they're freaking out a bit by Roberts's answers, or if they're completely at ease and comfortable that he's just saying whatever needs to be said to be confirmed relatively smoothly.

    The public wants what the public gets, but I don't get what this society wants -- Paul Weller

    by jamfan on Tue Sep 13, 2005 at 08:01:30 AM PDT

  •  One Freeper's Comment (none)
    LINK

    "Spectre has really misled us, imo, when he said and columns were written about how he wouldn't ask about abortion. And he's really pushing Roberts to answer some questions that so far Roberts has declined to answer."

    "We must all hang together or assuredly we will all hang seperately." - Ben Franklin

    by RandyMI on Tue Sep 13, 2005 at 08:04:21 AM PDT

  •  Armando (4.00)
    I have a theory. Bush and his funding sources do not give two shits about abortion, privacy, stare decisis, etc. They care about having a corporate "rights" cheerleader in the chief justice's chair. This they will now have, courtesy of our detailed atention to their smokescreens.

    To paraphrase Alfred E. Newmann: What, me paranoid?

    For every complex problem there is a simple solution that is completely wrong.

    by MarkInSanFran on Tue Sep 13, 2005 at 08:05:56 AM PDT

    •  Bingo.... (none)
      I have felt this for some time.  Roberts was supposed to replace O'Connor.  He was a rushed decision to elevate to chief justice was a forced one, due to new political realities and time constraints before the new court beginning in Oct.

      Bush will feel pressure to offer up the next one as the social conservatives ideal.  That one, we filibuster.

      "For the Mardi Gras
      Neo-con domestic shock and awe.."--Rep. Major Owens

      by Cathy on Tue Sep 13, 2005 at 08:11:02 AM PDT

      [ Parent ]

    •  good theory (none)
      I've had a similar nagging feeling for a while too. Kind of reassuring in a way, though. To know that the dobsonites are getting as played as we are.

      "I didn't dig it out, it was given to me... they gave me the name and I used it." - Novak, Newsday, 7/22/03

      by thirdparty on Tue Sep 13, 2005 at 08:14:05 AM PDT

      [ Parent ]

    •  This was the point of the last hour of AAR's (4.00)
      "Morning Sedition." Catherine Crier was the guest. The huge, fundamental shift the right is hoping for is all about the rights of the corporation over the rights of the individual, and the erosion of all regulations on corporations. The real right in this country is far more eager to eradicate worker protections, environmental protections, fair corporate taxation, consumer protections, etc., than they are to eradicate abortion. They relish the abortion red herring.

      The public wants what the public gets, but I don't get what this society wants -- Paul Weller

      by jamfan on Tue Sep 13, 2005 at 08:18:11 AM PDT

      [ Parent ]

    •  Keep In Mind (none)
      All the apparatus for news and public discourse are the private corporate property of Republicans.

      The reason we all tear our hair out arguing over which two-syllable slogan we should use to take back democracy is that the public square is totally fascist, anti-democratic. It is impossible for an opposition to communicate intelligently with the American electorate.

      And with the Court shifting corporatist-hard-right, most of us will not live to see a democratic public square in the United States.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Tue Sep 13, 2005 at 09:17:27 AM PDT

      [ Parent ]

  •  Oh, good, I feel better now (4.00)
    Chris Bowers sniffs out the truth behind Roberts' testimony:

    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. <bold>He explained that Roberts's answer was carefully framed to provide a basis for revisiting and overturning Roe in the future.</bold>

    Any questions?

    The liberal blogosphere needs to beam these quotes, and any other quotes of this type, around the world at the speed of light - unless we want the prediction that these answers will "satisfy most Americans" to come true.

    •  Just saw that; you beat me to it. [n/t] (none)

      The public wants what the public gets, but I don't get what this society wants -- Paul Weller

      by jamfan on Tue Sep 13, 2005 at 08:10:01 AM PDT

      [ Parent ]

    •  Sorry (4.00)
      I am not buying it.

      As my post suggests, that is utter nonsense.

      Why would they be beaming at an answer that recognizes the right to privacy in words that came straight from Griswold?

      Folks, think for yourself. don't let the nonsense from idiot Wingnuts let you misunderstand the moment.

      The SCOTUS is Extraordinary.

      by Armando on Tue Sep 13, 2005 at 08:10:02 AM PDT

      [ Parent ]

      •  Remember, Confirmthem is an alter-ego of redstate (none)
        Of course they're going to be spinning this as anti-abortion.  This is a group that tried to minimize the Katrina damage by talking about aborted fetuses.  

        Roberts will almost certainly be an improvement over the late Chief Justice (who, like Roberts also apparently was a nice guy).

        If he's going to get up there and lie his ass off (which I doubt), there's not much we can do about it.

      •  Meh (none)
        The entire right wing has been based on lies for several years.  You are trying to say the lying is in the base but not in this candidate (i.e. they are claiming a victory where none exists).  It seems more parsimonious to conclude the lying is also in the candidate (i.e. he's giving good answers that he won't stick to).

        Liberal: A person who thinks there are things that are more evil than taxes.

        by RequestedUsername on Tue Sep 13, 2005 at 08:17:05 AM PDT

        [ Parent ]

      •  Gosh (4.00)
        You seem to have decided awfully fast that it is the wingnuts who are being played for fools, and not us.

        In the discussions on stare decisis and other issues, you have often pointed out that this is a political blog, and not a legal one.  Politically, when the other side is gloating about something they think they are getting away with, you probably want to highlight it, whether or not you happen to agree with them from a legal standpoint.

        Unless you have made the decision to go ju-jitsu on us I don't understand what your POLITICAL goal is at this particular moment.

        •  Come on (none)
          Roberts' answer on privacy should NOT make them beam.

          It makes no sense.

          Gosh, if you don't see that, then hw else do you explain Roberts' opening the door.

          With due respect, you cited Confirm Them to give us your reaction. I find that approach to be utter bullshit.

          Chris should note it, but not let that be the basis for his analysis.

          We make our own judgments.

          The SCOTUS is Extraordinary.

          by Armando on Tue Sep 13, 2005 at 08:28:24 AM PDT

          [ Parent ]

          •  My reaction (4.00)
            Well, first, here is how SCOTUSBlog summarizes Roberts' testimony:

            9:52 - Specter asks about Roberts' reference in a memo to the "so-called right to privacy." Roberts - I do believe that the right to privacy is protected in various ways; the 4th A; the 1st A; 3d A; and in addition the Court has over a series of decisions going back 80 years has recognized that it is a component of the liberty protected by the Due Process Clause, not merely procedurally but also as a substantive matter as well.

            Working from that, as opposed to being able to hear the actual testimony, I have two reactions:

            1. Of course there is a "right to privacy" in the sense that, for example, the privacy of your home is protected from unreasonable searches and seizures.  No one denies that.  If I were a total wingnut, my answer would probably sound something like "sure there is a right to privacy, as specifically enumerated in the 1st, 3rd, and 4th amendments," and I would hope everyone just focused on the first part of my answer.

            2. Recognizing that there is an 80-year line of substantive due process cases does not say anything about whether you agree with the rights identified in those cases, or whether you would seek to narrow the scope of substantive due process as a Justice.  Now if he said that he agrees with the substantive due process line of cases, THAT would be newsworthy.

            Ninth Amendment, friends, it's all about the Ninth Amendment.  Saying there is a "right to privacy" is meaningless without some statement of which substantive interests are protected by that right.  If you believe abortion is murder, for example, there's surely no right to murder people in private, so the "right to privacy" would not protect abortion in the slightest.
            •  Damned right it's the ninth amendment (none)
              We need  to follow up on this. He's got to address the ninth amendment privacy rights, or its meaningless.

              Should also address other "unenumerated" rights.

              I like to think of the Republican Party as an Iceberg--large, white, cold-hearted, not too swift, and can't change direction.

              by DyspepTex on Tue Sep 13, 2005 at 08:47:00 AM PDT

              [ Parent ]

        •  I Agree (none)
          Saying that the Court has recognized some right to privacy says nothing about the scope of the right, and no one believes that states want to start regulating marital purchase of contraceptives again.

          What was he going to say, Armando? "I do not believe the Supreme Court has recognized any right to privacy"?

          •  What was he going to say (none)
            The idea of weaseling around it and discussing minutia and running out the clock does not strike you as an alternative?

            And you miss my larger point. He has OPENED THE DOOR.

            The SCOTUS is Extraordinary.

            by Armando on Tue Sep 13, 2005 at 08:31:43 AM PDT

            [ Parent ]

            •  Not really (none)
              Between weaseling around for two days and just restating the basics of Griswold, he took the obvious choice.  

              The door is always open for these questions, Armando -- the Senators can do whatever they want.  I just don't know what you think is going to be revealed here.

        •  As for my political strategy (none)
          my post is title Opening the Door.

          I have a suggested line of questioning.

          How can I make it plainer?

          The SCOTUS is Extraordinary.

          by Armando on Tue Sep 13, 2005 at 08:30:43 AM PDT

          [ Parent ]

      •  cause the don't understand english (none)

        inspire change...don't back down

        by missliberties on Tue Sep 13, 2005 at 08:38:49 AM PDT

        [ Parent ]

    •  Let me add (none)
      That Chris speaks of a "general right to privacy" and that simply is not consistent with Griswold.

      I assume that is what is leading to his confusion, he is unfamiliar with the jurisprudence in detail.

      The SCOTUS is Extraordinary.

      by Armando on Tue Sep 13, 2005 at 08:11:46 AM PDT

      [ Parent ]

    •  Thing is, (none)
      at this point strategy and honesty march hand-in-hand.

      I trust Armando's opinion on this (though where the hell's acbonin? I wanna hear him, too). Armando's not exactly Redstate or ConfirmThem, and he's not exactly naive. So this honestly sounds like good news to me.

      I'm not a lawyer, though, so much of this goes over my head. But strategically, frankly, our best option is to write screaming Front Page articles such as,  "JOHN ROBERTS: ABSOLUTELY PRO-CHOICE!" and "ROBERTS SUPPORT ROE." If we get nervous over what they're saying on Redstate, you think they don't worry when we celebrate. If this is genuinely good news, we oughtta applaud Roberts. If this isn't genuinely good news, we oughtta applaud that much harder: that's the best way to drive a wedge between him and the theocrat right.

      Let there be sharks - TracieLynn

      by GussieFN on Tue Sep 13, 2005 at 08:13:39 AM PDT

      [ Parent ]

      •  For the record (none)
        I am a lawyer, too, and at this point I am somewhat more skeptical than Armando.

        The thing is, we'll never know for sure, unless and until Roberts is on the bench and starts writing opinions.  The question is what we do at this moment.  Certainly, the plausible-sounding answers he's given so far make it much harder to filibuster him than if he had denied that a right to privacy exists.

        •  As a non-lawyer, (none)
          all you can do is find a lawyer your trust, then close your eyes and think of England.

          Seems to me there's some reasonable disagreement among lawyers on dKos (and I guess that's utterly to be expected), but I suppose my real point is:

          If Armando's right, that's great.

          If Armando's wrong, that's even better, because though countless Americans will suffer, I'll be able to write a daily diary entitled: "Armando Was Wrong."

          Oh, wait, no ... I mean, if Armando's wrong, and they're pulling the wool over even his partisan eyes, then we're fucked in terms of blocking this nomination anyway, so we oughtta be thinking about political strategy. And what's the best political strategy, given we're not realistically gonna filibuster a nominee about whom even dailyKos is split? It's using him as a wedge against the right.

          I guess I don't see a better option than singing his praises, unless we learn something really alarming.

          Let there be sharks - TracieLynn

          by GussieFN on Tue Sep 13, 2005 at 08:29:23 AM PDT

          [ Parent ]

          •  Hold up (none)
            I am dong nothing here but describing what the man testified to and suggesdting that it opens the door for Democrats to pursue this in detail. I even suggest a line of questioning.

            I do object to NOT acknowledging the man's testimony - for the pragmatic reason that then you do not accept that he has indeed opened the door.

            The SCOTUS is Extraordinary.

            by Armando on Tue Sep 13, 2005 at 08:40:02 AM PDT

            [ Parent ]

            •  Well, but I think my point holds: (none)
              Even if not for reasons of accuracy, we oughtta trumpet Roberts's 'pro-choice' stance for reasons of politics.

              But I guess I did misrepresent what you're saying. For which: oops.

              Let there be sharks - TracieLynn

              by GussieFN on Tue Sep 13, 2005 at 09:02:51 AM PDT

              [ Parent ]

        •  Me too...and me too (none)
          I mean, I'm glad he didn't say he doesn't believe that there exists no Constitutional . . . just like I'm glad he didn't pull out an Uzi and blow everyone away.

          The bottom line, from a legal perspective, is that he didn't commit to anything that "opens the door" or "binds him" or anything like that.

          I'm sick of spinning sh*t in my head, trying to make myself feel better -- I've done that with debates and polls (and those f*cking exit polls) and it serves no purpose, IMO.

          Roberts is conservative. He's not SDO'C. He's not. We have to face that. I think he's better than Thomas or Scalia and I am glad that he was nominated for Chief Justice so either of those won't. But again, that may be making another silly assumption. Who knows how bad this can turn out?

          Sorry to rain on the parade but I think one sentence talking about a constitutional right toi privacy -- viewed in conjunction with his REPEATED dodges of Roe -- doesn't make me feel any better.  

          "I voted for Bush in 2000," said Kutcher. "Boy, did I get punk'd."

          by samlang on Tue Sep 13, 2005 at 08:54:27 AM PDT

          [ Parent ]

        •  Context is everything. (none)
          (As a lawyer) the context in which somebody is speaking is everything.  What somebody says when he has no reason to lie counts for a lot more than what somebody says when he does have reason to lie.

          The real point is that whatever Roberts says right now doesn't mean very much because of the context.  Roberts has tremendous incentive to say whatever will get him confirmed, whether it is true or not.  If there is a difference between what he says now and what he said before it's possible that it's because he's gotten smarter, but it's much more likely that his story changed because he wants to be confirmed.

          The Bush White House: Where being right gets you fired and being wrong gets you the Presidential Medal of Freedom.

          by Tod on Tue Sep 13, 2005 at 10:01:53 AM PDT

          [ Parent ]

    •  Confirm Them is an interesting site.... (none)
      I must assume that the "Them" referred to would be the second nominee.

      Given the fact that the second nominee has not yet been nominated, why is it so crucial that we confirm "them?"

      RedState, I know. But, they don't even care who gets nominated. They just know that the nominee is going to be a great guy/gal.

      Hey, Mr. Custer-you mind if I be excused the rest of the afternoon?
      --Larry Verne

      by Big Nit Attack on Tue Sep 13, 2005 at 08:19:18 AM PDT

      [ Parent ]

  •  Mrs. Robert's Lazy Eye (none)
    Is very distracting. She's sitting right behing him. Wake up, woman! Aren't there abortions to stop somewhere? ;-)

    No man's life, liberty or fortune is safe while our legislature is in session. --- Benjamin Franklin

    by farcast on Tue Sep 13, 2005 at 08:09:03 AM PDT

  •  Sounds like an improvement over Rehnquist. (none)
    If you're keeping score at home, Roberts as Chief Justice moves things in the right direction.

    The real question will be O'Connor's replacement.

  •  Well I think this may be (none)
    backfiring on bush
  •  Like Charlie Brown and the football (4.00)
    Lucy will pull this one out from under you, too.

    Roberts can say whatever he wants, just as have other Bush nominees - Ashcroft being one of the most memorable examples - but also including Gonzales, Rice and . . . well, you name it.

    These people aren't where they are because they are second-rate liars and smooth talkers. They are first rate liars and smooth talkers.

    So, to me, these hearings are one big waste of time.

    You vote on the record. Period.

    And that means you vote NO.

    •  well (none)
      If you vote just on Roberts records, not on any of his writings that people try to make him seem racist etc it seems pretty clear that Roberts is pretty non-objectionable.

      1. He's argued in front of the court, for a number of good and mediocre good causes, and done a good job at it.

      2.  He's done some decent pro-bono work.

      3.  He's not been controversial on the appeals court.

      4.  He's been through the process at least once already, and handily confirmed.

      If you go only on the RECORD, he's just a squeak - nothing to get worked up about.
  •  old white men (none)
    listening to the hearings on radio, it is just overwhelming the predominance of crotchety old white men on the committee (and in the Senate).  we really ought to get on that.
  •  I'm not surprised (none)

    The right to privacy emanates from and protects religious choice, so that simply wasn't going to be the reactionaries' angle of attack.

    The application of the 14th Amendment is where the trouble is.  Always and predictably is, because the conflict about its application is what defines this period in American history.

    Renewal, not mere Reform.

    by killjoy on Tue Sep 13, 2005 at 08:16:20 AM PDT

  •  Kennedy is getting under his skin (none)
    Voting rights act questions.

    Use American taxpayers' money to rebuild our country - not Iraq.

    by Sharon Jumper on Tue Sep 13, 2005 at 08:18:49 AM PDT

  •  Free Impeach Bush Poster (none)
    It's the text of the US Consitution used to form letters spelling out "Impeach George Bush, Cheney and Rumsfeld". I hope you guys like it - just click the thumbnail on my site and an 11 X 17 PDF will download for free. Click for Free Poster
  •  Categorization (none)
    CategorySupremeCourt

    ==

    If you don't want your diary to get lost in the flood....
    Please help categorize diaries.  

    dkosopedia: Hurricane_Katrina_Commentary

    =====

  •  Here's a silly question (none)
    What's to prevent Roberts from simply lying to the committee and telling them whatever they want to hear to confirm him? For example, stating in blunt terms "I believe abortion is protected as a right of privacy," and then once he's on the bench, making case decisions that reflect the opposite?

    The worst penalty I can come up with is facing perjury charges. But that's a small price to pay compared to getting a lifetime appointment as chief justice, no? Can justices be impeached or anything similar?

    "This...this is the fault of that Clinton Penis! And that powermongering wife of his!"

    by CaptUnderpants on Tue Sep 13, 2005 at 08:22:07 AM PDT

  •  Roberts is articulate (none)
    Which is what makes him more dangerous than your typical angry, chest-beating, drunk frat-boy conservative.

    There needs to be more questions like the one Leahy asked about people seeking redress against corporations.  Or the authority of the Congress in regulating them.

    There is a cataclysmic void of leadership in the United States. Let us unite and change that.

    by Viktor on Tue Sep 13, 2005 at 08:24:33 AM PDT

  •  YES, BUT IS HE GAY....? (none)
    One of the goofier notions about Roberts is that he is "very intelligent" AND THEREFORE qualified to be Cheif Justice,... but what does this mean in the context of the law?

    Most lawyers have at least a minimum level of intelligence...the Bar Exams are certainly a filter for entry into the legal profession...  And indeed, many "worthy" folks have flunked the bar exam many times...but I won't mention any names!

    Also, the Law is NOT QUANTUM PHYSICS!  There are really no complex formulas or math involved in law.

    THE LAW IS SIMPLY A BODY OF WORK THAT HAS ACCRUED OVER TIME, BY WHICH WE REGULATE OUR SOCIETY...  IT'S REALLY MORE LIKE "ENGLISH LIT" THAN MATH AND SCIENCE...

    And by that I mean that there are really no "wrong answers."  You read it, you try to understand it...then if you're lucky you get to opine about it.

    JUDGES DO NOT "FIND THE LAW."  AND THEY ALWAYS MAKE LAW WHEN THEY "INTERPRET" IT...

    The real issue is will Roberts be forward looking and consider the good of the nation, or will he try to protect special interests and thus be a "conservative."

    The reason that many conservative judges "don't turn out conservative" is that they SUDDENLY find that they are not in service to SPECIAL INTERESTS anymore...BUT RATHER REPRESENT "ALL THE PEOPLE!"  AND THAT IS PRETTY HEADING STUFF FOR A LAW GEEK!

    My hunch is that Roberts is young enough to WANT A FUTURE for the US...and he's smart enough to make the most of this incredible opportunity.

    http://gloomanddoom.blogspot.com

    More Content, Less Chat. gloomanddoom.blogspot.com

    by BALTHAZAR on Tue Sep 13, 2005 at 08:27:53 AM PDT

  •  thanks for posting this (4.00)
    I switched to C-Span just now to hear Kennedy's questioning.

    Thomas, Ashcroft, Rice, they all lied and they all got confirmed and then they got in office and did their damage.  Roberts is claiming now he agrees the voting rights act should be extended.  What a hypocrite.  Roberts opposed denying federal funding to colleges that practiced discrimination, and he is now trying to justify that.  Unfortunately Kennedy and he are being so dense and legalistic that Joe and Jane Averagevoter have no idea what they are talking about...

    Somehow we have got to start learning how to talk about these issues in a way that average people can understand.

    The only good thing I can say about this guy is that he will prevent Antonin Scalia from ever becoming Chief Justice of the United States, and that is a good thing.  No matter how bad he is, he isn't Scalia.  Scalia richly deserves the disappointment of not getting the job after he practically campaigned for it for years.

    •  small victories (none)
      You're right about Scalia!  That would have been a true national disaster.

      I wish that Kennedy had been a little more succinct in his questioning, because by the time Roberts finally had the chance to say "Those weren't my opinions; I was merely representing the position of the Reagan administration,"  Kennedy had no time to rebut with something like, "Yes, but you chose to represent the Reagan administration.  It is not illogical to suggest that you shared Reagan's opnions on these various acts (voting rights, etc.)."

      "I'm not interested in that same liberal claptrap. That meow, meow, meow, ironic detachment." -- Stephen Colbert

      by SneakySnu on Tue Sep 13, 2005 at 08:39:59 AM PDT

      [ Parent ]

  •  He is (none)
    a sop to biz'niss and that's all he is.

    He's been picked by the Corporations that fund your political system as the guy most likely to find in their favour.

  •  ? for Armando: Regarding the ADA (none)
    Seen anything so far to make you think the trend toward gutting the ADA with case law and continuing to further make it a glorified wheelchair ramp law that will change?
  •  Although Roberts is Clearly a Conservative (none)

    It remains to be seen whether he is a Antonin Scalia conservative or an Anthony Kennedy conservative.

    With his answer today on privacy and his pro bono work on the gay rights supporters, I am hoping he will be a major dissappointment to the Dr. Dobson/Pat Roberson crowd and a pleasant surprise to us progressives.

    ie, a swing vote

    In any event, his confirmation is certain (short a bombshell revelation)

    Steve Wild

    Daily Speech


    •  Roberts is squeaky clean (none)
      This is probably the reason that he's so popular among senators. There will be no Thomas-style scandal around him.

      His confirmation is indeed certain.  Let's just hope that W.'s political capital is being spent in favor of moderate Republicans who supported his re-election, and not the wingnut base.  It's just so  damn hard to tell.  "Impassive" must be Roberts's middle name.

      "I'm not interested in that same liberal claptrap. That meow, meow, meow, ironic detachment." -- Stephen Colbert

      by SneakySnu on Tue Sep 13, 2005 at 08:55:44 AM PDT

      [ Parent ]

    •  Reemember who he's replacing (none)
      [blockquote]It remains to be seen whether he is a Antonin Scalia conservative or an Anthony Kennedy conservative.[/blockquote]

      He's neither.

      He is a Rehnquist conservative.  Thus, his appointment as CJ won't move the court far in any direction.  If he were still slated to take over for O'Connor, he WOULD have shifted the balance.  And the person Bush will need to nominated to fill HER spot, will have to satisfy the most extreme part of Bush's far-right fundie base.

  •  Just a thought (4.00)
    I'm skeptical that Roberts is anyone we'll be happy with on the SC in any way, but the thought that gives me comfort in a perverse sort of way is the almost absolutely consistent performance of the Bush Administration.

    As the saying goes, they could fuck up a wet dream. I mean, they forced Jeffords to go independent, thereby losing their Senate majority; they blew 9/11 completely; Iraq (nothing more need be said there); NO (same as Iraq); Bush can't even get his Social Security privatization bill through with majorities in both houses.

    If these guys tried to nominate a conservative Supreme Court Justice, there's a good chance we'll end up with Earl Warren - they're just that incompetent.

    We all go a little mad sometimes - Norman Bates

    by badger on Tue Sep 13, 2005 at 08:48:55 AM PDT

    •  But They Don't Screw Up in Appointing (none)
      officials who wreak havoc on us. Brown is one of the only ones ever to resign for screwing up in ways that hurt them. They have run a few out like Powell for insufficient loyalty.

      The Court is for life, and virtually all of Roberts' term will be served after the Bush admin can't be hurt by him. The overwhelming odds are that he'll be wreck American civilization, not Republicanism.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Tue Sep 13, 2005 at 11:32:41 AM PDT

      [ Parent ]

  •  Great Series (none)
    Armando, this is really good stuff.  I have no legal training, so reading your stuff has been enlightening.

    Let me ask you a question that has been troubling me.  Suppose Roberts is just another Bush, meaning he'll lie as much as necessary to get the vote.  What then?  Dems don't have the power to block his nomination.  And if he lies, we don't have the credibility to challenge him publicly.  I guess my question is really, what about after the now seemingly inevitable confirmation?  How can one hold Roberts to anything he said after he's robed, re-robed, cloaked, inducted, etc.?

    By the way, Federalist X asked me to come and post now that he's gone.  We'll be seeing more of each other in the future I hope.  Too bad he's not around to offer his legal perspective, we both were looking forward to a discussion on your 'living Constitution' series.

  •  right to privacy (none)
    I'm not a lawyer but I play one in my living room.  Armando is right.  He's declaring there is a right to privacy in the Constitution.  This is anathema to James Dobson, et. al., and this is just the opposite of what Bush has said all these years about who he wants on the Court.
    •  that proves nothing (none)
      People from all political stripes could agree to a right to privacy, but that doesn't mean that they agree on what that right protects.  So far as I can tell, he has not said what he believes the overall scope of the privacy right to be.  We're still at square one.
    •  I'm not a lawywer, (none)
      but I watch Law & Order on TV.  My favorites are with the blonde girl as the ADA.  Why couldn't bush nominate her for scotus?

      Bush: "The buck doesn't even slow down here"

      by cgvjelly on Tue Sep 13, 2005 at 09:34:02 AM PDT

      [ Parent ]

  •  Baseball analogy does not make sense to me (none)
    I am not a baseball fan, but I still don't get his analogy. There is some resemblance with an umpire in any game making sure all participants follow the rules, but it stops there.

    People go to see two well known teams play each other in a baseball game. Who goes to supreme court to watch two sides slug it out? Roe vs. Wade - do we know who Roe or Wade are/were? Yet we know how each justice on the court ruled. Take any case that reaches the supreme court - most of the defendants or the plaintiffs are forgotten, but the ruling and the different opinions are what remain in people's minds. So enough of this stupid analogy!

  •  HE. IS. LYING. (none)
    Filibuster.

    Anyway why are doing these hearings at all.

    The fact we're rushing should tell you something.  

    I bet you there's still people needing help out of this hurricane mess.

    Just a thought.

    The R's should not be allowed to press forward with any agenda anymore.

    •  Silver lining (none)
      The silver lining in this cloud is during the midterm elections, the voters may remember that Republicans were hell-bent on pushing their agenda even when their attention was needed for a national emergency. And maybe this gives Reid a little more time to let people know about his disaster recovery plan before the Repubs start controlling the conversation again.
  •  Grassley... (none)
    ...did he just give a shout-out to Justice Souter?
  •  If the USSC overturns Roe (none)
    the GOP is finished as a national party.

    I'm guessing Roberts, partisan that he is, is keenly aware of that.

    Paying off the corporate masters is what this nomination is all about.

    •  Totally agreed (none)
      Abortion is and has always been a "distraction" issue for the GOP. Their real priorities are economic, not social, and they use abortion to distract both their supporters and their opponents from their real agenda.
  •  This really isn't a surprise. (none)
    Roberts' 2003 confirmation hearings strongly suggested that Roberts believed that there was a liberty interest/right of privacy protected by the Constitution.  My own suspicion is that he tends towards the views of Randy Barnett, except that he is much more deferential towards finding a sufficient governmental interest to overrule any such right.

    I do not think that this means that Roe is safe.  To the contrary, the evolving trend among conservative jurists is posit attacks on Roe which leave its recognition of the liberty interest/privacy right undisturbed, but instead emphasize the compelling nature of the governmental interest which overcomes that right.

    Roberts' nod to Casey recognizes both the existence of stare decisis and that there are limits to stare decisis.  Casey was not a blind reaffirmation of Roe, it was a rereasoning of Roe.  The door is open to further evolutions in abortion law.  We'll find out soon enough.

  •  right to privacy (none)
    where is there a "compelling nature of the governmental interest" in an abortion case?
    •  easy (none)
      They could argue that they have a compelling government interest in "preserving the life of the unborn child."  In fact, Roe itself acknowledged that such a government interest may exist in the third trimester, if I recall correctly.
      •  Private vs. Government Interest (none)
        It's been a long time since I read the text of Roe, Casey, or other relevant laws. If I remember, though, Roe did not use trimester limits; it used a loosely defined "viability" threshhold for the moment when the interest of the mother ended and the interest of the state took over as controlling interest. Trimesters crept into the discussion at a later date.

        The viability threshhold is somewhere around the 5 to 5 1/2 month point but is left sufficiently vague for a competent doctor to make the call.

    •  Abortion and compelling government interest (none)
      It is in the interest of the government to have a robust military.  Therefore, it is in the interest of the government to have lots and lots of babies, especially in the poorer segment of the population.  Therefore, it is in the government interest to make it as hard as possible for poor women to get abortions.  And if rich women have to go to Canada or Sweden, oh well.

      Start now working for a Blue 2006! Contribute today!

      by ultrageek on Tue Sep 13, 2005 at 09:32:39 AM PDT

      [ Parent ]

  •  ok, now he's fucking with me (none)
    he just mentioned that the 14th amendment should be interpreted generally since the amendment was written using general language (& not, as some originalists hold) specifically to be applied only to the freed slaves. unless he is lying out of his ass, that is, for me, completely acceptable way of interpreting the constitution. still looking for his opinions on the ninth amendment. still looking for for his opinion on the applicability of the commerce clause to environmental & labor regulations. s.

    the best lack all conviction while the worst are full of passionate intensity --w.b.yeats the second coming

    by synth on Tue Sep 13, 2005 at 09:11:32 AM PDT

  •  Just heard the Dred Scott case discussion. (none)
    Recalling from the '04 election debates the explanation I read of Dred Scott being veiled "code" for refering to the overturn of Roe, I'm pretty disturbed.

    The more I hear from this guy, the more scared I become...

  •  Biden - defining the strike zone! (none)
    Yes - not an apt metaphor. I was waiting for someone to say this.

    Let the great world spin for ever down the ringing grooves of change. - Tennyson

    by bumblebums on Tue Sep 13, 2005 at 09:18:24 AM PDT

  •  Armando Joe Biden Read Your Strike Zone (none)
    Article - cool...
  •  The 9th Amendment AND Commerce Clause PLEASE (none)

    I really hope someone is going to pin Roberts down with his interpretation of the 9th Amendment.  Someone also really needs to hit him over the Commerce Clause and environmental regulations.  He needs to answer such that it is clear whether he thinks it is hunky dory for corporations to murder people by polluting the air they breath and the water they drink.  He needs to make it clear whether or not he thinks there is a substantive federal interest in protecting PUBLIC land and parks and wildlife (which belongs to NO ONE and EVERYONE) from destruction by corporations.  I want him to state whether or not the EPA has a right to exist and do its job of protecting the people directly (through regulation to protect our water, air, lands) and indirectly (by protecting a vital, functioning ecosystem upon which we ALL depend regardless of personal politics and beliefs).


    C'mon, ask Roberts if the government has the power and right to protect people and the environment from direct physical assault by corporations and individuals bent on polluting and destroying them.  See, if you poison MY air or MY water, I will take steps to whatever level necessary to defend myself.  You poison my air, you are assaulting me with intent to kill and I get to respond accordingly in self-defense...if the government wont (or can't) do it for me and everyone else for that matter.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

    by praedor on Tue Sep 13, 2005 at 09:20:17 AM PDT

  •  9th (none)
    Isn't the implied enumeration of the right to privacy, as implied in 1,3, and 4, more important to a modern interpretation of the Constitution than the 9th?  As Armando says, he cannot deny the 9th.

    He says the right to privacy is IMPLIED in 1,3, and 4.  That's huge.  I cannot tell you what Scalia would answer, but I can tell you that the wingnuts do not think that the Constitution IMPLIES anything.

    Here's the deal: Roberts doesn't tip the court on abortion.  Abortion isn't the end all issue, either.  IF Robert's referral to the "so called right to privacy" was not a blanket condemnation on the implied Right to Privacy, but was instead a specific condemnation of the assumption that abortion is a privacy issue, he really is establishing himself to the left of a Scalia court.  The fringe right that pretends to be the majority believes that there is no right to privacy, which they expressed in their dissent in Lawrence v. Texas (Even though it was the 14th that was invoked in overturning Lawrence).  

    (Anyways, typing this out between work, so I haven't seen if this has been said since I STARTED typing a while ago..)

  •  Biden: 'You hit a home run yesterday' (none)
    Aw, crap, is this more "you're the real deal" grease like what he used to butter Abu Gonzales?

    (I saw no dinger hit yesterday.)

  •  Biden (none)
    Just wasted 10 minutes of his time bloviating.  Damn it pisses me off when our guys waste time hearing themselves talk.
  •  Check out Sen. Joseph Biden. (none)
    Now this is more the line of questioning I wish to see.
      •  I do too (none)
        Stop asking about Ginsburg, and go after the right to privacy in the ninth amendment.

        What's madness but nobility of the soul at odds with circumstance?

        by slinkerwink on Tue Sep 13, 2005 at 09:29:33 AM PDT

        [ Parent ]

        •  You people have no respect (none)
          Seriously. Biden may not be perfect but he is looking out for your best interests even though you think he is an asshole.

          I hate when folks like you guys slam the door on reason.

          inspire change...don't back down

          by missliberties on Tue Sep 13, 2005 at 09:32:11 AM PDT

          [ Parent ]

          •  I want effective representation. (none)
            And when a Senator engages in a pointless five minute ramble without asking questions, and then complains he's running out of time, I don't see him as effective.

            His questions aren't pinning Roberts down.  At best Biden is preaching to the choir, but he's not persuasive.  And really, he's not scoring any points.

            •  Respectfully disagree (none)

              inspire change...don't back down

              by missliberties on Tue Sep 13, 2005 at 09:41:09 AM PDT

              [ Parent ]

            •  has anyone done this before? (none)
              has anyone here argued a debate or been to law school????

              it's ROUND 1!!! he's building a case.  you don't bring it all out at first. he's gotten him on the defensive...and he's building a case to be able to catch him being inconsistent.

              if he flat out asked...does the ninth amendment support say...gay marriage...he would flat out say i can't answer that. the dems have to build up a base of answers to work from.

      •  Biden's questioning based on the Ginsberg Rule (none)
        That did not suck and he got Roberts into being evasive.

        Nice to cite a case Ginsberg commented on and Roberts refused to.

        Biden just got his reason not to vote to confirm.

        Ein Land ist nicht nur das, was es tut -- es ist auch das, was es verträgt, was es duldet.

        by MoDem on Tue Sep 13, 2005 at 09:33:46 AM PDT

        [ Parent ]

        •  Hmmmm. (none)
          Biden was always going to vote against Roberts.

          The problem is that he's not giving any potential fence sitters a reason to vote against Roberts.

          His attack on the "Ginsburg Precedent" was weak.  He's not attacking the rational for not providing "forecasts," he's just saying that Ginsburg only selectively applied her own rule.  And Roberts rightly pointed out that Ginsburg deemed her rule not to apply where she had previously written or given speeches on the topic.  I don't think he's getting anywhere.

      •  OK. Only in America ;) (none)
        Sen. Biden has called Judge Roberts on several of his previous responses to questions. I'll concede there was a small speech in there, but many of the responses we are receiving have no meat on the bone.  I want to know how Judge Roberts defines his terms and how he arrives at his decisions.  We would not need nine SCOTUS justices if they all thought exactly the same; consensus would be the rule of the day.  Clearly that Is not the case.  
    •  'Ginsburg answered the question' (none)
      To Roberts' 'no hints' dodge.

      Hah ... 'he's filibustering.'

    •  exactly (none)
      and of course Roberts wouldn't answer this, even though Ginsburg did: if a state bans abortion, would you rule this unconstitutional?
  •  As I was listening to him... (none)
    I thought, either:

    A) He's lying

    -or-

    B) I could live with this choice

    My bet is that, given this Administration's track record, it must be A.  But, man, it sure sounded like B this morning when he was saying that FL doesn't have the right to torture people.

    Start now working for a Blue 2006! Contribute today!

    by ultrageek on Tue Sep 13, 2005 at 09:28:55 AM PDT

  •  He's dodging (none)
    Biden is great on this. Roberts doesn't deserve a vote - if he won't answer the question.
    •  Biden is tough... (none)
      and the "he's filibustering" line was good...

      But it is clear that he's running for President in 2008.  The "I wrote the legislation" comment was a little over the top for me.

      •  he wrote they legislation (none)
        and the goddammed activist court over turned it. Wouldn't you be pissed too?

        inspire change...don't back down

        by missliberties on Tue Sep 13, 2005 at 09:38:48 AM PDT

        [ Parent ]

      •  Except ... (none)
        ... that it is true.  As Chairman of the Senate Judiciary Committee, Joe Biden authored the Violence Against Women Act (VAWA).  Then-Rep. Chuck Schumer, who at the time chaired the House Judiciary Subcommittee on Crime, authored the House version, and carried the VAWA in the House.  In a clash between two gigantic egos, Biden's version prevailed, and today we have VAWA.
    •  Biden is pissed (none)
      at the activism of the court.

      Despite claims by the right the court has overturned too much legislation in recent years.

      Biden worked for years on violence against women, and it was destroyed by these guys.

      inspire change...don't back down

      by missliberties on Tue Sep 13, 2005 at 09:34:15 AM PDT

      [ Parent ]

  •  Biden is creating tonight's soundbite (none)
    He has Roberts on the defensive in a BIG way.  Comparing all the justices before him who answered questions that he refuses to answer.  Biden regained my respect today.

    Arrogant lips are unsuited to a fool-- how much worse lying lips to a ruler - Proverbs 17:7

    by Barbara Morrill on Tue Sep 13, 2005 at 09:34:09 AM PDT

  •  All great and all (none)

    but please...someone ask about the right of the government to set environmental protection regulations.  Ask about worker rights and labor laws (and child labor laws).  Don't focus ENTIRELY on privacy rights and abortion...there is the commerce clause and all that grows from that to consider as well.


    I want my clean air, clean water, and living environment as well as my privacy!

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

    by praedor on Tue Sep 13, 2005 at 09:35:10 AM PDT

  •  Wouldn't it be funny (none)
    Wouldn't it be funny if it became clear, during this hearing, that although he may have personal issues with abortion, he has no intention of overturning Roe v. Wade, leading to Senate Republicans voting him down?

    I naively imagine Bush going through a whole string of nominees, with Congress rejecting all of them, some rejected by a coalition of Democrats and reasonably sane Republicans for being too crazy, and the rest being rejected by the rest of the Republicans by being not crazy enough.

    •  There is no chance (none)
      that a single Republican will vote against any Bush nominee for being insufficiently conservative.  It is simply not in the realm of possibility.
    •  I am getting the sense (none)
      that overturning Roe is representative of a deeper conflict of federal rule and state rule. The Congress has passed no law on abortion.

      But the states are passing many, chipping away slowly at the edges, one of the laws being a woman could be jailed for violating "fetal rights or protection of liberty for the vulnerable."

      inspire change...don't back down

      by missliberties on Tue Sep 13, 2005 at 09:51:02 AM PDT

      [ Parent ]

  •  Unfortunately (none)
    the majority of our electorate has been impressed by the smoke screen..."W" is a "good Christian man" overrides the terrible damage that is the result of his moronic actions.  To some he is "a straight talker" though in reality he has the intellectual curiosity and depth of a June bug.  His supporters have him walking on water, so to speak.

    Judge Roberts is a pretty package.  Additonally, he has a cool and calm demeanor, his quick and authorative responses (whether obfuscation, little white lies or blatant ones) will suffice to get the public behind his confirmation.  Judge Roberts is a good ol' (smart) boy...a very good casting job by the Bushies.

    The public will see the stridency of the Democrats on the Committee juxtaposed on the layed-back Republicans and again it will warm the cockels of their hearts.

    The Democrats have no chance of standing in the way of this nomination...no matter the facts.  Only an act of idiocy or a total and complete (uncharacteristic) blunder on the part of Roberts would cause any problem.  Don't expect either failure.  Roberts will be reported out of the Committee with an affirmative recommendation to the full Senate.  The public will return to the thoughtless bliss of worrying about the programming available in prime time television.  Blogs will move on to the next news cycle issue.

    Cynical?  You bet...learned from the most cynical and most dangerous administration to ever grace (pollute) our federal establishment.

    Based on careful reading of this forum, I didn't realize so many lawyers were underemployed...all this time off the clock.  How do they eat?

  •  OK, freepers freaking now (none)
    http://www.freerepublic.com/focus/f-news/1483511/posts

    To: Rutles4Ever
    The best we can hope for is that Roberts is a lying to get the job. Not encouraging.

    This is what conservatives get for allowing the Republicans to play Russian roulette with judicial nominees. Until we demand Scalia-like originalists and hold the Republicans accountable if they don't appoint such justices, the court is going to remain the same.

    Compare that to Clinton and the Democrats, which didn't once fail to appoint and confirm a sure thing.
    30 posted on 09/13/2005 10:24:07 AM PDT by Ol' Sparky
    [ Post Reply | Private Reply | To 1 | View Replies ]
    To: EagleUSA

    Yes, let's hope Roberts is lying and that we haven't been given yet another Souter, O'Connor or Kennedy.

    31 posted on 09/13/2005 10:25:20 AM PDT by Ol' Sparky
    [ Post Reply | Private Reply | To 3 | View Replies ]
    To: kabar
    Or maybe he is being honest and means what he says -- that precedent in regard to Roe should be overturned. If that's true, it will be late to do anything about another yet another moderate or liberal appointed to the court by a Republican President.

    It might be a good idea to demand Republicans keep their promises and nominated a verifiable orginalist in the future and hold them accountable if they don't at the ballot box.
    32 posted on 09/13/2005 10:29:11 AM PDT by Ol' Sparky
    [ Post Reply | Private Reply | To 20 | View Replies ]
    To: teletech
    Don't look for Roberts to overturn Roe vs. Wade. I am beginning to wonder if Roberts is a conservative or whether he is a moderate leaning liberal???

    How many times are conservatives in general going to allow this to happen without holding the Republican party accountable?

    With a Republican President in the White House and 55 Republican Senators, we shouldn't have to wonder if a nominee, in this case one replacing an originalist that was opposed to Roe, is conservative or not.

    It's outrageous that conservatives as a group could be stupid enough to let the Republicans get away with failing to appoint originalists opposed to Roe to the court.
    33 posted on 09/13/2005 10:31:52 AM PDT by Ol' Sparky
    [ Post Reply | Private Reply | To 28 | View Replies ]
    To: Ol' Sparky
    Yes, let's hope Roberts is lying and that we haven't been given yet another Souter, O'Connor or Kennedy.

    It's not a good sign when our best hope is that the nominee dishonestly answers questions in a formal hearing.

    Either way, he is the wrong choice for the Supreme Court.
    34 posted on 09/13/2005 10:34:52 AM PDT by Gelato
    [ Post Reply | Private Reply | To 31 | View Replies ]
    To: Rutles4Ever
    If the Nazi pulled out a Bible and told you to take an oath before God that you're not hiding Jews, is the oath immediately null and void under duress?

    That is a highly exteme situation. People have an obligation to protect their neighbors from immediate danger to their lives. Roberts does not have the obligation or even an entitlement to be Chief Justice. Lying is an unacceptable method of getting there - period.
    35 posted on 09/13/2005 10:59:38 AM PDT by inquest (FTAA delenda est)

    "If you are not outraged, you are not paying attention."

    by adigal on Tue Sep 13, 2005 at 11:24:57 AM PDT

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