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Friday, September 16, 2005
Military commissions in doubt? Part II
06:41 PM | Lyle Denniston | Comments (10) | TrackBack (0)
(A constitutional challenge to the military commissions set up by President Bush to conduct war crimes trials of terrorism suspects is pending at the Supreme Court, and appears likely to be acted upon by the Justices in late September or at the opening of the new Term on Oct. 3. Even before the Court reaches the case, however, the status of the commissions remains in doubt because of lingering issues in the D.C. Circuit. This is one of two posts on those developments. The first of these posts is just below.)
Chief Justice nominee John G. Roberts, Jr.'s participation as a federal appeals court judge in the initial constitutional challenge to President Bush's creation of war crimes commissions to try terrorist suspects has drawn a new challenge -- a legal challenge that, if it were to succeed, could at least delay those military proceedings and might seriously complicate them. This new development involves an issue that some critics of Judge Roberts have raised in the Senate Judiciary Committee review of Roberts' nomination to the Supreme Court. It involves interviews and telephone calls he had about a potential nomination to the Supreme Court, while he was sitting on the D.C. Circuit panel reviewing the constitutionality of the military commissions.
The new maneuver was filed in the Circuit Court on Aug. 26 by Rami bin Saad Al-Oteibi, a Saudi national who is now being held as an "enemy combatant" at the U.S. Navy prison in Guantanamo Bay, Cuba. He does not face any criminal charges, in a military commission or elsewhere, but is being held captive for an indefinite period. Technically, his motion is a request to intervene in the still-pending Circuit Court case of Hamdan v. Rumsfeld -- a case that is also now pending in the Supreme Court (see post below).
Al-Oteibi's lawyers want to join in the Hamdan case at the Circuit Court for one purpose only: to formally ask that Judge Roberts be recused from the case. Judge Roberts joined in the D.C. Circuit ruling July 15 upholding the military commissions. Al-Oteibi's claim is that a part of that decision -- barring Guantanamo Bay detainees from raising issues under the Geneva Convention against their captivity and treatment -- will undercut a Geneva Convention claim he has made in his habeas challenge in District Court to his continued detention. "The decision of the Court," the motion to intervene argues, "will, in all likelihood,dispose of [Al-Oteibi's] contentions...based on the Third Geneva Convention."
Attached to the intervention motion is a motion to force Roberts' recusal. That motion has not been accepted for filing in the Circuit Court, and will not be unless Al-Oteibi is allowed to intervene in the case. In the intervention motion, however, his attorneys told the Circuit Court: "The motion attached hereto seeks the recusal of Judge John Roberts on grounds that his repeated, undisclosed job interviews with high government officials while considering a case directly challenging the executive authority asserted by them, inevitably creates the appearance of bias. The motion is based on facts that have become known to Al-Oteibi's counsel only recently, and thus could not reasonably have been raised earlier."
Both Hamdan and the Bush Administration have opposed the motion to intervene on a variety of grounds, including suggestions that it came too late in the Circuit Court process. Hamdan's lawyers also claim that Al-Oteibi's maneuver will interfere with Hamdan's own challenge to the military commission trial he faces. The Administration's attorneys also argue that the maneuver, if it succeeds, "could also delay the government's ability to restart Hamdan's commission process."
Continue reading "Military commissions in doubt? Part II" »
Military commissions in doubt? Part I
05:32 PM | Lyle Denniston | Comments (1) | TrackBack (0)
(A constitutional challenge to the military commissions set up by President Bush to conduct war crimes trials of terrorism suspects is pending at the Supreme Court, and appears likely to be acted upon by the Justices in late September or at the opening of the new Term on Oct. 3. Even before the Court reaches the case, however, the status of the commissions remains in doubt because of lingering issues in the D.C. Circuit. This is one of two posts on those developments. The other post appears just above.)
Civilian and military lawyers for a Yemeni national facing trial before a special military commission are awaiting word from the D.C. Circuit on their request to delay any actual commission trials until after the Supreme Court acts on his appeal in Hamdan v. Rumsfeld, et al. (docket 05-184). The case involves Salim Ahmed Hamdan, accused of terrorist acts, partly in his role as "the personal driver for Osama bin Laden and other high ranking Al Qaeda members and associates," as the Justice Department puts it. The Bush Administration is resisting the delay request, arguing that the Supreme Court is likely to turn aside the appeal and that, in any event, the courts should not impose any further delay on the opening of commission trials.
The D.C. Circuit, in a ruling on July 15 (joined in by Circuit Judge John G. Roberts, Jr., now the nominee to be Chief Justice), upheld the constitutionality of the military commissions. It found that Congress, in the 9/11 Resolution, had authorized the President to set up such tribunals outside the regular civilian and military court systems. At that time, the Circuit Court withheld its mandate to allow time for rehearing en banc to be sought. The Court, however, said that any party could ask for "expedited issuance of the mandate."
Three days after the ruling, the Pentagon said it was consulting with the Justice Department on whether to seek "immediate issuance of the mandate," which, it noted, "would allow proceedings in the Hamdan case to resume immediately." No such request was filed, however. And rehearing en banc was not sought.
The commission proceedings against Hamdan and others accused of violating "the laws or war" have been on hold since December 2004, following a District Court ruling that those tribunals as presently constituted were invalid. That was the ruling the Circuit Court overturned on July 15. The District Court's injunction against a commission trial of Hamdi, however, remains in effect pending the Circuit's mandate.
In their reaction on July 18, Pentagon officials in charge of the commissions said that they would "resume commission proceedings immediately...as soon as any necessary court orders are issued." They specifically mentioned Hamdan's trial.
Continue reading "Military commissions in doubt? Part I" »
Thursday, September 15, 2005
Roberts hearings over
07:10 PM | Lyle Denniston | Comments (3) | TrackBack (0)
"That concludes our hearing," Senate Judiciary Committee Chairman Arlen Specter declared at 7:10 p.m. Thursday. The adjournmen came after eight minutes of closing remarks by Specter and ranking Democrat Patrick Leahy.
In his closing remarks. Leahy said that "we have as strong a record as we're going to have." That was an indication that Democrats on the Committee had concluded that the Bush Administration will not provide additional documents those senators have sought, regarding Roberts' service as deputy Solicitor General in the Justice Department.
Specter said that the leaders of the Committee had an agreement that the panel would meet one week from Thursday, on the 22d, to vote on the nomination of Judge John G. Roberts, Jr., to be Chief Justice. If, as expected, he wins Committee approval then, debate on the Senate floor probably will begin on Monday, Sept. 26, with a final vote targeted for later that week.
As of now, there is no expectation that President Bush will nominate someone for the seat of Justice Sandra Day O'Connor, the other vacancy on the Court, until after the Senate has completed action on Judge Roberts' nomination. That means that Justice O'Connor will have to decide whether to participate in the Court's pre-Term Conference on Sept. 26, when the Justices consider whether to grant new cases for review. She has said her retirement would become effective when her successor was confirmed.
More Roberts Testimony on War Powers and Treaties
05:02 PM | Marty Lederman | Comments (0) | TrackBack (0)
As a follow-up to my previous post, here's more testimony from today on war powers and related questions:
SEN. LEAHY: Can Congress stop a war?
ROBERTS: Well, that's, of course, a difficult question. Now Congress has always exercised the power of the purse with respect to activities of that sort and regulated the funding for that type of activity. And that's, of course, always been the core of Congress' authority. But the question to actually terminate hostilities that the executive has determined to initiate either with the authorization of Congress or a situation of congressional silence or acquiescence, to go back to the Youngstown decision, the issue of what Congress' authorities are to terminate, short of exercising its power with respect to the purse, those are unsettled, and I think have to be addressed in the context of a particular case. And the memo to which you refer, again, I was a lawyer for the executive and any cautious lawyer for the executive, without regard to the administration, would be on the alert for any type of suggestion that there are limits on that power.
* * *
Continue reading "More Roberts Testimony on War Powers and Treaties" »
Today's Briefs
04:19 PM | Tom Goldstein | Comments (1) | TrackBack (0)
We filed in three cases (along with an extension motion in a fourth).
We filed this petition (with appendix) in an Equal Protection case on behalf of the City of Columbus. This is a case with the Stanford Supreme Court Litigation Clinic. Kevin Russell did most of the work for us.
We filed this petition (with appendix) on behalf of Peabody Coal in a Title VII case. (Coincidentally, Peabody was a long-time client of John Roberts.)
We filed this reply brief in our Bernback case about interest on attorney's fees cases. Amy Howe did the work for us.
The Roberts Hearings, Day Four
03:40 PM | Tom Goldstein | Comments (4) | TrackBack (0)
5:54 - This is a miscellaneous panel that isn't going to be interesting. So I'm going to sign off for the evening to focus on NPR and a talk I need to give tomorrow. So, thanks so much for signing on to the live-blog and get ready for Chief Justice John Roberts.
5:53 - The final panel, Number 6, is up.
5:47 - Specter tries to get Strauss to take a position on Roberts, and fails. Fried agrees with Specter that Roe is "super-duper-precedent."
5:43 - Sen. Sessions is asking various questions.
5:35 - Christopher Yoo testified in favor of John Roberts, particularly from his perspective of having worked with Roberts at Hogan & Hartson.
5:30 - I've been out of my seat, sorry. Judith Resnik testified against Roberts, principally on the ground that he is too inclined to Executive Power. David Strauss testified about his concerns with the President's promise to appoint a nominee in the mold of Scalia and Thomas; he doesn't comment much on Roberts in particular. Peter Edelman said that John Roberts is worse than Robert Bork.
5:02 - Panel 5 is up. These are law profs. Charles Fried doesn't know Roberts but likes him because he knows the difference between law and politics.
4:57 - Sessions is making various comments, as are various other Senators.
4:50 - Senator Feinstein is having a very interesting, candid exchange with Marcia Greenberger (calling her Marcia) in public in which the Senator almost seems to be trying to justify to Greenberger voting in favor of Roberts. Marcia Greenberger responds at great length to try to try and persuade Senator Feinstein otherwise. She closes by talking about how close Roberts' testimony is to Thomas' testimony on the right to privacy. Specter cuts her off finally.
4:45 - Senator Biden is talking, at some length. He says that he is somewhat persuaded to Cate Stetson and Ms. Wright but there is a real question. If Biden thinks that Roberts will be like Kennedy or Rehnquist he will vote yes.
4:30 - Senator Hatch asks Marcia Greenberger whether her organization has ever supported a Republican nominee for the Supreme Court. She says that they rarely take positions on nominees -- but, no. She says that member organizations were strongly in support of Sandra Day O'Connor. They did not take a position on Roberts at the court of appeals. Their concerns arise from the Roberts memos.
4:18 - We're back. Beverly Jones, my client in TN v. Lane, is up. (Again, we haven't spoken about these proceedings.) She tells the story of the case and says that the Senate should carefully study the Roberts nomination. Several Senators voice their support for the ADA. Specter says "we're not going to let the Supreme Court get away with 'congruence and proporitionality.'" (Incidentally, Sam Bagenstos did the great majority of the work on the case at the S. Ct., although local counsel argued it.)
3:46 - We're on a break for a vote.
3:42 - Henrietta Wright is up. She is a child advocate. She is a friend of John Roberts. And, wait for it, she likes him. (She says that Roberts and their family went through pain and anguish in trying to have children, and that their first adoption fell through. It's highly personal testimony in that respect.)
3:35 - Roderick Jackson -- the plaintiff in Jackson v. Birmingham Alabama -- is up. (The Democratic witnesses were generally picked when Roberts was up for the SO'c seat. Jackson and Beverly Jones won 5-4 civil rights cases with SO'c's vote.) He has followed the hearings and has questions about Roberts' suitability.
3:30 - Bruce Botelho, former Alaska GA, is up. He hired Roberts as a private lawyer repeatedly. There's much discussion of compassion, etc., etc. But Roberts always kicked the other side's butt, so Botelho liked him a lot. (One nice story - Roberts was scheduled to meet with boy scouts the night his nomination was announced, and didn't cancel. Their judgment was that Roberts was "a pretty good guy.").
3:23 - Marcia Greenberger is up. She says that document after document shows Roberts he is not committed to women's rights and that his testimony shows that his life experience is divorced from his judging. (I'm a fan of Marcia Greenberger, but the suggestion that Roberts is hostile to enforcing women's legal rights is contrary to the hearing record. I don't doubt that he would not read the civil rights statutes broadly, but he seems committed to enforcing the statutes enacted by Congress.) (Cate Stetson is doing her best not to look like she's shooting laser beams into Marcia Greenberger.)
3:16 - We're back. The next panel starts. Cate Stetson is up. She's in the Hogan & Hartson appellate practice. (She was my co-clerk.) She likes Roberts.
2:38 - Judge Lindberg is up. She worked previously at Hogan & Hartson. She likes John Roberts.
2:33 - Ms. Tallman of MALDEF is up. They don't like Roberts.
2:29 - Katheryn Webb Bradley testifies as a Democrat who likes John Roberts. She was a clerk to Byron White and saw cases argued by John Roberts. She then worked with him at Hogan & Hartson. She really liked him. He would answer her questions. He did a moot court at her request. He told her the arguments he thought would win. He wasn't trying to use the case to advance an ideological agenda. (Sometimes these proceedings are majestic; other times, not so much.)
2:27 - Carol Browner apparently doesn't have an opinion on John Roberts.
2:27 - She likes citizen suits.
2:25 - She likes the Commerce Clause too.
Via How Appealing, here is a transcript from the New York Times.
2:22 - Carol Browner is up. She likes the environment.
Continue reading "The Roberts Hearings, Day Four" »
Commentary: the unmentioned factor
11:14 AM | Lyle Denniston | Comments (3) | TrackBack (1)
Judge John G. Roberts, Jr., has now finished his appearance before the Senate Judiciary Committee on his nomination to be Chief Justice. The only real question about his prospects, it appears, is how many votes he will get from Democratic senators. (The hearing continues Thursday afternoon with outside witnesses, but no one expects them to make a difference.) A factor that looms large now in answering the question about Democratic votes is the second vacancy that remains for now in the background -- the seat from which Justice Sandra Day O'Connor expects to retire.
That approaching vacancy has gone almost completely unmentioned during the Roberts hearings over the past four days, but it seems sure to become a central consideration as Democrats ponder how they will vote on Roberts. The judge, by who he is and especially by how he has performed in the witness chair, has made it more difficult for Democrats to vote against him to replace Chief Justice William H. Rehnquist. That has been most evident, this week, in the anguished musings of Sen. Dianne Feinstein, California Democrat, who openly confesses to facing "a dilemma." Sharing that dilemma, to some extent, seem to be such hardy Democratic liberals on the Committee as Sens. Joseph Biden of Delaware and -- more surprisingly -- Charles Schumer of New York.
That phenomenon, by itself, would tend to make a no vote on Roberts less credible. But a no vote this time also could have a political effect that may well lessen the effectiveness of any resistance that Democrats very likely will put up when President Bush sends up a nominee to replace Justice O'Connor. An appearance of opposition for opposition's sake would quickly be labeled obstructionism, and that could cost Democrats popular support if they do mean to contest the next nominee. Utah's Sen. Orrin Hatch, a senior Republican on the Judiciary Committee, was apparently thinking along these lines on Wednesday when he told Judge Roberts: "If people can't vote for you, then I doubt that they can vote for any Republican nominee."
The President is, of course, still pondering the O'Connor succession, and has given no reliable hints of what he is likely to do. But few political observers expect him to choose someone who will be more acceptable to Democrats than Roberts has turned out to be. Considering those assumed to be on the President's short list for that vacancy, not one would be as appealing to Democrats. Thus, there is virtually certain to be a fight -- far more energetic, and perhaps less predictable on outcome -- when a new nominee is put forth.
Continue reading "Commentary: the unmentioned factor" »
A Note About Liveblogging
10:27 AM | Tom Goldstein | Comments (0) | TrackBack (0)
I'm glad to see the number of hits we've been getting, and I'm grateful for the notes some of you have sent and for the links from other blogs. I apologize that blogging has been a little slow sometimes. I'm doing the NPR commentary in parallel. We also had one brief due at the Court yesterday and three due today. But watching the hearings has been very interesting.
Note: Liz has a blog round-up below the liveblog.
Blog Round-up - Thursday, September 15th
10:26 AM | Liz Aloi | Comments (1) | TrackBack (0)
Yesterday Senator Kennedy continued to ask Judge Roberts his views on the Voting Rights Act. Here Rick Hasen comments on Roberts' response.
The Election Law Blog also has this post on "Judge Roberts' Non-Answer on McConnell (and Bush v. Gore)."
Tax Prof Blog has this post on Roberts and judicial humility.
ACSBlog has this entry on Judge Robert's posturing on a right to privacy.
Underneath Their Robes has this colorful commentary on yesterday's hearings.
Balkinization has this post on Roberts, precedent and abortion and this post on whether or not Judge Roberts believes the Constitution does not allow Congress to constrain the choices a President makes in his capacity as Commander-in-Chief.
Here is Ann Althouse's take on yesterday's hearings.
TPM Cafe has this post arguing that going by what he told the Senate Judiciary Committee on Tuesday, Judge Roberts has never uttered a word in his legal career that was his own; He was always speaking as a government staff lawyer expressing the administration's views, or as an advocate representing a client.
The Volokh Conspiracy is reporting that notwithstanding a promise to abide by a moratorium on taking the homes of the individual homeowners in Kelo, the New London Development Corp. has issued eviction notices to them and demanded the payment of rent. Also on Volokh is this post on yesterday's pledge decision and confirmation politics.
Wednesday, September 14, 2005
Pledge recital: invalid once more
07:44 PM | Lyle Denniston | Comments (6) | TrackBack (0)
(This is another in a continuing series of reports on the impact of Supreme Court rulings on later lower court cases.)
A federal judge in Sacramento -- in a ruling that got immediate, critical mention at the Senate Judiciary Committee hearings in Washington on the Chief Justice nomination -- on Wednesday ruled that it violates the rights of public school children in three California districts for students to recite the Pledge of Allegiance every day -- so long as the phrase "under God" is included. The judge did not strike down the Pledge with that phrase in it, but merely barred its recital in the three districts.
Senior U.S. District Judge Lawrence K. Karlton, who has been on the federal bench for 26 years since being appointed by President Jimmy Carter, ruled that he had no choice but to follow a Ninth Circuit decision in February 2003 that the recital was unconstitutional. That decision is still binding, the judge concluded, even though the Supreme Court reversed that ruling on procedural grounds in its 5-3 ruling in Elk Grove School District v. Newdow in June 2004.
The new ruling came in a case involving atheist parents who object to having their children hear a daily recital of the phrase with the reference to God included. This was a new lawsuit, initiated by, among others, Sacramento atheist Michael A. Newdow, who figured in the case that went to the Supreme Court. But Judge Karlton found -- as the Supreme Court did in the first case -- that Newdow himself had no right to bring his constitutional challenge. However, other parents did, according to the judge.
When the Supreme Court issued its ruling in the Newdow case, it declined to rule on the constitutionality of public school pupils' recital of the Pledge. Instead, it found that Michael Newdow lacked "standing" to sue to challenge that practice.
But Judge Karlton ruled that the type of "standing" that the Supreme Court had found lacking in the first case did not undermine the substance of the Ninth Circuit's ruling against the recital. Newdow's lack of standing, the judge said, did not deprive the courts of jurisdiction entirely to hear his case, and thus the Ninth Circuit decision remains a precedent that is controlling on the constitutional point for all courts in that Circuit.
The Becket Fund, a religious advocacy group, promised an immediate appeal of the case to the Ninth Circuit.
Republican senators on the Senate Judiciary Committee inserted in their comments and questions references to Judge Karlton's decision, using it to illustrate their abiding complaint about "activist" courts. Some of those references were inaccurate, suggesting that the judge had struck down the Pledge itself, or that the ruling had come from the Ninth Circuit.
In its 2003 decision, the Ninth Circuit had found that recital of the Pledge as written in public school classrooms had a "coercive" effect on children from families with atheistic beliefs. That is the outcome that Judge Karlton applied anew Wednesday.
The American Center for Law and Justice, a conservative legal advocacy group, said the new ruling "underscores the importance of the federal judiciary and who serves on the Supreme Court of the United States."
Howard Bashman has an interesting post on the decision.
Roberts hearing in recess
07:02 PM | Lyle Denniston | Comments (0) | TrackBack (0)
At exactly 7 p.m. Wednesday, the Senate Judiciary Committee concluded the second day of questioning Chief Justice nominee John G. Roberts, Jr. The final questioning, the third round for Democratic senators, included 15 minutes by Sen. Dianne Feinstein of California and 15 minutes by Sen. Charles Schumer of New York.
The Committee will resume senatorial questioning of the nominee at 9 a.m. Thursday, when other Democrats will take a third round, and Feinstein and Schumer will have additional time for questions.
Republicans on the Committee have waived their opportunity to have a third round, so, as of Wednesday night, GOP questioning apparently has ended.
After the conclusion of senators' questions Thursday morning, the Committee will proceed to hear 31 witnesses -- some for, some against the nomination. The Committee is expected to conclude by Thursday night, with no Friday session scheduled.
It appears that the Judiciary Committee will vote on Roberts' nomination next Thursday, Sept. 22. Chairman Arlen Specter, Republican of Pennsylvania, said GOP Senate leaders expect to begin debate on the floor on Monday, Sept. 26. "My duty is to have the matter resolved by Oct. 3," Specter said, to enable Roberts to take up his duties at the opening of the new Supreme Court Term.
The Roberts Hearings, Day Three
06:00 PM | Tom Goldstein | Comments (15) | TrackBack (0)
6:35 - Senator Feinstein is up. I'm out of pocket for the next 90 minutes unfortunately because I have to go do a one-hour NPR special that happens at 7pm.
6:14 - Roberts agrees the Court has held that there is no right to die.
6:11 - Brownback talks about the Solomon Amendment case. He asks a general question about the spending power and its power to condition the use of federal funds and gets a general answer.
6:06 - Brownback wants to talk about the definition of marriage. He doesn't bother to ask a question.
6:00 - Brownback is up, talking about the First Amendment. He talks about a series of decisions he doesn't like, including campaign finance. Roberts says it depends.
Note that there are some other posts below this one.
5:58 - Durbin returns to the Bob Jones memo. Roberts says a meeting agenda listed Bob Jones, but he didn't participate in any way.
5:57 - Durbin asks why the issue of abortion is so important to women. Roberts says that it is important to women on both sides. Roberts believes passionately in the vindication of the rule of law.
5:56 - Durbin tries unsuccessfully to get Roberts' personal view on Plyler.
5:50 - Durbin asks about Plyler v. Doe and a Roberts memo in the case. Roberts apparently urged a narrower reading of the civil rights laws than the Administration eventually took. Roberts says that he was reflecting what he perceived as the AG's view.
5:45 - Durbin asks about Roberts' representation of an HMO ERISA case that Roberts lost. Roberts says he had no reservations about his client's position. He does not sit in judgment of the position of his clients, so long as their position is reasonable or in the mainstream. Durbin presses, and Roberts is quite confident here and not at all defensive. Interestingly, Roberts continues to talk in the present tense -- "I take cases . . . ." -- notwithstanding that he has been a judge for 2+ years.
5:38 - Durbin is up.
5:31 - Specter talks about the schedule. The testimony will finish just before 8pm tonight, continue tomorrow morning, then turn to panels. Durbin will go for 20 minutes; Brownback and Coburn the same. Republicans waive a third round. Specter opposes one. But Democrats will get one. 6:30-45 will be tonight for Senator Feinstein, as well as some tomorrow morning. (Not clear exactly how it will go to 8pm.) Tomorrow morning Senator Kennedy will do 20 minutes at 9am. The "exec" will be set for Thursday the 22d, but would waive the ability to move it by one week. The committee would vote. Likely a floor vote on the 26th. The Exec will have 10 minute statements as the "pattern." The panels may go very late tomorrow.
5:29 - I went away to the restroom. I'm promised that nothing new has happened.
5:10 - We're back. The break turned into a vote. We just filled basically an hour on NPR. Senator Cornyn is up.
4:30 - Sorry, I forgot to mention we're on a break.
4:10 - Schumer has a very good riff on movies. That it as if he asks what kind of movies Roberts likes, and Roberts says those with good acting. Asked if he likes Casablanca, Roberts says "lots of people like Casablanca." Asked for a particular movie he likes or dislike, Roberts declines to answer. Roberts has a funny response naming North-by-Northwest. He then says that he believes he has been more forthcoming.
4:08 - Schumer asks if he is in the mold of Scalia and Thomas. Roberts is his own man.
4:05 - Schumer focuses on the Ginsburg example, but Roberts is quite patient and maintains that Ginsburg limited herself to cases on which she wrote when those decisions weren't settled.
3:58 - Schumer objects to Roberts' refusal to criticize decided cases, given that he could have done that as a private lawyer, a commentator, and a judge. (This seems valid as to questions that don't go to issues that could come before the Court disctinctly in a reasonable time, but obviously invalid as to other issues precisely because Roberts now is going to have to decide these issues on the Supreme Court and needs to preserve the appearance of independence.)
3:55 - Roberts won't say if he agrees with Lawrence. Schumer asks if Roberts agrees with any Thomas opinion in a decided case. Schumer asks whether it is possible Roberts agrees with Thomas. Roberts doesn't answer directly. They disagree about whether Thomas took the position that there is no substantive right to privacy under the Fourteenth Amendment. Roberts won't say whether he agrees with Thomas' approach.
3:52 - Schumer asks whether Roberts agrees with Justice Thomas that there is "no general right to privacy." Roberts - it depends on what you mean by "general." "I think that there is a right to privacy protected substantively protected under the Due Process Clause." Thomas says that privacy doesn't extend to the activity in Lawrence.
3:50 - Schumer is up. He is on privacy.
Continue reading "The Roberts Hearings, Day Three" »
Event - ACS Supreme Court Preview
05:57 PM | Liz Aloi | Comments (0) | TrackBack (0)
On September 28th, the American Constitution Society is hosting a luncheon panel on: "The Upcoming Supreme Court Term: A Preview "
featuring:
Beth Brinkman, Morrison & Foerster; former Assistant to the U.S. Solicitor General
Walter Dellinger, III, O'Melveny & Meyers; former Acting U.S. Solicitor General; member, ACS Board of Advisors
James Liebman, Professor of Law, Columbia University School of Law
Theodore Olsen, Gibson, Dunn & Crutcher; former U.S. Solicitor GeneralModerated by Teresa Roseborough, Sutherland, Asbill & Brennan; Chair, ACS Board of Directors
12:00 pm
Wednesday, September 28
Paul Porter Room
Arnold & Porter
555 Twelfth Street, NW
Washington DC
Lunch will be served. There is no charge for this event and it is open to the public. Please RSVP to Events@ACSLaw.org by September 26 at 5 pm.
Event - A Brookings Judicial Issues Forum on Sept. 16
05:05 PM | Heather Lloyd | Comments (0) | TrackBack (0)
Reshaping the Supreme Court
Friday, September 16, 2005
9:00 a.m. – 10:30 a.m
The Brookings Institution
Falk Auditorium
1775 Massachusetts Avenue, NW
Washington, D.C.For more information and RSVP details please see this flier.
Analysis: Some revelations on Day Two
12:29 AM | Lyle Denniston | Comments (1) | TrackBack (0)
During a long day of senatorial questioning of Judge John G. Roberts, Jr., on Tuesday, the nominee to be Chief Justice was revealed as an interesting combination of a constitutional “originalist” and a believer that the Constitution changes over time – that it is in some ways a living document. To some observers, those seem like quite contradictory notions, but Roberts melded them in testimony that sounded much like a description of his own judicial philosophy.
If he follows that approach as a member of the Supreme Court, it would distance him from the Court’s two most conservative constitutionalists, Justices Antonin Scalia and Clarence Thomas. Both of them consider quite illegitimate the thought that the Constitution’s words should be given up-to-date meanings, as times change. Roberts drew a distinction between original motivation and the breadth of language actually chosen by constitutional draftsmen. One can accept why a provision was put into the Constitution, he suggested, but then see breadth -- and some fluidity -- in the concepts written into the document.
On a day when he was considerably more forthcoming than his liberal critics would concede, Roberts made a number of highly significant remarks about his philosophy. Sometimes, one had to read closely to get through the subtlety and the nuance of many of his answers to senators’ question. There were many comments that left unclear whether Roberts was stating his own views, or merely recounting what past Justices and Courts have said. But, on a perhaps surprising number of topics, the nub of what he thinks did, indeed, emerge. None, however, was more interesting than his view of “originalism.”
Continue reading "Analysis: Some revelations on Day Two" »
Tuesday, September 13, 2005
Judge Roberts and the Commander-in-Chief Clause
08:36 PM | Marty Lederman | Comments (4) | TrackBack (0)
In his invaluable as-it-happens blogging of the hearing, Tom expresses surprise that the Leahy/Roberts exchange has become so "heated" on what Tom calls a "pretty dry issue" -- namely, whether Congress can, by statute, require cessation of military hostilities or prohibit the President from using torture.
Perhaps it isn't at this moment as politically salient as contentious issues such as abortion and the Commerce Clause, but I can think of no issue less dry, or more important, than whether Congress has the constitutional power to restrict certain forms of military action or presidential wartime conduct.
Thankfully, Judge Roberts has testified that the torture question falls within Category III of Justice Jackson's justly famous Youngstown concurrence -- that is, it's a case in which Congress has spoken clearly and has prohibited certain presidential action pursuant to the legislature's express article I authorities, and thus the President's power is "at its lowest ebb." There is no such concession (or even citation to Youngstown) in the infamous OLC Torture Memo. (See my posts here and here.) Therefore, Roberts's testimony might be seen as a major step away from the current Administration's views.
Unfortunately, Judge Roberts did not go so far as to say that the torture statute is actually constitutional even when it restricts the President from using the techniques that he thinks are most effective in defeating the enemy. (In fairness, Senator Leahy did not push Judge Roberts on the question once he conceded that it's a Youngstown Category III case.) More troubling still, Roberts did not disavow the suggestion in an Executive branch memo he wrote that Congress could not end a war over the President's objection, and testified that whether Congress has the power to do so "depends on the circumstances." That is to say, he was unwilling to concede that if the national legislature passes a law requiring cessation of certain hostilities -- presumably by a supermajority sufficient to override a presidential veto -- the President must abide by that statute. [UPDATE: I've now seen the memo in question. It dealt with a proposed bill granting a veterans' preference to persons who served in Lebanon between August 20, 1982 and the date the Lebanese operation would end, with the latter defined either by presidential proclamation or by concurrent resolution of Congress. In a February 29, 1984 memo to the White House Counsel, Roberts correctly noted that the concurrent resolution provision would violate INS v. Chadha. He went on to say, in addition, that even if the bill were changed so that hostilities could be ended upon a joint resolution of Congress enacted over presidential veto -- i.e., by statute -- it would present a "difficulty" because "it recognizes a role for Congress in terminating the Lebanon operation," and "I do not think we would want to concede any definitive role for Congress in terminating the Lebanon operation" (emphasis in original). Although Roberts did not expressly state that a statute terminating the Lebanon operation would be unconstitutional, the memo could be read to suggest such a constitutional view. It's only a one-paragraph memo, however -- not a sustained argument -- and so there is some ambiguity.]
Whether one agrees or disagrees that thes question of Congress's power to end military action "depends on the circumstances," surely the question -- and Roberts's testimony on it -- is of the gravest importance.
Roberts also testified that "any lawyer for any administration would have taken the same position" on the question that he did in the February 1984 memo -- i.e., that there's a "difficulty" in recognizing any role for Congress in terminating military hostilities. I hope (as a former Executive branch lawyer) that that is not correct -- and if it is, it's extremely troubling.
UPDATE: Further Q&A on the Torture Memo:
SENATOR DURBIN: Would the anti-torture statute be unconstitutional simply because it conflicts with an order issued by the president as commander in chief?
ROBERTS: No, Senator. Not simply because of the conflict. And I have to say I don't know -- that's one of the 80,000 memos I don't know about. So I would have to understand what the point was, what the issue was, and the language you read in context before I could respond to that.
The Roberts Hearings, Day Two
03:10 PM | Tom Goldstein | Comments (12) | TrackBack (7)
7:50 - Durbin is done. Specter gavels us to a close for the day. He
7:50 - Specter gavels us to a close. They will start at 9am tomorrow.
7:48 - Durbin returns to gender. Roberts - the tiers are fairly well established as an approach to addressing discrimination. Gender is in the middle tier because the Court believes there are times classifications can be justified -- e.g., the all-male draft.
7:45 - Durbin asks about the torture memos. Is a law unconstitutional if it conflicts with an Executive Order? No. The President has an obligation to uphold the Constitution. His determination can in an appropriate case be tested in Court. The ultimate arbiter is the judiciary.
7:40 - Durbin turns to executive power. What will show "you are willing to stand up to this president" if he goes too far? Roberts - look to his opinions and his briefs as a lawyer and his history in representing clients. The rule of law is his only client. (It's a nice moment.)
7:37 - Roberts says that in Wallace v. Jaffree didn't address the constitutionality of a pure "moment of silence." (He goes out of his way to make this point, suggesting that he would uphold such a policy; the S. Ct. declined to review the question a few years ago.)
7:36 - Roberts says he hasn't expressed his views on the Establishment Clause in any forum. Durbin then doesn't ask him to do so, but instead moves on.
7:35 - "The results [under the Establishment Clause] are sometimes I think a little difficult to comprehend." (This is a pretty telling statement.)
7:32 - Durbin asks about the Lemon test for the Establishment Clause. Roberts - the Lemon test "is a survivor. There is no other way to put it." The SG's brief in Lee v. Weisman focused on coercion; they lost 5-4. A Justice has said that Lemon survives because no one can come up with a better alternative, "and there may be something to that." Both a benefit and a disadvantage of the Lemon test is that it is very sensitive to the facts. He cites the 10 Commandments decisions, "and one Justice believes both of those are rightly decided."
7:31 - Durbin asks whether the Reagan Administration's position in Bob Jones was correct. Roberts says no, it was the wrong position. (This is a rare moment of clarity.)
7:30 - Durbin asks about the Bob Jones case and its eligibility for a tax exemption. He wants to know what Roberts' role was. He says that he was barred from participating because he had just been a law clerk. Durbin says he has memos indicating Roberts' participation; they will talk about it tomorrow.
7:30 - Durbin says that Robert has distanced himself repeatedly from the Reagan memos. He asks whether Roberts ever "stood up" to his colleagues in favor of the underprivileged. Roberts says that there were internal disagreements, but Durbin doesn't press the issue. (Again, this seemed like an interesting potential line of questions.)
7:23 - He asks for Roberts' view on the death penalty, in the context of the Herrera case in which the SG's office filed a brief signed by Roberts. Roberts - any case involving the death penalty is different. He hasn't considered the issue as a judge. He knows the magnitude of the scrutiny and concern that all the Justices bring to capital cases. No one wants an innocent person executed.
7:21 - Durbin is talking about Linda Greenhouse's Blackmun biography. He's asking about poor Joshua in DeShaney. Roberts is nodding sympathetically. No questions. He now turns to the death penalty.
7:20 - Ok, Specter's staff lied. Durbin is up.
Continue reading "The Roberts Hearings, Day Two" »
Blog Round-up - Tuesday, September 13th
02:53 PM | Liz Aloi | Comments (0) | TrackBack (0)
On the confirmation hearings:
Here is Volokh on Roberts and Stare Decisis and Roberts' opening statement.
Ann Althouse comments on the opening statement here.
Here is Underneath Their Robes on the lack of action during yesterday's hearings.
Here is Election Law Blog on Roberts' answers to Senator Kennedy's questions on the Voting Rights Act.
Blogging on TPMCafe here are the opinions of Robert Gordon, Chancellor Kent Professor of Law and Legal History at Yale, and Jeff Berman, Western Regional Director of People for the American Way, on yesterday's hearings.
Here is the Washington Post's live coverage of the hearings.
Here is Dahlia Lithwick's commentary on yesterday's events.In other news:
Here is Underneath Their Robes on recent changes in clerkship hiring at the Court.
Sentencing Law & Policy has this update on the Supreme Court and death penalty jurisprudence.
Guest blogging on Balkinization is Kermit Roosevelt with this piece on "Legitimacy and Activism in Constitutional Interpretation."
Monday, September 12, 2005
Commentary: political realism on Day One
08:33 PM | Lyle Denniston | Comments (1) | TrackBack (1)
A bit of hard-headed political realism by a junior senator highlighted the opening of the Senate Judiciary Committee’s hearings Monday on the nomination of Judge John G. Roberts, Jr., to be Chief Justice. Sen. Lindsey Graham, South Carolina Republican, summed up matters pithily with these two words: “Elections matter.” That comment brought the committee, and a national television audience, back to the fact that the future of the Supreme Court may well have been decided when President Bush won elections in 2000 and 2004. No matter that the Court never ranked as a top campaign issue, for either Republicans or Democrats, the spoils of victory obviously included the prospect – now come true – that the Court would change and that the President would be centrally involved in shaping a new direction.
Sifting through three hours of senators’ speeches on the first day, it was obvious that nothing new had developed in the nearly eight weeks since President Bush chose Roberts for a seat on the Court (aside, of course, from the shift of his appointment from Associate Justice to Chief Justice after Chief Justice William H. Rehnquist died.) Roberts has done very well in courting individual senators’ approval, with a “charm campaign” of one-on-one visits, and he did nothing to dispel that in a warm and uplifting six-minute statement on Monday. For their part, it seems, the Republicans are still intent on moving the nomination along with as little fuss as possible, and that the Democrats still aim to make a convincing fight of what Sen. Charles Schumer, New York Democrat, called “indisputably the rarest opportunity in American government” (the selection of a new chief justice).
But no matter how lofty the exploration of issues may become on Tuesday and Wednesday, as the senators directly question Roberts, Sen. Graham made it seem that this really is all about politics – about the spoils of the 2000 and 2004 victory. “To me,” he said, “the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well-qualified, strict constructionist to the Supreme Court and, in this case, to appoint a chief justice to the Supreme Court in the mold of Justice Rehnquist.” Bush, said the South Carolinian, has been elected twice, and “has not hidden from the public what his view of a Supreme Court justice should be and the philosophy that they should embrace.” Bush, “by picking you, has lived up to the end of the bargain with the American people,” said Graham.
“We’re not here,” the senator went on, “to talk about liberal philosophy versus conservative philosophy and what’s best for the country.” That, he declared, is what the elections decided. Instead, he suggested, the sole issue before the committee and the Senate was one of judicial qualifications – “whether or not you and all you’ve done in your life makes you a fitting candidate to be on the Supreme Court.”
Continue reading "Commentary: political realism on Day One" »
Welcome to the Roberts Confirmation Hearings
11:22 AM | Tom Goldstein | Comments (4) | TrackBack (3)
3:33 - The committee is done until 930 tomorrow morning.
3:32 - Roberts has no agenda. He does have a commitment - confronting every case with an open mind. He will be open to his colleagues' view. He will show no fear or favor. He will remember it is his job to call balls and strikes, not pitch or bat. He is done.
3:30 - A "humility" should characterize the judicial role. Judges are "umpires." They do not make the rules, they apply them. No one ever went to a game to see the umpire. They operate in a system shaped by precedent. They need to be open to their colleagues' views. In the SG's office, he represented the United States, but didn't fully appreciate the Court until he went into private practice, where a private party could overcome the power of the government. The rule of law prevailed, and is the envy of the world. Pres. Reagan was right to talk about how Soviet constitutional rights were empty because of the absence of an independent judiciary.
3:30 - Roberts begins by thanking those that introduced him, as well as the President. He is "humbled." He thanks the committee members for their courtesies. He recognizes the advice and consent responsibilities of the Senate. The late-Chief's dedication to duty was an inspiration.
3:25 - now we turn to Roberts, who is being sworn in. Cameras are going wild.
3:20 - Senator Warner notes that 43 presidents have appointed only 17 Chief Justices, highlighting the importance of the proceedings. He says that the proceedings are an important civics lesson for young people, which seems exactly right. Warner talks about the value of the Group of 14 agreement. (Incidentally, Senator Frist has arrived at the proceedings.) He turns to Roberts' credentials - he says that in his 25 years he has never seen a more qualified nominee. Warner explains that he is introducing Roberts because he, like Roberts, is a former Hogan & Hartson partner. He says that he is convinced in Roberts' commitment to pro bono work.
3:15 - Senator Bayh talks about the longstanding bipartisan tradition of introducing nominees of another party. He focuses more on Roberts' professional career.
3:10 - we are now moving to the introductions of Roberts by the Senators. Senator Lugar is first. He talks about Roberts' youth in New York and Indiana. (Lugar notes that the last Indiana nominee, Justice Minton, declined to appear before the Committee, but was confirmed.)
3:05 - Senator Coburn offers the last opening statement. Coburn says that "judicial activism" means so many things to different people. (That seems exactly right to me.) He says that activism has created huge social rifts. (That seems overstated, but a fair point in general.) Coburn -- in the most dramatic moment of the proceedings so far -- nearly breaks down into tears, saying that his "heart aches" for less partisanship and bitterness.
3:00 - Senator Brownback says that the nation needs a more "modest" Court. He says that the Court loses its legitimacy when it invents rights. Roe v. Wade is the most political decision of the Court's modern history. Brownback's remarks focus very heavily on abortion and how important the is, emphasizing the frequency with which the S. Ct. has overruled its prior decisions. Brownback is a strong and articulate advocate for opposition to Roe.
It is worth noting that the hearings have run very smootly. It seems fair to expect that the proceedings will continue to run on schedule.
2:50 - Senator Durbin says that the basic question is whether Roberts will restrict freedoms or expand them. He says that the Roberts memos raise serious questions, making it important for Roberts to answer questions on civil rights and basic freedoms. He says that without the SG memos, only his testimony can inform the committee about his current views. Durbin also raises distinctly the question of Executive Power and says that the memos suggest Roberts may be overly deferential to the Executive Branch. Durbin comes across very well.
2:40 - Senator Cornyn says that the confirmation process has become too much like an election. He says that the S. Ct. has been hostile to individual religious expression, while being protective of selling products though violence and sex. He says that much of the country is baffled by the Court's Ten Commandments rulings. He says that the Court shouldn't have dismissed the Pledge of Allegiance case and ruled against the takings claim in the Kelo case. He says that the use of foreign law is improper and that Lawrence v. Texas is wrongly decided and reflects merely the changing composition of the Court. He closes by saying that Roberts has no obligation to answer questions on any particular issue. Senator Cornyn is, in effect, the opposite of Senator Schumer on every question.
So far, to my mind, the most impressive Senators have been (in order of presentation) Specter, Feinstein, and Graham.
Continue reading "Welcome to the Roberts Confirmation Hearings" »
Blog Round-Up - Monday, September 12th
11:00 AM | Liz Aloi | Comments (0) | TrackBack (0)
Here is Eugene Volokh on Padilla and Hamdi.
Here is PrawfsBlawg on these NY Times pieces asking five people familiar with the Court or its work to play senator and provide five questions they would ask if they were going to question Judge Roberts. Ann Althouse comments on the article here.
Sentencing Law & Policy has this round-up of posts related to Roberts and sentencing issues.
The Legal Theory Bookworm recommends Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America by Cass R. Sunstein.
This week, the Legal Affairs Debate Club asks, Should Liberals Oppose Roberts? Debating the issue are Mark Tushnet and Jeffrey Rosen.
Novak Says President Met With Judge Owen
10:22 AM | Kevin Russell | Comments (0) | TrackBack (0)
John over at John in Carolina notes that Robert Novak is reporting that President Bush met secretly last week with Priscilla Owen, strongly indicating, in Novak's view, that the President will select Judge Owen to replace Justice O'Connor.
Hamdan Cert Reply
09:00 AM | Tom Goldstein | Comments (0) | TrackBack (0)
Here is the cert. reply in the Hamdan case. The other briefs in the case are available here.