AND THE NYTIMES HAS OFFICIALLY JUMPED ON TEH 'WE LIKE ROBERTS' BANDWAGON IN PREPERATION FOR NEXT FIGHT. I have NO DOUBT that Roberts defeated his critics more with his intelligence and demeanor than ANY substantial stance he took. GOSHDANGIT he's GOOD!
Of course, my suspicion that this was planned by the white house can't be proven but slowly and surely roberts is being moved to the center as a replacemnt for OConnor, rahter than an ideological replacement for The Chief Justice. This is the EXACT OPPOSITE of what the opposition was planning, e.g. to make Roberts the conservative and the next one demand a moderate. Once again, I have NO DOUBT that it is Roberts hiself more than any stand it took that did this. And its reasonable to assume he had a meeting with Card and Rove and Bartlett who said, answer this this and this (to speak to moderate dems), stay away from this this and this (to satisfy moderate republicans) and just BE NICE (once again to capture moderate public opinion)....
All part of the left's 'we really wanted Roberts, so HA!' backtracking campaign!
italic parts for all those who want the cliff notes, underlined parts added by me.
September 16, 2005
Nominee Reveals Pragmatic Approach to Constitution
By ADAM LIPTAK
WASHINGTON, Sept. 15 - For someone accused of saying very little, Judge John G. Roberts Jr. revealed a great deal about how he will approach his work if confirmed as the 17th chief justice of the United States.
Over three days of testimony, between declining to answer questions on specific cases and legal issues, Judge Roberts made clear that his approach to interpreting the Constitution is more varied and flexible than the originalism subscribed to by Justices Clarence Thomas and Antonin Scalia. President Bush has singled them out as models for the sorts of justices he planned to appoint. (UNBELIEVABLE HOW DELUSIONAL THESE PEOPLE ARE!!!!!!)
"I think the framers, when they used broad language like 'liberty,' like 'due process,' like 'unreasonable' with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages," Judge Roberts said Wednesday.
He said he would consider not only how the framers of the Constitution understood those words, but also how courts have interpreted them and how they apply to evolving societal conditions.
That approach disappointed some conservative legal scholars.
"He is not in the mold of Scalia and Thomas," said Steven G. Calabresi, a law professor at Northwestern and a chairman of the Federalist Society, the conservative legal group. "They have more of a theory of how to decide cases, and they look to text and original meaning. Roberts will look at text and original meaning, but he will also look to precedent and the consequences of his decisions."
Judge Roberts, for his part, said his approach would be pragmatic and case-specific. That approach places Judge Roberts closer to Justice Sandra Day O'Connor, who has often provided the swing vote in important cases. (This will come back to bite them in the @$$. Their previous tactic was that he was replacing the chief justice with a conservative and should appoint a moderate to replace her. Now they're opening up the door to the other option which , oh look - IS EXACTLY WHAT THIS WHOLE CHARADE WAS PLANNED TO DO!!!!)
"I do not have an overarching judicial philosophy that I bring to every case," he said Tuesday. "I tend to look at the cases from the bottom up rather than the top down."
He would be guided, he said, by the level of generality inherent in particular constitutional provisions. "If the phrase in the Constitution says two-thirds of the Senate," he said, "everybody's a literalist when they interpret that."
But other phrases in the Constitution are broader, he added, giving as an example the Fourth Amendment's prohibition of unreasonable searches and seizures.
"You can look at that wording all day," Judge Roberts said, "and it's not going to give you much progress in deciding whether a particular search is reasonable or not."
Under the 14th Amendment, adopted after the Civil War to protect blacks, said Douglas W. Kmiec, a law professor at Pepperdine University, "Judge Roberts made it reasonably clear that gender and other categories can receive protection."
That is at odds, Professor Kmiec said, with the approach advocated by Judge Robert H. Bork, whose nomination was defeated in 1987 when Democrats controlled the Senate.
"Under the Bork version of originalism," Professor Kmiec said, applying the 14th Amendment to sexual discrimination "doesn't make any sense."
He continued: "That was probably the major tripwire that started his downhill descent at his hearings."
Judge Bork was also both more expansive and combative in answering questions than Judge Roberts was, as a matter of both necessity and temperament.
"Bork was extremely forthcoming," said Patrick J. Schiltz, a law professor at the University of St. Thomas, "but he had no choice. He had written a lot about everything. He's written about every major doctrine in constitutional law."
Judge Roberts seemed most at ease in sorting through and explaining Supreme Court precedents without offering his own views on whether the decisions were correct.
"In terms of understanding Supreme Court case law," said Cass Sunstein, a law professor at the University of Chicago, "he's the most impressive in recent memory, even more than Bork, and Bork was pretty impressive."
But unlike Judge Bork, Professor Sunstein said, Judge Roberts appeared prepared to build on those Supreme Court decisions rather than depart starkly from them.
Judge Roberts disappointed some conservatives in the way he answered questions concerning the scope of Congressional power. In a series of decisions, the late Chief Justice William H. Rehnquist endorsed significant limitations on the ability of Congress to legislate on local matters.
"Roberts will be very deferential to Congress," Professor Calabresi said, "more so than Rehnquist."
Judge Roberts also made clear that it is not the role of the courts to interpret statutes more broadly than warranted. If Congress wants to allow certain kinds of lawsuits, he said, the legislation it passes should say so plainly and directly.
Judge Roberts provided substantial information, at least at the level of theory, about the right to privacy. He said it existed, located it in various constitutional provisions including the 14th Amendment and gave some examples of what it requires. He endorsed a 1965 decision of the Supreme Court holding that the right to privacy guarantees that married couples may use contraceptives.
But his adamant refusal to answer other questions frustrated Democratic senators and liberal scholars.
"From Bush v. Gore to the Second Amendment to separation of church and state to abortion," Erwin Chemerinsky, a law professor at Duke University, said of Judge Roberts, "he was masterful at saying a lot but avoiding answering the key questions."
Professor Chemerinsky said he took some comfort from Judge Roberts's endorsement of an aspect of Justice O'Connor's majority decision in an affirmative action case involving higher education.
Judge Roberts said that pragmatic considerations about the consequences of allowing race to play a role in admissions decisions properly played a role in her decision. Justices Scalia and Thomas dissented in the decision, saying that the Constitution forbids such preferences.
Judge Roberts also declined to state his personal views on almost every matter, on the theory that they were irrelevant to a judge's work. (He relented briefly on Thursday, saying, "My own view is that if you have a child, he or she should be educated.")
"Other nominees," Professor Schiltz said, "after making clear that they weren't talking about the law but only their personal views, were pretty willing to talk."
At times, Judge Roberts's limited conception of the judge's role struck Democrats as evidence of a cramped approach to the law from a lawyer more taken with technicalities than with justice. Judge Roberts declined to second-guess positions he had taken as an advocate arguing that a student who had been sexually abused was not entitled to damages and that a death row inmate could not present new evidence of his innocence if certain deadlines had passed.
Judge Roberts was repeatedly confronted with documents he wrote as a young lawyer in the Reagan administration. They were studded with caustic comments, uniformly took conservative positions and frequently argued for an understanding of the Constitution starkly at odds with the Supreme Court doctrine of the day.
Judge Roberts stressed that the documents represented the views of a staff lawyer setting out the views of his client, but he did not for the most part directly disavow the sentiments in them. But Professor Sunstein said that Judge Roberts's testimony was in an entirely different vein than his early writings.
"He doesn't talk like someone who believed at any level in changing the current understanding of the Constitution," Professor Sunstein said. "He's not the same person he was in his 20's."
Senator Charles E. Schumer, Democrat of New York, summed up what he called the pros and cons of the Roberts nomination on Thursday.
The pros, Mr. Schumer said, are that Judge Roberts is brilliant, is "a lawyer above all" and is devoted to "a judicial philosophy of modesty and stability" that "respects precedent, the Congress and other judges' opinions."
On the negative side, Mr. Schumer said, were the questions Judge Roberts would not answer, the White House's refusal to release documents from his years as a more senior lawyer in the first Bush administration and what Mr. Schumer called "the question of compassion and humanity."
"We must now take the evidence we have and try to answer the fundamental question," Mr. Schumer said. "What kind of justice will John Roberts be?"
Judge Roberts, for his part, summed up his philosophy on Thursday.
"Somebody asked me, you know, 'Are you going to be on the side of the little guy?' " he said. "And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath."