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Judge Roberts and the Left's Parallel Universe 8/2/2005 The Left needs to take three deep breaths and join us in Reality. There's no denying that the left's attack on judicial nominees depends not on who the judge is but on who the president is. There's the "advice and consent" role of the Senate according to the Constitution and then there's the left's "distort, demand and delay" version. Consider the following:
Sen. Ted Kennedy (D-Massachusetts): Roberts must answer every "question" made up for me.
"No nominee, especially a nominee who is well known to have argued ideological positions on issues important to the American people, should be confirmed without full and candid disclosure and discussion of those positions and their importance to him."-Senator Ted Kennedy ("A Move to the Right, an Eye to Confirmation," Dan Balz and Charles Lane, The Washington Post, Page A01, July 20, 2005.
Okay, Senator, why didn't you apply this standard to Judge Ruth Bader Ginsburg as well? Ginsburg previously had served as general counsel to the ACLU, and therefore was "well known to have argued ideological positions on issues important to the American people." Is it "mainstream" ideology to argue that the age of consent should be lowered to 12 years as she did? And consider Justice Ginsburg's response during her Senate confirmation hearings when asked her position on abortion. She responded that since the abortion issue possibly could come before her, it would not be appropriate for her to give her opinion on the issue. How's that for full and candid disclosure, Senator? Since that response was acceptable for Justice Ginsburg, it's acceptable for Judge Roberts, right?
Sen. Barbara Boxer (D-California): All the "I am woman, hear me roar" women are running into "back alleys" in fear of Roberts!!!!
"The stakes are high. According to a recent CNN poll, 65 percent of Americans want the next Supreme Court justice to uphold Roe vs. Wade. Many of us are old enough to remember what it was like before the court's landmark opinion. Women seeking illegal abortions were forced into the back alleys, risking their health and lives. Thousands died every year. We cannot go back to those dark days." San Francisco Chronicle, Monday, July 25, 2005: http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2005/07/25/EDG4PDMIGH1.DTL
That old "back alley" abortion line has been used so many times, you'd think it would've died by now of old age. And it's false. As Serrin Foster, president of Feminists for Life, writes in her essay, "The Feminist Case Against Abortion," Dr. Bernard Nathanson and Larry Lader, the co-founders of NARAL, are the ones responsible for starting this false rumor. "Later he [Bernard Nathanson] admitted that they simply made up the numbers of women dying from illegal abortions
" http://www.feministsforlife.org/news/commonw.htm
Also, it looks like Boxer is "out of the mainstream" of American thinking when it comes to Roberts. In a recent CNN/USATODAY/Gallup poll, 72 percent of the American people say that opposition to Roe shouldn't disqualify Roberts. http://news.yahoo.com/news?tmpl=story&u=/usatoday/20050726/pl_usatoday/courtnomineedoeswellinpollrovedoesnot
Sen. Chuck Schumer (D-New York): Roberts will shred our "civil rights."
"I think most people would rather have a nominee who didn't have such an illustrious history, who would understand that the court's job is to preserve the rights of individuals, women's rights, civil rights, workers' rights, than somebody who went to Harvard Law School or Yale Law School who was going to take away those rights and not defend those rights." PBS "Online Newshour," July 20, 2005.
Most people would "rather have a nominee who didn't have such an illustrious history?" Is mediocrity, then, what we need in the judges who sit on our nation's highest Court? And we don't need a nominee who will preserve Senator Schumer's own personal list of generic "rights." We need a nominee who will abide by his oath to uphold and defend the version of the Constitution that was written and signed by the Founders of this nation, not the version of the Constitution that Senator Schumer came up with in his creative writing class.
Sen. Patrick Leahy (D-Vermont): Give us every "important and informative" document Roberts ever wrote, including notes to his mom from summer camp.
In a press release from July 26, 2005, Leahy writes, "We are disappointed that the White House appears to have so quickly moved to close off access by the Senate to important and informative documents written by Supreme Court nominee John Roberts while he was at the Department of Justice. According to news reports today, your Administration may be preemptively protecting thousands of documents not even requested yet by the Committee - documents that could very well hold important information necessary to evaluate Judge Roberts' judicial philosophy and legal reasoning." http://leahy.senate.gov/press/200507/072605a.html
In the second part of her five-part series, "The Left's Book on Judicial Warfare: Dismay-Demand-Distort-Defame-Delay," CWA's Chief Counsel, Jan LaRue both predicted and explained this common tactic used by the liberals against conservative judicial nominees:
There were numerous demands made during the confirmation battles over the President's nominees to the circuit courts of appeal. Take for example, Miguel Estrada. Senate Democrats demanded to see confidential memos that Estrada had written when he served in the office of Solicitor General. He rightly and respectfully declined.
Every living former Solicitor General, both Republicans and Democrats, signed a letter opposing release of confidential memos by their assistants, which was sent to the members of the Senate Judiciary Committee. Nonetheless, the demands continued and Democrats continued to mislead the public by claiming they had a right to the memos.
Since 1976, the Senate has confirmed 67 appeals court nominees who had previously worked at the Justice Department, seven of them in the Solicitor General's office. The Senate never asked any of them for the kind of confidential memos Democrats demanded from Estrada.
In order to appreciate the impropriety of such a demand, imagine that your legal opponent's attorney demanded to see confidential memos that your attorney had written on your behalf. He or she would be subject to ethics violations and malpractice liability for complying. That's why Miguel Estrada couldn't comply and those who made the demands knew it. He wrote the memos in question on behalf of his client, the United States of America, in relation to litigation.
On July 27, the administration made 75,000 pages of documents available to the public from the time that Judge Roberts served in previous administrations, except for confidential documents subject to attorney/client privilege.
Sen. Schumer's response: More is Better-More Documents-More Time-More Answers, more, more:
"Something has to give," said Schumer, who is on the Judiciary Committee. "If the nominee does not want to answer questions, then we need more documents. If there is a moratorium on documents, then we need the nominee to answer questions more forthrightly and we need more time to ask those questions." Jesse J. Holland, "Democrats Want More Documents On Roberts," Associated Press, July 26, 2005:
Sen. Dick Durbin, (D-Illinois): Roberts is too "controversial"-He might compare the U.S. military to "Hitler, Stalin and Pol Pot."
Durbin, who also opposed Roberts in 2003, said just a few days ago: "The president had an opportunity to unite the country with his Supreme Court nomination, to nominate an individual in the image of Justice Sandra Day O'Connor. Instead, by putting forward John Roberts' name, President Bush has chosen a more controversial nominee and guaranteed a more controversial confirmation process. Fox News Online, Wednesday, July 20, 2005: http://www.foxnews.com/story/0,2933,163044,00.html
Sen. Dianne Feinstein (D-California) seems to contradict Durbin:
"Yes, he [Roberts] does believe in precedent. And, he is very cautious and he's very studious, and in no way, shape or form do I believe he puts any ideology before the law, nor do I believe he would be an activist in the law. I see none of those signs in anything he has done or said..." Sen. Dianne Feinstein, MSNBC's, "Hardball," July 25, 2005.
And yet another Leahy gem: No Roe-No Go
"Leahy says he won't vote for Roberts without support for Roe.
Just as you would not have a justice nominee who said, 'Well I wouldn't consider Brown vs. Board of Education settled law,' I don't see how they could get confirmed. I don't see how somebody who said that they didn't consider Roe vs. Wade settled law ... I don't see how they get confirmed,'" Leahy said. Associated Press, July 27, 2005.
Litmus test, anyone? Notice how Leahy tries to equate Brown v. Bd. of Education with Roe v. Wade. In Brown, the Court recognized an express violation of the Constitution and stamped out the ugly cloud of segregation that kept an entire race of human beings in the status of second-class citizens. In Roe, the Court created a Constitutional "right" that excluded an entire class of human beings from Constitutional protection.
"They have struck down parts of the violence against women act, environmental acts, child safety legislation,'" Leahy said. "They've knocked down all these, basically writing the law themselves. I want to find out if he's going to be as active as people like Justice (Antonin) Scalia and Justice (Clarence) Thomas have who have almost willy-nilly overruled things."
Somebody should ask Leahy and his fellow guardians of stare decisis whether he considers other Supreme Court precedents sacrosanct, such as Dred Scott v. Sanford, Plessy v. Ferguson, Korematsu v. United States and Bowers v. Hardwick. We think not.
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