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I’m Surprised There Hasn’t Been a WNBA Protest Yet



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In John Roberts’s America



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From a statement released by Senator Leahy yesterday:

Those papers that we have received paint a picture of John Roberts as an eager and aggressive advocate of policies that are deeply tinged with the ideology of the far right wing of his party then, and now. In influential White House and Department of Justice positions, John Roberts expressed views that were among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy, and access to justice.

He advocated overturning a Nixon-era Executive Order that assures non-discrimination in federal contracting; he mocked the efforts of women legislators to find a way to remedy the effects of sex discrimination; he wrote of a “so-called right to privacy” and “so-called fundamental rights;” he opposed efforts to make the voting rights act more effective; and he championed efforts to strip courts of their ability to grant remedies to civil rights plaintiffs, taking a position more extreme than conservative political appointees in the Reagan Justice Department.

Translation: Judge Roberts opposed racial quotas and other racial preferences. He criticized the radical and foolish concept of basing pay on central planners’ subjective determinations of the “comparable worth” of different jobs. He fought against the usurpation by judges of the constitutional ability of American citizens to decide how to govern their states and communities. He opposed the creation of a racial quota system in electoral politics. And he read the provision in the Constitution that states that the Supreme Court “shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” to mean, lo and behold, that Congress can “make” “Exceptions” to the Supreme Court’s appellate jurisdiction.
Let’s have this fight.

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It’s All a Matter of How You Say It



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Our redoubtable editor was on a language binge yesterday First, Kathryn offers readers this Washington Post headline: “Roberts Unlikely to Face Big Fight”. For those confounded by Post-speak, Kathryn offers “Translation: Nothin’s Sticking”. Next she provides a snippet from a 1984 Roberts memo (taken, I think again, from the Post ) about Michael Jackson. Roberts is quoted there as writing, “I recognize that I am something of a vox clamans in terris in this area. But “enough is enough”, he concluded.

Well, here finally is something that will stick . (And NRO scoops the Post!) John the Baptist’s was not a vox clamans in terris , but a vox clamantis in deserto, “the voice of one crying in the wilderness”. Check the Vulgate of Matt 3:3, Mark1:3, Luke 3:4, John 1:23, and, of course, the original at Isaiah 40:3.

If the hearings go badly, perhaps Judge Roberts will find alternative
employment at Georgetown.

Has Anyone Checked Sandy Berger’s Pants?



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Washington, D.C. — Today, Senator Edward M. Kennedy sent a letter to the U.S. Department of Justice calling for an immediate investigation into the missing Affirmative Action documents referred to in the August 15 cover letter accompanying John Roberts’ documents from the National Archives and Records Administration (NARA).

The missing files, titled “Affirmative Action Correspondence,” had been in possession of unnamed Administration officials in mid-July, presumably before John Roberts was nominated to the Supreme Court.

With only a few weeks left to review these important documents, Senator Kennedy sent the following letter to the DOJ requesting a speedy investigation into this matter.

Cakewalk?



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Today’s Washington Post reports Senate Democrats may refrain from attacking John Roberts, allowing him easy confirmation. Here is how the major media was reporting the Clarence Thomas confirmation after Thomas’ initial testimony before the Senate Judiciary Committee.

The New York Times
September 14, 1991
THE THOMAS HEARINGS;
Thomas to Win High Court Seat, Senators Predict
By NEIL A. LEWIS

The Washington Post
September 14, 1991
Thomas Gaining Momentum as Week Ends;
Senators’ Gentle Questioning on Fourth Day of Hearings Suggests Doubts May Be Put Aside
By Ruth Marcus

The Associated Press
September 14, 1991
Democrats Admit Thomas Heading Toward Senate Confirmation
By James Rowley

Los Angeles Times
September 14, 1991
Democrats Talk as if Court Seat for Thomas is Assured
By David G. Savage

The Atlanta Journal and Constitution
September 14, 1991
Frustrated Democrats take a softer line in questioning Thomas; Even skeptics seem to expect confirmation
By Bob Dart

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Constitution in Exile



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With NARAL’s self-immolation last week moving off the front pages, the Left is retooling its Roberts opposition strategy. From the NY Times:

Democrats and the liberal advocacy groups who support them say the party must frame the debate more broadly, in terms of legal precedents affecting the environment, workers’ rights and civil rights that could be overturned if the court tilts in a more conservative direction. “That’s what needs to be articulated,” said Ralph Neas, president of the advocacy group People for the American Way. “That’s what’s at stake, and no one is doing that effectively.”
When liberals focus on environmental and workers’ rights, they are usually referring to a mostly fictitious “movement” among conservatives the Left calls the “Constitution in Exile.” This is another scare tactic and should be challenged whenever presented.

For a debunking of the Constitution in Exile, see Michael Greve’s article, “Liberals in Exile.”

For a more substantive analysis, see the Federalist Society’s paper, “Can Bush Supreme Court Appointments Lead to a Rollback of the New Deal?”

Re: Hard Work Pays Off



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Gerry Bradley wonders what John Roberts might say if asked by his fellow justices, “why do you think it is that we have been having so many 5-4 decisions up here?” I don’t know what he’d say to that, but I know what I would: “Because for some reason there were frequently four of you–but just four–willing to follow Wrong Way O’Connor. So you tell me, how come?”

Hard Work Pays Off



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Ed Whelan posts John Roberts’s provocative thesis (from Roberts’s 2003 hearings) that there is a right answer in every case and that judges who work at it will find it. That is why, Roberts opined, the DC Circuit’s panel decisions are unanimous 97% of the time. They are “hard-working judges,” Roberts asserted.

Maybe. But I sure would like to be a fly on the wall of the Supreme Court conference room when someone asks Justice Roberts: “So, John, why do you think it is that we have been having so many 5-4 decisions up here?”

Re: Kirsanow on Roberts



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Matt, I wholeheartedly agree with your praise for Peter Kirsanow’s essays. Indeed, I was wondering just this morning which court he should grace.

Your perception that Judge Roberts embraces the old-fashioned belief that there are correct and incorrect answers to legal questions is also right on, as Roberts’s testimony from his 2003 confirmation hearing shows:

“I do think there is a right answer in a case, and I think if judges do the work and work hard at it, they’re likely to come up with the right answer. I think that’s why, for example, in the D.C. Circuit, 97 percent of the panel decisions are unanimous, because they are hard-working judges and they come up with the same answer in a vast majority of the cases.

“There are certainly going to be disagreements. That’s why we have Courts of Appeals, because we think district courts are not always going to get it right. But I do think that there is a right answer, and if the judge and lawyers would just work hard enough, they’d come up with it.”

Kirsanow on Roberts



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Has anyone over here at Bench Memos paid proper tribute to Peter Kirsanow? Today he has his third article on John Roberts, once again very informative–and once again very good news about Roberts’s jurisprudence. (Previous Kirsanow articles are here and here.)

The really good news–compiled as well by the indefatigable Ed Whelan all over this page–is that it appears John Roberts has a sound understanding of the illegitimacy of judging according to a results orientation, and that he unabashedly believes (what is scandalously disbelieved all over the legal academy) that there are correct and incorrect answers to interpretive questions under the Constitution.

Roberts’s White House Counsel Records--Equal Pay vs. Comparable Worth



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I’m not inclined to give John Roberts much credit for criticizing the “comparable worth” theory, and I doubt that he would expect much. For the “comparable worth” theory is so patently foolish that rejection of it would be a sensible criterion for eligibility to take part in public life.

Let’s begin with the elementary fact that “comparable worth” is radically different from “equal pay.” Some in the media still don’t understand that, as USA Today’s story titled “Roberts scoffed at equal-pay theory” shows. “Equal pay for equal work” means simply that men and women should receive the same pay for doing the same (or substantially the same) work. It is relatively easy to administer, and does not invite economic dislocation.

“Comparable worth,” by contrast, calls for judges or an army of bureaucrats to (in Roberts’s accurate description) “decide how much a particular job is worth, and restructure wage systems to reflect their determination.” If the marketplace pays truck drivers more than laundry workers, but a judge decides both jobs are “worth” the same, then the judge will mandate that they be paid the same (as a district judge in fact did in 1983). In short, “comparable worth” (again, as Roberts puts it) “mandates nothing less than central planning of the economy.”

There’s a good reason “comparable worth” has disappeared from the public debate: It’s a loony idea. It’s understandable that labor economists would promote the idea, for it would vastly expand their power. But the additional support it received from liberals is a testament to the validity of Mark Helprin’s recent explanation of liberals: “if you have no understanding of economics, strategy, history and politics, then naturally you would be a liberal.”

In 1984 Roberts strongly criticized a letter from then-representative (and now senator) Olympia Snowe and two others that was supportive of comparable worth: “I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be ‘From each according to his ability, to each according to her gender.’ ” USA Today quotes Snowe as responding yesterday: “Hopefully, 21 years later, Judge Roberts possesses an openness with respect to issues of gender-based wage discrimination.” Let’s hope that, 21 years later, Snowe recognizes that Roberts was right on comparable worth.

The Tragedy of Abortion



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Before anyone gets too worked up one way or another re: Roberts: It should be noted that Hillary Clinton has called abortion “tragic.”

I can feel Barbara Boxer’s tears.

“Scary”



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This just in: there is no such thing as judicial activism, according to the NYTimes. Justice Sunday might not be my kinda way to spend a Sunday, but “inaccurate” after the NARAL debacle? Oh, maybe that’s the point. Even on inaccuracy, plus, the Right is extreme and scary.

To Know Know Know Him...



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John Roberts on equal-pay where’s-my-dollar? nonsense; Just ignore the USA Today misogynist frame and read what Roberts wrote:

In his memo to White House counsel Fred Fielding, Roberts said the women’s letter “contends that more is required because women still earn only $0.60 for every $1 earned by men, ignoring the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the work force for extended periods of time. … I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be, ‘From each according to his ability, to each according to her gender.’ “
Yes, yes. This is the justice I want replacing I-Wish-He-Were-A-She O’Connor.

Seeing Sights That Almost Stop Your Heart



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John Roberts vs. Michael Jackson:

“The office of presidential correspondence is not yet an adjunct of Michael Jackson’s PR firm,” Roberts wrote in a memo to his boss on June 22, 1984, opposing a request by the singer’s publicist for a presidential letter praising the star’s work against drunken driving.

In opposing the wishes of Jackson, Roberts acknowledged that he was a voice in the wilderness — but being a future Supreme Court nominee, he used the Latin. “I recognize that I am something of a vox clamans in terris in this area,” he wrote, “but enough is enough.”

Can You Feel the Disappointment in the Air?



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From the Washington Post this morning: “Roberts Unlikely To Face Big Fight.”


Translation: Nothing’s Sticking!

Roberts, Raspberry & Busing



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It’s interesting that one of William Raspberry’s complaints about Judge Roberts is that he has been an “advocate of positions,” such as limitations on mandatory busing, “seem well out of the settled mainstream” to “civil rights partisans.” Raspberry, after all, has himself often advocated positions “well out of the settled mainstream” as judged by “civil rights partisans.” Raspberry has criticized civil-rights groups for failing to support school choice and has raised doubts about the value of forced busing to improve educational opportunity for African Americans.

Enviros and Roberts



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This WSJ article on environmentalists’ views on the Roberts nomination does a good job of fairly characterizing Roberts’s record. Of note, it quotes the Sierra Club’s David Bookbinder saying, “His record on the D.C. court is even-handed . . . There is certainly no pro- or anti-environmental bias we can see. We’re glad, but these are not the sort of cases that go to the Supreme Court.” What’s particularly interesting about the article is that it makes clear that many environmentalist legal types are more concerned with the policy outcomes in environmental cases than they are with the legal questions at issue. In this environmentalists are not alone – indeed, it can be said of many activist groups – but it is worth nothing nonetheless.

Roberts’s White House Counsel Records--The Exclusionary Rule



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In January 1983, Roberts wrote a memo that highlighted a recent National Institute of Justice study on the effect of the exclusionary rule. (The exclusionary rule, the judicially crafted remedy for violations of the Fourth Amendment, generally bars illegally obtained evidence from being admitted.) According to Roberts’s memo, “the study shows that the exclusionary rule resulted in the release of 29% of felony drug arrestees in Los Angeles in one year—a far cry from the highly misleading 0.4% figure usually bandied about.” Roberts concludes: “This study should be highly useful in the campaign to amend or abolish the exclusionary rule.”

Roberts’s White House Counsel Records--Voluntary School Prayer



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In June 1985, the Supreme Court ruled in Wallace v. Jaffree that an Alabama statute that authorized a period of silence in public schools for “meditation or silent prayer” violated the Establishment Clause. On the day of the ruling, John Roberts prepared a memorandum for the White House Counsel that summarized and discussed the ruling. Roberts opined that “careful analysis shows at least a majority of the Justices would vote to uphold a simple moment-of-silence statute.” But “the decision shows we still have an uphill battle to return prayer to schools.”

In November 1985, with the benefit of 5-1/2 months’ time to reflect on Wallace v. Jaffree, Roberts commented that the conclusion in that case “that the Constitution prohibits such a moment of silent reflection—or even silent ‘prayer’—seems indefensible.” Roberts made his comment in the course of discussing a proposed constitutional amendment to permit “silent prayer or reflection in public schools,” an amendment that he expected the Reagan administration to support.

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