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“while a young government lawyer [Roberts] was uneasy, if not hostile, to the idea of lifetime judicial appointments.”



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That’s from the AP. Tough man! You’re gonna get in and do us good. (Kathryn rushes to say a little prayer she’s right.)

Red Meat, For Sure



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Scrappleface (parody site) Romer headline: “Roberts Took Liberal Portion of Red Meat”

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Lawrence



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Matthew makes a good point re Lawrence. Rick Santorum warned of its consequences as well.

PSST.



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More Romer stuff in The Corner.

Re: Romer Story



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This quote is circulating around the chattering-class circles: “From my own experience as a Supreme Court practitioner, it’s no surprise that John Roberts would have been asked to help with Supreme Court cases that other colleagues had brought into the firm. And it certainly is not uncommon to have to advance a legal position with which the lawyer might not agree were he the judge in the case.” Kenneth W. Starr, Former U.S. Solicitor General, Partner at Kirkland & Ellis, and Dean of Pepperdine School of Law.

Among lawyers I’ve talked to and secondhand conversations today, I’ve not encountered anyone who thinks it would be unusual at all for Roberts to have lent a hand in a case in this way. Evidently lawyers who worked with Roberts at Hogan & Hartson say that he had a policy of being cooperative whenever the pro bono department at the firm asked. One estimate I’ve seen estimates he probably was part of 100 moot courts at the firm’s request. Sounds like he was just doing his job.

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Taboos



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Matt Franck’s piece on incest is a must read. Having just read it myself–and having never heard until now of the Seventh Circuit case (Muth v. Frank he discusses–here are four thoughts that come to my mind:

One: Judge Dan Manion is a most capable jurist, and and he is possessed of sound moral sense. Matt is therefore right that the only explanation for the weaknesses he sees in Manion’s opinion owe to the latter: Manion is too decent a guy to draw out the foul implications of Lawrence. Let the Supreme Court further foul its own nest, I guess.

Two: Lawrence surely puts incest in the dock. As bad as the Court’s “privacy” jurisprudence had been since 1965, it was not until June 2003 (in Lawrence) that the Court decreed that marriage could not be the principle of legally enforced sexual morality in this country. Fornication, adultery, homosexual relations could all be made crimes until then because, as Justice Harlan put it in a 1961 opinion, the state could “confin[e] sexuality to lawful marriage.” No more. Now the constitutional principles of enforceable sexual morality are consent and privacy (assuming adults are involved).

As Matt says: Then, why not incest?

Three: If brother and sister can have sex without the state saying “no”–as Lawrence seems to imply–then they can marry, too. Sometimes we think that the incest taboo owes to the genetic abnormalities that the children of siblings would likely suffer. But that is not the source of the legal ban on incest. If it were, we would have to rethink it anyway: Today, “brother” and “sister” often have an attenuated genetic relationship–blended families, artificial reproduction, and the like. Their issue may have no more genetic tendency to illness than that of any other couple.

The incest taboo arises instead from the eminently sound conviction that the right relationship of brother to sister is incompatible with sexual attraction between them. The law has long prohibited marriage between siblings precisely to buttress this norm of sibling chastity: There is no moral sense to sexual attraction between siblings if it is impossible for them to marry. The sexual attraction can’t lead to where sexual attraction tends to, and is morally supposed to, lead: marriage. Thus, it is all the less likely that the attraction will arise and that, if it does, well-formed kids will indulge or cultivate it.

Four: Matt is exactly right that Muth belongs on the list of topics senators should discuss with John Roberts next month.

Roberts on Civil Rights



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Ann Coulter



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continues her anti-Roberts schtick: “Compared to what we know about John Roberts, Souter was a dream nominee.”

DailyKos Is Happy



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Indeed, a poster there takes some solace in the hope that the Right will undo the Roberts nomination:

LATimes Gives It a Try



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Today there’s a story in the Los Angeles Times about Roberts’s ties to the 1996 Romer case: “Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm’s pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.”

Methinks the LATimes is trying to start something here–if the Left can’t destroy him maybe they can get some of those right-wing whackos to help, is the thinking?

I suspect (call it an educated guess) his role in the case is relatively slight.

Can We Be Decent About This, Please?



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Reporters digging through Roberts adoption records is similar to the same kind of unfair, intrusive, irrelevant nonsense that surrounded the Bill Pryor nomination–the Disney Smear and the Miguel Estrada nomination–he’s not Hispanic enough (what does that even mean?).

They’re Estrada-ing Roberts already–using his wife and his children if that’s what it takes.

Nevermind decency. Let’s talk shop. Dems: You better condemn that line of inquiry, and fast. 2006 is election year, and don’t play with the kids. On a Supreme Court nomination? People aren’t going to miss that.

Revealing the Inner Secrets of The Federalist Society



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The Federalist Society offers this response (no secret password required) to the New York Times’s recent article describing it as “a conservative legal group whose influence is the source of ever-swelling myth, mystery, insinuation, denial and debate.”

And Same to You, John



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Judge Bill Pryor talking about John Roberts:

Many Senate Democrats opposed Pryor’s nomination, and Pryor had been through a bruising hearing before the Senate Judiciary Committee that June. The next morning, Pryor said, Roberts told him, “Bill, I’m here to tell you, you will some day be confirmed.”

Pryor laughed and added, “I wasn’t so sure he was right, but he ended up being right.” The Senate just two months ago made Pryor’s place on the court permanent on a 53-45 vote.

re: It’s Fishing Time!



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I love this quote:

“We, of course, oppose him coming right out of the block,” says Nancy Keenan, from NARAL Pro-Choice America, “and we’re not fuzzy about that.”
Translation: We weren’t waiting for a reason and still probably don’t have one. But we oppose him, darnnit.

It’s Fishing Time!



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“He Is a Very Impressive Man”



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Roberts gets the Bill Clinton endorsement.

I imagine him privately mischievously bummed about that.

It’s a Boy. Deal.



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ZZZZZZ. The Where’s-the-Girl?-I-Wanted-a-Girl whines continue. And this time the complaint, too, is that there is not enough whining.

Red Herring



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Here are two reasons why the hand-wringing over Roberts and religion is misplaced.

One: Does anyone doubt that if Roberts were pro-choice that we would not be having this discussion? If Roberts said tomorrow that Roe was safe, do you think any liberal senator will say: “Now hold on there, Judge. Are you basing that on your religion? Some Catholics favor permissive abortion because, they say, the soul is not infused until some time well after conception–maybe forty days later. If you think that, Judge, I’ll have to vote against you for ignoring the separation of church and state.”

Do you think any conservative senator will say it?

Two: Would someone please identify one moral norm that might be involved in some decision a Justice Roberts would be called upon to render, but that moral norm cannot be known by unaided reason? Does not John Roberts’s
own Catholic Church say of the norms thatmight be so implicated: They are
written on the human heart? They are naturally knowable? They do not
depend upon revelation or religious authority? They are available to all reasonable persons–religious or not? In fact, name one moral norm that a Justice Roberts might apply in a case that was not, until a generation or a little more ago, the common morality of America and of America’s law?

What exactly, then, is it about Catholicism that we should be so worried about?

Roberts, Religion, and Recusal



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Over at “Mirror of Justice,” Professor Steve Bainbridge has a detailed, definitive discussion and analysis of the “Roberts’s religion” dust-up. Bainbridge is as clear and perceptive as Hitchens is (on this issue) misguided and as Cuomo is embarrassingly confused.

Roberts, Quotas, and the Voting Rights Act



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Law professor Richard L. Hasen argues in a Los Angeles Times op-ed today that Roberts’s DOJ records from the early 1980s show that he was “hostile to expansive voting rights legislation.” What Hasen means by this inflammatory phrase is that Roberts and the Reagan administration opposed a change to section 2 of the Voting Rights Act–the adoption of the so-called “effects” test–on the ground that it would establish a racial quota system for electoral politics, “a notion we believe is fundamentally inconsistent with democratic principles.”

Hasen does not make any effort to refute Roberts on the merits. Instead, he asks: “How many fewer minority legislators would be in office in Congress and in state and local legislatures if Roberts’ position had prevailed in 1982?” Similar questions can, of course, be asked of any racial quota. Posing the question hardly suffices to resolve the broader question of the legitimacy of quotas.

Hasen also raises the specter that, if/when Congress reauthorizes the preclearance provisions of section 5 (which are set to expire in 2007), Justice Roberts might rule that the reauthorization is unconstitutional. Why, Hasen asks, given Roberts’s views on section 2, would “he look charitably on a renewed Section 5″? The answer, as it happens, is provided in the very documents that Hasen has been reviewing. As Roberts explained in 1982, section 2 and section 5 “are addressed to different problems. It makes sense to have an effects test [in section 5] for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited.”

On civil rights, the real battle between Roberts and his critics was and is over racial quotas. Scaremongering, distortions, and misplaying the race card should not be allowed to obscure that.

Roberts’s documents show that he embraced the “bedrock principle of treating people on the basis of merit without regard to race or sex.” The Left’s vision, as Roberts recognized way back then, treats people not as individuals but as members of castes or social groups and focuses “on advancing particular groups as groups.”

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