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September 13, 2005

On Opacity

I'm hearing a lot of concern that Roberts could be lying through his hearings, saying what Senators want to hear to provoke them into confirming him. I wrote about this awhile back (it's possible), but have slightly revised my opinion. The first point, of course, is yes, he can do exactly that and there's nothing we can do to stop him. In that way, we're back at the old "elections matter" adage. When Republicans get elected, they're going to nominate judges. When we're in the minority, we can't block them all. If they want to lie during confirmation, they can. We're up a creek here. Nevertheless, there are some reasons for optimism. here are a few:

• Scalia, Thomas and others faced a Democratic Senate, giving them significantly more reason to lie. Roberts would do more to assure confirmation by appealing to the Republican majority rather than the Democratic minority. His moderation on Roe has got folks concerned over at Free Republic and is certainly doing the same through the Christian conservative community. They can cause more trouble for him than Ted Kennedy ever could.

• His answers have been fairly forthcoming. While he's not quite speaking in declarative sentences and offering ironclad assurances, he's doing quite a bit more than Clarence "I have never thought about, spoke about, or even heard of Roe" Thomas.

• He has pointedly disavowed originalism or any other straight ideological position of judicial issues. That doesn't mean he couldn't cobble together an ad hoc coalition of theories and justifications for extremist jurisprudence, but it does mean he's not offering the code words conservatives want. Again, there's little strategic purpose to doing that.

• His Democratic colleagues don't think he's a nutball. They know him better, have known him longer, and have interacted with him more than most everyone else. And while 20-some year old memos he's written are worrisome, these opinions, being two decades fresher, are proportionately comforting. In addition, liberal judicial theorists like Cass Sunstein and Lawrence Tribe all seem fairly comfortable with Roberts. Not their guy, maybe, but not a radical like Scalia or Thomas.

None of this promises Roberts won't wake up the day after confirmation, rip off his human costume, and reveal a firebreathing lizard man bent on crisping American jurisprudence. He could be lying now, he could've been fooling his friends, he could find Scalia incredibly persuasive on every point. But these things are out of our hands. Bush will nominate two Justices. Barring unprecedented turmoil, he will have them confirmed. The question is whether you think Roberts is so bad that a Democratic filibuster, if survived, will force Bush to nominate someone better. As things stand, the argument for evil Roberts seems to have relatively little to do with him personally and more to do with conservative precedent for nominating crazies. He's not the sort of Judge I'd pick, but the honest truth is, he seems better than the sort of Judge I though Bush would pick.

September 13, 2005 in The Supreme Court | Permalink

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Ezra: None of this promises Roberts won't wake up the day after confirmation, rip off his human costume, and reveal a firebreathing lizard man bent on crisping American jurisprudence.

Your writing seems to be taking on more of edge, lately. Is Wheaties your breakfast of choice? I do like it at lot, though.

You've now trained us to know and say 'elections have consequences'. Enough! (just kidding).

If one paws through the evolution (or devolution) of justices, since maybe FDR's time, and look at whether they evolved to the left or to the right, my guess is that justices move more to the left than to the right. Blackman is the posterboy for this. But there have been others.

Is Roberts likely to get more conservative or more liberal over the next twenty years? I'd bet more liberal - but that is a hopeful guess. Why? Society is changing, and although he's been in rarified company most of his life, I suspect he's a thinking person who knows what is going on in society, and probably isn't likely to prevent the prevalent trend toward a more open, tolerant, and enlightened society.

Posted by: JimPortlandOR | Sep 13, 2005 3:24:58 PM

This is why it's bad as a general principle (whether you agree with his stated positions or not) to nominate someone to the SCOTUS who's only been a judge for two years. In confirmation hearings for a lower court, he can't lie, because he'll be busted when he tries to get his promotion. However, that's not true if he's only been a judge for two years and hasn't had to reveal much of how he'd actually rule; prior to that, he can hide behind the "I was just advocating for my client" line. What did he say at the earlier hearings anyway? Or were questions beyond "How's the family" ruled out of bounds then too?

Posted by: SP | Sep 13, 2005 3:36:57 PM

The question is whether you think Roberts is so bad that a Democratic filibuster

Yup. All the fuss we can make is great, but if we aren't willing to filibuster (and I think its a losing proposition if we do) we'll just have to vote no and let the chips fall.

Posted by: Adrock | Sep 13, 2005 4:32:16 PM

Is not a confirmation hearing conducted with the nominee under oath?

I do not see why, for instance, Clarence Thomas could not be impeached for lying under oath during his confirmation hearings. He lied. He lied about Anita Hill and he lied about Roe v Wade (and about almost everything else). These are grounds for impeachment and, I would argure, those grounds should be used to impeach him. It needs to be done to set precedent. Future nominees need to be shown that the oath they take at the start of a hearing matters and that it actually applies.

Roberts should be asked a general question: "Do you think that lying under oath by a politician over anything, or nominee for some federal office lying in answer to questions from congressional committee members is illegal and grounds for impeachment if the nominee is approved by that committee on the basis of those lies?" That's it. Just ask the question and let him answer. If he is honest and ethical, his answer would be, "Yes, that should be grounds for impeachment". Then say, "Thank you. We will all keep that in mind.

What you do with this question is set up the threat of impeachment for Roberts and anyone else from the past or future who lies under oath during a hearing. I sets up for an impeachment of Clarence Thomas, possibly Scalia, Roberts (if and only if he is lying and that this expresses itself in his future decisions). The legal and binding oath taken before these hearings needs to be enforced.

Posted by: Praedor Atrebates | Sep 13, 2005 4:35:21 PM

Is not a confirmation hearing conducted with the nominee under oath?

I do not see why, for instance, Clarence Thomas could not be impeached for lying under oath during his confirmation hearings. He lied. He lied about Anita Hill and he lied about Roe v Wade (and about almost everything else). These are grounds for impeachment and, I would argure, those grounds should be used to impeach him. It needs to be done to set precedent. Future nominees need to be shown that the oath they take at the start of a hearing matters and that it actually applies.

Roberts should be asked a general question: "Do you think that lying under oath by a politician over anything, or nominee for some federal office lying in answer to questions from congressional committee members is illegal and grounds for impeachment if the nominee is approved by that committee on the basis of those lies?" That's it. Just ask the question and let him answer. If he is honest and ethical, his answer would be, "Yes, that should be grounds for impeachment". Then say, "Thank you. We will all keep that in mind.

What you do with this question is set up the threat of impeachment for Roberts and anyone else from the past or future who lies under oath during a hearing. I sets up for an impeachment of Clarence Thomas, possibly Scalia, Roberts (if and only if he is lying and that this expresses itself in his future decisions). The legal and binding oath taken before these hearings needs to be enforced.

Posted by: Praedor Atrebates | Sep 13, 2005 4:35:50 PM

"He's not the sort of Judge I'd pick, but the honest truth is, he seems better than the sort of Judge I though Bush would pick."

But would you vote to confirm him? Do elections really matter when it comes to interpreting the law? Or is it really more important to express the will of the electorate by electing the right legislators, who actually make the crazy laws that these judges spend their time interpreting? There are plenty of good judges that would do no permanent harm to the Supreme Court. But are there enough local, state, and federal elected officials who can be trusted to do the right things for their constituents?

It's been clear for weeks that these hearings were going to be pretty un-newsworthy. So what's with the feigned surprise that this guy didn't eat a baby yet?

Posted by: diddy | Sep 13, 2005 4:42:10 PM

Nah, I'd vote against confirmation, but, at this point, I wouldn't go anywhere near a filibuster.

Posted by: Ezra | Sep 13, 2005 4:52:26 PM

Roberts should be asked a general question: "Do you think that lying under oath by a politician over anything, or nominee for some federal office lying in answer to questions from congressional committee members is illegal and grounds for impeachment if the nominee is approved by that committee on the basis of those lies?" That's it. Just ask the question and let him answer. If he is honest and ethical, his answer would be, "Yes, that should be grounds for impeachment".

If this is the standard, then the right had Clinton dead on. The man lied and he was impeached. Thanks for the assurance.

Posted by: Fred Jones | Sep 13, 2005 5:34:04 PM

Fred, I hate to tell you, but Clinton was not approved for any job based on lies he told to any legislative committee. He already had been elected president and everything.

The comparison is akin to should you be fired for padding your resume vs. should you be fired for denying you're sleeping with the secretary when the whole office already knows. Don't get me wrong, both are objectionable, but they're hardly equivalent.

Posted by: Magenta | Sep 13, 2005 6:16:48 PM

First I will link to this nice analysis of Rehnquist by Scott Lemieux; discussing the almost nihilist philosophy about Rehnquist's famous Plessy memo:

Rehnquist

And then I state that I will expect Roberts to be between Rehnquist and Scalia/Thomas. Roberts will likely act as he says, "with humility", with overwhelming deference to the executive and legislatures at all levels. Scalia and Thomas are activists because they feel ilke embattled minorities. Roberts will be quietist with the calm certainty that everything is under control.

I think I liked Rehnquist because at some level I could sense his attitude that it was all a game; he was tweaking the rules, but didn't give a damn who won. Roberts cares, but understands that the game is over.

Posted by: bob mcmanus | Sep 13, 2005 8:55:52 PM

In case this isn't clear: Roberts said that "Casey is the the starting point" Casey says that states may set some restrictions on abortion. Deny cert to challenges, or a very tiny tweak to Casey, and there won't be many abortions performed.

Posted by: bob mcmanus | Sep 13, 2005 9:00:03 PM

Even under oath, nothing prevents Roberts saying "sure, I believe Roe v.Wade is stare decicis. Yeou bet I believe people have a fundamental right to privacy!" Then, after he's confirmed and he votes against upholding Roe v. Wade and privacy laws, he just has to say "Yeah, I used to believe those things, but I've reconcidered my position. Change of heart, you know? Shit happens; get over it."

Once confirmed, these guys are untouchable unless they get caught holding up a Quiki-Mart.

Posted by: jexter | Sep 13, 2005 10:01:19 PM

Someone - I think it might have been Sen. Cornyn - implied this morning that he thought that using foreign law in interpreting american law rose to the level of an impeachable offense.

Posted by: aphrael | Sep 14, 2005 4:51:04 PM

The comparison is akin to should you be fired for padding your resume vs. should you be fired for denying you're sleeping with the secretary when the whole office already knows.

Lying while president, especially to a court of law when one is the chief law enforcement officer of the United States, is more than just cause for impeachment.

Posted by: Fred Jones | Sep 16, 2005 8:02:53 AM

Someone - I think it might have been Sen. Cornyn - implied this morning that he thought that using foreign law in interpreting american law rose to the level of an impeachable offense.

That doesn't sound so far fetched. It would mean that the justices in question would not be holding up their end of the oath they took.

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