I’ve been a bad, bad blogger. I haven’t really blogged much about John Roberts’ confirmation hearing. The two major reasons are (a) I’m no legal scholar and am reluctant to wade into waters that may be over my head and (2) he’s probably going to get confirmed anyway. The best we can hope for is that Dems on the Judiciary Committee step up, ask tough questions and insist on real answers (whether they get them or not).
I’m still poring over transcripts from the hearing, but the main question I have for Roberts concerning the right to privacy. As Chief Justice, will he be joining the hubby and me in bed, or will he stay out of our bedroom altogether? I’m not the only one with questions. One Senator has already brought up sodomy laws during the hearing. Sen. Cornyn, in his opening statement.
Senator John Cornyn (R-Texas) — who criticized the high court’s decision in Lawrence vs. Texas — was one of just four senators on the 18-member Senate Judiciary Committee to raise gay related issues in their opening statements during the first day of the panel’s confirmation hearing on Roberts’ nomination to be Chief Justice.
Two other senators – Jeff Sessions (R-Ala.) and Sam Brownback (R-Kan.) – joined Cornyn in cautioning Roberts about creating rights that “don’t exist” in the Constitution. All three warned that creating “new” rights could be used, among other things, to legalize same-sex marriage.
…Cornyn noted in his remarks that the Lawrence vs. Texas decision overturned the 1986 Supreme Court ruling that upheld state sodomy laws. He said the earlier, 1986 decision confirmed “the constitutionality of state laws based on the collective moral judgment of those states about permissible sexual activity.”
“What has changed in that intervening time?” Cornyn asked. “Did the constitution change? Well, no. Did the justices change? Yes. But should that determine a different meaning of the Constitution? Are some judges merely imposing their personal preferences under the guise of the Constitution?
Roberts initial response to the issue left something to be desired. Like, a decipherable position. At least that’s how it seemed to me.
SEN. JOE BIDEN (D-DE): Now, you have already said to the chairman that you agree that there’s a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that — not what said law is — what do you think? Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?
JUDGE ROBERTS: I do, Senator. I think that the court’s expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.
Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it’s not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.
If they agree with Bowling against Sharpe, as I’m sure all of them do, they are subscribing to that proposition to some extent or another.
And again with Sen. Kohl.
KOHL: … Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception. Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?
ROBERTS: I agree with the Griswold court’s conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
So, what exactly does this mean? Will someone who has more patience with Roberts’ judicial tap-dancing please translate this for me? It sounds like he at least seems to believe that married couples have the right to make their own decisions about birth control, but that doesn’t exactly bring me and my family into the the realm of having a right to privacy, since the hubby and I can’t legally marry and birth control is hardly a concern of ours.
And if Roberts is placing himself somewhere along the spectrum of justices on the issue — "to some extent or another" — is he closer to the Stevens end of the spectrum, or is he crowding Thomas and Scalia?
On the other hand, his answer to the question about his pro-bono work on a gay rights case is interesting.
Regarding the case of Romer v. Evans, Specter said to Roberts, "You gave some advice on the arguments to those who were upholding gay rights. There’s a quotation by Walter Smith, who was the lawyer at Hogan Hartson in charge of pro bono work. And he had this to say about your participation in that case…trying to help the gay community in the case in the Supreme Court—Mr. Smith said, quote, ‘Every good lawyer knows that if there is something in his client’s cause that so personally offends you, morally, religiously, or if it so offends you that you think it would undermine your ability to do your duty as a lawyer, then you shouldn’t take it on. And John’—referring to you—’wouldn’t have. So at a minimum, he had no concerns that would rise to that level.’ Does that accurately express your own sentiments in taking on the [inaudible] to the gay community in that case?"
Roberts responded, "I was asked frequently by other partners to help out, particularly in my area of expertise, [and it] often involved moot courting. And I never turned down a request. I think it’s right that if there had been something morally objectionable, I suppose I would have. But it was my view that lawyers don’t stand in the shoes of their clients and that good lawyers can give advice and argue any side of a case. And as I said, I was asked frequently to participate in that type of assistance for other partners at the firm. And I never turned anyone down.
OK. So, the way I’m reading this is that he doesn’t think gays are completely icky ("morally objectionable") otherwise hw wouldn’t have taken the pro bono work. That’s nice, but it’s really neither here nor there in terms of telling me whether he thinks states should be able to make criminals out of the hubby and me.
Normally, I might not mind having a guy like John Roberts join me in bed. He’s quite well preserved for a man his age. However, under the circumstances, I’d prefer it if he, the rest of his future court brethren and sistren, and the legislature all stayed on the other side of the sheets.
What Roberts is saying is that pretty much everyone agrees now that there is some form of a "right to privacy," but there is disagreement as to where it comes from. Roberts reminds us that the current consensus, with which he apparently agrees, is that it comes from the Due Process Clause of the Fourteenth Amendment — the "liberty interest" (remember, it’s "life, liberty or property" — each has its own rules, here it’s the "liberty" interest that is being debated).
Of course, some very silly people, especially me, prefer to look at the Ninth Amendment (unenumerated rights) for the right to privacy. That reasoning is not dead, but it is a minority view and is usually back-shelved in favor of the Fourteenth Amendment.
Clarence Thomas is the only S.C. justice who still believes the Ninth Amendment should be the focus rather than the Fourteenth.
I listen to NPR on my commute each day and listen to the hearings live each morning and the days review each evening.
As I listen to Roberts speak, I must admit its nice to hear a Bush appointee, speak in clear concise sentences and articulate his views without sounding like a babbling idiot. I can see why he’s good at what he does. He may or may not be a good judge, we’ll see. And frankly I don’t think either side can say exactly how he’ll vote on any single issue. The hearings themselves are a dog and pony show. Unless he admits to dancing with underage boys at his weekly drag parties Roberts is in. This whole thing is a sham Roberts knows it as does everyone else on the panel. The very idea that he has to give his opinion on matters of law without giving his opinion is a linguistic nightmare. Every question starts with…With out telling us how you feel, please tell us how you feel about case XYZ. Without telling us how you would rule on a case please tell us how you would rule.
Get a grip!
Their not allowed to ask tough questions.
And he’s not allowed to answer anything.
The only thing I’ve seen is his ability to do the political two step, and in fact, he does it well.
After listening to meaningless hours of question and answers. The only thing I know for sure is Bush likes him, and that alone is enough to scare me.
I think the dog-and-pony show is necessary, not because the Supreme Court nominees want to play it cagey, but because the senators ask the wrong questions.
They ought to be asking Roberts questions that ferret out what he is like and ought to avoid questions relating to law altogether.
I point out that when a Democratic President nominates a quasi-liberal for the Court, the roles of the senators are reversed — and that this happens without any qualms. The Democrats, now, ARE trying to make the whole process a wholly political issue, hoping to have Roberts commit to voting on certain issues the way they would like OR they are hoping Roberts might say something foolish that they can pounce on. But a Supreme Court judge should not precommit to voting certain ways, and has to assiduously avoid saying anything that might be construed as foolish.
Perhaps senators should ask Roberts what movies he likes! If his favorites were "Pulp Fiction" and "The Day the Earth Stood Still," it would say a lot. On the other hand, if he liked "Forrest Gump" and "From Here to Eternity," then obviously he would have no business being on the Court.
Roberts has told us his favorite films are "Dr. Zhivago" and "North by Northwest." I think we can tell a lot from this. He will be an intelligent addition to the Court, but will consistantly rule in consort with other conservatives.