Some Research Reactions
Jul. 19th, 2005 06:03 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
solarbirdIt's John G. Roberts for Supreme Court. [EDIT: I'm editing this as I find random new things. Last edit: 9:17PM] Here we go...
Roe v. Wade: gone. Money quote:
Moreover, Roberts argued, even though the case did not implicate Roe v. Wade, that "[w]e continue to believe that Roe was wrongly decided and should be overruled... The Court's conclusion in Roe that there is a fundamental right to an abortion... finds no support in the text, structure, or history of the Constitution."
Later stated in Federal Appeals Court nomination hearings, "Roe v. Wade is the settled law of the land.... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." However, this seems to apply to someone in a position not capable to overturn it.
1st Amendment:
Roberts co-authored two briefs arguing for an expanded role for religion in public schools. In one case, he co-authored a government amicus curiae brief before the Supreme Court, in which he argued that public high schools should be allowed to conduct religious ceremonies as part of a graduation program, a position rejected by the Supreme Court. 26
In the area of freedom of speech, Roberts co-authored a brief arguing that the 1989 Flag Act did not violate the First Amendment. 28 Two Americans had been prosecuted for burning the U.S. flag in violation of the Act, but both charges were dismissed on the grounds that the law violated the First Amendment right to freedom of speech.
Takings clause and Contract clause - rejecting strict constructionism:
In the first article, Roberts offered his view of the Takings Clause, which requires that the government give "just compensation" for takings of "private property." Roberts claimed that courts trying to ascertain its meaning, "have not been significantly aided by the words of the clause, which are incapable of being given simple, clear-cut meaning... Indeed, the very phrase 'just compensation' suggests that the language of the clause must be informed by changing norms of justice." 40 After rejecting on various grounds several interpretations of the clause traditionally used by courts - i.e. physical intrusion onto an owner's property as anachronistic in a largely non-agrarian society, "noxious use" as too value-laden, and Justice Holmes' 1922 "diminution of value" test as too vague, Roberts argued for a "constrained" model based on a utility-based test proposed by Professor Frank Michelman. Under that model, parties made unwhole or "insecure" by regulation should be compensated accordingly.
In his second article, Roberts took on the Contract Clause, which provides that, "No state shall... pass any... law impairing the obligation of contracts." Roberts argued that this clause should be interpreted to protect corporations from legislation that might increase their obligations to their workers, such as pension protection, and not, as Justice Brennan had asserted, to protect individuals from decisions by states that nullified rights by reneging on contracts. 41 Roberts criticized Justice Brennan's plain language interpretation of the Contract Clause, arguing instead that, "Constitutional protections, however, should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.'" 42 Here, as in his Takings Clause article, Roberts seems unafraid to reject a "strict construction" approach to constitutional interpretation to reach results that favor corporations and wealthy property owners. In both articles, Roberts' non-literal interpretation of the clause seems to fly in the face of President Bush's pledge to nominate judges who would strictly interpret the law, not make it.
Equal Rights:
In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.
Criminal Law:
In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it "a matter of basic fairness."
Well known to be supportive of the death penalty. May be likely to be particularly circumspect about it, however, given his personal history (father murdered by carjacker at his home).
Some research points:
SCOTUSblog
NOW
Pro-Life Blogs endorsement
Washington Post
Cache of Advocate write-up.
Misc:
Ruled for wide-ranging powers against anyone designated an enemy combatant.
Social-conservative bloggers are, so far, very pleased. Several commenting that Bush has decided not to back down from a confirmation fight and has picked someone reliably enough socially conservative for them.
Fundamentalists are lining up to support the nomination. Family Research Council: "Judge Roberts is widely respected for his fair judgments, intellect and integrity, all things qualifying him to serve as the next Supreme Court Justice." Focus on the Family: "Bush Nominates Judge John G. Roberts: 'He has a good heart'" and says, "Pro-family legal experts who know Roberts best, say they are extremely pleased with the pick." Note that "pro-family" usually means both "anti-abortion" and "anti-gay," though Roberts himself appears to have little or no track record in the case of the latter.
ConfirmThem.com endorsement
New spin: You can't even prove he wrote that brief, so you can't prove he'll vote to repeal Roe v. Wade. Of course you can't, don't be dumb.
MSNBC talking heads are both stupid and boring. I should have put on some other channel to watch the announcement. Aside from that, they're mostly talking him up as the best reproductive-rights supporters are likely to get and are treating his confirmation as a fait accompli.
Roe v. Wade: gone. Money quote:
Moreover, Roberts argued, even though the case did not implicate Roe v. Wade, that "[w]e continue to believe that Roe was wrongly decided and should be overruled... The Court's conclusion in Roe that there is a fundamental right to an abortion... finds no support in the text, structure, or history of the Constitution."
Later stated in Federal Appeals Court nomination hearings, "Roe v. Wade is the settled law of the land.... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." However, this seems to apply to someone in a position not capable to overturn it.
1st Amendment:
Roberts co-authored two briefs arguing for an expanded role for religion in public schools. In one case, he co-authored a government amicus curiae brief before the Supreme Court, in which he argued that public high schools should be allowed to conduct religious ceremonies as part of a graduation program, a position rejected by the Supreme Court. 26
In the area of freedom of speech, Roberts co-authored a brief arguing that the 1989 Flag Act did not violate the First Amendment. 28 Two Americans had been prosecuted for burning the U.S. flag in violation of the Act, but both charges were dismissed on the grounds that the law violated the First Amendment right to freedom of speech.
Takings clause and Contract clause - rejecting strict constructionism:
In the first article, Roberts offered his view of the Takings Clause, which requires that the government give "just compensation" for takings of "private property." Roberts claimed that courts trying to ascertain its meaning, "have not been significantly aided by the words of the clause, which are incapable of being given simple, clear-cut meaning... Indeed, the very phrase 'just compensation' suggests that the language of the clause must be informed by changing norms of justice." 40 After rejecting on various grounds several interpretations of the clause traditionally used by courts - i.e. physical intrusion onto an owner's property as anachronistic in a largely non-agrarian society, "noxious use" as too value-laden, and Justice Holmes' 1922 "diminution of value" test as too vague, Roberts argued for a "constrained" model based on a utility-based test proposed by Professor Frank Michelman. Under that model, parties made unwhole or "insecure" by regulation should be compensated accordingly.
In his second article, Roberts took on the Contract Clause, which provides that, "No state shall... pass any... law impairing the obligation of contracts." Roberts argued that this clause should be interpreted to protect corporations from legislation that might increase their obligations to their workers, such as pension protection, and not, as Justice Brennan had asserted, to protect individuals from decisions by states that nullified rights by reneging on contracts. 41 Roberts criticized Justice Brennan's plain language interpretation of the Contract Clause, arguing instead that, "Constitutional protections, however, should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.'" 42 Here, as in his Takings Clause article, Roberts seems unafraid to reject a "strict construction" approach to constitutional interpretation to reach results that favor corporations and wealthy property owners. In both articles, Roberts' non-literal interpretation of the clause seems to fly in the face of President Bush's pledge to nominate judges who would strictly interpret the law, not make it.
Equal Rights:
In 1999, he granted protection to a female college football kicker under the federal law, known as Title IX, that bans sex discrimination in federally funded educational programs.
Criminal Law:
In 2002, Luttig became the first federal appeals judge to rule that inmates have a constitutional right to post-conviction DNA testing to try to prove their innocence, calling it "a matter of basic fairness."
Well known to be supportive of the death penalty. May be likely to be particularly circumspect about it, however, given his personal history (father murdered by carjacker at his home).
Some research points:
SCOTUSblog
NOW
Pro-Life Blogs endorsement
Washington Post
Cache of Advocate write-up.
Misc:
Ruled for wide-ranging powers against anyone designated an enemy combatant.
Social-conservative bloggers are, so far, very pleased. Several commenting that Bush has decided not to back down from a confirmation fight and has picked someone reliably enough socially conservative for them.
Fundamentalists are lining up to support the nomination. Family Research Council: "Judge Roberts is widely respected for his fair judgments, intellect and integrity, all things qualifying him to serve as the next Supreme Court Justice." Focus on the Family: "Bush Nominates Judge John G. Roberts: 'He has a good heart'" and says, "Pro-family legal experts who know Roberts best, say they are extremely pleased with the pick." Note that "pro-family" usually means both "anti-abortion" and "anti-gay," though Roberts himself appears to have little or no track record in the case of the latter.
ConfirmThem.com endorsement
New spin: You can't even prove he wrote that brief, so you can't prove he'll vote to repeal Roe v. Wade. Of course you can't, don't be dumb.
MSNBC talking heads are both stupid and boring. I should have put on some other channel to watch the announcement. Aside from that, they're mostly talking him up as the best reproductive-rights supporters are likely to get and are treating his confirmation as a fait accompli.
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no subject
Date: 2005-07-20 01:06 am (UTC)no subject
Date: 2005-07-20 01:09 am (UTC)no subject
Date: 2005-07-20 05:39 am (UTC)no subject
Date: 2005-07-20 01:17 pm (UTC)no subject
Date: 2005-07-20 01:30 am (UTC)no subject
Date: 2005-07-20 01:50 am (UTC)As for the contract part, not sure I followed all the legalize. Sounds like he was arguing that if a law dimishes the value of your property, you deserve compensation (I'm all for that!) because it's the same thing as taking (which in many cases it is). The other one I'm not too clear on, but as soon as someone says 'favors corporations and the rich' well I put them in the crank catagory and start to view anything they say with suspicion. Maybe because by the definition of democrates these days I'm considered 'rich' (I wish!).
no subject
Date: 2005-07-20 01:55 am (UTC)I sympathize. Like most Americans, I have negative net worth, but most Democrats probably still consider me "rich" because of my salary. I don't like being declared a public enemy by either political party.
no subject
Date: 2005-07-20 02:02 am (UTC)no subject
Date: 2005-07-20 02:20 am (UTC)And somehow, I just don't think this country is going to hell because of me. :-(
no subject
Date: 2005-07-20 03:32 am (UTC)no subject
Date: 2005-07-20 02:08 pm (UTC)Best I can come up was John Kerry's campaign promise to leave Bush's tax cuts entirely in place for folks making less than $200K/year; that doesn't really address what he thought of as "rich", but it sure sets a lower bound. Gary Locke's definition from his SOTU response a few years back started at around $500K, if I remember correctly.
no subject
Date: 2005-07-20 03:20 pm (UTC)no subject
Date: 2005-07-20 10:11 pm (UTC)no subject
Date: 2005-07-20 10:54 pm (UTC)no subject
Date: 2005-07-21 12:14 am (UTC)And if you're just randomly asserting that Nancy Pelosi believes everyone over income=$X is "rich", then you should say what $X is and provide some kind of source for this statement.
no subject
Date: 2005-07-21 12:32 am (UTC)no subject
Date: 2005-07-21 03:32 am (UTC)Do you have a source for Nancy Pelosi considering you "rich"?
no subject
Date: 2005-07-20 02:00 am (UTC)I agree the language is a bit moonbatty, but the point still stands. At least some conservative bloggers were pointing to this - specifically the exact report I was quoting (and not attributing, bad me, I'm just grabbing stuff for my own notes) if that makes you feel any better about it. It was a liberal source, but apparently one worth pointing towards.
no subject
Date: 2005-07-20 02:08 am (UTC)So it's a crap shoot no matter what.
As for Roe vs Wade? I still think it should be legislated and not a court decision. I think Legislation would make it a lot more clear cut and then there would be a lot less hysteria over the subject. Think about it, what election or court appointment hasn't that been made an issue of? Single issue litmus tests for everything (especially when it's the same issue!) aren't good for a republic. Other more important issues can get brushed aside.
no subject
Date: 2005-07-20 02:27 am (UTC)To some people, no issue is more important, because Roe's implications go far beyond the legality of a medical procedure. It is a cornerstone of women's rights. Without it, we're second-class citizens again -- eternal children governed by a patriarchy.
We each set our own priorities, political and otherwise. But this is why women's rights -- and thus, abortion -- are a priority with me.
So it's a crap shoot no matter what.
I'm thinking you might be right here. I'm nervous as hell, though.
To comment on your metaphor... it occurs to me that the current U.S. political climate is a lot like a game -- a sporting event, I think, maybe even a pro-wrestling match. Everyone is hell-bent on "winning" and "beating" the opposing side. In reality, we're all on the same team.
no subject
Date: 2005-07-20 02:41 am (UTC)I just think that the way everyone has been running around in circles on this issue for thirty years now is just counter productive. Besides if Roe -did- get overturned the day after this guy sat on the court, by the following Wednesday (if not sooner) there would be a law to codify it. Abortion on demand is here to stay. It's a part of our society now, and it isn't going away.
I think part of the hysteria in a lot of things lately is because courts are making laws, which they shouldn't be, because they can be over turned too easily by another court. But very few people seem to agree with me.
no subject
Date: 2005-07-20 02:53 am (UTC)A friend of my brother's had a third-trimester abortion several years ago to remove an anecephalic fetus. I don't know if she had the "partial birth" procedure -- I haven't been able to get to that info, and I have to tread lightly -- but regardless, no government at any level had a moral or ethical right to interfere in her situation. The whole deal was devastasting enough without generic political edicts restricting third-trimester procedures.
Abortion on demand is here to stay.
I'm not optimistic about this, frankly. Look at how much abortion rights have eroded since Roe v. Wade. There are tons of restrictions and roadblocks that interfere with access, not to mention tacitly sanctioned intimidation of doctors and patients. The examples are overwhelmingly and depressingly numerous.
I think part of the hysteria in a lot of things lately is because courts are making laws, which they shouldn't be, because they can be over turned too easily by another court. But very few people seem to agree with me.
I think you're over-simplifying the matter a little. Courts aren't making laws when they rule that certain state or federal laws are unconsititutional; generally, they're limiting the rights of government in favor of the rights of private citizens. This is our big safeguard against the "tyranny of the majority."
And I'm kind of "hysterical" right now because the government has lumped me into a minority.
no subject
Date: 2005-07-20 02:58 am (UTC)As for the pressure that is applied, well that goes both ways for both sides. But that comes back to why I want to see a law written. People put all the pressure on now because there is no law, just a ruling. And rulings can be overturned. That is what this entire thread is about after all, correct? But if it was a written law, well then, you can't overturn that, at least not easily! And so there would be a lot less pressuring going on.
no subject
Date: 2005-07-20 03:05 am (UTC)Some people don't think it's "medically necessary" to abort genetically-damaged fetuses. Plenty of people believe that women should be forced to bear them.
But that comes back to why I want to see a law written. People put all the pressure on now because there is no law, just a ruling. And rulings can be overturned. That is what this entire thread is about after all, correct?
As I said, we frame the problem differently.
If Roe v. Wade is overturned, there will not be one federal law regarding abortion. There will be fifty state laws -- thirty of which will outlaw the procedure except under circumstances like those you mention (except in LA or MS).
Are you female, BTW?
no subject
Date: 2005-07-20 03:15 am (UTC)no subject
Date: 2005-07-20 02:55 am (UTC)no subject
Date: 2005-07-20 03:04 am (UTC)I don't trust Judges. They remind me too much of Kings and dictators. I put more faith (but not much more!) in our elected representatives. That's just why I'd rather see the whole thing made law by Congress.
no subject
Date: 2005-07-20 03:08 am (UTC)You know what? We may not see eye-to-eye here, but I hope you're right.
I don't trust Judges.
I don't trust politicians. :-( Power corrupts. That's why I like the idea of small, limited government. I used to vote Libertarian consistently. Now I'm scared enough to vote Democrat. (No offense to Democrats -- I just continue to have issues with the party platform.)
no subject
Date: 2005-07-20 02:20 am (UTC)For a video of President Bush's annoucement.
no subject
Date: 2005-07-20 04:13 am (UTC)We could easily do better. The first rumor this morning was for a judge, Edith Brown Clement, who seems to be a true conservative who respects legal precedent. From what is known about her, she would have been a credible choice. I know we're not going to get liberal or moderate judges, but a sensible conservative should be a viable choice. I would have supported her nomination, and I think most realistic liberals would have, too, even though she would probably have represented a rightward tilt in the court, rather than being another Souter.
This guy? I think it's worth blocking him. It's the fight the Republicans are hoping for, and they'll almost certainly initiate the nuclear option to destroy the filibuster. But there are things that the Democrats can do in response to slow down all business of the Senate, and I favor a full-out fight.
On the bright side, he's NOT the decisive vote on Roe v. Wade. Kennedy is, and is already on record as a moderate who respects the precedent even if he doesn't like it. Given a choice to write an anti-Roe decision, he could change his mind, but there's more hope there than a certain reversal.
The real battle is going to come when Stevens or Ginsberg leave the court, assuming they don't hold out to 2009. I can see an argument to hold off on a big judicial battle until then, and to focus on issues where the Republicans are weak (Rove, Iraq, the incredibly weak economic "recovery"). But Roe aside, Roberts is going to be a decisive vote on key issues, and he's simply not up to high judicial standards required at this time.
no subject
Date: 2005-07-20 04:25 am (UTC)This week's issue of Fortune has a good discussion of wage deflation in the context of American competitiveness in the face of international market expansion. (Short oversimplification of the whole article: Americans need to get smarter. Now. And wages are going to be flat or may even fall in the mid-term, but on the plus side, prices of goods should drop. Deal with it because there's no going back. The issue does, unfortunately, kind of ignore the problem with oil, despite having a significant discussion about the attempt by a Chinese government-owned company to buy an American oil company.)
no subject
Date: 2005-07-20 04:42 am (UTC)Some of the problems can't be avoided, such as a depression in wage growth because of the global economy, and the continued shift of manufacturing and other industries overseas. (And I'll avoid the issue of oil, too). I do think that if we acknowledged this reality we could begin dealing constructively with the consequences. For example, Americans need to save more individually and collectively and stop living beyond our means. In a global economy, we simply can't continue to live on credit that's ultimately being extended by the Chinese and other investors in our national debt. We can't keep leveraging the value of our houses for some future economic boom that will let us grow out of our debts. There is no magic economic bullet that's going to save us.
no subject
Date: 2005-07-20 04:30 am (UTC)no subject
Date: 2005-07-20 03:23 pm (UTC)