Redstate

And there are unknown knowns.

Ann Coulter may think that Roberts is the latter. She's wrong. We're right.

...instead of Scalia?

Wouldn't he be the "best" SJC we have?

John Roberts is the right person at the right time to fill this spot.  

Glad to see RS officially endorsing this man.

of course that question is subjective.

around here let me give my two cents.

Judge Roberts is an excellent choice for the Court. He has solid credentials and is a conservative in a reasonable way, not a blind ideologue or partisan fanatic. I am grateful that the president went with a man like this, rather than giving in to those who hunger for a political Götterdämmerung in the Senate. Understandably the Democrats will wish to posture and pose, if only to get themselves some face time with the media. But he should be confirmed as handly as Justice Ginsburg was in her day. I will be noting the behavior of my own red state Democrat senator in this matter for consideration next year.

Is Luttig unreasonable?  Brown?  Pryor?  McConnell?  Jones?  Owen?

What exactly makes one unreasonable beyond their basic judicial philosophy, or is it the originalist philophy you find unreasonable?

I agree 100%.  I particularly enjoyed David Brook's column today on why he loves the nomination.  Here are some of the compelling parts to me:

I love thee because this is the way government is supposed to work. President Bush consulted widely, moved beyond the tokenism of identity politics and selected a nominee based on substance, brains, careful judgment and good character....

I love thee also, Roberts nomination, because now we probably won't have to endure another bitter and vulgarized chapter of the culture war....

In short, I love thee, Roberts nomination. President Bush has put his opponents on the defensive. He's sidestepped the culture war circus. And most important, he's shown that character and substance matter most.

The President picked the best nominee, not the one who fits certain unrelated identity checkboxes.  Kudos, Mr. President.

I concur 100%.

I may have trouble defining "unreasonable" but I knwo it when I see it. :)

I was a bit concerned at first, but I'm comforted quite a lot by what I've been reading and hearing about Judge Roberts.  Of course, I'm one of those independent moderate types who would love to see a worthy successor to Sandra Day O'Connor take the seat.

I am curious, and slightly uncomfortable, with one aspect of your collective endorsement of him.  You seem to be saying that it is "known" about Roberts that he is pro-life and/or anti-Roe.  His paper trail doesn't betray that information, and isn't really even strongly suggestive one way or another.

If assurances have been given behind the scenes that he has one type of view or another on that constitutional issue, is it reasonable to expect that information to come out at the confirmation hearings?  It seems vaguely undemocratic to me to have that information floating around among political elites and activists, but not shared with the public.

I think if Judge Roberts revealed that he is pro-life, or if others shared that information about him, he would still be confirmed by a wide margin, because he really seems to be an outstanding candidate in so many other ways.

I suspect, of course, that his advisors will tell him to stay away from that issue as much as possible.  And I fully understand that, given the recent climate of confirmation hearings.  But I'm also uncomfortable with having a guy selected and supported by groups or activists on the basis of their understanding of his views, and those views not being public.  Politics in a democracy should not be that kind of an insiders game.

If there was any insider information, does anyone really think it would stay that way.  I'm not sure I believe in secrets any more.  The internet has revolutionized this process.

I find this editorial very re-assuring. I'm sure I'm not the only one. I get the sense this wouldn't have gone up if it were based merely on a hunch, or reputation.

So thank you.

What I find to be the best part of GWB's nomination of Roberts is that the blogosphere, alternate media (FNC and talk radio) and MSM were all totally blind-sided. Come on RedState, you were played like a fish on the line.

Just look at blogs over the past month, with all the speculation about Rehnquist's "imminent" retirement, O'Conner's REAL retirement, and the endless parade of "inside scoops" from people "in the know" about who GWB would nominate.

Whether it's GWB or Karl Rove who crafted this strategy of floating trial balloons (or maybe red herrings?) all I can say is - you magnificent bastards! This is sheer politcal genius.

Especially with Roberts who was confirmed to his current position unanamously. If the Dems try to block this, they lose whatever remaining credibility they have and expose themselves as obstructionist partisan hacks!

I can tell you what is unreasonable about Brown.  Her essays calling for a return to legal days of a Lochner-lite.

unreasonable.

Does being an originalist to some degree automatically make one unreasonable or extreme?

Is Luttig extreme?  the others listed?

What things make you think them extreme?

If Bush were to nominate Luttig would you say he is an extreme choice?  Why?  Jones?  Brown? etc.

I think a case can be made for Brown being off the reservation in many areas-which is why I think her appointment to the SCOTUS at this point in time is doubtful.

If Bush goes for the woman I think Jones is far more likely.

that any of these people are "extreme", although I might not want to see an entire Court composed of such. In fact I might actually like to see someone with views like Brown on the court, if there were a cortresponding believer in doctrinaire liberal ideology there as well.

The old Greeks had a saying "meden agan", "Nothing in excess". My preferrence is for a court that stays in the mid course of jurisprudence, not one that lists off in either direction.

My favorite nominee was still Michael McConnell, who has a scholarly track record of defending originalist jurisprudence, who has been an intellectual force on the Establishment Clause, and who has penned trenchant criticism of Roe and insightful commentary on many other issues.

That said, Roberts is tremendously qualified, and seems to be quite reliably conservative.  He is also more like Rehnquist and Thomas than like Souter or Blackmun or Kennedy or O'Connor, in that he comes to the job after 25 years in DC, where people in the GOP and conservative establishments got to know him well.  That means less likelihood that the people who recommended Roberts to the President will be surprised by what he stands for.  We could do much worse than another Rehnquist.

Jones.  Clement may still be a possibility.

Owen is an outside chance.

It's hard for me to understand judicial philosophy on a right-left axis.  And the WaPo title: Bush shifts court right with appointment plays into that viewpoint.

I don't want a judge who will rule that the Constitution has a right to choose an abortion, I don't want a judge who will rule that the Constitution has a right to life that bars all abortions, I want a judge who rules that the Constitution says nothing about abortion.

In today's eyes that is a "conservative" justice.  I'm not sure why.  Maybe if there are enough actual conservatives on the court that they become activist in their rulings, then constructionists would be considered liberal.  But this whole ideological line seems to be a bad way of looking at judges in my view.

No single piece of evidence is that compelling, but I'm pretty comfortable when you look at everything.

1. Wife has a long and continuing association with Feminists for Life.
   
2. The 2 politicians to whom Roberts gave money (at least, the two we hear the most about from press accounts) are both pro-life and oppose abortion even in cases of rape and incest.  They are Peter Fitzgerald and Peter Rusthoven.
   
3. CHOSE TO be working with the Bush I administration when he authored that brief in the Rust case; it's not just any ol' client.
   
4. His priest is thrilled with the nomination, and the priest himself is a former lawyer (J.D. from U.Va.) and is staunchly pro-life
   
5. Endorsed by Operation Rescue, National Right to Life, and already being opposed by NARAL and NOW.

is that we view judicial philosophy on the right to left spectrum when that isn't really what it is.

You can have liberal and conservative living breathing justices on the court, and frankly I don't want much of either on the court-a conservative who imposes conservative veiwpoint isn't any better to me than a liberal who does it.

I think that is why I like the originalist philosophy-it tends to have a conservative view of the constitution and that appeals to the conservative in me.  

Although I agree with Aleks that having a spectrum of opinion on the court isn't a bad thing either-although I think one misnomer with originalists is this idea that they all march in lockstep together, and that 9 originalists on the court would result in 9-0 decisions.  Originalists would split courts just as much as what we have now-maybe not always 5-4, but look at Scalia on Kelo.

Why can you not share any of the "much we do not 'officially know,' but privately are sure of," with regards to Roberts' views on the protection of life?

Or, asked another way, do you believe that there are materials or comments which were available to the President and his aides in making this selection (and, apparently, made available to some here) which are simultaneously not the Senate's or public's business in determining whether he should be confirmed?

Or, asked a third way, if the public knew what you did, why would it make him less confirmable?  And if it wouldn't, why keep it private?

[None of this is meant to imply I believe he should be voted against.  But if conservatives are being given assurances as to Roberts' bona fides, why keep them private?]

if one thing the Clement rumor did was indicate that the base is entirely too scared of her.

I think Bush (or at least his advisors) are more than aware of the internet buzz surrounding the nomination.

I don't see a Clement coming.

Although he may ditch the woman and go for the hispanic, and in that case I would expect Garza or Alito maybe or some other obscure name we are unaware or.

I forgot to add that Roberts also donated to Sen. Richard Lugar, who is pro-life and has a zero percent voting record according to NARAL.

There is also much we do not "officially know," but privately are sure of. We at RedState know Judge Roberts is right on life and is right for the Court.

With all due respect (and I do respect you), how sure are you? 95%? 75%? What confidence level do you think George H.W. Bush had when he nominated Souter? He sure sounded pretty confident to me.

And what does "right on life" mean exactly?

Pro Life leaders have been assuring us for days that Roberts is the one. Just trust them. I don't think they know, and I don't think they have any evidence other than assurances from anonymous sources who would say anything to give the President a large margin of victory in the Senate vote.

I believe that Roberts is a good person, and I fully intend, for what it's worth, to support his nomination. But it could be several years after Roberts is seated on the Court before we know if he will be a Pro Life Justice.

A speedy and sober confirmation is in order.

The problem is, that today's middle IS an extreme by historical standards.

The middle should probably be a Rehnquist, with a JRB on the "right", and an O'Connor the far "left."

I'm not at all pleased about Roberts.  Here's why:

From what I can tell (and if someone has information to the contrary, please let me know), Roberts looks like the kind of guy who will refuse to second-guess legislative decisions.  That means that he might well side with the majority on Kelo, that he would likely give the government leeway to eliminate liberty interests that aren't specifically spelled out in the Constitution (personal note - I'd be happy for him to help overturn Roe, but I strongly belive in a constitutional right to privacy in other contexts), and that he'd be inclined to permit a significant degree of restrictions on free expression, press, assembly, etcetera.  I've also heard it said (by voucher opponents!) that he might be a vote to overturn Zelman v. Simmons-Harris, the case that found vouchers constitutional.

For all of these reasons, I don't like this nomination.  If someone can put my mind at ease on these issues, I'd appreciate it.

Are you saying based on an absolute scale?  Well sure.  But society is constantly evolving.  In today's society FDR would be a Republican.  

It is more important where justices stand based on contemporary measurements.

was decided correctly.  What we need is Justices who are willing to return not only to Lochner but to pre-Marbury.

abolish the Constitution and install me as benevolent monarch?

No, I'm serious.

"In today's society FDR would be a Republican."

Sorry, I'm not biting.

but the Court has completely fumbled its handling of economic liberty cases under the new jurisprudential regime.  Governmental regulation of private enterprise should be limited, only addressing reasonable health and safety concerns while allowing the markets to operate.  If someone chooses to work an incredible number of hours in a week, the government should have nothing to say about it unless they can demonstrate a health or safety concern (like blacklung in coalminers or whitelung in bakers) that justifies the restriction.

It wasn't bait.  

Our country has changed a LOT in 70 years.  What he considered drastic change is now considered status quo.

Although I actually agree with you that the parties have fluctuated quite a bit over the years, although I am not seeing FDR being anything other than a GOP maverick by today's standards-a Chafee maybe.

Although that speaks more to the direction the DNC has gone in than the GOP.  I think most of the past GOP presidents would still be GOP presidents (although admit a few obscure ones may not).

the "middle" has always been a moving target. things which were moderate and centrist in 1900 would have been unbelievably radical in 1800. And our own Founders would have seemed like dangerous lunatics to Queen Elizabeth I.

But the problem is, the Constitution's words aren't changing.

If you want the document to change with the times, use the amendment process.    Don't rewrite it with   activist judges.

... that Teddy Roosevelt would not be a republican by today's standard.  Environmental Conservation, race relations, trust-busting, settling wars instead of starting them (for which he won the Nobel Prize), etc.  In fact, he stopped being a republican in 1912 when he joined the progressive party (which led to Taft's defeat).

Heck, by today's standards and republican agenda, Reagan and Bush Sr would hardly be considered republicans.  Bush Sr raised taxes and fired Rove for unethical behavior, and Reagan didn't start any major wars, he finished them instead (i.e. cold war).

Implying that the Republican party of today is all about destroying the environment, suppressing minorities, upholding illegal monopolies, unjustified warmongering and corruption isn't exactly appropriate fare for a Republican site.

Let's try again.

While we're at it, that's some remarkable revisionist history you've got going on about Reagan, there. Just for starters, we can mention my favorite Reagan episode ever, when the French refused to allow us the use of their airspace for the bombing run in which we attempted to bomb Khadaffi's personal tent, we "accidentally" bombed the French embassy in Libya. A model of peaceful restraint, that Reagan was.

a republican.

Bush 41 was always a moderate, so he was always a bit squish by GOP standards.

Your one bite.

race relations

Interesting implication there.

In fact, he stopped being a republican in 1912 when he joined the progressive party (which led to Taft's defeat).

Actually, he joined the start-up Progressive Party, which rapidly became the Bull Moose Party. Let's not lie and say he did this out of a deep sense of ethics; he did it because he thought he should be President again, and wouldn't win the nod from a sitting President.

And he gave us that idiot Wilson in the process. Bravo.

Bush Sr raised taxes and fired Rove for unethical behavior

...and lost to a governor from freaking Arkansas who did him one better...

Reagan didn't start any major wars, he finished them instead (i.e. cold war)

I remember the good old days when Reagan was a warmonger. I would suggest you didn't pay attention to Reagan.

major wars is nobody wanted to try him out.

Redstate and conservatives over the entire spectrum were wrong about who bush would select.  You got that part right.

By extension of that principle, what makes everyone so certain that the person he DID select will turn out the way they want/expect him to?

Think Souter.  The scenario is very very similar to that of Souter....

"President Bush nominates "stealth nominee" to SC Justice".   Ring a bell?

http://en.wikipedia.org/wiki/David_Souter

I will laugh and laugh loudly if Roberts turns out to be different than so many conservatives are expecting...  Its one thing to interpret law based upon prior supreme court precedent or to argue cases for clients.  Its completely another to have the ability to decide for onesself, and also decide for 300 million people that live in this nation, what the constitution really means.

Thank you for sharing your derogatory opinions concerning Republicans. Let me suggest that this is probably not the best place for you to be doing that. Derogatory opinions concerning Republicans are very welcome on some sites, but this is not one of them, since it is a Republican-oriented blog. No one comes here to be insulted, so those who offer us little but gratuitous insults can expect to wind up on The Pile. Hopefully we won't see any more such things from you and this can be avoided.

a "right to contract" in the Constitution. Is it in the penumbras, or the emanations? Please advise.

I should also add, that based upon the credentials I know about, I personally would support Roberts' approval through the Senate.  Perhaps he's conservative, but he's smart.  bush has a history of appointing loyalty over competence.  It seems on the surface that Roberts may actually be a rare example where bush appointed someone based upon competence.

the wrong part in who the finalists would be, but Roberts was certainly discussed as being on the short list.  I remember several people thinking he would likely be Renquists replacement, they had it right he would be appointed, wrong on who he would replace.

The big fallacy we fell into here, was the expectation that Bush would follow the expected PC ideal and appoint a woman to fill a woman's seat.  We blew that one, and in a way I am glad we lost on that one, because while Bush I am sure would appoint a woman, he instead went for a quality nominee-and I don't think he should be faulted for that by either party.

Roberts may end up being an O'Connor.  Roberts may end up being an Anthony Kennedy.

But Roberts is most certainly no David Souter.

Roberts is an intellectual heavyweight, who is the most respected litigator of his generation. Souter was not.  

Roberts spent a decade working in multiple Republican administrations, when he clearly could have made 10X as much money working in private Practice. Souter was simply a NH politician.

Roberts has a wife and Children.  His wife who is an extreme pro life individual.  This is a Huge contrast to David Souter.

Roberts also has some track record as a judge, where he has clearly shown his conservatiove stripes.

In the end I don't know what Roberts will do on abortion issues.  I fully suspect he will be more conservative than O'Connor in this area.  As O'Connor was extremely liberal, and supported abortion on demand at any time.

Roberts may not vote with Scalia and Thomas 100% of the time, but he will not be some David Souter who seems to vote against Scalia and Thomas almost 100% of the time.

Lord knows you are entitled to endorse who you want, but aren't you going a little overboard here?

Objective observers on the right and the left admit that the President could have done no better finding a nominee of the highest intellectual caliber, temperament, and integrity to sit on the highest court in the United States.

Now I've seen a lot of comments on the Left about keeping an open mind and recognizing the legal mind of Roberts, but I'd like to know who this "objective observer on the Left" is who thinks that Bush "could have done no better".

What's with the trumped up bipartisanship?

Nor was Greneda.

I didn't say Reagan was a pacifist.  But he followed Teddy's analogy of 'speak softly and carry a big stick'.  Bush jr apparently missed the first part of that statement in school.

I voted for Reagan.  I thought Bush Sr was a decent president.  I never voted for Clinton.  I didn't even vote for Gore.  I'm hardly a raving leftist who would never vote for any republican under any circumstances.  As it is, throughout my life I actually have MORE of a record at voting republican.  For me, that tendency of mine stopped after 2002.  The party has spiraled into a completely off-kilter direction since then, IMO.  If I'm not allowed to say that kind of thing here, then how exactly is the agenda decided?  Do the people at the top do all of the thinking for the party?  Or does the party listen to what the american people want?

IMO, republicans should be aware of how much a non-partisan (i.e. independent) like myself views the current GOP.  Polls show less than 3 in 10 americans think congress is doing a good job and only 4 in 10 think Bush is honest.  Do you all consider that a good sign, and that the republican philosophy should continue unchanged?  You're in for a rude wake-up call in 2006 and 2008 if that's the case.

You can certainly moderate the boards here and flush away every post which paints any kind of a negative face on the republican party and it may make the readers/posters here feel good but it won't gain the republicans one single vote.   On the other hand, by acknowledging that the GOP has room to improve and the issues it could improve upon, the party can only improve its standing with the public.  THAT will get the party more votes.

As examples related to my post above (which noone debated my Roosevelt or Bush statements and even your Reagan comment missed the target) - the vast majority of the public supports wise environmental policies.  The public supports reducing our dependence on oil, the public supports race relations/equality issues, the public supports diplomatic solutions over war, especially when in comes down to large-scale wars.  Greneda and Kosovo-scale military interventions are ok with the american public, but nothing larger without being severely warranted.  Large scale wars require a real purpose, such as WWII.  Even Afghanistan had a real purpose.  The absence of any proof of the claims that led us into Iraq (WMDs, 9/11 links, etc) are very damaging to the party.  IMO, republicans would be wise to extricate our country from that situation as soon as possible.  I don't mean immediate pullout, but at LEAST put some discussion on the table.

Its wise to heed the naysayers rather than try to supress them, IMO.  But its not my board, you're free to do as you wish.  Delete these thoughts if you feel the ability for me to post my honest opinion runs contrary to the party agenda.

for the best way I can avoid being derogatory and instead offer constructive criticism.

I think the judges that disagree the most, still agree with each other about 60 or 70 percent of the time.  This is because the vast majority of cases are 9-0 or 8-1.  I'm sort of half-remembering this data, because a month ago I actually investigated how frequently Thomas/Scalia voted together, and its 90-95% of the time depending on which judicial year you refer to.

So even Souter agrees with Thomas probably 60 or 70 percent of the time.

I'd be happy for him to help overturn Roe, but I strongly belive in a constitutional right to privacy in other contexts

That's what I don't get.  The fundamental issue to Roe was the issue of privacy.  The 'right to privacy', which is NOT spelled out in the constitution is the grounds for declaring Roe's right to abortion to be within the constitution.

If a strict constructionist throws out Roe, then they are ALSO throwing out the right to privacy.  If they overturn Roe, they're suggesting that somehow the public has a right to know which women are pregnant even before these women are showing or have even told their own spouse.

Don't conservatives support the right to privacy?  Don't conservatives want to keep government out of people's personal lives?  (the whole gay-marriage gay-sex question pertains exactly to this same issue as well).

Or do republicans now stand for intrusive government into people's private lives?

I'll give you Gonzales and probably McClellan as loyalty picks, but who would you classify as loyalty picks not competency picks?

If a strict constructionist throws out Roe, then they are ALSO throwing out the right to privacy.

Not necessarily. If it is determined that fetuses are legal persons, then they fall under the protections of the 14th amendment, and anti-abortions laws are constitutional regardless of privacy rights. This is parallel to the situation with slavery: Although not enumerated, a right to property exists yet he 13th amendment prevents this right from being extended to include owning other human beings but does not overturn the right to property in all other natters.

>If a strict constructionist throws out Roe, then they are ALSO throwing out the right to privacy.

The right to privacy, or more accurately the right to self-determination as recognized in Griswold and Eisenstadt in the 1960s, and in Pierce and other cases in earlier decades, ends with the self. Roe involved the relative rights of two different entities: the mother and the fetus. The calculus is different.

>If they overturn Roe, they're suggesting that somehow the public has a right to know which women are pregnant even before these women are showing or have even told their own spouse.

Huh? Somehow I'm not tracking this.

I will leave for later the seemingly ubiquitous misuse of the phrase "strict constructionist".

. . . you could provide something to show that those concerns had anything to substantiate them.  I'm not seeing anything than a list of concerns you have about certain decisions but not a thing to suggest that Roberts would be on the "wrong" side of the issues.  If you want someone to assuage your fears, it would help if you cold show that they're based on something.

My own view - Judge Roberts is in the Federalist Society and he clerked for William Rehnquist.  I haven't had anyone take me up on my offer to go through the 40 decisions that he authored in the D.C. Court of Appeals but the complaints about some of his rulings suggest that he leans more in the originalist direction.  And I'm looking for the law review articles he wrote for any clues they might provide as to what he may (have once) thought with regards to the limits of the Commerce Clause.

Granted, none of this is dispostive but it's more than what has been offered from those who suggest that the guy's likely to be Souter 2.0.

That's a weekend project I'm working on. I appreciate the idea -- kinda got my juices flowing. I'll do my best.

about this nominee.  This may be paranoid, but the background story in the liberal New York Times today seemed too glowing.  Does the Times suspect that he is going to go along with their immoral support of Roe?  I wish that we had Luttig instead.

I also think Roberts is a good choice.  I think he is qualified, and I think in the end he will be good.

I am not really worried about him.  

My understanding of Roe v. Wade was that it did consider fetal rights, and that is part of the problem with it.  In Roe v. Wade, the court said that, because the fetus is not a legal person, it has no rights under the Constitution.  This is why Roe v. Wade as been compared to Dred Scott, in which the court ruled that Scott had no standing because he was not a citizen and the federal government thus had no jurisdiction.

Thus Roe v. Wade considered the interests of the mother against the interests of the state. The ruling was thus based on balancing the rights of individuals to be free of excessive state oversight or regulation (a good principle!) against the interests of the state in protecting "potential life."

I am not a lawyer, but I think I've got this right.  If so, it means that there are lots of ways to reverse the results of Roe v. Wade that leave privacy intact.

The first sentence of my post above should read:

My understanding of Roe v. Wade was that it did NOT consider fetal rights...

He could still be Rehnquist's replacement if Bush decides to elevate him.

That wouldn't surprise me at all.

www.confirmjohnroberts.com

and certainly a valid textualist approach.  From an original intent perspective, though, this is exactly why the Ninth Amendment was included.  Unlike the "right to privacy", the liberty of contract was among those rights recognized by the classical political philosophers, most notably Locke, upon whose writings the Constitution is based.  But for the liberty of contract, why was the Ninth Amendment included in the Constitution?

To go through Judge Roberts' 40 opinions or to provide something to substantiate Pelagius' concerns about Roberts?

.

...basic and primal a right than contract. It is the single right from which all of the othes flow. The right to privacy is essentially at it's core a right to bodily and mental autonomy and is the single most defining characteristic of freedom.

From it springs the right to contract - agreements with others are meaningless unless one has a sphere of autonomy from which to contract.  From it springs the right to worship, the right to speak, the freedom of press - all of these are at their core simply manifestations of the right to mental autonomy. It is the right to privacy that is a necessary condition for the existence of autonmous individuals. Without it, all the other "rights of individuals" are ghostly shadows of liberty.

If the Ninth doesn't cover privacy, it covers nothing.

You pretty much got it right. Roe did not consider the rights of the fetus as such. Rather, Justice Blackmun's majority opinion considered and weighed the interest of the state in protecting fetal life against the interest of the mother in her own self-determination.

Recognizing rights of fetuses would have been a very great step, since as the Court noted the law had never considered an unborn child to be a "person". It is unfortunate that Blackmun accepted the silly argument that a fetus is not "life" but only "potential life" in his opinion.

I tend to agree.  There are a lot of other smart and accomplished conservatives.  Richard Posner, for example, immediately comes to mind (though he is more of a libertarian) as probably the most talented judge and scholar of his generation - right up there with Cardozo.  Lesser (though still immensely bright) lights include Starr, Olson, Wilkinson, Luttig, Kozinski... there's a deep bench, and it's hard to say Roberts is really any higher than the top 10.

I attended a Republican function in DC in 2000 at which Roberts spoke.  I recall that a few people commented on how he was "not that conservative."  Those kinds of comments give me pause.  Maybe it's a tempermental thing - maybe underneath he IS fairly conservative.  I am concerned, though, that he will drift left, as so many Republican appointees have.  (The dismal list includes Warren, Brennan, Blackmun, Souter - probably four of the six most left-wing judges in the S. Ct's history... not to mention O'Connor and Kennedy, who have often disappointed).  

Who knows - I may be pleasantly surprised.  And I cannot imagine that Bush would nominate someone without having a credible commitment from that person to overturning Roe.  A betrayal on that issue would be devastating.

he was left from the day he got there.

But there is a tendancy for the justices overall to drift left over their careers-this is certainly the case with O'Conner and Kennedy.

You're right about Souter.  I was thinking of the

"drift" from how he was sold to Republicans compared with where he actually turned out.

Byron White, a Kennedy appointee, turned out more conservative than people thought, especially late in his career.  I would argue that Breyer is marginally more conservative on a few issues than Republicans would have hoped, too.

Other than that, you have to go back to Woodrow Wilson to find a Democratic appointee who turned out to be fairly conservative (McReynolds, one of the "four horsemen" who fought to preserve the commerce clause against the limitless and wrong reading given to it by the New Dealers).

from http://michellemalkin.com/archives/003061.htm, recounting an interrogation by Chuck Schumer and Roberts' response:

"My own judicial philosophy begins with an appreciation of the limited role of a judge in our system of divided powers. Judges are not to legislate and are not to execute the laws. . . . My judicial philosophy accordingly insists upon some rigor in ensuring that judges properly confine themselves to the adjudication of the case before them, and seek neither to legislate broadly not to administer the law generally in deciding that case.

Deciding the case . . . . requires an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic, a humility reflected in doctrines of deference to legislative policy judgments and embodied in the often misunderstood term "judicial restraint." That restraint does not mean that judges should not act against the popular will. . . .[T]he framers expected them to be discerning the law, not shaping policy. That means the judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose those preferences from the bench."

That interview, plus the fact that, as a member of a three-judge panel on the D.C. federal court of appeals, Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections.  This is a concern to me.

If you're not going to pick a woman or a minority, I don't see how you don't take Posner.  It'd be a tragedy if he never makes it and now I don't see him getting any of the next couple of openings.

I feel the same way.  Unfortunately, I think Posner is one of those judges that comes along every generation or so who is greater than any justice on the court, but never gets there himself.  The last one may have been Learned Hand.  

Given our messed up confirmation process, though, Posner would be hung in effigy for his views and his incredible (and provocative) body of writing.  It's sad that the court is stuffed with enormous mediocrities like Souter, O'Connor, and Kennedy and that truly great people could never get confirmed.  I would happily trade Souter for Lawrence Tribe from the left, and Kennedy for Posner (assuming the outcomes would be about the same for both trades).

It seems to me that it is overreaching to claim that the right to privacy is "essentially at it's core a right to bodily and mental autonomy and is the single most defining characteristic of freedom".  I'd be curious to see how you're making this connection exactly.  I think this is a good resource with which to start.

As I understand the prevailing literature about privacy rights, it was classically understood until Griswold v. Connecticut as something that concerns information about a person.  Prosser cites these four as privacy rights in tort, after all:

   1. Intrusion upon a person's seclusion or solitude, or into his private affairs.

   2. Public disclosure of embarrassing private facts about an individual.

   3. Publicity placing one in a false light in the public eye.

   4. Appropriation of one's likeness for the advantage of another (Prosser 1969, 389).

Getting from protecting your private facts, your seclusion or solitude, your likeness, and your reputation to "bodily and mental autonomy" requires quite a leap of imagination and logic.  Besides, bodily and mental autonomy doesn't need privacy rights -- it can be justified via social contract theory (e.g., Locke, Rousseau, Rawlsian approach), via natural law, economic theory, etc.

Plus, claiming that privacy rights are a far more "basic and primal a right than contract" also seems a stretch, since most accounts of privacy rights peg it to an essay by Samuel Warren and Louis Brandeis in 1890:

Samuel Warren and Louis Brandeis titled "The Right to Privacy" (Warren and Brandeis, 1890). Citing "political, social, and economic changes" and a recognition of "the right to be let alone" they argued that existing law afforded a way to protect the privacy of the individual, and they sought to explain the nature and extent of that protection. Focusing in large part on the press and publicity allowed by recent inventions such as photography and newspapers, but referring as well to violations in other contexts, they emphasized the invasion of privacy brought about by public dissemination of details relating to a person's private life. Warren and Brandeis felt a variety of existing cases could be protected under a more general right to privacy which would protect the extent to which one's thoughts, sentiments, and emotions could be shared with others.

Again, the genesis of the privacy right appears to be concerned with possible reputational damage.  Not much appears about bodily/mental autonomy.  That concept appears to be progeny of the 1965 Griswold v. Connecticut decision by SCOTUS.

As rights go, that's a pretty recent right.

I daresay that given the historical origins of the privacy right, that the Ninth definitely does not cover privacy.  If this is a problem for our nation, then by all means, let's have a Constitutional Amendment to cover it.

-TS

I do think that the Brooks column should have read as follows:

In short, I love thee, Roberts nomination. President Bush has put his opponents on the defensive. He's sidestepped the culture war circus. And most important, he's shown that character and substance matter most, after enigma, the principal virtue in any Supreme Court nominee.

If Roberts had a long and detailed scholarship regarding certain precedents of the SCOTUS, would Brooks really be writing about his character and substance?

Sad state of affairs, really, but that's what happens I suppose when you're trying to pick a king instead of a lawyer.

I still agree wholeheartedly with the nomination, and based on what little I know of Roberts, he seems like the right man for the job.  But let's not believe the hype that he was chosen for his character and wisdom and substance alone -- his lack of a paper trail was, and remains, perhaps his greatest asset.

-TS

No one over 60 is being considered (for good or for ill).

The key to understanding (some) conservative/Republican mindset on this is to distinguish between LAW and POLICY.  This is something that people routinely fail to do.

Fundamental issue in Roe was the so-called right to privacy, that began in Griswold.  It established a "zone of privacy" which the government may not regulate.  Problem is that no such "right of privacy" exists in the Constitution -- perhaps one should, but it does not. Griswold is what would need to be overruled, not Roe, per se.

So when an originalist throws out Griswold (and therefore Roe), she is in fact throwing out the "right to privacy".  She would be doing this even if she profoundly believed that a right to privacy should exist, because the Constitution simply does not speak about such a right.  Said originalist might rule in the morning that there is no right to privacy, and then organize a group to push for a Constitutional Amendment establishing a right to privacy in the evening.  There is nothing inconsistent about this.

If an originalist pro-choice judge overturns Roe, she is not suggesting anything whatsoever about public's right to know.  That's a misunderstanding about the holding of Griswold.  What she is suggesting is that the Constitution does not bar otherwise valid (due process followed, no invidious purpose, etc. etc.) legislation or regulation of personal private behavior, whether that behavior be having sex, having an abortion, smoking pot, marrying multiple wives, viewing child pornography, or engaging in homosexual conduct.  Frankly, that's all that judge is saying.

After that, if society wants the government to stay out of individual bedrooms, then society can pass laws, pass a Constitutional Amendment, elect a President and governors who issue Executive Order directing officials not to interfere, etc. etc.

I am positive that there are conservatives who would fight to see such an Amendment passed, as I am sure that there is a wide diversity of opinions as to whether the government should regulate as to a specific issue or not.

Asking whether republicans now stand for intrusive government into people's private lives is as silly as my asking whether democrats now stand for eliminating the income tax as that requires government inspection of my private financial records.

-TS

however, he would've been perfect in 1987 or 1990 (for the Kennedy / Souter slots).

No need for thanks, but you're welcome.

There will be no more "high tech lynching" hearings as endured by Thomas. Roberts was picked for many reasons beside his keen intellect, vast experience and strong character. He has argued 39 cases before the Supreme Court and was known for his methodic and extensive preparations. While preparing for an oral argument, he would carry with him a notebook and write down any potential question that would pop into his head. The list was into the several hundreds. He was fully loaded for bear in all respects. He will likewise be the most prepared SCOTUS nominee in history.

Roberts has recently answered extensive written questions and withstood pointed questioning during his Senate Judiciarty hearings. Bush nominated him as the best person in the country  to re-educate the public and the old media on the proper role of the Senate and the nominee when exercising their respective Constitutional duties during a SCOTUS hearing.

The new media has yet to weigh in on a SCOTUS nominee. We all will be burning up the airwaves by noting the Double Standard questions posed by Blue State Senators.

Roberts, with the help of the new media, will redefine the standard for a SCOTUS nominee hearing. He will blaze a new trail for other more conservative SCOTUS and Circuit Court nominees to follow.  

It is true that "privacy" is not found in the text of the Constitution.  But neither is a right to vote.  Or any sort of parental rights to raise their children as they see fit.  I'm pretty sure that everyone reading RedState would agree that these particular rights must be protected, even though the Constitution doesn't explicitly spell them out.

My reading of the Constitution, however, sees these protections in the Ninth and Tenth Amendments, which were added as "catch-all" provisions to ensure that the government's authority was property limited.  The result in Griswold, which held that the state could not forbid the sale or purchase of contraceptives because the government was not permitted to intrude into a couple's sexual decisionmaking, was correct.  The reasoning was not.  Justice Douglas dredged up the old notion of "substantive due process" and "emanations from penumbras" of other rights (or some such foolishness), which was all constitutionally unsound.  But Justice Goldberg wrote a fantastic concurrence that found a right of privacy protected under the Ninth Amendment.  His analysis was the proper approach.  The government has no business telling anyone that they can't use contraception unless they can assert a legitimate health or safety concern directly related to such use.  I recommend Restoring the Lost Constitution, by Randy Barnett, for a discussion of the proper understanding of the Ninth Amendment.

Roe was the result of an absurd application of the right to privacy.  The majority declined to recognize that the exercise of any right is necessarily limited where it would result in harm to an non-consenting third party.  They refused to treat the fetus as a human individual whose life is worthy of the same protections due to born humans.  They justified their decision by cloaking it in talk of "privacy", but privacy clearly was not the issue that should have determined the outcome of that case.  That is why I believe that Roe was in error and why it should be overturned.  Further, I would like to see all "substantive due process" reasoning abandoned in favor of Ninth Amendment reasoning.

And not privy to information regarding their acquaintances.  However:

If I understand your post correctly, you believe that it is possible that they are personally familiar with the nominee.  You certainly should recognize that he is going to go through a difficult confirmation fight and yet you think that they should divulge, on the internet for all to see, any and all private information they have about the nominee anyway?

With friends like you, we wouldn't need any enemies.

The Senate and the public are entitled to discern and discuss the nominee's judicial philosophy, and there's a big gap between what the paper record reveals and what the Editors feel comfortable asserting to be true.

My guess is that they are trying to flatter him, suck up to him, make him adore the press coverage.  Then, over time they think they'll be able to persuade him to follow their agenda with the promise of more favorable editorials and stories.

It's how they got O'Connor and Kennedy, and folks like McCain, Lindsey Graham, etc.

But, IMHO, I think Roberts is made of sterner stuff.  He won't be overwhelmed by faint praise.  Most importantly, you don't get to sleep peacefully next to a woman who is more pro-life than you are if you perpetuate the culture of death.  That's going to be more motivation than a fawning NYT editorial now and again.

First of all, the right to vote is in fact found in the Constitution -- 15th and 19th Amendment being two examples.  

Second, and more substantively, a Constitutional jurisprudence based on the Ninth and Tenth Amendments troubles me.  Let's take the easier case of the Tenth Amendment.

Whatever else the Tenth may or may not disallow, it seems pretty clear that the Tenth speaks about Federal power.  So if Connecticut wants to outlaw contraceptives, I don't believe that the Tenth is implicated all that strongly.

The tougher case is the Ninth.

What troubles me about the Ninth is that it is in fact a strange "argument from the negative", especially as it applies to the States.  To rule that a State's laws are unconstitutional based on the existence of rights that are not found in the Constitution seems to me a bit of odd reasoning, to say the least.

For one thing, interpreted broadly, the Ninth renders the Amendment process moot.  Any right that isn't enumerated in the Constitution is in fact "hidden" in the Ninth, and may be pulled out at any point to justify any sort of policy.  The right to privacy may be such a "hidden right" that leads to desirable results; but why not a right to housing, or a right to a comfortable retirement, or as technology advances, the right to clone oneself or some such thing.

Now, since I haven't read Barnett's book yet, I don't know if there are refinements to this rough way of looking at the Ninth.  There may be historical, legal, and other reasons why the Ninth cannot be read so broadly.

From a historical perspective, however, I do think that there's a good deal of evidence to suggest that whatever other hidden rights were covered by the Ninth at time of ratification (1791), the right of privacy wasn't one of them, as that had its genesis in public philosophy in 1890 with the Warren & Brandeis essay.

I personally believe there should be a zone of privacy into which the government cannot intrude.  But since I also believe that the Constitution provides for no such concept of a zone of privacy -- or put another way, even if the framers thought the government ought not to intrude, I do not believe that they thought the government, particularly the sovereign state government, could not intrude thus, as evidenced by things like Massachusetts having an official state religion into the 1800's -- I think such a zone should be created via legislation or via the Amendment process.

Keeping Griswold, and indeed strengthening it on Ninth Amendment grounds, would strengthen Roe immeasurably.  I believe you are descriptively correct when you write that "[The majority in Roe] refused to treat the fetus as a human individual whose life is worthy of the same protections due to born humans" but I believe you are wrong thinking that privacy was mere justification or cloak.  Without a zone of privacy, whether a fetus is or is not a human individual is a matter for the legislature to decide.  With a zone of privacy, it is immaterial what the legislature decides -- it just can't go there, without definitively settling a factual question that cannot be definitively settled, because it is a philosophical/moral/religious/whatever question: whether a fetus is a human being or not.

I don't see how you can keep Griswold and throw out Roe, without the Court getting into the business of activist policymaking from the bench, just with a different set of policy preferences.

-TS

does indeed flow immediately from a very basic postulate: that citizens (or more broadly, human beings) are ontologically and morally superior to the state and that therefore any limitation on liberty must be justified by compelling public interest. It is from this postulate that the doctrine of inalienable rights is derived, and on which our entire system of government rests. The denial of this postulate is in fact the defining axiom of totalitarianism, that is, the axiom that the individual is inferior to the state and that the interests of the state trump those of the individual whose liberties are only conditional on what the state deigns to grant.

Re: I don't see how you can keep Griswold and throw out Roe, without the Court getting into the business of activist policymaking from the bench, just with a different set of policy preferrences.

First off Griswold obtained in law for some years before Roe did, so obviously it is possible to have Griswold without Roe.

Secondly, I outlined above how Roe could be rendered moot whiel retaining Griswold: by recognizing the personhood of the fetus and applying the 14th amendment to allow laws restricting abortion.

And again: this is the exact parallel with slavery. There is no specifically enumerated right to property, yet one such certainly exists*. It is however limited by the 13th amendment which bans the owning of other human beings as property.  Hence abolishing slavery did not require the abolition of all property, nor would overturning Roe require the abolition of all privacy rights.

* Our rights are to be regraded as objective facts regardless of whether the Constitution mentions them or not. They are simply priveleges granted to us by the government in the manner that kings once granted various priveleges to their favoirites.

just looking at your argument, would you think it impossible or unconstitional for a state to amend their state constitution that would guarantee a right to life for a fetus, that would then allow them to restict abortion?  Or does the federal constitution as interpreted by Griswold, Roe et al prevent the states from considering the right to life of the fetus?

How does all that work with the 9th and 10th amendments and caselaw-considering Roe did not consider the fetus in its decision.

Griswold without Roe ==> activist policymaking from the bench.

Secondly, I outlined above how Roe could be rendered moot whiel retaining Griswold: by recognizing the personhood of the fetus and applying the 14th amendment to allow laws restricting abortion.

And again: this is the exact parallel with slavery. There is no specifically enumerated right to property, yet one such certainly exists*. It is however limited by the 13th amendment which bans the owning of other human beings as property.  Hence abolishing slavery did not require the abolition of all property, nor would overturning Roe require the abolition of all privacy rights.

Even if you were ardently anti-abortion, and believed in the personhood of the fetus, I think you would have to concede that such difficult policy questions are best reserved for our legislatures.  The policy questions re: abortion turns on answer the question of "When personhood begins".  That is a mix of scientific research, moral judgments, religious teachings, personal opinions, and a whole host of factors that the judiciary is ill-equipped to handle properly.

The parallel to slavery is illustrative of my argument, I believe.  It took a Constitutional Amendment (after a Civil War, mind you) to ban the owning of other human beings.  The Supreme Court could not simply say, "Well, see here... the Ninth Amendment hides this right you see of self-ownership, and therefore we declare that slavery is illegal" and expect to have that be the law.  The slave states that ratified the Constitution would have found that jurisprudence bizarre at best.

If you'd like to establish a Constitutional right of personhood for the unborn, and define life as beginning at conception, by all means, pass a Constitutional Amendment.  We had to do it to get rid of slavery; we had to do it to empower women to vote.  Why not trust in democratic processes for such awesome policy decisions?  Why look to five lawyers in black robes?

As long as Griswold is on the books as good law, I am of the opinion that Roe was correctly decided  If there is a constitutionally protected zone of privacy, then the government cannot legislate or regulate in that sphere without overcoming some serious hurdles.  (Why this zone of privacy didn't apply to, say, Raich -- the medical marijuana case -- is beyond me, but whatever.)

-TS

I do think it is impossible and unconstitutional for a state to amend their state constitution, as long as Griswold and Roe are on the books.  Federal law trumps state law; the Federal Constitution has guaranteed (wrongly, I think) a right of privacy that includes the decision to abort a fetus.

State law cannot frustrate the goals of Federal law, and state constitution has no special force when compared to Federal law.  Passing some sort of a right to life amendment in a state would be a politically satisfying thing to do perhaps, but as it is intended to frustrate federal Constitutional guarantees of privacy and abortion rights, such an amendment would be struck down.  Ninth and Tenth Amendments only become an issue, I believe, when the Supremacy Clause is not implicated -- i.e., no Federal action on a topic.

It would be worth a shot, but ultimately, without overturning Griswold and Roe, I don't see it.

-TS

seem like a vehicle to declare any and all laws unconstitional the courts didn't like, and basically not only trump itself over federal government but State governments as well.

The 9th and 10th's read broadly enough to apply to abortion pretty much seems to me to indicate the court could legislate/declare any legislation it didn't like at will, as long as 5 of them agreed on it.

I think that having a nominee who is resistant to this kind of flattery is crucial.  I think that  Roberts is much better on this ground than Clement would have been.

I'm uncomfortable with the Ninth and Tenth Amendments being taken real serious-like.

The Ninth has the potential to become the Runaway Amendment, useful for judicial activists everywhere!  Forget about the Living Constitution -- how about the Hidden Rights Constitution?

-TS

I don't want to detract from your discussion because I think you and Alex have made some great points but the Constitution implictly recognized slavery in Section 2.  Thus the 9th couldn't really be applied in that regard