Supreme Court Archive:

Monday, February 27, 2006

SCOTUS Hearing Two Important Election-Related Cases This Week

Posted by DavidNYC

The Supreme Court is hearing oral arguments in two big campaign & election-related cases this week. The first concerns Tom DeLay's mid-decade re-districting in Texas. The second involves Vermont's new spending limits law.

There are two major issues in the first case. One is whether partisanship is an acceptable reason for redistricting. The other is whether the new Texas plan violated the Voting Rights Act. On the first score, I don't think the SCOTUS will overturn - most justices seem really antsy about whether you can develop a fair "test" to see when partisanship has been used permissibly vs. impermissibly. I think the VRA challenge is probably the stronger one, especially since (as you may recall) DoJ attorneys said the Texas plan violated the VRA but were over-ruled by political appointees. Ultimately, I'd expect perhaps some small court-ordered changes to the DeLaymander, but not a full-scale roll-back.

The second case has gotten a lot less attention but I think it's potentially just as - if not more - important than the first one. Vermont passed a new law saying that candidates could only spend certain amounts while seeking election. The Supreme Court pretty clearly said such limits were invalid because they violated free speech rights, back in Buckley v. Valeo thirty years ago. (Contribution limits, however, were upheld in Buckley.) The Supremes would pretty much have to over-rule (or creatively side-step) Buckley in order to uphold these VT laws, but if they did, the consequences could be very far-reaching.

I personally am of two minds on spending limits. On the one hand, they might really help to take money out of politics. (Whereas contribution limits just mean that candidates have to spend more time seeking money from a great number of people.) On the flip-side, I worry that such limits on campaigns would only increase the flood of unaccountable third-party money. I also think that first amendment concerns have to come into play at some point - surely if VT said that candidates couldn't spend any money, that would violate free speech rights. And when it comes to seats in the state House - where the law says you can only spend $2,000 - that's getting awfully close to zero. (And, I think, it probably only helps incumbents.)

Anyhow, what really matters, of course, is what those nine black-robed justices think - and we won't hear from them until June. Stay tuned.

Posted at 04:12 PM in Supreme Court | Comments (3) | TrackBack (0) | Technorati

Tuesday, November 01, 2005

The Day Democrats Said Enough

Posted by Bob Brigham

Every Republican Senator should be on notice, today isn't like yesterday. Tomorrow won't be either. We have new rules, Democrats with spine, and enough is enough. Today, Harry Reid attempted to end the cover-up surrounding how the Administration lied to the American people while fabricating a case for a needless war. Kos says:

Reid asked the Senate to go into special session on intelligence -- that is, a closed session -- to discuss prewar intelligence. This mostion, along with a second (provided by Durbin), requires all Senators to report to the Senate floor. It is a non-debatable motion.

Cue in lots of hystrionics from Frist and company. Republicans whined that this was a violation of Senate tradition. This coming from the gang that wants to eliminate the judicial filibuster. Frist whined that he wasn't consulted. As though Democrats have had a seat at the table in this Congress. They want to play hardball? Fine. Reid sent notice that he can play that game as well.

Frist whined, "Senator Daschle never did anything like this." Damn right. A new sheriff is in town.

Now, this is more than a temporary stunt. The Democratic leadership has promised to call a special session in the Senate every single day until Republicans alllow for a real investigation.

So let's see what we have here --

Democrats showing leadership and fight. Very nice. Democrats creating a media narrative around Republican stonewalling of a real investigation into pre-war intelligence. Also very nice. Republicans getting a taste of things to come if they initiate the nuclear option? Very crafty.

Here are some quick facts on Rule 21:


* Since 1929, the Senate has held 53 secret sessions, generally for reasons of national security.
* For example, in 1997 the Senate held a secret session to consider the Chemical Weapons Convention (treaty).
* In 1992, the Senate met in secret session to consider “most favored nation” trade status for China.
* In 1988, a session was held to consider the Intermediate Range Nuclear Forces Treaty and in 1983 a session was held on Nicaragua.
* In 1942, a secret session was held on navy plans to build battleships and aircraft carriers, and in 1943 a secret session was held on reports from the war fronts.
* Six of the most recent secret sessions, however, were held during the impeachment trial of President Bill Clinton.


* During a secret session, the doors of the chamber are closed, and the chamber and its galleries are cleared of all individuals except Members and those officers and employees specified in the rules or essential to the session.

* Standing Senate Rules 21, 29, and 31 cover secret sessions for legislative and executive business. Rule 21 calls for the Senate to close its doors once a motion is made and seconded. The motion is not debatable, and its disposition is made behind closed doors.

Reid's full statement in the extended entry.

Reid ask to go into special session on intelligence to discuss intelligence failures and the war in Iraq. Statement below

Statement by Senator Reid
Troops and Security First

This past weekend, we witnessed the indictment of the I. Lewis Libby, the Vice President's Chief of Staff and a senior Advisor to President Bush. Libby is the first sitting White House staffer to be indicted in 135 years. This indictment raises very serious charges. It asserts this Administration engaged in actions that both harmed our national security and are morally repugnant.

The decision to place U.S. soldiers in harm's way is the most significant responsibility the Constitution invests in the Congress. The Libby indictment provides a window into what this is really about: how the Administration manufactured and manipulated intelligence in order to sell the war in Iraq and attempted to destroy those who dared to challenge its actions.

As a result of its improper conduct, a cloud now hangs over this Administration. This cloud is further darkened by the Administration's mistakes in prisoner abuse scandal, Hurricane Katrina, and the cronyism and corruption in numerous agencies.

And, unfortunately, it must be said that a cloud also hangs over this Republican-controlled Congress for its unwillingness to hold this Republican Administration accountable for its misdeeds on all of these issues.

Let's take a look back at how we got here with respect to Iraq Mr. President. The record will show that within hours of the terrorist attacks on 9/11, senior officials in this Administration recognized these attacks could be used as a pretext to invade Iraq.

The record will also show that in the months and years after 9/11, the Administration engaged in a pattern of manipulation of the facts and retribution against anyone who got in its way as it made the case for attacking Iraq.

There are numerous examples of how the Administration misstated and manipulated the facts as it made the case for war. Administration statements on Saddam's alleged nuclear weapons capabilities and ties with Al Qaeda represent the best examples of how it consistently and repeatedly manipulated the facts.

The American people were warned time and again by the President, the Vice President, and the current Secretary of State about Saddam's nuclear weapons capabilities. The Vice President said Iraq "has reconstituted its nuclear weapons." Playing upon the fears of Americans after September 11, these officials and others raised the specter that, left unchecked, Saddam could soon attack America with nuclear weapons.

Obviously we know now their nuclear claims were wholly inaccurate. But more troubling is the fact that a lot of intelligence experts were telling the Administration then that its claims about Saddam's nuclear capabilities were false.
The situation was very similar with respect to Saddam's links to Al Qaeda. The Vice President told the American people, "We know he's out trying once again to produce nuclear weapons and we know he has a longstanding relationship with various terrorist groups including the Al Qaeda organization."

The Administration's assertions on this score have been totally discredited. But again, the Administration went ahead with these assertions in spite of the fact that the government's top experts did not agree with these claims.

What has been the response of this Republican-controlled Congress to the Administration's manipulation of intelligence that led to this protracted war in Iraq? Basically nothing. Did the Republican-controlled Congress carry out its constitutional obligations to conduct oversight? No. Did it support our troops and their families by providing them the answers to many important questions? No. Did it even attempt to force this Administration to answer the most basic questions about its behavior? No.

Unfortunately the unwillingness of the Republican-controlled Congress to exercise its oversight responsibilities is not limited to just Iraq. We see it with respect to the prisoner abuse scandal. We see it with respect to Katrina. And we see it with respect to the cronyism and corruption that permeates this Administration.

Time and time again, this Republican-controlled Congress has consistently chosen to put its political interests ahead of our national security. They have repeatedly chosen to protect the Republican Administration rather than get to the bottom of what happened and why.

There is also another disturbing pattern here, namely about how the Administration responded to those who challenged its assertions. Time and again this Administration has actively sought to attack and undercut those who dared to raise questions about its preferred course.

For example, when General Shinseki indicated several hundred thousand troops would be needed in Iraq, his military career came to an end. When then OMB Director Larry Lindsay suggested the cost of this war would approach $200 billion, his career in the Administration came to an end. When U.N. Chief Weapons Inspector Hans Blix challenged conclusions about Saddam's WMD capabilities, the Administration pulled out his inspectors. When Nobel Prize winner and IAEA head Mohammed el-Baridei raised questions about the Administration's claims of Saddam's nuclear capabilities, the Administration attempted to remove him from his post. When Joe Wilson stated that there was no attempt by Saddam to acquire uranium from Niger, the Administration launched a vicious and coordinated campaign to demean and discredit him, going so far as to expose the fact that his wife worked as a CIA agent.

Given this Administration's pattern of squashing those who challenge its misstatements, what has been the response of this Republican-controlled Congress? Again, absolutely nothing. And with their inactions, they provide political cover for this Administration at the same time they keep the truth from our troops who continue to make large sacrifices in Iraq.

This behavior is unacceptable. The toll in Iraq is as staggering as it is solemn. More than 2,000 Americans have lost their lives. Over 90 Americans have paid the ultimate sacrifice this month alone - the fourth deadliest month since the war began. More than 15,000 have been wounded. More than 150,000 remain in harm's way. Enormous sacrifices have been and continue to be made.

The troops and the American people have a right to expect answers and accountability worthy of that sacrifice. For example, 40 Senate Democrats wrote a substantive and detailed letter to the President asking four basic questions about the Administration's Iraq policy and received a four sentence answer in response. These Senators and the American people deserve better.

They also deserve a searching and comprehensive investigation about how the Bush Administration brought this country to war. Key questions that need to be answered include:

o How did the Bush Administration assemble its case for war against Iraq?
o Who did Bush Administration officials listen to and who did they ignore?
o How did senior Administration officials manipulate or manufacture intelligence presented to the Congress and the American people?
o What was the role of the White House Iraq Group or WHIG, a group of senior White House officials tasked with marketing the war and taking down its critics?
o How did the Administration coordinate its efforts to attack individuals who dared to challenge the Administration's assertions?
o Why has the Administration failed to provide Congress with the documents that will shed light on their misconduct and misstatements?

Unfortunately the Senate committee that should be taking the lead in providing these answers is not. Despite the fact that the chairman of the Senate Intelligence Committee publicly committed to examine many of these questions more than 1 and ½ years ago, he has chosen not to keep this commitment. Despite the fact that he restated that commitment earlier this year on national television, he has still done nothing.

At this point, we can only conclude he will continue to put politics ahead of our national security. If he does anything at this point, I suspect he will play political games by producing an analysis that fails to answer any of these important questions. Instead, if history is any guide, this analysis will attempt to disperse and deflect blame away from the Administration.

We demand that the Intelligence Committee and other committees in this body with jurisdiction over these matters carry out a full and complete investigation immediately as called for by Democrats in the committee's annual intelligence authorization report. Our troops and the American people have sacrificed too much. It is time this Republican-controlled Congress put the interests of the American people ahead of their own political interests.

Indeed. In terms of the 2006 mid-term elections, it is important to note that Democrats have the high-ground:

Democratic Efforts to Address Misuse of Intelligence Have Been Repeatedly Blocked by Republicans

For more than two years, Senate Democrats have pressed Republicans to address the misuse of intelligence. At every turn, Republicans have blocked efforts to investigate how intelligence was used in the run-up to the war in Iraq. Below details the long record established by Democrats to investigate this matter.

March 14, 2003 – Senator Rockefeller sent a letter to Director Mueller requesting an investigation into the origin of the Niger documents.

May 23, 2003 – Senators Roberts and Rockefeller sent a letter to the CIA and State Department Inspectors General to review issues related to the Niger documents.

June 2, 2003 – Senator Rockefeller issued a press release endorsing a statement made of the previous weekend by Senator Warner calling for a joint SSCI/SASC investigation.

June 4, 2003 – Senator Rockefeller issued a press release saying he would push for an investigation. Senator Roberts issued a press release saying calls for an investigation are premature.

June 10, 2003 – Senator Rockefeller sent a letter to Senator Roberts asking for an investigation.

June 11, 2003 – All Committee Democrats signed a letter to Senator Roberts asking for a meeting of the Committee to discuss the question of authorizing an inquiry into the intelligence that formed the basis for going to war.

June 11, 2003 – Senator Roberts issued a press release saying this is routine committee oversight, and that criticism of the intelligence community is unwarranted. Senator Rockefeller issued a press release calling the ongoing review inadequate.

June 20, 2003 – Senators Roberts and Rockefeller issued a joint press release laying out the scope of the inquiry.

August 13, 2003 – Senator Rockefeller sent a letter to Senator Roberts making 14 points about the investigation, asking to expand the inquiry to address the “use of intelligence by policy makers” and asking for several other actions.

September 9, 2003 – After press reports quoting Senator Roberts as saying the investigation was almost over, Senator Rockefeller sent a letter to Senator Roberts urging him not to rush to complete the investigation prematurely.
October 29, 2003 – Senators Roberts and Rockefeller sent a letter to Director Tenet expressing in strong terms that he should provide documents that have been requested and make individuals available.

October 30, 2003 – Senators Roberts and Rockefeller sent letters to Secretaries Rumsfeld and Powell, and National Security Advisor Rice expressing in strong terms that they should provide documents that have been requested and make individuals available.

October 31, 2003 – Senator Rockefeller sent a letter to Director Tenet asking for documents related to the interaction between intelligence and policy makers, including the documents from the Vice President’s office related to the Powell speech.

November 2, 2003 – Senator Roberts made statements during a joint television appearance with Senator Rockefeller claiming that the White house would provide all documents they jointly requested.

December 5, 2003 – Senator Rockefeller sent a letter to National Security Advisor Rice asking for her help getting documents and access to individuals.

January 22, 2004 – Senator Rockefeller sent a letter to Director Tenet asking for compliance with the Oct. 31 request for documents.

February 12, 2004 – Senators Roberts and Rockefeller issued a joint press release announcing the Committee’s unanimous approval of the expansion of the Iraq review, to include use of intelligence in the form of public statements, and listing other aspects of what became Phase II.

March 23, 2004 – Senator Rockefeller sent yet another letter to Director Tenet asking for compliance with the Oct. 31 request for documents.

June 17, 2004 – Senators Roberts and Rockefeller joint press release announcing the unanimous approval of the report.

July 16, 2004 – Committee Democrats sent a letter to Bush asking for the one page summary of the NIE prepared for Bush. The Committee staff had been allowed to review it but could not take notes and the Committee was never given a copy.

February 3, 2005 – Senator Rockefeller sent a letter to Senator Roberts outlining Committee priorities for the coming year and encouraging completion of Phase II.

August 5, 2005 – Senator Rockefeller sent a letter to Senator Roberts expressing concern over the lack of progress on Phase II and calling for a draft to be presented to the Committee at a business meeting in September.

September 29, 2005 – All Committee Democrats joined in additional views to the annual Intelligence Authorization Bill criticizing the lack of progress on Phase II.

With actions like this, I think we will soon be hearing the title Majority Leader Harry Reid.

Posted at 04:14 PM in 2006 Elections - Senate, Culture of Corruption, Nuclear Option, Republicans, Scandals, Supreme Court | TrackBack (0) | Technorati

Tuesday, October 04, 2005

OH-Sen: Harriet Miers, the Blogs, and Mike DeWine's Re-Election Campaign

Posted by Bob Brigham

Following Paul Hackett's astonishing showing in the OH-02 Special Election, there was a great deal of ink used by pundits trying to understand how Hackett's blogosphere support allowed him to outspend Jean Schmidt in a congressional district Democrats had written off for the longest time.

In fact, Campaigns and Elections Magazine currently has a cover story: Blogging Down the Money Trail on the subject. The netroots scored CNN's Political Play of the Week. The press and establishment hacks on both sides of the aisle began paying attention to the potential of online small dollar donations being deployed to crucial districts. You would think more people would have been thinking this way after Howard Dean, but then again, most of the people now paying attention are the ones who said Dean was making a mistake by not accepting matching funds. Yet Dean raised more money with his distributed model, Hackett outspent Schmidt, and now a helluva lot of serious people are wondering how this will play out in 2006.

I think we can get an idea of this dynamic by looking a Senator Mike DeWine's re-election campaign in Ohio.

The Ohio Senate race is destined to be one of the most closely watched in the nation. Ohio is a crucial swing state, and Ohio Republicans are engulfed in major corruption scandals. As Democrats move to embrace the "Culture of Corruption" meme against Republicans, polls in Ohio will give us an early glimpse of how such a message could move voters.

Ohio is also home to very expensive media markets and the winning campaign will be the one most successful at capturing the attention of voters. As a tight swing state, the potential for a close race is very real and the impact of the blogs could be enormous.

Republican Blogs and Mike DeWine

Mike DeWine is in a tricky situation as a member of the Senate Judiciary Committee. Kos says:

One last key point -- DeWine sits on the judicial committee, which will become a flash point as social conservatives gear up to oppose the Miers nomination to the Supreme Court. DeWine can't afford to lose the diehard social conservatives, already made difficult when he joined the Gang of 14 that prevented Frist from executing his "nuclear option" on judicial filibusters.

After the Gang of 14 move by Senator DeWine, conservative bloggers mounted a Not. One. Dime. boycott of the National Republican Senatorial Committee:

Not. One. Dime. The next time Ken Mehlman sends you a request for money, that's the message he needs to get back. We ponied up in 2004, and in 2002, and in 2000. The GOP not only has not delivered, its current leadership won't even try. Frist and Rick Santorum claim they don't have the votes. Balderdash -- they don't have the leadership to get the votes. I'm not going to fund or support people who won't try to win, especially when the issue is so important.

Not. One. Dime. We're not in an election year, so this makes it easy for the Republicans to get this message to party leaders. No balls, no Blue Chips, boys. I don't mean just for the Senate, either. I mean for the entire Republican party. Feeding a fever may be good medicine, but feeding a failure only makes it last longer. Perhaps hunger will work where courage has so obviously failed.

Not. One. Dime. And when a vote does come, those Republicans who wind up supporting the minority's extortion over the majority in defiance of the Constitution will never see another dime from me -- but their opponents will, at every level of contest. Honestly, with Republicans like these in the Senate, we may as well have Democrats.

Now, convervative bloggers a livid over the Harriet Miers nomination to the Supreme Court. The GOP is fracturing and his now on the defense in 2006 and 2008. The Harriet Miers' paper trail is on the verge of making conservative heads explode.

The smart move for DeWine would be to use his position on the Judiciary Committee to blast Miers and then vote against her, saving his conservative credentials and patching up his strained relationship with the right-wing bloggers. But it doesn't look like that is his intention:

DeWine's ability to defend his seat against suddenly competitive Democrats might depend on his position on the Senate Judiciary Committee, which puts him at the center of the latest Supreme Court nomination process.

DeWine and his 17 committee mates will hold confirmation hearings for White House counsel Harriet Miers, announced Monday by President Bush as his nominee to replace retiring Justice Sandra Day O'Connor. [...]

In an interview Monday after the nomination was announced, DeWine gave Miers a strong endorsement.

That is not what the conservative bloggers want to hear. Even worse, it looks like DeWine's situation will both hurt him with his base while not yielding any position with independents:

White isn't so sure that voters will focus on the nomination process because of the investment and ethics scandals involving Ohio's Republican-controlled state government.

"At this time, (the Supreme Court) is not driving the political arena here," White said, adding DeWine could have to deal with fallout from decisions Miers and recently confirmed Chief Justice John Roberts make.

To recap, DeWine is in a situation where the voters are focusing on the "Culture of Corruption" in the Ohio Republican Party and the conservative blogs have zero interest in helping him. This was the same position (now) Congresswoman Jean Schmidt found herself in when the conservative bloggers sat out this year's Special Election.

Democratic Blogs and the Ohio Senate Race

Even with a (slim) prospect of Congressman Sherrod Brown challenging Paul Hackett for the Democratic Party nomination, the Democratic blogs are remarkably focused upon the race.

Sure, there is some internal tension with the Blogfather pushing Sherrod Brown and Paul Hackett enjoying a 70 percentage point advantage in a new straw poll.

Yet either way, the Democratic Blogosphere is going to be pumped to support the Democratic nominee against Senator DeWine.

Since Hackett is the only announced candidate, let's see what he brings to the table.

The above is a map of Hackett contributors during the Special Election. Yes, that is a 50 state base that came together in two weeks. With Hackett running, we can expect a campaign of straight talk and bold action that cuts through the clutter and connects with voters of all political leanings.

When I was embedded with the Hackett campaign, I kept hearing, "I don't agree with you, but I appreciate where you're coming from." These were voters who disagreed with, but respected, Major Hackett. They voted for Hackett, because they knew he was something special.

Democratic activists also have a lot of respect for Congressman Sherrod Brown since he is the exact personification of a Representative who will makes the grassroots feel a sense of pride in supporting.


So going into 2006, it appears that Senator Mike DeWine will be lacking the newest force in politics for his re-election campaign. At the same time, the Democratic blogosphere and netroots are united to throw DeWine out of office.

The only out for DeWine is to vote against his President and vote against Harriet Miers nomination for the Supreme Court. But DeWine is too chicken and that is part of the reason the conservative base won't raise a finger for his campaign.

Meanwhile, the Democrats are embracing cutting edge campaign tactics. Paul Hackett ran the most efficient blogosphere campaign ever and Rep. Brown started Grow Ohio. No matter what happens, it is looking like the netroots are going to kick Mike DeWine's ass out of the U.S. Senate.

Posted at 08:18 PM in 2006 Elections - Senate, Netroots, Ohio, Scandals, Supreme Court | Comments (5) | TrackBack (0) | Technorati

Harriet Miers Paper Trail

Posted by Bob Brigham

Conservative bloggers were outraged to learn of Harriet Miers Homosexual Agenda of support gays and lesbians. Conservatives lost it when they found out Miers had donated money to Al Gore's campaign. During the first 24 hours, the Harriet Miers paper trail was nothing but bad news for her nomination.

Now we have the photo trail, an event that the mainstream media won't touch. From Editor and Publisher:

On its front page Tuesday, The New York Times published a photo of new U.S. Supreme Court nominee Harriet Miers going over a briefing paper with President George W. Bush at his Crawford ranch “in August 2001,” the caption reads.

USA Today and the Boston Globe carried the photo labeled simply “2001,” but many other newspapers ran the picture in print or on the Web with a more precise date: Aug. 6, 2001.

Does that date sound familiar? Indeed, that was the date, a little over a month before 9/11, that President Bush was briefed on the now-famous “PDB” that declared that Osama Bin Laden was “determined” to attack the U.S. homeland, perhaps with hijacked planes. But does that mean that Miers had anything to do with that briefing?

As it turns out, yes, according to Tuesday's Los Angeles Times. An article by Richard A. Serrano and Scott Gold observes that early in the Bush presidency “Miers assumed such an insider role that in 2001 it was she who handed Bush the crucial 'presidential daily briefing' hinting at terrorist plots against America just a month before the Sept. 11 attacks.”

The significance?

The PDB was headed “Bin Laden Determined to Strike in U.S.,” and notes, among other things, FBI information indicating “patterns of suspicious activity in this country consistent with preparations for hijackings or other types of attacks.”

This is the probably with Bush promoting cronies -- they aren't fit for jobs they are giving. It appears Harriet Miers is earning the nickname, Brownie Miers

Posted at 03:14 PM in International, Scandals, Supreme Court | Comments (2) | TrackBack (0) | Technorati

Monday, October 03, 2005

Harriet Miers & 2006

Posted by Bob Brigham

Today, Bush nominated Harriet Miers in a move that is fracturing the GOP. As Kos notes:

Mier's nomination was predicated by fear. Bush is afraid. That's why the right-wingers are pissed. Their fearless leader couldn't muster up the courage for a real fight against Senate Democrats.

Fear yes, but of the Senate Democrats or fear of more conspiracy charges? From Think Progress:

Near the end of a round table discussion on ABC’s This Week, George Stephanopoulos dropped this bomb:

Definitely a political problem but I wonder, George Will, do you think it’s a manageable one for the White House especially if we don’t know whether Fitzgerald is going to write a report or have indictments but if he is able to show as a source close to this told me this week, that President Bush and Vice President Cheney were actually involved in some of these discussions.

This would explain why Bush spent more than an hour answering questions from special prosecutor Patrick Fitzgerald. It would also fundamentally change the dynamics of the scandal.

Indeed, serious people are using the term "unindicted co-conspirator". While Harriet Meirs doesn't have much of a paper trail legally, she does has a strong background when it comes to Bush scandals:

But she does know better than just about anyone else where the bodies are buried (relax, it's a just a metaphor...we hope) in President Bush's National Guard scandal. In fact, Bush's Texas gubenatorial campaign in 1998 (when he was starting to eye the White House) actually paid Miers $19,000 to run an internal pre-emptive probe of the potential scandal. Not long after, a since-settled lawsuit alleged that the Texas Lottery Commission -- while chaired by Bush appointee Miers -- played a role in a multi-million dollar cover-up of the scandal.

How will this effect the 2006 midterm elections?

Kos says:

More immediately, this is the sort of pick that can have real-world repercussions in 2006, with a demoralized Republican Right refusing to do the heavy lifting needed to stem big losses. That Bush went this route rather than throwing his base the red meat they craved is nothing less than a sign of weakness. For whatever reason, Rove and Co. decided they weren't in position to wage a filibuster fight with Democrats on a Supreme Court justice and instead sold out their base.

We'll have several months to pick through Miers' record, as well as highlight her role in any number of Bush scandals (like Georgia10 notes).

The GOP is totally on defense. Just look at the slate of GOP Senate challengers with a shot of being competitive. The only problem is that there is no list, the GOP senate plan is to minimize losses.

As for the House, Tom DeLay's indictment means that the gains could be tidal.

The GOP Culture of Corruption is catching up and the backlash is building for 2006 and 2008 campaigns.

Too many scandals. Too much corruption. And yet another crony appointed to a key post without any experience.


Wikipedia on Harriet Miers

Posted at 12:55 PM in 2006 Elections, Culture of Corruption, Republicans, Scandals, Supreme Court | TrackBack (0) | Technorati

Harriet Miers Fractures GOP in Real-Time

Posted by Bob Brigham

An important function of the blogosphere is a peek into real-time politics. Bloggers show and create what is going on in politics right now. The announcement of Harriet Miers gives us a short window to peer into the GOP.

First, look at the National Review's David Frum. Last week, Frum blasted Harriet Meirs:

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met.

Today, not only did he blast her again, but he then deleted the middle paragraph in the following:

Harriet Miers is a taut, nervous, anxious personality. It is impossible to me to imagine that she can endure the anger and abuse - or resist the blandishments - that transformed, say, Anthony Kennedy into the judge he is today.

She rose to her present position by her absolute devotion to George Bush. I mentioned last week that she told me that the president was the most brilliant man she had ever met. To flatter on such a scale a person must either be an unscrupulous dissembler, which Miers most certainly is not, or a natural follower. And natural followers do not belong on the Supreme Court of the United States.

Nor is it safe for the president's conservative supporters to defer to the president's judgment and say, "Well, he must know best." The record shows I fear that the president's judgment has always been at its worst on personnel matters.

Right now, the White House is spinning like a top in GOP circles. Ankle Biting Pundits is "highly disappointed" and points out, "politically it's not good because it just opens the President up to charges of "cronyism"" while offering the following roundup of conservative bloggers reaction to the nomination of Harriet Miers to the Supreme Court:

John Hawkins of RightWingNews goes further than me and calls Miers a "disaster"
Michelle Malkin is "utterly underwhelmed"
Powerline is also disappointed.
Confirm Them is underwhelmed.
John Podhoretz calls it dumb.
Mike Krepasky at Red State rightly says the President has some explaining to do.
Polipundit isn't exactly thrilled but is willing to give her a chance.
Andrew Sullivan is going the "Crony" route. But can we say he's wrong?
Mark Levin says that the President "flinched"
Betsy Newmark has a hard time putting an adjective on just how disappointed she is and says the President bowed to pressure.
Gerry Daly is in the "Anger" stage (#2 of the 5 stages)
Captain Ed is "mystified", and not in a good way.

The timing couldn't be worse for the GOP as today's newsstands are graced with a new Newsweek cover-story titled, Troubled Waters: War, storms, leak probes—and a growing array of ethics clouds. Dark days for the Republican Party:

Bush and his fellow Republicans have little margin for error. Three forces—sky-high gasoline prices, the massive costs of rebuilding the Gulf Coast and ever-gloomier public assessments of the war in Iraq—have combined to weaken Bush's reputation as a strong leader, and leave him vulnerable to the kind of second-term fiascoes that tend to befall all presidents: think Ronald Reagan and Iran-contra, or Bill Clinton and Monica Lewinsky. Indeed, polltaker Frank Luntz, who helped develop the "Contract With America" message that swept Republicans to power in 1994, was on the Hill last week warning the party faithful that they could lose both the House and the Senate in next year's congressional elections.

The Republicans' power outage is real—and the historical irony is as vast as Texas. Beginning in the 1950s, the Democratic Party of Texans Lyndon Johnson and Sam Rayburn built a congressional machine of unrivaled power. But starting in the '80s, led by a firebrand named Newt Gingrich, Republicans led a revolt from below in the name of smaller government and an ethically cleansed Congress. In 1989 Newt & Co. forced out Democratic Speaker Jim Wright—a Texan, too, who resigned over charges that he profited improperly from book sales—and five years later the GOP took control of the House after a Biblical 40 years in the wilderness. But it took the Republicans only 10 years to become yet another ruling party beset by charges of profligate spending, bloated government and corruption—a party led by two Texans, Bush and DeLay, who don't particularly care whether they are beloved outside their inner circle. To paraphrase David Mamet, the Republicans became what they beheld.

And there is much to behold. Michael Brown, the hapless yet arrogant former head of FEMA, managed to anger even putative Republican allies in an appearance before a House committee.

Michael Brown is a name that should come up a great deal during the Miers' confirmation process. Harriet Miers is a Michael Brown quality pick. Even right-wing bloggers are using the word 'cronyism' and are worried because they know Bush can't afford this.

The storyline of Bush giving key jobs to completely unqualified political hacks is connecting with the American people. By picking people on the basis of loyalty, rather than effectiveness, Bush has set the stage for the Culture of Corruption that engulfs the entire Republican Party.

When these are the rules (or lack thereof), you have multi-million bagmen like Jack Abramoff. You have conspiring congressmen like Tom DeLay. You have national security traitors like Scooter Libby and Karl Rove.

Today's Republican Party puts allegiance to Party above duty to country. But individual Republicans are growing increasingly disgusted, because like so many members of the National Guard, they aren't getting what they signed up for.

The stakes are high, this is the swing vote, as evidenced by the following 5-4 decisions:

Sandra Day O'Connor has been the deciding fifth vote in many important Supreme Court decisions affecting civil rights, environmental protection, personal privacy, reproductive freedom and reproductive health, religious liberty, consumer protection and much more. If she is replaced by someone who doesn't share her fair and impartial perspective -- someone in the mold of Clarence Thomas and Antonin Scalia -- the constitutional consequences will be devastating. These are among the key 5-4 decisions in danger of being overturned:

Environmental protection

Alaska Department of Environmental Conservation v. EPA (2004) said the Environmental Protection Agency could step in and take action to reduce air pollution under the Clean Air Act when a state conservation agency fails to act.

Reproductive rights and privacy

Stenberg v. Carhart (2000) overturned a state law that would have had the effect of banning abortion as early as the 12th week of pregnancy and that lacked any exception to protect a woman’s health.

Consumer protection and corporate power

Rush Prudential HMO, Inc. v. Moran (2002) upheld state laws giving people the right to a second doctor's opinion if their HMOs tried to deny them treatment.

Civil rights: affirmative action and discrimination based on sex, race, and disability

Jackson v. Birmingham Bd. Of Educ. (2005) ruled that federal law protects against retaliation against someone for complaining about illegal sex discrimination in federally assisted education programs.

Tennessee v. Lane (2004) upheld the constitutionality of Title II of the Americans with Disabilities Act and required that courtrooms be physically accessible to the disabled.

Grutter v. Bollinger (2003) affirmed the right of state colleges and universities to use affirmative action in their admissions policies to increase educational opportunities for minorities and promote racial diversity on campus.

Davis v. Monroe County Bd. of Educ. (1999) ruled that it is a violation of federal law for school districts to be deliberately indifferent towards severe and pervasive student-on-student sexual harassment.

Brentwood Academy v. Tennessee Secondary School Athletic Association (2001) affirmed that civil rights laws apply to associations regulating interscholastic sports.

Morse v. Republican Party of Virginia (1996) said key anti-discrimination provisions of the Voting Rights Act apply to political conventions that choose party candidates.

Hunt v. Cromartie (2001) affirmed the right of state legislators to take race into account to secure minority voting rights in redistricting.

Access to justice

Zadvydas v. Davis (2001) told the government it could not indefinitely detain an immigrant who was under final order of removal even if no other country would accept that person and that access to federal courts is available to combat improper, indefinite detention.

Brown v. Legal Foundation of Washington (2003) maintained a key source of funding for legal assistance for the poor.

Hibbs v. Winn (2004) subjected discriminatory and unconstitutional state tax laws to review by the federal judiciary.

Religious liberty and church-state separation

McCreary County v. ACLU of Kentucky (2005) upheld the principle of government neutrality towards religion and ruled unconstitutional Ten Commandments displays in several courthouses

Lee v. Weisman (1992) continued the tradition of government neutrality toward religion, finding that government-sponsored prayer is unacceptable at graduations and other public school events.

Money, politics and government accountability

McConnell v. Federal Election Commission (2003) upheld most of the landmark McCain-Feingold campaign finance law, including its ban on political parties’ use of unlimited soft money contributions.

Federal Election Commission v. Colorado Republican Federal Campaign Committee (2001) upheld laws that limit political party expenditures that are coordinated with a candidate and seek to evade campaign contribution limits.

UPDATE: From Atrios:

Wingnuttia is rather angry at the choice. I don't think this is because they're really concerned that she's not conservative enough for their tastes, although that's part of it. They're angry because this was supposed to be their nomination. This is was their moment. They didn't just want a stealth victory, they wanted parades and fireworks. They wanted Bush to find the wingnuttiest wingnut on the planet, fully clothed and accessorized in all the latest wingnut fashions, not just to give them their desired Court rulings, but also to publicly validate their influence and power. They didn't just want substantive results, what they wanted even more were symbolic ones. They wanted Bush to extend a giant middle finger to everyone to the left of John Ashcroft. They wanted to watch Democrats howl and scream and then ultimately lose a nasty confirmation battle. They wanted this to be their "WE RUN THE COUNTRY AND THERE'S NOTHING YOU CAN DO ABOUT IT" moment.

Whatever kind of judge she would be, she doesn't provide them with that.



Wikipedia on Harriet Miers

Posted at 11:20 AM in 2006 Elections, Culture of Corruption, General, Netroots, Republicans, Scandals, Supreme Court | TrackBack (7) | Technorati

Tuesday, September 20, 2005

MT-Sen: Max Baucus Runs from Democratic Party

Posted by Bob Brigham

Montana Senator Max Baucus is a skittish senator known for bolting and running. In fact, Senator Baucus has quite a reputation for running. On November 22 of last year Baucus was running from something for 50 miles when he hit his head on a rock and needed urgent brain surgery. I'm no big city doctor, but I think Baucus lost his fucking mind:

WASHINGTON -- Montana Sen. Max Baucus, a Democrat, said Tuesday he will vote for Supreme Court nominee John Roberts. [...]

Baucus is breaking with his party's top senator in deciding to vote for the 50-year-old appeals court judge and former Reagan administration lawyer.

Why is Max Baucus running from the Democratic Party? Instead of running away, why can't Max Baucus play with the team? Call each number below and ask.

Washington D.C.(202) 224-2651
Billings (406) 657-6790
Bozeman (406) 586-6104
Butte (406) 782-8700
Great Falls (406) 761-1574
Helena (406) 449-5480
Kalispell (406) 756-1150
Missoula (406) 329-3123
Washington DC Fax (202) 224-0515

Thanks for taking 10 minutes to make those quick 8 calls. If you have 2 more minutes, use the email form.

I am totally fuckin' pissed at Baucus. Senator Reid is from a redder state, but he isn't running from what he cares about. Why is Baucus chicken?

Baucus isn't even up until 2008 and (hopefully) won't be running for re-election. Senator Baucus doesn't need to go around acting like a dipshit coward, but this isn't the first time. Matthew Yglesias explains (2.1.04):

As a result, literally none of the president's signature initiatives -- from tax cuts to the resolution authorizing war in Iraq to the Medicare bill -- garnered sufficient GOP support to pass without cooperation from some Democrats, cooperation that the White House has largely succeeded in obtaining.

Among the defectors, Sen. Zell Miller (D-Ga.) has tended to attract the lion's share of media attention for his florid denunciations of his ostensible party. But the practical effects of Miller's histrionics have been rather limited compared with the betrayals of his more low-key colleague Sen. Max Baucus (D-Mont.). As the ranking member (and, for a period, chairman) of the Finance Committee, arguably the Senate's most powerful, Baucus, who underwent successful brain surgery on Jan. 9, has not only voted for many pieces of Republican-backed legislation but actually taken the lead in authoring much of the president's domestic-policy agenda. During the 2001 tax-cut debate, Baucus cut a deal with committee Chairman Chuck Grassley (R-Iowa) and the White House to co-sponsor a slightly watered-down version of the president's proposal. In doing so, he not only gave the GOP his vote but, more importantly, his support for the tax cut effectively handed the White House the staff and other committee resources under his control.

Fellow Democrats were even more aggrieved, however, by Baucus' behavior during the Medicare battle with which Congress closed last year's session. The Senate initially passed a compromise bill with support from Republicans and some liberal Democrats like Ted Kennedy (D-Mass.), while the House put forward a much more partisan piece of legislation on a narrow vote. A conference committee composed of members of both chambers was convened, but the Republican leadership, in a sharp break from precedent, said that though Democrats could be officially appointed to the committee, none would be invited to the meetings where the substantive negotiations would take place and the actual bill be written. None, that is, except for Baucus and the similarly cooperative John Breaux of Louisiana, who will retire at the end of the year.

By lending this farce a veneer of bipartisan credibility, Baucus and Breaux essentially denied the Democrats what was not only their best chance of defeating the bill in question but the party's last hope of putting a stop to a long string of Republican provocations aimed at reducing the minority party to window-dressing status. (emphasis mine)

WTF? Call each phone number and let your rage be heard. This is totally fuckin' unacceptable and you can quote me on that.

Posted at 09:30 PM in Activism, Montana, Netroots, Scandals, Supreme Court | Comments (5) | Technorati

Supreme Court: I Oppose John Roberts

Posted by Bob Brigham

The Feminist Bloggers have announced opposition to John Roberts and I posted in the comments my signature to their letter and urge you to also.

The political optics are very simple: when Roberts drives the court away from Americans, Democrats need to be able to have clear contrast.

This is especially true for Democratic presidential candidates. Roberts will have a couple of years to do his worst before the primary heats up. Any presidential candidate who votes for Roberts will be blamed for Roberts.

As for rank and file Democrats, the play is easy to see. If you are on the judiciary committee you damn well better vote with your team. If a senator is going to make a comment other than opposition, don't. STFU.

Democrats win when we play as a team (i.e. Social Security). We need that now more than ever. We're watching to make sure every Democratic senator plays off the Democratic playbook;

WASHINGTON - Senate Democratic Leader Harry Reid has told associates he intends to oppose confirmation of John Roberts as chief justice, Senate sources said Tuesday as rank and file Democrats began staking out positions on the man named to succeed the late William H. Rehnquist. [...]

As party leader, Reid had urged fellow Democrats not to announce their positions until the conclusion of last week's confirmation hearings for Roberts.

By stating his own position first, Reid likely would set the stage for strong Democratic opposition to the 50-year-old appeals court judge and former Reagan administration lawyer.

We're watching.

UPDATE: And we're talking. From MSNBC:

Bob Brigham, a Democratic blogger who writes for said Democratic activists are following the Roberts battle more closely than they did the 1991 Clarence Thomas saga.

“With the decentralization of politics and the blogs, there are a lot more people paying attention. The Democratic base is following this very closely,” Brigham said.

If he is confirmed, Brigham predicted, “Roberts is going to have a chance to hand down some serious decisions before the 2008 presidential race heats up. And every bad decision he makes will be blamed on any Democratic senator who votes for him. Democratic senators will be held accountable individually for the bad decisions he makes between now and 2008.”

Democratic Senators need to do the right thing.

UPDATE: Full statement from Leader Harry Reid:

“One of the Senate’s most important constitutional responsibilities is to provide “advice and consent” with respect to a President’s nominations. The task is especially important when the nomination is of an individual to be the Chief Justice of the United States.

“No one doubts that John Roberts is an excellent lawyer and an affable person. But at the end of this process, I have too many unanswered questions about the nominee to justify a vote confirming him to this enormously important lifetime position.

“The stakes for the American people could not be higher. The retirement of Justice O’Connor and the death of Chief Justice Rehnquist have left the Supreme Court in a period of transition. On key issues affecting the rights and freedoms of Americans, the Court is closely divided. If confirmed, Judge Roberts, who is only 50 years old, will likely serve as Chief Justice and leader of the third branch of the federal government for decades to come.

“The legal authority that we will hand to Judge Roberts by this confirmation vote is awesome. In my view, we should only vote to confirm this nominee if we are absolutely positive that he is the right person to hold that authority. This is a very close question for me. But I must resolve my doubts in favor of the American people whose rights would be in jeopardy if John Roberts turns out to be the wrong person for the job.

“Some say that the President is entitled to deference from the Senate in nominating individuals to high office. I agree that such deference is appropriate in the case of executive branch nominees such as Cabinet officers. With some important exceptions, the President may generally choose his own advisors.

“In contrast, the President is not entitled to very much deference in staffing the third branch of government, the judiciary. The Constitution envisions that the President and the Senate will work together to appoint and confirm federal judges. This is a shared constitutional duty.

“The Senate’s role in screening judicial candidates is especially important in the case of Supreme Court nominees, because the Supreme Court has assumed such a large role in resolving fundamental disputes in our civic life. As I see it, any nominee for the Supreme Court bears the burden of persuading the Senate and the American people that he or she deserves confirmation to a lifetime seat on the Court.

“Let me start by observing that Judge Roberts has been a thoughtful, mainstream judge on the DC Circuit Court of Appeals. But he has only been a member of that court for two years and has not confronted many cutting-edge constitutional issues. As a result, we cannot rely on his current judicial service to determine what kind of Supreme Court justice he would be.

“I was very impressed with Judge Roberts when I first met him, soon after he was nominated. But several factors caused me to reassess my initial view.

“Most notably, I was disturbed by the memos that surfaced from Judge Roberts’s years of service in the Reagan Administration. These memos raise serious questions about the nominee’s approach to civil rights.

“It is now clear that as a young lawyer, John Roberts played a significant role in shaping and advancing the Republican agenda to roll back civil rights protections. He wrote memos opposing legislative and judicial efforts to remedy race and gender discrimination. He urged his superiors to oppose Senator Kennedy’s 1982 bill to strengthen the Voting Rights Act and worked against affirmative action programs. He derided the concept of comparable worth and questioned whether women actually suffer discrimination in the workplace.

“No one suggests that John Roberts was motivated by bigotry or animosity towards minorities or women. But these memos lead one to question whether he truly appreciated the history of the civil rights struggle. He wrote about discrimination as an abstract concept, not as a flesh and blood reality for countless of his fellow citizens. The memos raised a real question for me whether their author would breathe life into the Equal Protection Clause and the landmark civil rights statutes that come before the Supreme Court repeatedly.

“Nonetheless, I was prepared to look past these memos, and chalk them up to the folly of youth. I looked forward to the confirmation hearings in the expectation that Judge Roberts would repudiate those views in some fashion. Instead, the nominee adopted what I consider a disingenuous strategy of suggesting that the views expressed in those memos were not his views, even at the time the memos were written. He claimed that he was merely a “staff lawyer” reflecting the positions of his client, the Reagan Administration.

“Anyone who has read the memos can see that Roberts was expressing his own personal views on these important policy matters. In memo after memo, the text is clear. It is simply not plausible for the nominee to claim that he did not share the views that he expressed.

“For example, there is a memo in which he refers to the Equal Employment Opportunity Commission as “un-American.” If Judge Roberts had testified that this was a twenty year old bad joke, I would have given the memo no weight. But instead, he provided a tortured reading of the memo that simply does not stand up under scrutiny.

“In another memo Judge Roberts spoke about a Hispanic group that President Reagan would soon address, and he suggested that the audience would be pleased to know that the Administration favored legal status for the “illegal amigos” of the audience members. The use of the Spanish word “amigos” in this memo is patronizing and offensive to a contemporary reader.

“I do not condemn Judge Roberts for using the word “amigos” twenty years ago in a non-public memo, but I was stunned when at his confirmation hearing he could not bring himself to express regret for using the term, or recognize that it might cause offense.

“My concerns about these Reagan-era memos were heightened by the fact that the White House rejected a reasonable request by Committee Democrats for documents written by Judge Roberts when he served in the first Bush Administration. After all, if memos written twenty years ago are to be dismissed as not reflecting the nominee’s mature thinking, it would be highly relevant to see memos he had written as an older man in an even more important policymaking job.

“The White House claim of attorney-client privilege to shield these documents is utterly unpersuasive. Senator Leahy asked Attorney General Gonzales for the courtesy of a meeting to discuss the matter and was turned down. This was simply a matter of stonewalling.

“The failure of the White House to produce relevant documents is reason enough for any Senator to oppose this nomination. The Administration cannot treat the Senate with such disrespect without some consequences.

“In the absence of these documents, it was especially important for the nominee to fully and forthrightly answer questions from Committee members at his hearing. He failed to do so adequately. I acknowledge the right – indeed, the duty – of a judicial nominee to decline to answer questions regarding specific cases that will come before the court to which the witness has been nominated. But Judge Roberts declined to answer many questions more remote than that, including questions seeking his views of long-settled precedents.

“Finally, I was very swayed by the testimony of civil rights and women’s rights leaders against confirmation. When a civil rights icon like John Lewis says that John Roberts was on the wrong side of history, Senators must take notice.

“I like Judge Roberts. I respect much of the work he has done in his career, such as his advocacy for environmentalists in the Lake Tahoe takings case several years ago. In the fullness of time, he may well prove to be a fine Supreme Court Justice. But I have reluctantly concluded that this nominee has not satisfied the high burden that would justify my voting for his confirmation based on the current record.

“Based on all of these factors, the balance shifts against Judge Roberts. The question is close, and the arguments against him do not warrant extraordinary procedural tactics to block the nomination. Nonetheless, I intend to cast my vote against this nominee when the Senate debates the matter next week.”

Posted at 02:45 PM in 2006 Elections - Senate, 2008 President - Democrats, Activism, Democrats, Site News, Supreme Court | Comments (1) | Technorati

Sunday, September 04, 2005

SCOTUS: Rehnquist Passes - Roberts Confirmation to Go Forward

Posted by Tim Tagaris

Not much in terms of links as the information is breaking on television right now, but for those of you online only, here is what we know.

William Rehnquist has passed away.

Confirmation hearings will go forward for John Roberts on Tuesday (via Fox News)

The Republican spin is already that Roberts was the moderate choice and now the president has the ability to pick a "strict contstructionist." (Again via Fox News)

Unfortunately, only Fox is live and has Hannity and Colmes in the studio at 12:30 on a Saturday night, which is nice.

Posted at 12:25 AM in Supreme Court | Technorati

Thursday, September 01, 2005

DLC Fuckup Endangers Evan Bayh's Presidential Bid

Posted by Bob Brigham

Former DLC Chair Evan Bayh is the man who spent four years acting cowardly by refusing to fire Al From even though From repeatedly harmed the Democratic Party by triangulating against mainstream Democrats. Under Bayh's DLC, they even enjoyed it. Now Senator Bayh wants to be President, yet for some unknown reason, he thinks the best way to make a name for himself is to make an ass of himself. From USA Today:

WASHINGTON — Supreme Court nominee John Roberts will be introduced to the Senate Judiciary Committee next week by a centrist Democrat and a veteran Republican, an important symbolic boost for his confirmation prospects.

Sen. Evan Bayh, a Democrat who represents Roberts' home state of Indiana, and Sen. John Warner, a Virginia Republican, have agreed to appear with him when confirmation hearings begin Tuesday. [...]

But the presence of Bayh, a potential 2008 presidential contender, will underscore differences in the Democratic Party over the Roberts nomination. Liberals such as Sens. Charles Schumer of New York and Edward Kennedy of Massachusetts have sharply criticized some of Roberts' positions.

Here's the thing, if Roberts is confirmed, he'll have two full years before the presidential race really heats up. Every bad decision John Roberts makes is going to be blamed on Evan Bayh. During that time, the blogosphere will double or triple in participation, so people will know about it. During that same period, the DLC will continue to lose relevance. Bayh's classic-DLC maneuver of providing bi-partisan cover for Bush does not inspire confidence in Bayh's decision making ability.

Posted at 11:01 AM in 2008 President - Democrats, Democrats, Supreme Court | Comments (6) | Technorati

Wednesday, August 24, 2005

Supreme Court: Netroots Watching Democratic Senators

Posted by Bob Brigham

From Armando:

The Democratic Senators on the Judiciary Committee must compel answers from Roberts and the White House. Senators Leahy, Kennedy, Schumer, Feingold, Feinstein, Biden, Kohl and Durbin - we will be watching. Please do your duty as we all know you can and as you have in the past.


Posted at 01:44 PM in Democrats, Netroots, Supreme Court | Technorati

Monday, July 25, 2005

Cover-up of John Roberts' Partisan Hack History

Posted by Bob Brigham

UPDATE: (Bob) According to the AP, Roberts has now clammed up:

Supreme Court nominee John Roberts declined Monday to explain why he was listed in a Federalist Society leadership directory when the White House says he doesn't recall being a member of the conservative legal organization.

Scott McClellan lied to the entire press corps, even mocked them with the word "ridiculous" during the coordinated cover-up of the Karl Rove scandal. Well guess what jounalists, the White House is still playing you:

Several news organizations, including The Associated Press, reported immediately after his nomination that Roberts had been a member of the Federalist Society. The AP and others printed corrections after the White House said later that Roberts doesn't recall ever belonging to the group.

The Washington Post reported Monday that it had obtained from a liberal group a 1997-98 Federalist Society leadership directory listing Roberts, then a partner in a private law firm, as being a steering committee member in the group's Washington chapter.

Who is misleading, the White House or Partisan Hack John Roberts?


John Roberts worked for two Republican administrations, offering private legal assessments that have yet to be opened to historians or the public. Now that Roberts is President Bush's choice to join the Supreme Court, some Senate Democrats want to see the documents he produced — all of them.

No, responded one White House representative. We'll see, said another.

Well? Which is it?

Atrios says:

Roberts is a made man whether or not he ever was part of the Federalist Society. Now we know he was an active member once but he just can't remember.

When they feel the need to lie about the little things (besides, wouldn't "Yeah, I was with them briefly but I didn't really fit in" been more effective?) we know they have no problem lying about the big ones...

Why is Roberts lying forgetting that he was a in a leadership role of a fringe political organization?

Chris Bowers says:

I wonder what else he has forgotten. Perhaps he has forgotten that he served a purely political position in the solicitor's general's office. Perhaps he has forgotten that he helped develop the strategy to circumvent the 2000 recount and allow the Florida legislature to give its electoral votes to Bush no matter what the recount found.

These seem to be things that even fellow Democrats are forgetting. This guy is not another David Souter. He is a partisan conservative, and he has been duly rewarded for his service to the Bush family.

He forgot--wtf? This is pretty damning. No wonder the Bush administration is blocking the release of some documents he has written.

Yes, John Roberts is just another partisan hack. But he's also a corporate shill, from David Sirota:

Not surprisingly, the Los Angeles Times today reports that Roberts is Corporate America's golden boy, handpicked by - you guessed it - the Chamber of Commerce. "He was the go-to lawyer for the business community. They are very comfortable with him," said Thomas Goldstein, a Washington lawyer who signed a letter in 2002 supporting Roberts' nomination to the U.S. Court of Appeals for the District of Columbia Circuit. "He definitely is a friend of the chamber. Of all the candidates, he is the one they knew best."

Posted at 09:30 AM in Supreme Court | Comments (1) | Technorati

Thursday, July 21, 2005

GOP Talking Points on John Roberts

Posted by Bob Brigham

Novak has his sources (Rove & Libby) and I have mine. In the extended entry you'll find the GOP background and talking points on Roberts. This is Karl Rove's justice and it is clear he's another Partisan Hack.


            John Roberts has enjoyed a distinguished career in government service, private practice and, most recently, as a federal judge.   He is a graduate, summa cum laude, of Harvard College and also Harvard Law School (magna cum laude).  After law school, he clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit and then-Associate Justice William Rehnquist on the U.S. Supreme Court.  

            Roberts has had a distinguished career as a public servant.  He served in several positions in the Reagan administration, including Associate White House Counsel.  He also served, from 1989-93, as the Principal Deputy Solicitor General, the government’s second highest ranking lawyer before the U.S. Supreme Court.  

            After leaving government, Roberts became known as one of the top Supreme Court advocates in the country as a partner at Hogan & Hartson in D.C.   In his government and private career, he has argued 39 cases before the U.S. Supreme Court, and has been described in the media as “one of [the Supreme Court’s] finest practitioners,” (Mauro, American Lawyer, Sept. 1, 2004), “one of the top appellate lawyers of his generation,” (Groner, Legal Times, Feb. 3, 2003), and “viewed by many as the best Supreme Court advocate in private law firm practice,” (Legal Times, Oct. 30, 2000).

            To the extent his record as an advocate can tell anything about Roberts, his arguments often speak to judicial restraint.  He co-authored the government’s successful brief in Lujan v. Defenders of Wildlife, which re-invigorated the doctrine of standing to sue in Article III Courts.  At the same time, he has represented criminal defendants, environmental interests, and the State of Hawaii in a dispute over legislation favoring Native Hawaiians as a group.

            Since his confirmation to the DC Circuit, Judge Roberts has authored about 40 opinions, but only three of his opinions have drawn any dissent.[1] Two of those cases involved rather arcane issues of statutory interpretation (e.g., availability of attorneys’ fees and interpretation of the False Claims Act), and in one case, Roberts (joined by D.H. Ginsburg) was criticized by Judge Henderson for being too lenient on a sentencing issue.  Similarly, though he has sat on numerous other three-judge or en banc panels, he has written dissenting opinions in only two cases.[2]  

Critics of Roberts’ nominations will seek to isolate particular positions espoused by advocate Roberts or adopted by Judge Roberts and argue that those positions are opposed to various political interest groups.  Most significantly, he co-authored a brief for the George H.W. Bush Administration in Rust v. Sullivan that sought to overturn Roe v. Wade.  That brief, however, restated a position that had previously been taken by the Bush Administration and the Reagan Administration before it.   The brief’s discussion of Roe took up only a few sentences in the brief and says nothing about the author’s (or co-author’s) personal views

            Similarly, critics may point to a dissent from denial of en banc rehearing he authored in the Rancho Viejo case, where Roberts cited recent Commerce Clause decisions in suggesting that the federal government might not have the power to regulate a non-migratory local species of toad, as evidence of an anti-environmental record.   Roberts’ opinion, however, simply followed recent decisions by the Supreme Court in Morrison and Lopez.  Any anti-environmental rhetoric is also belied by Roberts successful representation, while in private practice, of environmentalists fighting development around Lake Tahoe in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency.  Thus, his environmental record is hardly well-defined. 

            The battle is likely to occur over Robert’s position in Roe and the Democrats are likely to request all memoranda that Roberts wrote while he was in government service. 

Judge John G. Roberts

Circuit Judge, D.C. Circuit

3832 E. Barrett Prettyman United States Courthouse

333 Constitution Avenue, N.W.

Washington, D.C. 20001-2866

1.      Personal Background

Biographical Information

§         John Glover Roberts, Jr.

§         Born: January 27, 1955, Buffalo, New York

§         Married to Jane Marie Sullivan, July 27, 1996.  Jane Sullivan Roberts is currently a partner at Shaw Pittman in Washington, D.C.

§         Two children, both adopted

§         Religion: Catholic


§         Harvard College, A.B., summa cum laude, 1976;

§         Harvard Law School, J.D., magna cum laude, 1979.


§         Reported as “excellent” in March 2001 (Judge Roberts turned 50 years old in January 2005).


§         Roberts’ financial statement published during his confirmation hearing indicated a net worth of $3,782,275.  The only liability listed is the mortgage on his home, $270,272.  Assets are cash, securities, and real estate.

2.      Professional career

§         Clerkships: Law Clerk, Hon. Henry Friendly, United States Court of Appeals for the Second Circuit, 1979-1980; Law Clerk, Associate Justice William Rehnquist, Supreme Court of the United States, 1980-1981.

§         Private Practice: Hogan & Hartson, Washington, D.C., 1986-1989, 1993-2003.

§         Government Positions: Special Assistant to the Attorney General William French Smith, United States Department of Justice, 1981-1982; Associate Counsel to the President, White House Counsel’s Office, 1982-1986; Principal Deputy Solicitor General, United States Department of Justice, 1989-1993; United States Court of Appeals for the District of Columbia, 2003-present (confirmed May 8, 2003; sworn in June 2, 2003).

§         Professional Associations: District of Columbia Bar; American Law Institute; American Academy of Appellate Lawyers; Edward Coke Appellate Inn of Court; Supreme Court Historical Society.

§         Honors.  Named to Top Ten Civil Litigators by National Law Journal in 1999.   Described in the media as “one of [the Supreme Court’s] finest practitioners,” (Mauro, American Lawyer, Sept. 1, 2004), “one of the top appellate lawyers of his generation,” (Groner, Legal Times, Feb. 3, 2003), “viewed by many as the best Supreme Court advocate in private law firm practice,” (Legal Times, Oct. 30, 2000).

§         Supreme Court Experience.  Has argued 39 cases to the Supreme Court.  Argued more cases than any other private practitioner during 10 years leading up to appointment to D.C. Circuit.

3.      RECORD

            The most pertinent aspects of Judge Roberts’ record essentially fit into three categories:  (1) service in the Office of Solicitor General; (2) private practice at Hogan & Hartson; and (3) service as a Circuit Judge on the United States Court of Appeals for the District of Columbia. 

The most notable materials concerning Roberts’ service in the Office of Solicitor General were:  (1) the government’s brief in the Rust v. Sullivan  abortion case (see below), co-written by Roberts, which argued not only that regulations prohibiting Title X funding recipients from counseling patients on abortion did not violate Title X or the First or Fifth Amendments, but also restated the Bush Administration’s position that that Roe v. Wade was wrongly decided, and (2) the government’s briefs in Lujan (see below), upon which Robert’s was attacked during his circuit court confirmation hearings.

While in private practice at Hogan & Hartson, Roberts, for the most part, did not handle many highly politically sensitive cases.  While Roberts tended to represent corporate clients, he often . . . . ..  However, it is during this period of his career that Roberts earned the respect of people on both sides of the aisle.  Roberts also authored articles which necessarily contain some editorializing and his personal opinions. 

During his brief tenure on the D.C. Circuit,  Roberts’ written opinions evidence a record of judicial restraint.  Roberts’ two dissents from the denials of en banc review have attracted more attention than any of his written opinions.  Roberts dissented from denial of en banc review in the Rancho Viejo case -- a case upholding the Department of the Interior’s suppression of real estate development to protect an endangered species -- the southwestern arroyo toad.  Roberts’ dissent invoked recent changes in the Supreme Court’s Commerce Clause jurisprudence recognizing that the federal government’s legislative authority is not unlimited.   He questioned whether, as a result of that jurisprudence, the federal government had any interest in regulating the movement of a non-migratory, purely local species of frog.  

Roberts also dissented from the denial of en banc review in the Administration’s Energy Task Force case, which provoked claims that Roberts unduly supported Administration secrecy.  His position in that case was eventually affirmed by the Supreme Court on a 7-2 vote and subsequently by the en banc D.C. Circuit on remand by an 8-0 vote. 


            Roberts’ D.C. Circuit confirmation hearings will likely provide the roadmap for opponents’ attack strategies.  The criticisms brought by liberal groups and echoed in the Senate hearings, along with the best responses to those criticisms, updated to include references to Roberts’ recent D.C. Circuit Court opinions where relevant, are summarized below.

            During his relatively short tenure on the D.C. Circuit, Roberts’ judicial opinions, not surprisingly, concern principally technical administrative law issues and have not yet touched on many hot-button social or political issues.  Consequently, his decisions to date are not particularly revealing.  They nonetheless appear consistent with his reputation as a principled conservative jurist who favors judicial restraint and respects the separation of powers embodied in the Constitution, as someone who is impartial in his application of the law, and as one who exercises appropriate judicial temperament, rarely, if ever, resorting to strident or inflammatory rhetoric or argument.  It is a strong record that speaks of stellar legal qualifications and respect for the limited role of the courts.  It leaves a relatively small target for opponents, but also leaves some room for doubt as to Roberts position on many issues. 

Summary of Attacks Raised During Previous Confirmation Process and Best Responses (including references to relevant D.C. Circuit opinions):

Attack: Roberts is pro-life

Opponents will undoubtedly argue that Roberts is hostile to abortion rights based on a pair of briefs on which Roberts appeared while Deputy SG (a) Rust v. Sullivan and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993).   Roberts’ opponents have argued that Roberts unnecessarily called for the Supreme Court to overturn Roe v. Wade in Rust, a case challenging federal regulations which prohibited certain receipients of federal funds from counseling patients on abortion.  Critics argue that the case could have been argued solely on the basis of statutory construction of the provisions at issue.   Critics also point to Roberts’ co-authoring the government’s amicus brief in Bray, a private suit brought against Operation Rescue, which argued that Operation Rescue was not engaged in a conspiracy to deprive women of equal protection rights.  The unspoken undercurrent of these charges, and the likely basis for a whispering campaign against Roberts, is that he is a practicing Catholic and therefore predisposed to advancing the social policies of the Catholic Church through judicial opinions.


        In both cases, Roberts, as one of several attorneys on the brief for the government, was simply arguing the position of the United States, his client.

        The Rust argument, which has been a focal point of criticism of Roberts by PFAW and other abortion interest groups, is easily rebutted.  The SG’s office was simply restating the position that the Reagan and Bush Administrations had already taken in several other cases.  Indeed, while the focus of the government’s Rust argument was statutory, the reference to Roe in the Rust brief was minimal:   “Petitioners argue that the Secretary’s regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . We continue to believe that Roe was wrongly decided and should be overruled.  As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.”   Judge Roberts has not decided any cases involving abortion, and it would be irresponsible to speculate on how he might rule in such a case. 

        At bottom, critics who attack Roberts’ unstated views on abortion are simply attempting to impose a religious litmus test on nominees, i.e., practicing religious (especially Christians) need not apply.  This is the same scurrilous attack on several of the President’s lower court nominees, such as Bill Pryor, and has no place in modern politics.

Attack from People for the American Way: Dissent from the denial of rehearing en banc in Rancho Viejo v. Norton.

            The People for the American Way have sought to brand Roberts as both a right-wing extremist and anti-environmentalist as a result of his dissent from the denial of rehearing en banc in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003).  In Rancho Viejo, a real estate development company challenged the Department of Interior’s application of the Endangered Species Act to stop a project that “was likely to jeopardize the continued existence of the arroyo southwestern toad.”  The case principally involved an attack on Congress’ power to regulate what appeared to be completely intra-state activity.   The left’s attack focuses on how Roberts’ view of Commerce Clause jurisprudence would have prevented the arroyo southwestern toad’s protection from these particular developers.  (Judge David B. Sentelle also authored a separate dissent to the denial of en banc review).

Response:  Mission Viejo involved a Fish and Wildlife Service order to a developer to move a fence from its own property in order to accommodate the movement of southwest arroyo toads, a non-migratory species.  Roberts’ dissent, like Judge David Sentelle’s separate dissent, questioned whether, in light of recent Supreme Court decisions scaling back what was once viewed as Congress’ unlimited power over interstate commerce, the federal government really had any authority to regulate such non-commercial activities as the movement of a toad.   His position recognized the common sense view that the government should not regulate every aspect of every transaction in commerce that does not have an interstate component, arguing that it made little sense to conclude that “regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating "Commerce ... among the several States.”  While the position did not prevail, it was reasonable and well within the mainstream of conservative legal thought, given recent trends in Supreme Court decisions (Lopez and Morrison).  

 Roberts’ dissent, , suggests that the circuit should attempt to resolve what appeared to be a intra-circuit split given the opinions in Rancho Viejo and National Assoc. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and an intra-circuit split with a Fifth Circuit case (See GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622, 634-35 (5th Cir.2003)) that followed the Supreme Court’s decision in United States v. Morrison and United States v. Lopez, two major Commerce Clause decisions that substantially curtailed the federal government’s authority.   The decision should not be portrayed as anti-environment, but one that sought to reconcile seemingly conflicting circuit law in light of subsequent direction from the Supreme Court.

Attack: Roberts is anti-environment

            Opponents will again state that Roberts’ successful argument on behalf of the government in Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992), indicates a callous disregard for the environment.  They will cite as support his recent decision, writing for a unanimous panel, which included Judges Henderson and, significantly, Tatel, in Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004), holding that the EPA’s actions in using particulate matter as a substitute for hazardous air pollutants in regulating emissions from copper smelters were reasonable, despite being arguably different than regulations applied to a different industry. 

Response:  Characterization of a ruling regarding the jurisdiction of Courts as anti-environment or pro-environment is irresponsible and misrepresents the issues before the Court.   The government’s position in Lujan demonstrated a healthy respect for the proper division of power between the Courts and Congress, and in adopting that position, the Court helped curtail judicial overreaching in cases better left to the political process.   The standing doctrine advocated by the Government in Lujan has kept the Court out of numerous disputes where a party that has suffered no injury seeks to use the Courts to make a political point.  Roberts’ consistent refrain regarding Lujan  has been that, far from being the wholesale revision to the law its opponents claim, it upheld precedential standing doctrines by requiring plaintiffs to demonstrate an injury-in-fact that was not apparent in the record before the Court. 

     Judge Roberts’ decision for the Court in Sierra Club v. EPA is notable for a couple of reasons.  First, it was joined by Judge David Tatel, a Clinton appointee and one of the more liberal jurists on the D.C. Circuit.  Second, it merely deferred to the Executive Branches interpretation of federal law, indicating a proper respect for the limited role of the Courts in our government.  

     In any event, in private practice Roberts successfully represented environmentalists fighting development around Lake Tahoe in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, in which the Court adopted Roberts’ position against those of the developers and property owners, over the dissent of Rehnquist, Scalia, and Thomas.   As in Lujan, Tahoe-Sierra demonstrates nothing more than Robert’s excellent advocacy on behalf of his clients, and cannot be read to suggest he is either pro-environmentalist or anti-property rights.  

Attack: Roberts is hostile to civil rights and affirmative actions. 

            During his confirmation to the D.C. Circuit, left-wing activist groups accused Roberts of being hostile to civil rights and affirmative action, citing the following cases in which Roberts co-authored briefs while in the Solicitor General’s office:  (a) Oklahoma City Public Schools v. Dowell, 498 U.S. 237 (1991) (this brief, according to the Alliance for Justice, “sought to weaken the standard and limit the timeline for court-enforced desegregation decrees in the nation’s schools”), and (b) Freeman v. Pitts, 503 U.S. 467 (1992) (according to the Alliance for Justice, this brief successfully argued “to lower the bar for the proof that school systems that had previously engaged in de jure discrimination had to show in order to obtain the court’s revocation of a desegregation decree.”).  Opponents may also cite: (a) Roberts’ opinion (for a unanimous panel of Roberts, Henderson and, again, Tatel) in Sioux Valley Rural Television, Inc. v. FCC, 349 F.3d 667 (D.C. Cir. 2003), in which the court rejected petitioners’ claim that the FCC’s new bidding rules revoking minority and women-owned business credits while at the same time extending credits for all successful small businesses did not have a discriminatory intent and were not arbitrary and capricious when applied retroactively; (b) Roberts’ opinion (panel included Henderson and Williams) in Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004 WL 2381320 (Oct. 26, 2004), in which he held that a 12 year old girl’s arrest for eating a french fry in a rail transit station did not violate her civil rights under the Equal Protection Clause or the Fourth Amendment; and (c) Roberts’ decision (for a unanimous panel including Roberts, Randolph, and Williams) in Stewart v. Evans, 351 F.3d 1239 (D.C. Cir. 2003), holding that a female employee did not have a reasonable expectation of privacy with respect to certain personal notes she had taken regarding a male co-worker’s inappropriate behavior because she turned them over to a FOIA representative with the understanding that they might be further disclosed, even though the FOIA rep agreed not to reveal them within the Department and maintained them in a locked safe.

Response: Roberts’ record as a Supreme Court advocate cannot be easily characterized as either pro- or anti-civil rights.   As a private practitioner, he represented the Governor of Hawaii in defending the State’s preferential treatment of Native Hawaiians in Rice v. Cayetano.   He co-authored government’s brief in U.S. v. Mabus, 1991 WL 527603, arguing that Mississippi continued to propagate a “dual system” of racially segregated public universities in violation of the Equal Protection Clause and the 1964 Civil Rights Act.   His record as an advocate is quite balanced in this area, and simply reflects the fact that he represented a wide array of clients with a broad set of interests. 

     His judicial decisions do not reflect any hostility to civil rights, but merely the reality that not every individual who seeks relief in court is entitled to it.  Hedgepeth, for instance, upheld the decision of a liberal Clinton-appointed district court judge, Judge Emmet Sullivan, and reflects an appropriate deference to the legislature, even when a court might find a law otherwise distasteful.  The case is replete with references to the fact that the judges thought the enforcement of the zero-tolerance rule heavy-handed and wrong, but that they were obliged not to impose their personal preference on an otherwise valid law.  It was decided squarely on the basis of existing precedent finding that age-based laws are subject only to rational basis review, and deference to the officers making the arrest where the underlying policy did not permit discretion. 

Attack: Roberts is hostile to the rights of criminal defendants. 

            In his confirmation hearings, opponents argued that Roberts’ participation on behalf on the government in two amicus briefs indicates a desire to limit the rights of criminal defendants.  See Denton v. Hernandez, 504 U.S. 25 (1992) (amicus brief arguing that the Ninth Circuit test to permit a court to dismiss an in forma pauperis complaint only if it could take judicial notice that the facts alleged did not occur was too stringent); Burns v. U.S., 501 U.S. 129 (1991) (amicus brief arguing that no advance notice to defendant was required for an upward departure from sentencing guidelines).  In further support of this attack, opponents might note two D.C. Circuit decisions authored by Roberts for a unanimous panel: (a) U.S. v. Holmes, 385 F.3d 786 (D.C. Cir. 2004), holding that the search of a passenger compartment of defendant’s car did not exceed the scope of search incident to his arrest for assaulting an officer; and (b) U.S. v. Tucker, 2004 WL 2381324 (D.C. Cir., Oct. 26, 2004), holding that the lower court’s substantial downward departure from sentencing guidelines was not justified for the reason stated by the lower court, namely, that the sentencing guidelines are unjust.  (Tucker, of course, involved a tirade by Judge Jackson who indicated that because he thought the guidelines-mandated sentence too harsh, he would grant a downward departure without making the necessary findings and admittedly invite appellate reversal.  The D.C. Circuit scolded Jackson, and reversed and remanded to give the district court an opportunity to make appropriate factual findings for the departure.)

     Response: Again, Roberts’ record on criminal rights is much more balanced than his critics suggest.  (a) Roberts wrote for a unanimous panel (Randolph, Williams, Roberts) in Warren v. District of Columbia, 353 F.3d 36 (D.C. Cir. 2004), holding that a pro se prisoner had stated a § 1983 claim for relief, based in large part on the fact that “pro se prisoner complaints should be ‘liberally construed’”; (b) Roberts represented many criminal defendants on a pro bono basis while in private practice, including his pro bono representation of the defendant in U.S. v. Halper, 490 U.S. 435 (1989), in which he argued successfully that the Double Jeopardy Clause barred imposition of civil penalties under federal law against an individual who had already been convicted and punished under federal criminal law for the same conduct. 

Attack: Roberts is hostile to the First Amendment’s Establishment and Freedom of

Speech Clauses.  

            Opponents have argued that Roberts supports an expanded role of religion in schools, citing two briefs he co-authored while with the Solicitor General’s office:  Lee v. Weisman, 505 U.S. 577 (1992) (arguing that public high schools should be allowed to conduct religious ceremonies as part of a graduation program); Mergens v. Westside Community School District, 496 U.S. 226 (1990) (arguing that barring a religious group from meeting on school grounds violates the Equal Access Act, while granting access does not violate the Establishment Clause).  In addition, opponents have cited Roberts’ brief in U.S. v. Eichman, U.S. v. Haggerty, 496 U.S. 310 (1990), arguing that the 1989 Flag Act, which prohibited burning the U.S. flag, did not violate the First Amendment.  The Court subsequently held 5-4 that the Flag Act was unconstitutional. 

Response:  Again, Roberts’ briefs in the SG’s office should not be used against him as he is taking his client’s position.  His position in the flag burning case, for instance, merely involved the defense of a federal statute, a role that the Justice Department is obligated to undertake so long as there is a good faith defense available.  The positions espoused in these cases are well within the mainstream of legal thought. 

Attack: Roberts is an “extremist” in the mold of Scalia and Thomas. 

            This is likely to be the most pervasive attack against Roberts, along with his religion, and is the underlying political subtext for all issue-based attacks (see, e.g., Statement of Senator Edward Kennedy on Confirmation of John G. Roberts, Wednesday, April 30, 2003).  Support for this allegation will be found in every decision or writing that can reasonably be construed as restraintist or strict constructionist in flavor, or that has Roberts agreeing with Scalia or Thomas, regardless of the reasoning. 

     Response:  See discussion of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency above, where the Court adopted Roberts’ client’s position against the rights of property owners and over the dissent by Scalia, Rehnquist and Thomas.  In addition, many of Roberts’ briefs written while in private practice appear to defend federal preemption (see, e.g., State of California et al. v. Dillingham Construction, Inc. et al., 1996 WL 335322 (arguing in favor of federal ERISA preemption); Medtronic Inc. v. Lora Lohr and Michael Lohr, 1996 WL 109618 (arguing in favor of broad federal preemption of states’ product liability laws).  But see Jefferson v. City of Tarrant, Alabama, 1997 WL 401190 (arguing against federal common law replacing state law on remedies for deceased or survivors in wrongful death cases).

Attack: Roberts Consistently Sides with Corporations over Unions and Workers’          Rights

            Opponents may focus on Roberts’ private practice client base, which had him representing many corporations in various matters, often against labor unions. 

            Response: Roberts has represented all manner of clients, including environmental groups (see Tahoe-Sierra case cited above), criminal defendants (on a pro bono basis), and the government.  His representation of corporations in union disputes is not unusual for a seasoned appellate advocate.  Moreover, he has authored briefs that sought to expand the rights of employees.  In EEOC v. Arabian American Oil Co., 1990 WL 511330 (Nov. 15, 1990), Roberts’ brief for the government argued the Title VII prohibits employment discrimination outside the United States by an American corporation against an American citizen working abroad. 

Attack:  Roberts supports the Bush Administration’s unparalleled secrecy.

            Roberts voted in favor of the D.C. Circuit’s en banc review of the decision in Sierra Club and Judicial Watch v. Cheney – the National Energy Policy Development Group case where interest groups sought to obtain communications and internal deliberations of the Vice President’s group that was constituted to advise the President on national energy policy.  En banc review was denied and Sentelle, Randolph, and Roberts submitted a dissent to the denial.  The en banc vote could also be used by interest groups to state that Roberts’ is willing to protect the Administration’s “secret’ communications with energy companies over the public’s “right to know” and environmental interests.  (In addition, this case generated controversy regarding Justice Scalia’s now-infamous hunting trip with the Vice President).

Response:  In a 7-2 decision authored by Justice Kennedy, the Supreme Court granted review and vacated the district court’s decision giving the interests groups access to the Vice President’s records.  The case was remanded for further proceedings in the D.C. Circuit, which affirmed the Vice President’s position and dismissed the case by an 8-0 vote.  Therefore, Roberts’ view in his en banc dissent was ultimately vindicated.
D. C. Circuit Panel Decisions

      In general, Roberts’ written opinions reflect a pattern of judicial restraint and deference to agencies.  The panel decisions in which Roberts participated but did not write the opinion were relatively non-controversial.  The following cases are highlighted because they touch on issues of political interest:

Criminal Issues

§         United States v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004).  Roberts wrote for a unanimous panel (including Edwards and Garland), upholding various procedural rulings made by the district court in a criminal case.  Specifically, the court held that (a) allowing counsel only nine minutes to review several inches worth of Jencks Act material was not an abuse of discretion; (b) limiting defendant’s cross of the probation officer to 20 minutes (because that was the length of time on direct) did not violate the right to confront witness; and (c) certain hearsay statements were admissible because, although clearly hearsay, they were sufficiently reliable.

§         United States v. Holmes, 385 F.3d 786 (Oct. 19, 2004).  Roberts held for a unanimous panel that the search of a passenger compartment of defendant’s car did not exceed scope of search incident to his arrest for assaulting an officer during the traffic stop, and affirmed the Judge Kennedy’s decision below denying defendant’s motion to suppress. 

§         United States v. Tucker, 2004 WL 2381324 (Oct. 26, 2004).  Roberts, writing for a unanimous panel, held that the lower court’s substantial downward departure from sentencing guidelines was not warranted on the basis provided by the lower court—that the sentencing guidelines were unjust—and vacated the sentencing decision and remanded the case.  The court’s position refused to adopt the results-oriented decision by judge Jackson in light of clear Supreme Court authority requiring specific findings for a downward departure.

§         United States v. Thomas, 361 F.3d 653 (D.C. Cir. 2004).  A unanimous panel (Ginsburg, Garland, Roberts) evaluated two issues regarding the Sentencing Guidelines.  The Court held that: (a) escape constitutes a “crime of violence” under the Guidelines; and (b) it was “plain error” for the district court to rely on a defendant’s arrest record in denying downward departures.  (NOT WRITING)

Civil Issues

(1) Administrative Law

§         Sierra Club v. Environmental Protection Agency, 353 F.3d 976 (D.C. Cir. 2004).  Roberts wrote for a unanimous panel (including Henderson and Tatel) denying the Sierra Club’s petition for review of EPA’s regulations concerning certain pollutants released in the process of smelting copper.  The opinion is fairly technical, but, in short, the Court held that EPA’s actions were “reasonable,” notwithstanding the fact that the regulations were arguably different (and less stringent) than those applied to a different industry.

§         Non-deferral cases.  Roberts wrote for the panel in two agency cases in which the Court granted petitions for review on the ground that the agency had failed adequately to explain why its decision was consistent with its own precedent.  See Lemoyne-Owen College v. NLRB, 357 F.3d 55 (D.C. Cir. 2004) and Ramaprakash v. Federal Aviation Administration, 346 F.3d 1121 (D.C. Cir. 2003).

§         Independent Equipment Dealers Association v. EPA, 372 F.3d 420 (June 25, 2004).  Roberts wrote for a unanimous panel that the EPA had not engaged in any reviewable action or create new policy when it sent a letter interpreting emissions regulations for nonroad engines.  Although opponents could potentially use the decision to demonstrate that Roberts is willing to bow to the administration’s wishes on environmental policy, the court appropriately did not frame the issue in terms of defending a new policy, but rather held that the EPA was merely reiterating long-standing policy and had engaged in reviewable final agency action.

§         National Council of Resistance of Iran v. Department of State, 373 F.3d 152 (July 9, 2004).  Roberts, writing for a unanimous panel, held that an organization’s designation as a Foreign Terrorist Organization (FTO) based on determination that it was an alias of another organization designated as an FTO, had substantial support in the record and was consistent with the Anti-Terrorism and Effective Death Penalty Act of 1996.

§         Williams Gas Processing – Gulf Coast Company, L.P. v. Federal Energy Regulatory Commission, 373 F.3d 1335 (July 13, 2004).  Roberts wrote for a unanimous panel that a decision of FERC regarding gas gathering activities of pipeline company was arbitrary and capricious.  Although the decision could be used to show that Roberts supports oil and gas companies over environmental interests, it actually stands for nothing more than the proposition that agencies should be consistent in their application of regulations and not arbitrary in deciding cases.  See, e.g., Ramaprakash v. Federal Aviation Administration, 346 F.3d 1121 (Oct. 21, 2003) (Roberts finding that National Transportation Safety Board had failed to explain adequately its departures from its own established precedent in no fewer than three respects); Duchek v. National Transportation Safety Board and Federal Aviation Administration, 364 F.3d 311 (April 20, 2004) (Roberts holding that FAA could not revoke an airman’s license based on his failure to respond to notice because a notice from a designated representative was not the equivalent of “direction by the employer”); but see Midwest ISO Transmission Owners v. FERC, 373 F.3d 1361 (July 16, 2004) (Roberts holding for unanimous panel that FERC’s orders applying tariff were not arbitrary and capricious).  Overall, these cases taken together demonstrate that Roberts expects administrative agencies to apply their own procedures and policies in a fair, reasonable, and consistent manner – a position consistent with a philosophy of judicial restraint.

§         PDK Labs. Inc. v. United States Drug Enforcement Admin., 362 F.3d 786 (D.C. Cir. 2004) (concurring opinion).  The concurrence here argues for judicial restraint.  The majority held that the plaintiff had standing to seek review of DEA’s suspension order and then went on to attempt to interpret or clarify the statute authorizing the DEA to forbid importation if “the chemical may be diverted to the clandestine manufacture of a controlled substance.”  Id. at 789 (citing 21 U.S.C. § 971(c)(1)).  In his concurring opinion, Roberts chides the majority for going beyond what was necessary to remand the case.  He argues that once the standing question was resolved, the case should have been vacated and remanded without further discussion, citing the “cardinal principle of judicial restraint -- if it is not necessary to decide more, it is necessary not to decide more.”  Id. at 799.  He further noted that imposing its interpretation on the DEA violated the Chevron doctrine, because it did not give the DEA an opportunity to rule on the interpretation issue first.

§         S.A. Storer & Sons Co. v. Sec. of Labor, 360 F.3d 1363 (D.C. Cir. 2004).  Unanimous panel (Henderson, Tatel, Roberts) vacated and remanded decision by the Secretary of Labor that company had violated OSHA regulations concerning the safety of scaffolding.  But, appears to be a “mixed” decision from the labor perspective, because although the Court held that one regulation had been improperly interpreted, the Court also held that the employer had not appropriately protected worker safety in another aspect.  (NOT WRITING)

(2) Constitutional/Employment/Other

§         Sioux Valley Rural Television, Inc. v. Fed. Communications Comm’n, 349 F.3d 667 (D.C. Cir. 2003).  Roberts wrote for a unanimous panel (including Henderson and Tatel) in a reverse-race/sex discrimination case regarding FCC’s bidding rules.  Petitioners alleged that the FCC’s decision to revoke minority- and women-owned business credits, while at the same time extending credits for all successful small businesses, was unfair to non-minority- and non-women-owned businesses.  The court rejected the claim, noting that the FCC had no discriminatory intent in adopting the change, and that it was not arbitrary or capricious for the agency to make the new bidding rules retroactive.

§         Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004 WL 2381320 (Oct. 26, 2004).  Roberts wrote for a unanimous panel, affirming the decision by Judge Sullivan below, that a young girl who was arrested for eating a french fry in rail transit station could not state a claim for violations of her Equal Protection or Fourth Amendment rights, and the court could not inquire into reasonableness of decision to arrest since the District of Columbia’s Code specifically prohibited conduct in question and there was probable cause to arrest.  While admitting that the result was harsh and acknowledging that the policy was subsequently changed, Roberts’ decision reflected judicial restraint, deferring to the police.

§         United States ex rel. Totten v. Bombardier Corporation, 380 F. 3d 488 (D. C. Cir. Aug. 27, 2004).  This is one of Roberts’ opinions that resulted in a dissent.  The case involved a qui tam action against a contractor under the False Claims Act for allegedly submitting false claims to Amtrak in order to obtain payment for allegedly defective railroad cars.  Roberts’ panel decision with Judge Rogers determined that a payment to Amtrak was not a payment to the government subject to the False Claims Act.  Judge Garland’s dissent disagrees with Roberts’ literal statutory interpretation.  It does not appear that there is a significant basis to attack the opinion, although Sens. Grassley and Leahy may very well question him about it given their strong support for an expansive reading of the False Claims Act.     

§         Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003).  Unanimous panel (Rogers, Silberman, Roberts) concluded that plaintiff, one of the first female combat pilots in the Navy, was a “public figure” for purposes of establishing defamation under NYT v. Sullivan, and that she had failed to prove “actual malice.”  This arguably could be characterized as an anti-female opinion, since the appellee was an interest group opposed to allowing women to serve in combat positions in the military. (NOT WRITING)

§         Warren v. District of Columbia, 353 F.3d 36 (D.C. Cir. 2004).  Unanimous panel (Randolph, Williams, Roberts) held that a pro se prisoner had stated a § 1983 claim for relief -- based in large part on the fact that “pro se prisoner complaints should be ‘liberally construed.’”  Id. at 37.  (NOT WRITING)

§         In Acree v. Republic of Iraq, Roberts wrote a concurring opinion that argued for the result (which was the dismissal of a case involving American POWs from the 1991 Gulf War who had sued the Republic of Iraq and its president) citing the plain meaning of the governing statute’s language rather than a more extended argument adopted by the majority.  See Acree v. Republic of Iraq, 370 F. 3d 41 (D. C. Cir. June 4, 2004, reh’g en banc denied Aug. 19, 2004).   Roberts’ opinion indicates that he has respect for Congress’ authority and attempts to be faithful to the express language of a statute wherever possible.  (NOT WRITING)


§         Rust v. Sullivan, 1990 WL 505725 (Sept. 7, 1990).  The government’s brief here, co-written by Roberts, arguably went beyond what was required by the case’s merits to state the broader policy of the administration -- that Roe v. Wade was wrongly decided.  The most controversial portion of the brief is the following quote: 

Petitioners argue that the Secretary’s regulations impermissibly burden the qualified right discerned in Roe v. Wade, 410 U.S. 113 (1973), to choose to have an abortion. . . . We continue to believe that Roe was wrongly decided and should be overruled.  As more fully explained in our briefs, filed as amicus curiae, in Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986); and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution.  If Roe is overturned, petitioners’ contention that the Title X regulations burden the right announced in Roe falls with it.  But even under Roe’s strictures, the Title X regulations at issue do not violate due process.  This Court has repeatedly recognized that ‘the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” (citations omitted).   Thus, while under Roe the government may not prohibit a woman, during the first trimester, from choosing to have an abortion, the government is not obligated to provide the means to exercise any such right. . . . (citations omitted). 

This will be a significant, if not the primary, point of attack on Roberts.  Although Roberts, as the principal deputy SG, was a co-author along with several others (Starr as Solicitor General, Gerson as Asst. Attorney General-Civil, and Jeffrey P. Minear, Assistant SG, and others), and did not direct policy for the Dept. of Justice under President George H. W. Bush, this was the focus of much of the opposition to Roberts’ nomination to the D.C. Circuit, and will no doubt be the focus again.  

§         Lujan v. National Wildlife Federation et al., 1990 WL 505743 (April 6, 1990).  While in the SG’s office, Roberts co-authored the government’s brief.  As noted in his article defending Lujan, Roberts argues that the decision applied established standing jurisprudence—proof of an injury in fact.  Roberts frames the issues as “whether a federal court may effectively supply the requisite proof of standing by ‘presuming’ facts that the parties did not—and perhaps cannot—allege on their own.”  This will undoubtedly be raised again, both because of its charged environmental background, and because Scalia wrote the opinion for the majority adopting Roberts’ argument. 

§         EEOC v. Arabian American Oil Co., 1990 WL 511330 (Nov. 15, 1990).  Roberts’ brief for the government argued the Title VII prohibits employment discrimination outside the United States by an American corporation against an American citizen working abroad.  This brief might be useful in deflecting criticism of Roberts’ record on civil rights claims.

§         Burns v. United States, 1990 WL 505508 (Sept. 12, 1990).  Roberts argued here that Due Process does not require a district court to notify a defendant in advance of its intent to depart upward in the sentence prescribed by the Sentencing Guidelines.  This brief might be used in support of criticism of Roberts’ civil rights record and perceived hostility to “due process.”  Because the case relates to procedural, rather than substantive, due process rights, however, the case should raise few problems. 

§         Houston Lawyers Ass’n v. The Attorney General of Texas v. League of United Latin American Citizens, 1991 WL 11007899 (March 4, 1991).  Roberts argued in favor of applying the “results” test of the Voting Rights Act to the election of state court judges and to the election of offices that can be held by only one person.  This case could potentially be used to show that Roberts’ represented his government client in an expansive reading of the Voting Rights Act. 

§         United States v. Mabus, 1991 WL 527603.  Roberts also represented the government, arguing that Mississippi continued to propagate a “dual system” of racially segregated public universities in violation of the Equal Protection Clause and the 1964 Civil Rights Act.  As previously discussed, this brief can be used to rebut claims that he is anti-civil rights.

§         Astoria Fed. Savings & Loan Ass’n v. Solimino, 1991 WL 11007849.  Roberts was on the amicus brief filed on behalf of the U.S. and the E.E.O.C.  The question presented was whether, in a federal court proceeding under the ADEA, state agency findings of fact that have not been judicially reviewed have preclusive effect.  The brief argues that while state agency findings should be accorded substantial weight, they should not have preclusive effect.

§         United States and FCC v. Edge Broadcasting Company, 1993 WL 289152.  Respondent radio/licensee mounted an attack on Congress’ power to regulate the advertisement of state lotteries over radio airwaves.  The brief argued in support of Congress’ power to regulate gambling and that there was no First Amendment violation with the regulation of this commercial speech.

§         United States v. A Parcel of Land, Buildings, Appurtenances . . . 92 Buena Vista Ave., Rumson NJ, 1993 WL 445385.  Brief argues in support of a tough approach to the enforcement of a civil forfeiture statute for property purchased with the proceeds from a drug transaction(s).  The government’s position was that even when a person (here, a girlfriend) receives a gift of money derived from drug sales and purchases property with that gift, that person cannot assert a valid “innocent owner” defense. 

§         Jerome B. Grubardt, Inc. v. Great Lakes Dredge & Dock Company, 1994 WL 249174.  Roberts represented the Respondent.  This suit concerned the unique application of admiralty principles in federal court. 

§         First Options of Chicago, Inc. v. Kaplan, et al., 1995 WL 71517. Roberts represented Respondent Kaplan.  Roberts argued that the question of whether parties agreed to arbitrate is a question for the courts, not arbitrators, under the Federal Arbitration Act.  Generally, a pro-business approach is one that would argue for the arbitrators, not the courts, deciding the scope of the arbitration clause.  Here, however, he was merely representing his particular client’s interests.

§         International Union, et al. v. Bagwell, Clinchfield Coal Co., et al., 1993 WL 417634 Roberts represented the Respondent coal companies against the unions -- seeking to uphold the state court’s method for sanctioning the unions’ violent activities against, among other arguments, due process clause considerations. 

§         Digital Equipment Corp. v. Desktop Direct, Inc., 1993 WL 657281.  Roberts represented Petitioner in this case dealing with federal appellate jurisdiction. The arguments were confined to the scope of the “collateral order” doctrine for interlocutory appeals.

§         Holly Farms, Tyson Foods, Inc. v. NLRB, 1995 WL 756167.  Roberts represented Amicus Curiae National Broiler Council in supporting Petitioners.  This brief merely argued statutory interpretation principles regarding the National Labor Relations Act in a way more favorable to the chicken industry.

§         Brown v. Pro Football, Inc., d/b/a Washington Redskins, et al., 1996 WL 72349 (AMICUS).  Roberts represented Amicus Curiae Associated General Contractors of America, Inc. supporting Respondents.  This amicus brief supports not imposing antitrust liability on the multi-employer bargaining process in dealing with collective bargaining agreements.  The amicus comments on the effect on industries, other than football, if the court accepted the labor position.  

§         Medtronic Inc. v. Lora Lohr and Michael Lohr, 1996 WL 109618 (AMICUS).  Roberts represented Amicus Curiae Center for Patient Advocacy and the Calif. Health Care Institute in su

Posted at 01:16 PM in Supreme Court | Technorati

Swing State Project in Washington Post

Posted by Bob Brigham

Washington Post:

One strength of the blogosphere -- its real-time ability to vacuum up thousands of facts -- has been on display with the Roberts nomination. posted excerpts of a 1997 court ruling in which Roberts, representing a pork producer in a clean water case, was accused of making a misleading argument, according to the Web site.

Here is the post mentioned on John Roberts.

Posted at 11:52 AM in Site News, Supreme Court | Technorati

Wednesday, July 20, 2005

MoveOn: Gather to Protect Our Rights

Posted by Bob Brigham

And the armies take to the battlefield. An email from MoveOn:

Last night President Bush nominated the right wing corporate lawyer John Roberts for a lifetime seat on the Supreme Court.

The next 48 hours are probably the most important in this whole campaign. The media and our senators are looking around to gauge the public's response. A strong reaction now could change the way everything else is covered and how far our leaders are willing to go to protect our rights.

That's why tomorrow, Thursday the 21st, thousands of MoveOn members will be gathering all across the country to spread the word and collect signatures to petition our senators. We'll gather in public areas and work in teams for an hour or two. Local media outlets have been alerted, and getting those stories on TV and in hometown papers is one of the most powerful things we can do.

Can you join us? You can find an event in your area, or start your own. We'll give you everything you need to make it easy. Just go to:

Here are what MoveOn members have said recently about similar events:

"It went well. I was thrilled to find several like minded people who live near me who will help out in future events!"
–Jean Yarborough, Judicial Canvassing Team Leader, North Richland Hills, TX

"I brought my dog which attracted positive attention. Next time I am making a sign for him to carry. He is a sheepdog, and so the sign will say, 'Don't let yourself be herded about, work to save Democracy!' May sound a bit silly, but when people stopped to pet him, we could then ask them if they wanted to sign the petition."
–Barbara Wust, People Speak Rally Host, Richmond, VA

We hope you can join us tomorrow:

Why is it so important to oppose Roberts? Because his short two years as a judge, his extensive history as a partisan, and his record as a corporate lawyer show a consistent pattern of putting right-wing ideology and corporate power over individuals' rights.

Here are some of the areas of greatest concern from Roberts' record:

As a partisan lawyer for the Bush Sr. and Reagan administrations, Roberts threatened:

Civil rights by asking the Supreme Court to severely limit the ability of district courts to desegregate public schools1, and working to ensure the Voting Rights Act could not be used to remedy many cases of actual discrimination against minority votes.2

Women's rights by fighting for a law barring doctors from even discussing reproductive options in many cases,3 and arguing that Roe. vs. Wade should be "overruled."4

Free speech by arguing to the Supreme Court that political speech that some considered offensive did not deserve First Amendment protections. The Court rejected his claim.5

Religious liberty by arguing to the Supreme Court that public schools could force religious speech on students. Again, the Court rejected the argument.6

As a corporate lawyer, Roberts threatened:
Community and environmental rights by working to strike down new clean-air rules and filing a brief for the National Mining Association, arguing that federal courts could not stop mountaintop-removal mining in West Virginia, even as it devastated local communities.7

Workers' rights by helping Toyota to successfully evade the Americans with Disabilities Act and fire workers for disabilities they suffered over time because of the requirements of their jobs.8

Public interest regulations by helping Fox News challenge FCC rules that prevented the creation of news media monopolies.9

In his short two years as a judge, Roberts has threatened:

Individual rights by rejecting the civil rights claims brought on behalf of a 12-year-old girl who had been handcuffed, arrested and taken away by the police for eating a single french fry in the D.C. Metro.10

Environmental protections when the dissent he wrote on an Endangered Species Act case, had it been in the majority, would have struck the Act down as unconstitutional in many cases, and would have threatened a wide swath of workplace, public safety and civil rights protections.11

Human Rights by voting to strike down the Geneva Conventions as applied to prisoners that the Bush administration chose to exempt from international law.12

Roberts' confirmation is not inevitable. As Senate Minority Leader Harry Reid said yesterday, "The President has made his choice. Now the Senate will do its job of deciding whether to confirm John Roberts to a lifetime seat on the Supreme Court."

Now it's time for us all to do our job of telling our senators that our rights are not negotiable, and John Roberts does not belong on the Supreme Court.

We hope to see you tomorrow.

Thanks for all that you do,

–Ben, James, Micayla, Wes and the Political Action Team
Wednesday July 20th, 2005


1. Oklahoma City Public Schools v. Dowell

2. Alliance for Justice, Nominee Profile

3. Alliance for Justice, Nominee Profile

4. "Same Appeal; Different Styles," Washington Postm July 17, 2005

5. United States v. Eichman, 496 U.S. 310 (1990)

6. Lee v. Weisman, 505 U.S. 577 (1992)

7. "The Making of the Corporate Judiciary" Mother Jones, November/December 2003

8. Toyota Motor Mfg., Kentucky v. Williams, 534 U.S. 184 (2002)

9. Alliance for Justice

10. Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148 (D.C. Cir. 2004)

11. Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003 cert. denied)

12. Court: U.S. May Resume Detainee Tribunals, Associated Press, July 16th 2005

Posted at 06:36 PM in Supreme Court | Technorati

John Roberts: Partisan Hack Wont Stop Rove Flak

Posted by Tim Tagaris

It doesn't take a genius to recognize today's "sudden" Supreme Court announcement was little more than a diversionary tactic by an embattled White House in the midst of its last stand. That's fine.

This is going to be a long process, and there are many questions to be answered about John Roberts fitness for the Supreme Court. After all, it was only five years ago John Roberts was working for Bush/Cheney 2000 in the Florida recount--for twenty years, Roberts has been more of a Republican political operative. And tonight, one political hack was sent forward to the U.S. Senate to cover for another political hack feeling heat from U.S. Attorney Patrick Fitzgerald.

A lifetime appointment the highest court in the land deserves no less than a thorough examination of the potential jurist. It was only 2003, two years ago, when John Roberts was confirmed by a voice vote to the U.S. Court of Appeals for the D.C. Circuit. His thin resume doesn't give us much to go on when measuring his fitness for the High Court. So, in the coming days, weeks, and possibly months, while everyone is thinking of questions that John Roberts' thin resume obliges him to answer in the Judiciary Committee, there are still a lot of questions that remain unanswered for Karl Rove; let's hope that no one forgets that.

Posted at 02:24 AM in Supreme Court | Technorati

Karl Rove's Last Stand

Posted by Bob Brigham

Bush White House #2 Man and Senior Advisor to the President Karl Rove is in a pile of shit. It is up to his second chin.


Billmon's Rove's Last Stand -- an instant legend.

Fitzgerald is honing in and Rove's days are limited. Scott McClellan is now completely worthless as a Press Secretary -- he was busted lying to the American press to cover-up the sins of Karl Rove. Scooter Libby is also in trouble, along with Ken Mehlman and Ari Fleisher.

So when Bush nominates a partisan hack to distract attention I'm not going to let the arrogance of the Washington Republicans distract me from the White House Scandal.

John Roberts is nothing but a partisan hack, he won the spot for his partisanship, not his judicial record. I mean, the guy is a fucking lobbyist. And the Radical Right will spend millions on lobbyists to try to get a lobbyist on the bench.

But back to the Karl Rove scandal...

Play the West Wing game, the entire senior staff may have liability on this scandal:

Chief of Staff1mcgarry.jpgLeo McGarry2card.jpgAndy Card
Chief of Staff
1lyman.jpgJosh Lyman2rove.jpgKarl Rove
1ziegler.jpgToby Ziegler2bartlett.jpgDan Bartlett
1cregg.jpg C.J. Cregg2fleisher-mcclellan.gifAri Fleisher
Scott McClellan
Chief of Staff
1bailey.jpg Will Bailey2libby.jpg Lewis "Scooter" Libby

Play along. If Will Bailey and Josh Lyman were busted leaking the identity of an undercover CIA operative to Danny, who else would be involved. Let's say C.J. was caught on tape lying about Lyman. Who else? My guess is another Bush partisan hack.

Either Rove lied to the President or Bush lied to the American People.

What did the President know and when did he know it?

Why hasn't the White House followed protocol and initiated investigation into Rove's violation of his nondisclosure agreement.

Did Rove lie and committ perjury under oath?

Fire Karl Rove.

Posted at 12:01 AM in Plamegate, Republicans, Scandals, Supreme Court | Comments (2) | Technorati

Tuesday, July 19, 2005

SCOTUS: Ethically Challenged John Roberts (Another Partisan Hack)

Posted by Tim Tagaris

An ethically challenged lawyer appointed by an ethically challenged "win-at-all-cost" administration.

U.S. v. Smithfield Foods - Roberts representing a pork processing company against Clean Water Act violations. This is what the court had to say about Roberts the litigator:

"The mischaracterization and distortion of this Memorandum is frustrating to the court. Quotes are being taken out of context, and it appears that words are being conveniently deleted or added for purposes of argument." "A totally misleading argument presented to this court."

I am not sure the amount of cases he has argued is very compelling if that is the way that he argues them.

UPDATE: Roberts on Roe v. Wade -- Brief field in Rust v. Sullivan

"We continue to believe that Roe was wrongfully decided and should be overturned." "[T]he Court's conclusions i Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution."

UPDATE (Bob) John Aravosis has info from NARAL Pro-Choice America on John Roberts and the huge oppo file from Alliance for Justice on John Roberts.

UPDATE (Tim) Aravosis has more, including Roberts' weak resume, and militant crusade to erode a woman's right to privacy, choice, and apparently right to live free from violence.

UPDATE (Tim) Jeralyn already debunks the Right's first talking point, that he was approved by the Senate to the Appeals Court overhwlemingly.

UPDATE (Bob) Here is PFAW on John Roberts (PDF)

UPDATE (Bob) Update the dkosopedia page on John Roberts and the Wikipedia page on John Roberts.

UPDATE (Bob) The John G. Robert's 2003 Confirmation Hearings

UPDATE (Bob Chris Bowers is right, John Roberts is a Partisan Hack:

The Bush administration has clearly stepped up the nomination of John Roberts in order to deflect attention from Karl Rove. Really, it makes sense. One partisan hack is deflecting attention from another.

Karl Rove is a lifetime Republican operative. John Roberts has been filing briefs and providing legal support for recounts (Roberts worked for Bush-Cheney 2000 in Florida) on behalf of Republicans for two decades. John Roberts is a partisan hack taking the heat for another partisan hack. He has only been a judge for two years. He has been a partisan Republican hack for twenty years.

The Bush administration was elected by the Supreme Court, and now it is electing a member of its campaign team to the Supreme Court in order to deflect attention away from ethics violations by the head of its campaign team, Karl Rove. The is partisan hackery at its best. The Bush administration has decided to treat the Supreme Court as an ambassadorship.

And so the fight is enjoined--the Bush administration wants to nominate a partisan hack who helped elect Bush to the Supreme Court, which elected Bush, in order to deflect attention from possible the possibly treasonous activates of another partisan hack who led the Bush campaign in 2000 and 2004. And so this is our fight--the Supreme Court is not the Northern Mariana Islands. The Supreme Court is not a way to reward those who helped get you elected. The Supreme Court is not a way to help deflect attention from the ethics violations of those who helped elect you. The Supreme Court is not a place for partisan hacks, but the Bush administration thinks it is. And so this is our fight--country over partisanship. And so it begins.

Howard Dean (from a press release):

Washington - Faced with a growing scandal surrounding the involvement of Deputy White House chief of Staff Karl Rove and Vice President Cheney's Chief of Staff Lewis Libby in the leaking the identity of a covert CIA operative, President Bush announced his nomination of John Roberts to the Supreme Court late this evening. Democratic National Chairman Howard Dean today issued the following statement on the nomination:

"It is disappointing that when President Bush had the chance to bring the country together, he instead turned to a nominee who may have impressive legal credentials, but also has sharp partisan credentials that cannot be ignored.

"Democrats take very seriously the responsibility to protect the individual rights of all Americans and are committed to ensuring that ideological judicial activists are not appointed to the Supreme Court. The Senate Judiciary Committee will now have the opportunity to see if Judge Roberts can put his partisanship aside, and live up to a Supreme Court Justice's duty to uphold the rights and freedoms of every American and the promise of equal justice for all."

Posted at 08:02 PM in Activism, DNC Chair, General, Netroots, Nuclear Option, Plamegate, Scandals, Supreme Court | Technorati

Thursday, July 14, 2005

SCOTUS: Rehnquist Not Going Anywhere

Posted by Tim Tagaris

The two-week head fake ended today, as Chief Justice Rehnquist announced he was staying put.

"I want to put to rest the speculation and unfounded rumors of my imminent retirement," Rehnquist, 80, said in a statement obtained by The Associated Press. "I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits."
He put the statement out right before he was released from the hostpital.

Posted at 09:08 PM in Supreme Court | Technorati

Wednesday, July 13, 2005

Chief Justice William Rehnquist Hospitalized

Posted by Bob Brigham

With the Chief Justice in the hospital, it looks like the Radical Right's push to stack the Court with extremists is in full swing. Stay tuned.

Posted at 06:42 PM in Supreme Court | Comments (2) | Technorati

Monday, July 11, 2005

Blogs Revolutionizing Supreme Court Nomination Battle

Posted by Bob Brigham

From Reuters:

WASHINGTON (Reuters) - Political groups preparing to battle over the first U.S. Supreme Court nomination in 11 years have a powerful new tool -- Internet blogs -- to spread information quickly and influence decision makers without relying on traditional media.

Web logs likely numbering in the dozens provide a way for the thoughtful and the passionate to publish their views. Politicians are taking notice as they prepare for the first high court nomination fight since the Internet became common in American households.

First of all, blogs "numbering in the dozens" shows this reporter doesn't grasp the scale of what is coming. But more importantly, the key isn't going to be blogs ability to "spread information" but the Open Source Oppo Research that will occur at a level that has never before been seen. There is one quote in the story that gets at this:

Steve Clemons, who publishes a political blog http:/, says that once Bush names someone "you are going to see the blogs go crazy" digging up information and in many cases "outrunning" mainstream media.

In the Supreme Court battle, the role of bloggers won't just be to cut and paste the stuff coming from the players in DC. The key will be that any google-monkey can be a player. This is the post-broadcast era, it isn't about spreading information. The best dirt isn't sitting in some DC Oppo Research file cabinet, it is yet to be found.

Posted at 12:28 PM in Supreme Court | Comments (1) | Technorati

Friday, July 08, 2005

SCOTUS: Rehnquist Announcement...

Posted by Tim Tagaris

It's 4:47 right now, and word is that the Rehnquist announcement is coming within minutes soon. Everyone expected it earlier today, myself included. No idea if this is bunk information or not, but turn on CNN or MSNBC to see if it comes to fruition.

Atrios has it from earlier.

Red State discusses the impending decision as well.

UPDATE: Josh Marshall wonders if the Chief Justice's letter of resignation has already been submitted. At least that's the word among the D.C. press.

Posted at 04:47 PM in Supreme Court | Technorati

Tuesday, July 05, 2005

DLC Worthless in Supreme Court Fight

Posted by Bob Brigham

As Democrats attempt to preserve independent courts, it appears the DLC is again worthless as an ally, from Bull Moose:

A polarizing fight on the Court will likely accelerate the separation between Washington and the rest of the country. As activist groups fight one another, most Americans will feel divorced from the fracas. Their concerns about health care, jobs, gas prices will go ignored as the two armies bloody themselves on the cultural war battlefield.

Note the phrasing, the DLC is not on Democrats' side.

What has the DLC done so far in 2005?

* When Joe Leiberman looked like he might sell out on Social Security, the DLC provided cover

* When the Radical Right tried to get rid of the filibuster with their Nuclear Option, Democratic posture and positioning was hurt by the DLC. During this "nuclear" showdown, the DLC was worthless at best and probably counter-productive.

Now the DLC is hitting the trifecta, the third battle major battle of the year and again the DLC is of zero help. With friends like these...

Posted at 01:40 PM in Democrats, Supreme Court | Comments (3) | Technorati

Saturday, July 02, 2005

Blogs and Supreme Court Nomination Process

Posted by Bob Brigham

Jeralyn Merritt was on MSNBC yesterday, you can (of course) find something at Talk Left and the video at Dem Bloggers, here's a rough transcript:

JERALYN MERRITT: I think the way it is stacking up on the blogs is we feel like the ball is in President Bush's court right now. He can choose to provide us with us consensus nominee, he can choose to discuss it with the Senate, or he can go with the Radical Right and present a Radical Right nominee. If he does the latter, we're going to gear up, we're going into battle. If he does the former, then we're going to be OK with it.

Also how are the blogs going to help revolution the process of publicly vetting a nominee?

RON REAGAN: How are all of these new media outlets and elements going to play into this process, do you suppose?

JERALYN MERRITT: I think it's going to play in in a big way Ron, now we have citizen journalists, now everybody wants to have a voice. And when you have the three cable news networks and you have everyone tuned into the internet, what happens is we, the bloggers, have become like the internet on speed. We're like the difference between skiing and snowboarding. We bring information to people – as it's happening – 24/7 and we don't have editors so we don't have to wait to get things approved. Plus, because we let people comment, everybody gets a voice. It's like a community and there are millions of us.

Millions. And when a choice is made, millions will make their voices heard online. Additionally, quite a few people will be offering new information in the comments, and the Open Source research will thrive as the blogosphere shifts through an overwhelming amount of new information, raising the best info to a wide audience – in real time.

Posted at 01:45 PM in Netroots, Supreme Court | Technorati

Friday, July 01, 2005

PA-Sen: SCOTUS Vacancy to Play Role

Posted by Tim Tagaris

It was bound to be a problem for Bob Casey Jr, whoever stepped down first from the Supreme Court, and it will continue to be a problem when Chief Justice Rehnquist steps down as well. Without hesitation, major news outlets began talking about one case (arguably, in jeopardy, Planned Parenthood v. Casey. While lesser known than Roe v. Wade, the case preserved a woman's right to chose, but gave more flexibility to the states to impose certain limitations. A quick Google News search of the case "Planned Parenthood v. Casey" shows over 2,000 articles mentioning the case today alone.

Since announcing his bid for U.S. Senate in Pennsylvania, Bob Casey Jr. has taken part in a difficult balancing act; on one hand, the hope is that his staunch anti-choice stance will take the issue of abortion off-the-table with conservatives in Pennsylvania's "T" region. On the other hand, he tries not to talk about it too much for fear of alienating a base that never quite turned out to contribute, volunteer, or even vote for anti-choice Democrat Ron Klink against Rick Santorum in 2000. From a piece by the Philadelphia Inquierer entitled, "Casey walks fine line between views on abortion and party support."

In the final years of his career, Gov. Robert P. Casey attacked abortion with the zeal of an Old Testament prophet, declaring that the Democratic Party had "lost its soul" on the issue. Don't expect the same from his son, Robert P. Casey Jr. [...]

The difference is that Casey Jr. would much rather talk about something else. Anything else.

He wants to talk about anything else because, believe it or not, in Pennsylvania, most people don't know that Bob Casey Jr. is pro-life for fear of suffering a fate similar to Klink in 2000. Two questions from a recent Quinnipiac poll:
On the issue of abortion, do you happen to know whether Bob Casey Jr. is pro-life or pro-choice?

Pro-Choice: 17%
Pro-Life: 9%
Don't Know: 74%

Two questions later (Question #22), they identify Bob Casey and Rick Santorum as pro-life, and ask the question where the real problem might lie for Bob Casey Jr.
If there were an independent candidate on the ballot who was pro-choice on the issue of abortion, how likely would you be to vote for that pro-choice candidate instead of (Casey/Santorum) -- very likely, somewhatlikely, not very likely or not likely at all?

Among Democrats:

Very Likely: 19%
Somewhat Likely: 29%
Don't Know: 8%

I am not saying that this will be an issue in the Democratic Primary; that decision can and will be made by groups like NARAL and Planned Parenthood. At this point, Chuck Pennacchio doesn't have the financial firepower to make it one. But as more and more people find out about Casey's stance on choice, we will begin to see the impact of question #22 on Pennsylvania's electorate--begging the question, what will the impact be among progressives and pro-choice advocates across Pennsylvania in the run-up to the election and ultimately on Novemeber 6, 2006 should Casey get the nomination.

Posted at 10:03 PM in 2006 Elections - Senate, Pennsylvania, Supreme Court | Technorati

Supreme Court Action Items

Posted by Bob Brigham

From DavidNYC:

Whatever happens with the Supreme Court nomination battle that is about to ensue, it's going to happen fast. Here are some things you can do right now:

• If you have a cell phone, sign up for People at the American Way's Mass Immediate Response site. This way, you'll be able to receive text message action items instantly as events break. (If you signed up during the nuclear option fight, you'll need to re-sign up.)

• Also sign up with the Save the Court, another PFAW website devoted specifically to this issue.

• Recruit friends and family members to the cause.

Write to the President, telling him he should choose a consensus candidate to replace O'Connor.

Contact your Senators to tell them the same thing. [...]

• Sign MoveOn's "Protect Our Rights" petition.

• Contact members of the media and tell them you think Bush should nominate a consensus candidate. PLEASE be polite, be brief (200 words or less), and don't do copy-and-paste jobs - put things in your own words.

Posted at 09:00 PM in Supreme Court | Technorati

Blogging the Supreme Court Nomination

Posted by Bob Brigham

Swing State Project will be closely following the battle. It looks like we won't be the only ones...

Knight Ridder:

O'Connor's resignation creates the first Supreme Court vacancy in 11 years, and the confirmation process will play out in the relatively new world of 24-hour news, Internet interest groups, ideologically driven bloggers and polarized politics.

USA Today:

Adding to the heat: the insatiable appetite for news and opinion on the 24-hour cable networks and the expected intense interest of some bloggers and others on the Internet, which barely existed during the Thomas and Bork debates.

Another Knight Ridder:

Finally, the contest is the first since the opinion-a-minute world of bloggers and the Internet have joined cable TV and talk radio in stirring the passions of both right and left. It's a political echo chamber that demands confrontation, not compromise, to keep people tuning in or contributing money.

"It will not be pretty," said Dennis Goldford, a political scientist at Drake University in Iowa and author of a recent book on the ways courts interpret the Constitution.

Interesting to see how the press is viewing blog involvement. No mention of Open Source research and what is anticipated to be the fastest, most thorough vetting in the history of politics.

That is why Bush needs to consult with the Senate. Americans want Bush to nominate somebody everyone can agree upon, somebody who will protect our fundamental rights.

Posted at 08:48 PM in Supreme Court | Technorati

David Brock to Fox: Drop Gray as Supreme Court analyst

Posted by Bob Brigham

Media Matters:

Dear Mr. Ailes:

I am writing to demand that Fox News Channel remove C. Boyden Gray from his position as a Supreme Court analyst. Gray's involvement as a leading player in the coming Supreme Court nomination battle makes him an inappropriate choice to serve as an analyst for Fox News, and Fox's failure to disclose Gray's conflict of interest to its viewers only compounds the problem.

In its initial coverage of the retirement of Supreme Court Justice Sandra Day O'Connor, Fox News featured extended commentary by Gray, identifying him only as a "Fox Supreme Court Analyst." But this does not fully inform Fox News viewers of Gray's involvement in the Supreme Court fight.

Gray is founder and chairman of the Committee for Justice, a group formed to advance the confirmation of President Bush's judicial nominees. In a May 24 profile of Gray, The Washington Post reported: "Every Monday morning for months, veteran Washington lawyer C. Boyden Gray has plotted strategy via a conference call with the heads of groups that want to ease the confirmation of President Bush's judicial nominees. He has also spent many hours raising millions of dollars for the cause." The Committee for Justice has stated its intention to shape the way the media cover the nomination of a new justice. "Our goal is to not let their analysis or spin become defining, and put them on the defensive," group spokesman Sean Rushton told the Post in a June 29 article.

Given the Committee for Justice's position and its stated intent of influencing the Supreme Court confirmation process and news coverage of the nominee, allowing Gray to appear unidentified as a commentator on the subject makes a mockery of Fox's claim to provide "fair and balanced" news.

In order to rectify this situation, Fox News should immediately cease using C. Boyden Gray as a "Supreme Court Analyst."

Yours truly,

David Brock
President and CEO
Media Matters for America

Immediately indeed.

Posted at 04:30 PM in Supreme Court | Technorati

MoveOn PAC: Protect Our Rights

Posted by Bob Brigham

Moveon PAC has a new Protect Our Rights campaign.

Sign up, more reasons why in the announcement email after the jump.

Early this morning Sandra Day O'Connor stepped down from the Supreme Court, leaving the first open seat in more than 10 years. As a moderate Justice, she helped protect our rights for decades. With Bush likely to nominate a replacement in a matter of hours or days, our most basic rights and freedoms are suddenly very much up for grabs.

This is the time to act.

Its rumored that Bush will nominate a replacement as quickly as this Tuesday. In the next few days Bush, the Senate and the media will all be will be listening very carefully—gauging the public reaction to this vacancy and deciding how far they can go.

That's why we've launched an emergency petition calling on our Senators to do what it takes in the crucial weeks ahead to protect our rights. We're aiming to deliver 250,000 signatures and comments by Tuesday. Please add your voice today:

From the Patriot Act to the Terri Schiavo tragedy, in the last four years the Republican leadership has exploited every opportunity to attack the basic American right to keep our private choices private, and to make personal decisions without government intrusion.

This vacancy could represent the biggest threat yet.

The only clear indication from Bush about who he might nominate is that he intends to follow the example of his two "model" judges—Clarence Thomas and Antonin Scalia.1 These two have weighed in from the far-right fringe for decades, and another judge in their mold could shift the balance on the Court significantly.

Below are just a few examples of landmark cases where Scalia or Thomas voted against O'Connor to try to strike down core rights and freedoms. In many cases if they had one more vote they would have succeeded.2

Worker's Rights: Nevada Dep't of Human Resources v. Hibbs, which protected the right of workers to care for newborn children or gravely ill family members.

Women's Rights: United States v. Virginia, which allowed women to attend all publicly funded schools. (C'Connor was not on the Court at the time of Roe v. Wade, but has opposed Scalia and Thomas on reproductive freedom issues in such landmark cases as Planned Parenthood v. Casey)

Church and State: Locke v. Davey, which ensured that states could not be required to fund religious training.

Envrionmental Rights: Friends of the Earth , Inc. v. Laidlaw Environmental Services (TOC), Inc., which protected citizens' rights under the Clean Water Act to sue against the illegal dumping of mercury and other toxins.

Civil Rights: * Dickerson v. U.S., which upheld the "Miranda" guarantee that people accused of crimes are read their rights. * United States v. Fordice, which protected the rights of those still suffering from the effects of state-enforced racial segregation. * Grutter v Bollinger, affirmed the right of state colleges and universities to use affirmative action in their admissions policies.

Civil Liberties: Hamdi v. Rumsfeld, which blocked the government from indefinitely detaining American citizens without charges, an attorney, or any basic rights.

On Capitol Hill, today's resignation unleashed a swarm of right-wing fringe groups and corporate lobbyists pushing for a nominee who will favor narrow prejudice and greed over the rights of the American people.

If we can deliver 250,000 signatrures and comments by Tuesday, we can make sure the voice of ordinary Americans can compete with this swarm and tell our senators to stand up for our rights.

Please sign today.

Thanks for all that you do.

Ben, Joan, Justin, Eli and the MoveOn PAC Team
Friday, July 1st, 2005

Ben, Joan, Justin, Eli and the MoveOn PAC Team
Friday, July 1st, 2005

P.S. As soon as we heard about the resignation, we put an ad on the air calling for Bush and the Senate to protect our rights and not nominate an extremist. You can check it out at:

If you like it, help us keep it on the air by donating at:

1 NBC's Meet the Press, November 21, 1999
2 Case history courtesy of People for the American Way —

Posted at 02:42 PM in Supreme Court | Technorati

CNN & Fox Blow Initial Reaction

Posted by Bob Brigham

Via Atrios, we have a fact-check by Media Matters:

In their initial coverage of the retirement of Supreme Court Justice Sandra Day O'Connor, both CNN and Fox News presented commentary from a host of conservative and Republican voices but no commentary from progressives or Democrats.

Between 10:30 a.m. and 11:45 a.m. ET, the guests on Fox News discussing O'Connor's retirement included:

Sen. Orrin G. Hatch (R-UT)
Robert Bork, former District of Columbia Circuit Court judge
William Kristol, editor of The Weekly Standard
Fred Barnes, executive editor of The Weekly Standard
C. Boyden Gray, former White House counsel for President George H.W. Bush

Over the same time period, CNN's guests included:

Sen. John McCain (R-AZ)
Edwin Meese, former attorney general for President Ronald Reagan


Posted at 01:33 PM in Supreme Court | Technorati

Sen. Feingold on Sandra Day O'Connor

Posted by Bob Brigham

I have great respect for Justice Sandra Day O’Connor for the pioneering role that she played as the first woman to serve on the Supreme Court. She has made a significant impact on the country in the past two decades, emerging as a thoughtful voice on many issues, and playing a key role in moderating some of the most extreme conservative tendencies of some members of the Court.

This is the first Supreme Court vacancy in more than a decade, and Justice O’Connor’s replacement will greatly influence the future of our country. President Bush once claimed to be “a uniter, not a divider.” It is now his call whether he wants to launch a huge, divisive political battle with his choice or seek consensus and bring the nation together. I call on the President to work with members of Congress from both parties to select a nominee behind whom the entire country can unite.

Posted at 12:00 PM in Supreme Court | Technorati

New MoveOn Ad: Terri Schiavo and Supreme Ct. Vacancy

Posted by Bob Brigham

From a Press Release:

New TV Ad Cites Schiavo Case, Raises Fear that Supreme Court Nominee Will Threaten Rights of Individuals

Opposes an Extremist Justice Who Would Allow Government Interference in Private Family Decisions

MoveOn PAC unveiled a new TV ad today aimed at discouraging President Bush from picking an extremist judge to replace outgoing Justice Sandra Day O’Connor. He should honor O’Connor and appoint a moderate justice.

The message: Don’t nominate and extremist who will undermine the rights of individuals and families as the President did in the Terri Schiavo case several months ago. Protect our rights.

The almost $280,000 ad by will air on CNN in ME, NE, SC and VA, and on CNN and FOX in NY and DC as part of MoveOn PAC’s grassroots mobilization to empower Americans and persuade the Senate to protect our basic rights by rejecting an extremist nominee.

“Our message to the President as he considers nominees to the Supreme Court is ‘Protect Our Rights.’ Our message to the Senate when it considers the President’s nominee is ‘Protect Our Rights’,” said Ben Brandzel, Advocacy Director for MoveOn PAC.

“The President should honor O’Connor and appoint a moderate Supreme Court justice. We’re very concerned because we all saw the President undermine individual rights and invade a family’s privacy in the Terri Schiavo case a few months ago. If President Bush nominates an extremist, it will be up to Senators to say no, and the American people will make sure that they do just that,” he added.

Posted at 11:40 AM in Supreme Court | Technorati

O'Connor Replacement Action Items

Posted by Bob Brigham

Swing State Project will be focused heavily on radical right plot to seize independent courts...they are the Bush White House and the Republican Congress they're going to gamble for a trifecta by attacking the independence of the judiciary. This is about absolute power for the powerful over ordinary Americans. Time to gear up for the battle, DavidNYC has the Action Items.

Posted at 11:31 AM in Supreme Court | Comments (1) | Technorati

Justice O'Connor Retiring

Posted by Bob Brigham

I just added a new Supreme Court category. We'll have tons of coverage. From a People for the American Way email:

We've been waiting and preparing for a Supreme Court retirement for the last 5 years and so has President Bush. He finally has the opportunity he's been waiting for: the chance to reward his right-wing base with a far-right appointment to the Supreme Court.

Constitutional rights and freedoms will be affected for decades based on what we as a people do in the coming months. Our very national identity hangs in the balance and progressives must be loud and clear. You must step up now.

We don't need to tell you what kind of jurist President Bush might nominate; you already know he cites Justices Antonin Scalia and Clarence Thomas as his models for Supreme Court nominees - justices far to the right of moderately conservative O'Connor. Given his divisive lower court appointments - and the fact that right-wing groups have already pledged $20 million to back that kind of nominee - we can probably take him at his word here.

With Justice O'Connor providing the swing vote on critical 5-4 decisions regarding privacy, reproductive rights, affirmative action, government neutrality toward religion, and more, we cannot overstate the profound impact her replacement could have on the direction of American law and society.

We've called on President Bush to select a consensus nominee, but given his track record the odds are good that you and PFAW will have to mount a tireless campaign this summer to stop the confirmation of a bad nominee to the Supreme Court.

Because we don't know who the nominee will be, we are now asking for two universally essential needs: money and activists.

Please give us $10 and help us recruit 10 activists

The requested donation is low because we want as many of you as possible to invest in this campaign - even if you've never donated to a political cause before. We want tens of thousands of people to say with pride, "I helped make this possible."

Recruiting 10 activists is not so easy, but it is free. Please work hard to do this even if you can't give the $10. The more people talking at water coolers, writing their Senators, calling radio stations and emailing their friends, the harder it will be for Bush to slip a right-wing extremist onto the Supreme Court. You know better than we who out there will help, if asked. Be a salesperson for judicial independence and get your friends and family involved. They will thank you later.

With your help, we will pull out all the stops to saturate the media and mobilize people in the public square with three key messages:

1. President Bush MUST take seriously the Constitution's "advise and consent" requirement and nominate a consensus candidate with broad bipartisan support.
2. The Senate leadership MUST provide ample time for hearings and review of any nominee.
3. And, the eventual nominee MUST fully disclose - and justify - his or her judicial philosophy, especially on key constitutional issues.

These are not radical ideas; they are common sense.

PFAW has been at the forefront of battles against extreme judicial nominees - including nominees to the Supreme Court. Our expert staff has broad and deep experience working with and within the Senate; researching nominees; disseminating facts and analysis; and organizing people across the nation to weigh in on Congressional votes - especially confirmation votes.

We know that helping us generate funds and recruit activists is less exciting than writing a letter of outrage, calling an elected official, going to a rally, monitoring an election poll, hosting a house party, attending a meeting in your Senator's office, and all the other things you have done with us. Actions like these are coming - and soon - but right now we need to build our network of activists and lay the groundwork for the coming months.

Please give us $10 or 10 activists, or both. It's important, and no one knows that better than you.

- Your Allies at People For the American Way

More to come...

Posted at 10:56 AM in Supreme Court | Technorati

Supreme Court Archive: