Preserve the Balance
Team Supreme Blog
Where's the outrage?
On May 1, 2005 Pat Robertson told George Stephanopoulos that the "tyranny of oligarchy" posed by judges is "more serious than a few bearded terrorists who fly into buildings."
Fast forward to yesterday. Sen. Schumer took the beginning part of his questioning of Judge Roberts to ask him about that statement and others like it. What did Roberts have to say?
"...I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges – and certainly even judges with whom I disagree on the results or particular merits – they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate."
Wouldn't it seem appropriate to offer something more than a mamby-pamby response about how we should be nice to judges and only criticize their decisions?
What if Roberts said: "You know Senator, those comments made my stomach turn. I believe in standing up for the independence and integrity of the court and comparing judges to cold-blooded killers who took the lives of thousands of innocent Americans is simply abhorrent. Pat Robertson is free to speak his mind but I think he does a disservice to the fine men and women of the judiciary with that kind of rhetoric."
Wouldn't that be refreshing? To most Americans, yes. But to Roberts' backers in the right-wing, standing up to their extremism is verboten. In fact they're full of nothing but adulation. Makes you wonder... who will Roberts stand up for on the court – ordinary Americans or extremists?
Fast forward to yesterday. Sen. Schumer took the beginning part of his questioning of Judge Roberts to ask him about that statement and others like it. What did Roberts have to say?
"...I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges – and certainly even judges with whom I disagree on the results or particular merits – they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate."
Wouldn't it seem appropriate to offer something more than a mamby-pamby response about how we should be nice to judges and only criticize their decisions?
What if Roberts said: "You know Senator, those comments made my stomach turn. I believe in standing up for the independence and integrity of the court and comparing judges to cold-blooded killers who took the lives of thousands of innocent Americans is simply abhorrent. Pat Robertson is free to speak his mind but I think he does a disservice to the fine men and women of the judiciary with that kind of rhetoric."
Wouldn't that be refreshing? To most Americans, yes. But to Roberts' backers in the right-wing, standing up to their extremism is verboten. In fact they're full of nothing but adulation. Makes you wonder... who will Roberts stand up for on the court – ordinary Americans or extremists?
Roberts and Privacy? He's certainly private about his own views
The right to privacy, or the right to be left alone, is of fundamental importance to all Americans. Given that Roberts dismissed the right to privacy in the past and that the Bush Administration has withheld documents that might provide the public with a better clue, we were glad that Senate Judiciary Committee Chairman, Arlen Specter (R-Penn.) opened today's confirmation hearings with questions about Roberts' view on privacy and, specifically, whether he would return Roe v. Wade.
Specter focused his questions on stare decisis - the principle that the Court should be reluctant to overturn its own decisions. Unfortunately, after a series of characteristically well-mannered dodges, Roberts has left HRC, the Senate, and the American public with barely any answer at all.
Instead, Roberts merely referred to the Supreme Court's 1992 decision in Planned Parenthood v. Casey. Although Casey upheld Roe's central holding that the government may not ban abortion outright, it also altered - and weakened - the rights of women as defined in Roe. Roe almost completely prevented any government intrusion into a woman's choice to seek an abortion in the first trimester. It also applied the most stringent test - strict scrutiny - to laws restricting abortion. Casey scaled back Roe by abandoning the trimester framework and applying the lenient "undue burden" standard, which upholds laws that don't place an undue burden on abortion.
More importantly for the stare decisis line of questioning, Casey also describes the method by which judges may overturn precedent. Roberts reiterated that he would follow this method, in which a justice takes into account:
- the rule has proven to be intolerable simply in defying practical workability;
- the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation;
- related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine;
- facts have so changed, or come to be seen so differently, as to have robbed the old application of justification.
He also acknowledged that the question of whether a case was wrongly decided in the first place factors into whether the Court should overturn it.
Here's what he didn't say: whether he believes that Roe (or Casey, or Lawrence) was wrongly decided. How he would apply the considerations above to those cases, or any other case.
In other words: he didn't say anything about what he, as a justice, might do to scale back our fundamental rights.
~by Lara Schwartz and Liz Fujii
Romer? What is that?
Senator Hatch this morning asked John Roberts if he would describe some of the pro bono work he had done through his career and what it meant to him. As an "umpire", Judge Roberts must have loved this softball. In his answer, he listed a number of cases and public service programs, but neglected to mention—just as he had in his Senate questionnaire-- his work on the Romer case—a landmark GLBT rights case. He spoke with pride about representing an indigent criminal defendant, but not about the GLBT community. It's puzzling that Roberts refuses to talk about his work in this landmark case. He dodged an earlier question about his role from Senator Specter earlier today.
After all, his firm helped win that case before the Supreme Court ensuring the protections of the United States Constitution were enjoyed by the gay and lesbian community. Is it because the right wing, who has been pushing for Roberts confirmation before any document from his past was released, would be upset if he said he wasn't morally opposed to assisting in this case? Given their gleeful support for his nomination, it seems to me that this is why.
After all, his firm helped win that case before the Supreme Court ensuring the protections of the United States Constitution were enjoyed by the gay and lesbian community. Is it because the right wing, who has been pushing for Roberts confirmation before any document from his past was released, would be upset if he said he wasn't morally opposed to assisting in this case? Given their gleeful support for his nomination, it seems to me that this is why.
Roberts on Romer Work: Still No Answers
In the opening round of questions, Senate Judiciary Committee Chairman Arlen Specter (R-PA) asked John Roberts about his pro bono work on behalf of the gay community in the Supreme Court case Romer v. Evans. Asked if Roberts agreed with his law partner with whom he worked on Romer, who stated that every good lawyer knows that you don't take a case with which you have a big moral problem, and his work on Romer shows that Roberts probably didn't have a big moral problem with it. Roberts answered that he was asked frequently to assist and he never turned down a request. He went on to say that lawyers do not stand in the shoes of their clients and good lawyers can argue any side of a case.
What does it all mean? That Roberts took Romer because he never turned down a request, and that he would work on a case even if he disagrees. It also means that he had a chance to say that he did it because it was the right thing to do, and that he's proud to have won. Roberts has said he's proud of his other pro bono work -- the cases he bothered to list in his Senate questionnaire. But apparently not Romer. In his own words- the work says nothing about who he is. And his answer says a lot more.
What does it all mean? That Roberts took Romer because he never turned down a request, and that he would work on a case even if he disagrees. It also means that he had a chance to say that he did it because it was the right thing to do, and that he's proud to have won. Roberts has said he's proud of his other pro bono work -- the cases he bothered to list in his Senate questionnaire. But apparently not Romer. In his own words- the work says nothing about who he is. And his answer says a lot more.
Question for Senator Cornyn
During Senator Cornyn's opening remarks yesterday, after describing the historic ruling in Lawrence v. Texas which overturned a previous ruling in Bowers v. Hardwick, he asked "what changed in the intervening time? The Constitution? Clearly not. The members of the Court?"
While there are many distinct and important differences between the fight for equality for the GLBT community and those still not acheived by the African American and other racial minorities, I have my own question to ask Senator Cornyn. Senator Cornyn: What changed in the intervening time between the disasterous ruling in Plessy v. Ferguson and Brown v. Board of Education?
The fact remains that those who were opposed to the Brown decision, called that ruling "judicial activism". Sound familiar?
What many on the other side of equality fail to recognize is that the Constitution was designed to be flexible and grow with the times. The drafters intended it it. In fact, Thomas Jefforson, in talking about the Constitution remarked, "We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
As questions begin this morning, it is important to recognize that this debate is one that is fundamental and has been fundamental to our country since it's inception. Does the nominee believe that rights and liberties are what they were when the Constitution was written or amended or should it protect all of us, through a reasonable, fair and independent interpretation of the law? We may not know John Roberts' views but we should work hard to find out.
While there are many distinct and important differences between the fight for equality for the GLBT community and those still not acheived by the African American and other racial minorities, I have my own question to ask Senator Cornyn. Senator Cornyn: What changed in the intervening time between the disasterous ruling in Plessy v. Ferguson and Brown v. Board of Education?
The fact remains that those who were opposed to the Brown decision, called that ruling "judicial activism". Sound familiar?
What many on the other side of equality fail to recognize is that the Constitution was designed to be flexible and grow with the times. The drafters intended it it. In fact, Thomas Jefforson, in talking about the Constitution remarked, "We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."
As questions begin this morning, it is important to recognize that this debate is one that is fundamental and has been fundamental to our country since it's inception. Does the nominee believe that rights and liberties are what they were when the Constitution was written or amended or should it protect all of us, through a reasonable, fair and independent interpretation of the law? We may not know John Roberts' views but we should work hard to find out.
The Endless Fields of Indiana
The first day of the Roberts hearings did not yield any big surprises. For instance, John Roberts delivered an eloquent opening statement containing nothing more provocative than a reminiscence about the "endless fields" of his native Indiana. He said very little at all about what he thinks. And that, dear readers, is a glimpse of what you can expect from this week's hearings.
His supporters and detractors, on the other hand, showed their own true colors and, by doing so, gave us a clue about what they are looking for in a justice.
Take Senator John Cornyn (R-TX), whom we know so well from his championing the discriminatory "Federal Marriage Amendment." At the Roberts hearing, Cornyn was singing the same old anti-gay song we've grown accustomed to hearing for him. For instance, he criticized the Court for overruling laws that "the people" have enacted, saying that it is too far removed from "average Americans" when it makes his decisions. He listed a number of judicial outrages in support of his claim. Among them Lawrence v. Texas, which struck his own state's criminal sodomy (along with 12 others). Cornyn probably thought he was scoring political points by claiming that Lawrence led to the Massachusetts decision recognizing marriage equality for same-sex couples.
The question is, why did Cornyn bring up Lawrence and marriage equality in the hearing on John Roberts, whose nomination he supports? Apparently Cornyn thinks that GLBT rights are on the line here – and he's not alone.
Senator Sam Brownback (R-KS) – who also wants to write discrimination against GLBT people into the Constitution – accused the Court of "inventing" constitutional rights and accused federal courts of re-defining the definition of marriage. As a particularly charming note, Brownback paid homage to Roberts' own brief arguing that Roe v. Wade be overruled, writing as Roberts did that the decisions to which he objects "find no support in the text, the structure or the history of the Constitution." Plagiarism is the highest form of flattery, so we imagine that Roberts is pleased to have been quoted by the Senator.
Senator Jeff Sessions (R-AL) also cautioned against allowing the Court to rule on the definition of marriage.
This was not an FMA hearing, but a hearing on John Roberts' nomination to the Supreme Court of the United States. So my question for those senators – who seem more likely than Roberts himself to answer – is: what does this nomination have to do with marriage? And is the appointment of John G. Roberts, Jr. to the Supreme Court consistent with your plan to exclude GLBT Americans from constitutional protection? If not, what on Earth are you talking about?
As usual, it was nearly impossible to understand what Senator Tom Coburn (R-OK) was talking about. He stated that "America is an idea; it's not competing ideologies. It's an idea that has proven tremendously successful and, when we reduce it to that of competing ideologies, we make it less than what it is." Hmmmm ... competing ideologies. Does he mean, for instance, religious pluralism and tolerance, which is written into the First Amendment? Or maybe freedom of speech and to petition the government, which are in that same pesky part of our Constitution? Does he mean ideologies that differ from his-scary to contemplate, as this is the man who has approved of the death penalty for abortion providers. And again I have to ask – what does the nomination of John G. Roberts, Jr. to the Supreme Court do to further Coburn's goal of stamping out "competing ideologies?"
On the other hand, Judiciary Committee Chairman Arlen Specter (R-PA) previewed that he will ask Judge Roberts about his views on the constitutional right to privacy. Because that right is so critical to GLBT equality, we will be paying close attention to Senator Specter's questions and to Judge Roberts' answers.
Senator Edward M. Kennedy (D-MA) was also true to form, reminding all assembled that this nomination is about civil rights, and that many people in this country – including the GLBT community – still face discrimination. He said that even "Even in this new century, some Americans are... denied hope because they are gay."
Senator Charles Schumer (D-NY) indicated that when Roberts met with him prior to the hearings, Roberts indicated that there is a right to privacy "that extends to the bedroom." For supporters of the Lawrence decision, that is good news – if it indeed reflects Roberts' legal opinion, as opposed to an accurate recital of current law. Senator Schumer said that he intends to ask Roberts what view he would take once, as a Supreme Court justice, he was no longer bound to follow settled Supreme Court precedent. We'll stay tuned for the answer to that, too.
As of today, we don't know more about John Roberts than we did before the hearings began. We know that the most anti-GLBT Senators don't want the courts to promote GLBT rights, and we know that they support Roberts' nomination. We know that at least some Senators are looking out for the community, and that HRC's advocacy on this topic is finding a voice in this important process. Mysteries still remain, however, and getting answers from this hearing could be as challenging as finding a needle in a haystack – or, more topically, in the "endless fields" of Indiana. Stay tuned.
His supporters and detractors, on the other hand, showed their own true colors and, by doing so, gave us a clue about what they are looking for in a justice.
Take Senator John Cornyn (R-TX), whom we know so well from his championing the discriminatory "Federal Marriage Amendment." At the Roberts hearing, Cornyn was singing the same old anti-gay song we've grown accustomed to hearing for him. For instance, he criticized the Court for overruling laws that "the people" have enacted, saying that it is too far removed from "average Americans" when it makes his decisions. He listed a number of judicial outrages in support of his claim. Among them Lawrence v. Texas, which struck his own state's criminal sodomy (along with 12 others). Cornyn probably thought he was scoring political points by claiming that Lawrence led to the Massachusetts decision recognizing marriage equality for same-sex couples.
The question is, why did Cornyn bring up Lawrence and marriage equality in the hearing on John Roberts, whose nomination he supports? Apparently Cornyn thinks that GLBT rights are on the line here – and he's not alone.
Senator Sam Brownback (R-KS) – who also wants to write discrimination against GLBT people into the Constitution – accused the Court of "inventing" constitutional rights and accused federal courts of re-defining the definition of marriage. As a particularly charming note, Brownback paid homage to Roberts' own brief arguing that Roe v. Wade be overruled, writing as Roberts did that the decisions to which he objects "find no support in the text, the structure or the history of the Constitution." Plagiarism is the highest form of flattery, so we imagine that Roberts is pleased to have been quoted by the Senator.
Senator Jeff Sessions (R-AL) also cautioned against allowing the Court to rule on the definition of marriage.
This was not an FMA hearing, but a hearing on John Roberts' nomination to the Supreme Court of the United States. So my question for those senators – who seem more likely than Roberts himself to answer – is: what does this nomination have to do with marriage? And is the appointment of John G. Roberts, Jr. to the Supreme Court consistent with your plan to exclude GLBT Americans from constitutional protection? If not, what on Earth are you talking about?
As usual, it was nearly impossible to understand what Senator Tom Coburn (R-OK) was talking about. He stated that "America is an idea; it's not competing ideologies. It's an idea that has proven tremendously successful and, when we reduce it to that of competing ideologies, we make it less than what it is." Hmmmm ... competing ideologies. Does he mean, for instance, religious pluralism and tolerance, which is written into the First Amendment? Or maybe freedom of speech and to petition the government, which are in that same pesky part of our Constitution? Does he mean ideologies that differ from his-scary to contemplate, as this is the man who has approved of the death penalty for abortion providers. And again I have to ask – what does the nomination of John G. Roberts, Jr. to the Supreme Court do to further Coburn's goal of stamping out "competing ideologies?"
On the other hand, Judiciary Committee Chairman Arlen Specter (R-PA) previewed that he will ask Judge Roberts about his views on the constitutional right to privacy. Because that right is so critical to GLBT equality, we will be paying close attention to Senator Specter's questions and to Judge Roberts' answers.
Senator Edward M. Kennedy (D-MA) was also true to form, reminding all assembled that this nomination is about civil rights, and that many people in this country – including the GLBT community – still face discrimination. He said that even "Even in this new century, some Americans are... denied hope because they are gay."
Senator Charles Schumer (D-NY) indicated that when Roberts met with him prior to the hearings, Roberts indicated that there is a right to privacy "that extends to the bedroom." For supporters of the Lawrence decision, that is good news – if it indeed reflects Roberts' legal opinion, as opposed to an accurate recital of current law. Senator Schumer said that he intends to ask Roberts what view he would take once, as a Supreme Court justice, he was no longer bound to follow settled Supreme Court precedent. We'll stay tuned for the answer to that, too.
As of today, we don't know more about John Roberts than we did before the hearings began. We know that the most anti-GLBT Senators don't want the courts to promote GLBT rights, and we know that they support Roberts' nomination. We know that at least some Senators are looking out for the community, and that HRC's advocacy on this topic is finding a voice in this important process. Mysteries still remain, however, and getting answers from this hearing could be as challenging as finding a needle in a haystack – or, more topically, in the "endless fields" of Indiana. Stay tuned.
Day One - From the Hearing Room
Today, the Senate Judiciary Commitee held the first day of confirmation hearings for John Roberts. I was fortunate to be in the hearing room -- and be able to spend time with some key coaliton partners, like the leadership of the Leadership Conference on Civil Rights, the Alliance for Justice, the NAACP and others. It also provided me with the opportunity to speak with key staff of the Judiciary Committee and other key allies in the hearing room. Being there also reinforced how important this debate is for the future of gay, lesbian, bisexual and transgender equality.
While today was mostly confined to opening remarks, speeches from Senators and introductions of John Roberts and his family, little clues emerged on what the American public can expect over the next few days. Senators, in their opening remarks, talked of "judicial activism", "unenumerated rights" and the proper role of the Judiciary. These aren't abstract legal theories. They have real and true consequences for the gay community. Decisions made by John Roberts, if confirmed as chief justice, will decide whether or not the United States Constitution protects us all.
While today was mostly confined to opening remarks, speeches from Senators and introductions of John Roberts and his family, little clues emerged on what the American public can expect over the next few days. Senators, in their opening remarks, talked of "judicial activism", "unenumerated rights" and the proper role of the Judiciary. These aren't abstract legal theories. They have real and true consequences for the gay community. Decisions made by John Roberts, if confirmed as chief justice, will decide whether or not the United States Constitution protects us all.
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