Posted
by David Ryan
July 19, 2005 at 7:34 p.m.
President Bush's Choice
Y'all will have heard, I'm sure, that President Bush has chosen to replace Supreme Court Justice Sandra Day O'Connor with [John G. Roberts, Jr.][1] He's an attractive candidate who could prove difficult for Senate Democrats to object to. That doesn't mean they won't [try][2], though.![][3]Roberts is what people call a "hundred-percenter." He is what the President said his nominee would be: in the tradition of Scalia and Thomas.We'll learn a lot about him in the coming days, so I thought it would be more interesting to think about the following, which could be asked of the nominee during his confirmation hearings:Is it reasonable to believe that the writers of the Constitution intended for their own understanding of its meaning to limit all other understandings, throughout all time?More importantly: where is the evidence, in the Constitution itself, that that's the "proper" relationship to have to the Constitution?Does a movement on the Court to "strict construction" tip the Court's decision making away from adhering to precedents and towards the personal opinions of justices as to the "original intent" of the Constitution and the people who wrote it?How significant _ (of course, not to the nominee) _is this nomination's occurring now - amidst a low point in Bush's approval numbers (and, even more so, his [credibility][4] numbers); and with U.S. Attorney Patrick Fitzgerald's investigation of a potential national security leak in the White House: In other words, why Roberts, now?Do [polls][5] showing solid support for _not overturning Roe v. Wade (circa 65% for not overturning - 29% for overturning) - that is, for keeping abortion legal - matter?_Finally, and just for kicks: what would you ask Judge Roberts, if you were on the Senate Judiciary Committee? [1]: http://news.google.com/news?q=john+g.+roberts+jr.&hl=en&lr=&safe=off&client=firefox-a&rls=org.mozilla:en-US:official&sa=N&tab=nn&oi=newsr [2]: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2005/07/19/national/w174544D67.DTL [3]: http://media.lawrence.com/img/blogs/y... [4]: http://www.pollingreport.com/bush.htm [5]: http://www.pollingreport.com/abortion.htm
and 3 others
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El_Borak (Bill Hoyt) says…
"If you would be so kind, Judge Roberts, please define the words, 'public use' as they appear in the Fifth Amendment and explain how that meaning has changed since Justice Paterson questioned - in 1795 - the ability of the legislature to use eminent domain to transfer private property from one party to another.
"As a followup, I would like to ask Judge Roberts to tell us if the plain meaning of the words in their historical context is a difficult concept to understand."
ladylaw (Terry Bush) says…
If you please Judge Roberts, could you please explain to us how a court can recognize a clearly existing "penumbra" Constitutional right never contemplated by the original drafters of that document that was not discovered until 150 years after its adoption. And as a follow up, could you give us your understanding of the how the two branches of Legislative and Judicial are distinct and separate entities, with special review of when a Legislature's appropriation decisions can be propertly controlled or overruled by a court. .
davidryan (David Ryan) says…
El_borak -- Great question on eminent domain.
As for your follow up, do you believe people think the concept you refer to is "a difficult one to understand"?
Less clear is the process a judge goes through to reconstruct "plain meaning," first, and second, how a judge reconstructs "historical context" without relying on his or her own personal, extraconstitutional opinions and beliefs as to that context.
Are there no interpretive conflicts in history?
In reconstructing "plain meaning" in "historical context," what happens when the usage in the Constitution was itself, at the time, intentionally ambiguous, the result of compromise?
And, whose understanding, in history, provides the limits for that "historical context"?
The understanding of they who wrote the Constitution?
Of they who ratified it in state legislatures?
Of they who voted for the politicians in the state legislatures who voted to ratify it?
Does the understanding of they who voted against ratification matter, in any sense?
After all, one could easily argue that the understanding of they who voted to ratify the Constitution should be most controlling, since it was that understanding that determined that the Constitution would be transformed from good ideas written on hemp paper into the supreme law of the nation.
What did each state legislator believe they were voting to ratify? What was their respective understanding?
And perhaps even more controlling should be the understanding of the "plain meaning" on the part of the citizens who voted for the legislators, who in turn voted to ratify the Constitution. For the legislators who voted to ratify the Constitution were in a position to do so only because they'd been voted into state legislatures -- based on the understanding of the citizens in their respective states. What did those citizens believe they were getting?
How do we reconstruct faithfully, 200 years out, what that universe of understanding was?
For me, the concept you refer to is easy to understand. It simply doesn't live up to its hype - the hype of not involving the personal, extra-Constitutional interpretations and opinions of judges who must reconstruct "original intent" or "plain meaning" in "historic context."
Interpretive, non-self-evident choices are made at every step in reconstructing that "historical context."
El_Borak (Bill Hoyt) says…
"For me, the concept you refer to is easy to understand. It simply doesn't live up to its hype - the hype of not involving the personal, extra-Constitutional interpretations and opinions of judges who must reconstruct 'original intent' or 'plain meaning' in 'historic context.'"
Yep, its relative importance is a judgment call, without a doubt, but I think you overestimate the difficulty of understanding what people thought when the document meant when written. After all, we do have the text itself, the Federalist, 200 years of court cases, a c and a whole lot of clerks who love to dig that stuff up.
Originalism is not a panacea; it's an anchor. For example, "Public Use" meant something very specific, both in common law and in constitutional jurisprudence. But that meaning started expanding in about 1950, until suddenly public use means that a city can take property from one person and give it to another for the purpose of raising tax money. Public use meant something, but now it means nothing.
If we try our best to limit our jurisprudence to the original intent, we may never agree entirely and perfectly. But it sure makes it more difficult to drop clauses from the Bill of Rights when they become inconvenient to politicians.
Joel (Joel Mathis) says…
From Huffington Post:
The first question: What does Judge Roberts think of Star Trek?
Star Trek was first broadcast in 1966, when both Roberts and I were 11 years old. When you're 11, you're thinking about the values you will live by for the rest of your life. Star Trek's vision of a time when everyone on Earth has learned to live in peace (admittedly, after a forth world war) and of the Prime Directive which directed Capt. Kirk, et al not to interfere in the development of other cultures had a huge influence on my own ethical and moral development. I'd like to know if Star Trek had an influence on John Roberts and, if so, what that influence was. (For good measure, someone could also ask him what, if any, influence the movie "To Kill a Mockingbird" had on him too.)
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Joel adds: And he should weigh in on which is cooler: Star Trek or Star Wars.
El_Borak (Bill Hoyt) says…
I just want to see how quickly Ansche Hedgepeth is invited to the dance.
cfdxprt (anonymous) says…
What I want to know, and someone on this site can probably answer it for me, is where does he stand on abortion? That's my biggest fear of what Bush's legacy will be is overturning R v W, and a woman's right to do what she wants with her body should be sacred! Unfortunately, I was busy pushing buttons for work last night, so I missed the discourse on the boob tube, and I haven't had time to research it today - just to read the blogs at lunch...
ladylaw - Whirlpool is a good brand, they would actually be my second choice if I was in the market for a washing machine. They're quality. The ex got my Maytag washer and Whirlpool dryer since I didn't want to argue about it, and since we weren't married, courts didn't have to be involved to divy stuff up. Now I'm a go to the laundromat and get it all done in an hour type guy...
El_Borak (Bill Hoyt) says…
"where does he stand on abortion?"
No one can say for sure. While working for Bush I, he authored an argument that (in a footnote) urged an overturn of Roe V. Wade; in his hearings for the district court, he referred to it as "the settled law of the land". NARAL is opposed to him because he has not supported abortion, Ann Coulter is criticizing him because he does not openly oppose it.
However, there is one fact that may lead to an answer: Roberts is married to the former Executive Vice President of Feminists for Life.
Take that for what it's worth.
cfdxprt (anonymous) says…
"Take that for what it's worth."
Oh, I will, there would be serious hell to pay if he ever did anything to infringe on women's rights. Not political hell either, home hell!
davidryan (David Ryan) says…
Where he stands on abortion might be gleaned from the fact that James Dobson is quite satisfied with him as a nominee. http://releases.usnewswire.com/GetRel...
Or from what the Christian Coalition had to say:
"We are believing that President Bush kept his campaign promise today when he nominated John Roberts to the Supreme Court. We are trusting that Judge Roberts is in the mold of Supreme Court justices who President Bush promised to appoint to the Supreme Court: such as Justices Antonin Scalia and Clarence Thomas."
Compare that to the firestorm that started on the right-wing when people thought that the President would nominate Gonzales, who has publicly stated that he respects the concept of stare decis and isn't out to overturn Roe v. Wade.
The right-wing's pleasure is a good insight into exactly what to expect from Roberts, one could argue.
reticentscrivener (anonymous) says…
"Public use"
El_Borak: If the concern is private owner to private owner transfers, should who owns the property after the condemnation be the decisive factor?
"The right-wing's pleasure is a good insight into exactly what to expect from Roberts, one could argue."
Perhaps. But there was also a time when the right wing was quite fond of Earl Warren.
El_Borak (Bill Hoyt) says…
I have not been able to find an answer to this question: Did the Christian Coalition endorse Kennedy and Souter? If so, their endorsement of Roberts, packed as it is with "We are believing" and "We are Trusting", might not mean muchO.
ReticentScrivener asked: "If the concern is private owner to private owner transfers, should who owns the property after the condemnation be the decisive factor?"
I'm not sure I understand the question.
davidryan (David Ryan) says…
That "We are believing" and "We are Trusting...." caught my eye, too, if only because it's so . . . bad.
Could be that the various right-wing groups are holding off on more effusive praise so as not to give their opposition much to latch onto. Then again, maybe they are indeed tepid. Time will tell.
As for the right-wing's erstwhile approval of Warren -- the right-wing in 2005 is a completely different gig. Today's right-wing beat the old-school right in primaries and in local elections to take control of the Republican party over a period of decades, leading us to where we currently are.
Though they're being subdued, I take the various right-wing groups at their word that they're quite pleased with Bush's choice -- just as I take Bush at his word that his nominee would be in the tradition of Scalia and Thomas.
They seem to see the Roberts nomination as Bush's keeping his promise, in return for the help provided by religious groups to elect him in 2004.
I doubt that's enough to hang a Senate filibuster on, though, from a political perspective.
It's a masterful first political pitch on Bush/Rove's part: a good curveball that caught the Democrats looking. Strike one....
lazz (anonymous) says…
Political reality: It would be a blessing to see ROE overturned by the Court.
1) Removed as the single-issue rallying point for a Christian conservative right that has gained a strangle-hold on this country;
2) Energize women's rights and abortion rights activists and sympathetic legislators to finally get the legislation in place that we need to secure these freedoms, rather than relying on a tipsy Court decision that simply does not have the legs to endure the withering attacks it WILL face every year of its continued existence.
I also despise the notion of testing jurists. Either they are honest, capable, qualified judges or not. Asking, "Yes, but will you vote how MY SIDE sees it?" smacks of something distinctly un-American (referring to the time when un-American was meant as a slap...)
So, where does Roberts stand on ROE? Who knows. Who cares. The question we must consider is the same here as it is for the municipal court speeding-ticket judge: Do we trust you to make an impartial, wise decision to the best of your ability? That's it, that's all. If we get that, we're lucky.
Besides, it's clear that time and time and time again, judges surprise us after they get promoted to justice.
davidryan (David Ryan) says…
El_borak -- I'm not seeing much either on the reaction to Souter and Kennedy. We certainly know that right-wing loathe them now.
But, this is the first Supreme Court nomination since the explosion of online media. With Kennedy and Souter, everything was just on paper.... I think it'll take a trip to the physical library to see what the reaction was, way back when.
El_Borak (Bill Hoyt) says…
"t's a masterful first political pitch on Bush/Rove's part: a good curveball that caught the Democrats looking. Strike one..."
Perhaps it's time for the Dems to return the favor. If the reality is (and I think it is) that this guy is going to be confirmed, might it makes sense to play ball on it?
In all probability, there will be another choice this year. To be blunt, I doubt Rehnquist is going to live that long. So what if they say, "OK, Mr. President, we're fair-minded, he's a good pick. We'll confirm him."
Then when the next one comes along, swing for the fence.
Why wait? Several reasons.
The first is that Roe is not in danger from one pick. It's not even in danger if Rehnquist retires. The GOP, in that case, will be running in place. But should Stevens fall over dead in December, they're hosed.
But the second is more important. The Dems are working from a position of weakness. That means they need to make every swing count. If they play ball on this one, they can filibuster the hell out of the next one and still not get a reputation for obstructionism.
They can say, rightly, to the public "Look, we're perfectly reasonable, and perfectly willing to support a good nominee. We showed that with Roberts. But THIS guy (whoever it is) is just too much."
Such will NOT keep Bush from appointing conservatives, but it might keep a true radical off the court. If they play rough on what appears to be a very good nominee, they're liable to get Edith Jones right down the middle on the second pitch.
El_Borak (Bill Hoyt) says…
"I think it'll take a trip to the physical library to see what the reaction was, way back when."
I think you're right, and that's too muchO work for me.
How did I ever live without Google?
davidryan (David Ryan) says…
The only trouble is, it'll be up to the Republicans in the Gang of 14 (I love that we have to have a "Gang of 14"; what's the world come to? http://en.wikipedia.org/wiki/Gang_of_14 ) on whether or not the Democrats go for the fences.
The Democrats can't filibuster unless they can bring the Gang of 14 on board. And that won't happen unless the nominee at issue is a raving lunatic (like Robert Bork; go watch the tapes again).
If they try, the Republican umpires will declare "2 strikes and your out" and call the game and declare the Republicans to have won.
Remember that Frist is perfectly willing to change Senate rules so Bush wins the game.
davidryan (David Ryan) says…
Which is to say, the filibuster will be, practically speaking, gone, over, done with.
Absent the help of the Gang of 14, I think Democratic Senators will act to protect the Senate -- i.e., not risk destroying the filibuster by attempting one against a Supreme Court nominee and giving Frist and Vice President Cheney just the opportunity they want.
reticentscrivener (anonymous) says…
"I'm not sure I understand the question."
What's the public use problem? Is it that the government condemned person A's property and conveyed title to person B?
davidryan (David Ryan) says…
The Christian Science Monitor's questions:
Point to a few instances when you've had to put aside strong personal views - either in your White House work or your two years on the bench - to argue or judge a case.
As the definition of rights - in education, the workplace, family planning, etc. - has expanded in US history, has it been better for state and federal legislators or for the courts to bring those to citizens?
Even if a decision is based clearly on the Constitution, should a justice also weigh the consequences of that decision on broader society?
Should the Constitution be a flexible document whose interpretation changes with the times?
Public approval of the Supreme Court has eroded over the years. What should be done to reverse that slide?
Name three books that would give Americans a better understanding of the role of the courts, especially the Supreme Court, in a democracy.
via http://blogs.washingtonpost.com/campa...
davidryan (David Ryan) says…
Apparently The Grand Inquistor is what Ann Coulter is looking for. Roberts isn't extreme enough for her:
http://www.wnd.com/news/article.asp?a...
reticentscrivener (anonymous) says…
Ann Coulter wouldn't have been happy unless the nominee was a martini, a pack of Lucky Strikes, and a .38.
El_Borak (Bill Hoyt) says…
"What's the public use problem? Is it that the government condemned person A's property and conveyed title to person B?"
No, it's that private property is being taken for private use. There are two conditions under which the government can expropriate property: it has to be compensated, and it has to be for public use. Taking someone's property so someone else can build a Target distribution center (for example), does not meet any reasonable or historical meaning of the phrase, "public use".
But as Stevens wrote, "This court long ago rejected any literal requirement that condemned property be put into use for the general public." So instead of "public use" meaning "use for the general public," it means nothing at all.
El_Borak (Bill Hoyt) says…
"Remember that Frist is perfectly willing to change Senate rules so Bush wins the game."
So what are the Dems' options?
I proposed that assuming the 7 Dems could declare "extraordinary circumstances" and get the public to go along and assuming they would have a decent chance of that if they showed reasonableness first. If they can pick off 6 Republicans, they may be able to push Frist back, at least temporarily.
If not, then it's not strike 1; it's late in the fourth, trailing by 3 touchdowns, and no time outs.
El_Borak (Bill Hoyt) says…
"No, it's that private property is being taken for private use."
I should clarify that. It's not *simply* that it's being handed over to another person. Taking it under government ownership and allowing no public use (e.g. taking a cabin for the private use of vacationing Supreme Court Justices or city counselors) would also qualify.
reticentscrivener (anonymous) says…
"No, it's that private property is being taken for private use. . . . Taking someone's property so someone else can build a Target distribution center (for example), does not meet any reasonable or historical meaning of the phrase, "public use"."
What factors distinguish public use from private use? Is it just a question of ownership? Or is it a question of who is permitted to enter the property? Or does it matter where the economic benefits of property ownership flow?
For instance, what if instead of selling the land to Pfizer, the government had retained ownership, built a shopping mall on the property (open to the public) and built office space on top of the mall for lease to Pfizer. Is that okay? The public owns the property. The public can enter the property. The public derives income from the property. How could this be any more of a public use?
Instead of playing games, some levity is in order. I'm with Kennedy. The takings clause is in the due process amendment, so the constitutional analysis should focus on the process leading to the condemnation rather than the condemnation itself. Likewise, crafting a judicial test that distinguishes between public and private uses will inevitably turn on details that don't make a substantive difference. The most effectively way to protect property (and economic interests generally) is through the local democratic process. Elect responsible local officials so that these types of questions don't arise in the first place. Failing that, lobby the state legislature for a protective statute. Amend the state constitution to narrowly define public use.
reticentscrivener (anonymous) says…
"So what are the Dems' options?"
They should sit and hush or else look damned foolish. Granted, foolishness is this year's little black cocktail dress, but shut down DC? Why? They put him on the bench in 2003. If he was good enough then, he's good enough now. Okay, if he's spent the last two years working on Mein Kampf II: Still Strugglin' then maybe there's an issue...
Seriously. If there are all these "hard questions" that he needs to answer, why weren't they asked two years ago when he was given his first life appointment? If they were asked, what's changed to make those answers insufficient?
El_Borak (Bill Hoyt) says…
"why weren't they asked two years ago when he was given his first life appointment?"
Biden said something the other day about the difference: the appeals court doesn't make the law. I think the Dems, in a lot of cases, expect the Supremes to make law, thus they're very concerned about who gets to make it. But "asking questions" is just a meme: I suspect every senator has a pretty good idea how he'll vote.
Lazz makes a good argument in regards to Roe. If Roe were overturned, then legislatures would be back in the lawmaking business. Of course, you make the same argument in regards to takings, so it appears I have been backed into a corner :O No problem, I'll just call on Machiavelli.
"The takings clause is in the due process amendment, so the constitutional analysis should focus on the process leading to the condemnation rather than the condemnation itself."
Do you agree with O'Connor on "the unremarkable presumption that every word in the document has independent meaning, that no word was unnecessarily used, or needlessly added"? Or would the Fifth Amendment mean the same thing if the words "for public use" had never been added?
"The most effectively way to protect property ... is through the local democratic process."
Here I completely disagree, though it may be simply because I have a darker view of human nature than you do, especially when it comes to matters economic. While I agree that voting might be occasionally effective, I also think that there's a real possibility that most voters are not interested in protecting their neighbors' property so much as they are interested in appropriating it for themselves.
In addition, as Machiavelli wrote, "those whom (the Prince) offends, remaining poor and scattered, are never able to injure him; whilst the rest being uninjured are easily kept quiet, and at the same time are anxious not to err for fear it should happen to them as it has to those who have been despoiled."
Without a limitation on government action that does not rely on the majority of citizens, it's all too easy for the prince to do what he wants, while cowing the majority into submission, lest they, too, attract his rapacious attention.
No easy answers, I guess.
davidryan (David Ryan) says…
One last question:
Does a strict construction of the plain, original meaning in historical context of "The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows...." require the interpretation that a woman President would be unconsitutional?
If not, why not?
reticentscrivener (anonymous) says…
"I think the Dems, in a lot of cases, expect the Supremes to make law..."
Sadly, I don't think that view is confined to one side of the aisle. They just want law made in different areas. Social issues for one, regulatory for the other.
And I really hate people who eat on the Metro, too, btw...throw them all in the clink. Especially sass-mouthed 12 year-olds. The no food rule is the only thing separating genteel DC from NY savagery.
"Do you agree with O'Connor on "the unremarkable presumption that every word in the document has independent meaning, that no word was unnecessarily used, or needlessly added"? Or would the Fifth Amendment mean the same thing if the words "for public use" had never been added?"
First, the answer one gets from O'Connor on that issue depends on when you ask her. In 1984, it's okay to condemn private property owned by landlords for redistribution to renters for socioeconomic purposes. O'Connor coined the phrase in your Stevens quote earlier ("This court long ago rejected any literal requirement...") She adds that "when the legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings . . . are not to be carried out in the federal courts." Also, "Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power."
In fairness, she notes that a "purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government." Still, I'm hard pressed to understand why socioeconomic land redistribution is a legitimate purpose and increasing tax revenue is not.
Second, I agree that each word has meaning, but contend that the meaning must reflect context and structure. The founders put the takings clause at the end of a paragraph that otherwise defines criminal procedure. That seems odd. Also, if the takings clause was meant to protect citizens from the legislature rather than the courts or the executive, why doesn't it begin "Congress shall make no law" like the First Amendment?
Third, I'm not against a rigid public use requirement. It just has to work. For instance, if the shopping mall idea is bad and you're New London, why not condemn the property and turn it into a public park? That's the quintessential public use. Five years later when the park gets too expensive to maintain sell it to the local drug concern or whoever else has a few jobs to spare.
Judicial line drawing only tests the creativity of attorneys. Principle lies in the public. Hopefully Kelo will remind people of the need for democratic vigilence (though I wouldn't bet on it).
reticentscrivener (anonymous) says…
One last thing, then I'll go back to work and stop clogging everyone's blogs:
"Biden said something the other day about the difference: the appeals court doesn't make the law."
What malarkey! And he knows it! With a little research Plugs-and-Plagiary could learn that the DC Circuit released 37 or so opinions in June alone. The Supreme Court took about 80 petitions for the entire 2004 term. Being appellate courts, both make law.
Biden's usually decent on things like this, leaving the worst ridiculousness to his colleagues. Presidential Itch must be getting the best of him.