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Backgrounder

posted by awelborn

On Roberts from NRLC

The Supreme Court Nomination blog

As pointed out in a comment, much,much good blogging at Southern Appeal, including links to a couple of very reasonable responses from bloggers on the left.



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Septimus

posted July 19, 2005 at 9:29 pm


Don’t pop the champagne corks too quickly.
I have to point out: the “anti-Roe” words attributed to Roberts were — as the NRLC points out, part of a brief he wrote for the last President Bush. They represent the Administration’s position; they only tell us that they weren’t so repugnant to lawyer Roberts that he refused to draft them.
So they don’t tell us what he believes.
On the other hand, when before the Senate, in 2003, here’s what Roberts DID say, of his own beliefs, about Roe:
“Roe v. Wade is the settled law of the land. … There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”
Here’s what I wrote on my own blog:
That one word — “settled” — that’s the bugbear.
What does it matter? Answer: because it means, in legal-speak, that the case in question either shouldn’t be overturned, or is so sacrosanct because of time, that the bar is set awfully high. That’s why pro-aborts press the nominee to say it: it boxes them in. Don’t tell me it’s meaningless.
Either he said it to get the pro-aborts off his back; which makes him somewhat insincere, and that’s a bad sign; or, he believes it; and that’s an even worse sign.
Roberts is awfully stealthy. When has a stealthy nominee like Roberts turned out good for prolifers?



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Boniface McInnes

posted July 19, 2005 at 9:34 pm


For an appelate justice, it is settled law of the land, sadly.
For a supreme court justice, law is what you make of it.
I am just suprised to learn that the Bush pere’s administration opposed RvW with vociferous language. I really didn’t expect even that to be the case.



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Septimus

posted July 19, 2005 at 9:41 pm


Boniface:
It is a little-remembered fact that, despite all the ways Bush pere was a disappointment and a horror to conservatives, on prolife, he was at his best, as this indicates. Many remember that, when Geo. H.W. Bush ran for President in 1980, against Reagan, he was pro-abortion.
What they don’t remember — and don’t believe when I tell them — is that he switched, adopted Reagan’s 100% pro-life position (i.e., no exceptions for killing children of rapists, etc.) and he stuck to it.
It’s not hard to understand: he flip-flopped once; another wouldn’t help him; and on prolife, you can’t fudge the way politicians think they can (and often get away with) on so many other issues.



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Becky

posted July 19, 2005 at 9:42 pm


He said those “positive” Roe words while he was still a Circuit Judge, which means that he has to follow precedent. If he becomes a Supreme Court Justice, those words are meaningless. THEN, he would have a chance to change the precedent, instead of just follow it.
I think this is a really good thing. Slips past the radar of the Dems and is a solid pro-lifer underneath. Heck, his wife is VP of Feminists for Life!!! That has to count for something!!



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Donna

posted July 19, 2005 at 9:44 pm


Once again, Bush surprises me. I don’t think many people saw that coming. I’m cautiously optimistic.
A NRO blogger says Robinson is “devout.” Wow, just wait until the media and the Left discover that! A million secular liberals will toss and turn in their beds, frightened by nightmares of the theocracy to come.



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ajb

posted July 19, 2005 at 9:44 pm


Septimus is exactly right regarding the semantics of “settled” law.
An appellate judge would consider a higher-court precedent to be “binding”. Characterizing it as “settled”, suggests a belief that the precedent has survived long enough to earn the protection of stare decisis.
At any rate, I believe the prime qualification for this nomination is that the judge was sufficiently vetted to get out today and distract from the treason over Valerie Plame



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Donna

posted July 19, 2005 at 9:50 pm


Opps, excuse me. It’s time for bed. I meant Roberts, of course; Robinson is the NRO blogger who worked with Roberts in the Reagan WH and vouches for the latters’ integrity.



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tcreek

posted July 19, 2005 at 10:03 pm


Everything you ever wanted to know . . .
http://en.wikipedia.org/wiki/John_G._
“Practicing Catholic” = Pro Life? Hopefully.



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ajb

posted July 19, 2005 at 10:06 pm


Donna:
Actually, Judge Roberts was on most people’s short list of potential nominees. To say no one saw it coming is uninformed. Many people considered Judge Roberts a more likely nominee to replace the Chief, but as a potential nominee for the Court, he’s clearly been on the radar.
With respect to the NRLC statement, that’s not exactly a ringing endorsement is it? They’ve got one sentence from a decade ago, and beyond that they can only say that the pro-choice lobby doesn’t like him? They don’t seem sold on the guy.



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tcreek

posted July 19, 2005 at 10:07 pm


The complete URL didn’t “take” in my previous post.
http://en.wikipedia.org/wiki/John_G._Roberts



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Donna

posted July 19, 2005 at 10:19 pm


O.K., so I, speaking only for myself, didn’t see it coming. Mea culpa.
My uninformed guess was that Bush was going to name a conservative woman.



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Richard

posted July 19, 2005 at 10:29 pm


My guess is that Roberts would almost certainly vote to overturn Roe and return abortion to the states.
There’s no way to be sure. The two items we have don’t tell us much: he wrote that brief as deputy SG because that’s what you do for your client, though it *is* a political job and while it doesn’t presume that he agrees with every position of the administration one assumes a general agreement with its overall philosophy. His 2003 remarks are perfectly in-line for an appellate court nominee: A Supreme Court decision *is* settled law for an appellate judge. So in large part these two actions have to be read in context of the jobs he held or was applying for.
Roberts is by all counts a good Catholic and his wife served as executive vice president of Feminists for Life. He seems like a hopeful nomination for pro-lifers. Perhaps not a Scalia or Thomas but at least a Rehnquist.
To replace O’Connor I’ll take that.



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Richard

posted July 19, 2005 at 10:33 pm


Many people considered Judge Roberts a more likely nominee to replace the Chief, but as a potential nominee for the Court, he’s clearly been on the radar.
My guess is he still is once Rehnquist steps down – that Bush will then elevate him to the top job. Having just been confirmed by the Senate he’ll be tough to reject.
He’s 50 years old. That could give him three decades as Chief Justice.
I’d like Thomas even more (He’s a more known quantity) but his age works against him, just as it does for Scalia.



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Gene Branaman

posted July 19, 2005 at 10:38 pm


Folks should check out what Steve Dillard’s postings on his Southern Appeal blog about Roberts. Very interesting!



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Gene Branaman

posted July 19, 2005 at 10:38 pm


BTW . . . for those who don’t know, Mr Dillard posts under “Freddie”.



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mark

posted July 19, 2005 at 10:44 pm


(1) “J-Lo o’er at the Corner says Roberts’ wife served as executive vice president for Feminists for Life.”
This is a HUGE point. It tends to confirm that he will reject Roe, and will most certainly reject Anthony Kennedy’s laughable views that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” and that homosexual sodomy “involves liberty of the person both in its spatial and more transcendent dimensions.”
I would tend to doubt that, having a pro-life wife, he would not himself be pro-life. Moreover, and this is the important point, it allows him to overrule Roe without the fear of retribution back home. One of the reasons that Blackmun said that he invented the abortion right was that his wife and daughters at home were pro-abortion. If Roberts’ wife were not pro-life, there might be a hestitancy to not alienate her, but, happily, that is not going to be a problem.
(2) “it’s all about Roe. And in 1990, when Thomas was put forward, it was 100% about Roe.”
Yet another reason (and maybe ultimately our winning argument), for why Roe must go. Roe and its progeny has corrupted nearly every aspect of the judicial process. At its height of popularity, Roe captured the support of 55 percent of the public, at best, and that probably only because it was support for the status quo. Roe has never engendered a consensus of support, as has racial and sexual equality, and that is another reason it must go.
Roberts is smart enough to know that it is the Constitution that he owes allegience to, not Supreme Court precedent. Prior caselaw is not the Constitution, the Constitution is the Constitution. Stare decisis (“settled law”) is a value only when the rule of law has support in logic, is workable, and is accepted by the people. In Casey, the Court essentially admitted that Roe has no support in the Constitution itself. Casey upheld Roe only as a matter of stare decisis, and Roe has only lost public support in the 13 years since that decision.
Given the caustic consequence of Roe on the judicial process, the fact that it has no support in the text of the Constitution, or in the common law or 2,000 years of human history, and the fact that it has never been accepted by substantial portions of the public, Roberts will not feel bound by precedent. He will see the wisdom of jettisoning a rule that has caused more trouble than it is worth, and will see the wisdom of allowing the people a voice in their own government. He will see the wisdom of allowing women a say in whether abortion should be legal or not, rather than denying them any voice in the matter and leaving it to nine demi-gods to decide for us.
At least that is my prayer, that God gives him the wisdom to see that.



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mark

posted July 19, 2005 at 10:51 pm


“Many people considered Judge Roberts a more likely nominee to replace the Chief, but as a potential nominee for the Court, he’s clearly been on the radar.
My guess is he still is once Rehnquist steps down – that Bush will then elevate him to the top job. Having just been confirmed by the Senate he’ll be tough to reject.”
This is very shrewd, picking Roberts this time around, rather than picking the woman that everyone expected. The pro-aborts were gearing up to torpedo the Ediths, believing that Bush would eventually appoint a woman to O’Connor’s seat regardless. But with this choice leaving only one woman on the Court, the next time, when Rehnquist (or please, Stevens) leaves, and Bush selects a woman, e.g. Edith Jones or Janice Rogers Brown, in order to return to at least two women on the bench, that will make it all the harder for the “women’s” groups to oppose her.



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mark

posted July 19, 2005 at 11:08 pm


For all you worry-worts getting hung up on this “settled law” business, I would recommend reading some of the cases regarding stare decisis, including Rehnquist’s dissent in Casey –
“In our view, authentic principles of stare decisis do not require that any portion of the reasoning in Roe be kept intact. “Stare decisis is not . . . a universal, inexorable command,” especially in cases involving the interpretation of the Federal Constitution. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932) (Brandeis, J., dissenting). Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depar[t] from a proper understanding” of the Constitution. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S., at 557; see United States v. Scott, 437 U.S. 82, 101 (1978) (” `[I]n cases involving the Federal Constitution, . . . [t]he Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.’ ” (quoting Burnet v. Coronado Oil & Gas Co., supra, at 406-408 (Brandeis, J., dissenting))); Smith v. Allwright, 321 U.S. 649, 665 (1944). Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation isunsound we are obliged to reexamine the question. See, e. g., West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 642 (1943); Erie R. Co. v. Tompkins, 304 U.S. 64, 74-78 (1938).”
And the joint opinion (O’Connor, Kennedy, and Souter) explains –
“Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil Gas Co., 285 U.S. 393, 405-411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U. S. ____, ____ (1991) (slip op., at ___) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proved to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); whether 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, e. g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification, e. g., Burnet, supra, at 412 (Brandeis, J., dissenting).”
Clearly, Roe and its progeny have proved unworkable and a disruptive force in the law, not to mention the judicial process. It has throughly corrupted the process, and Roberts, like Rehnquist, Scalia, and Thomas, should have little compunction about re-examining the issue anew and returning the abortion issue to the people or their elected representatives.



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Feddie

posted July 19, 2005 at 11:24 pm


Gene, thanks for the plug.
Listen up, folks, John Roberts is the man. He is as solid as they come. You can expect to see Roberts voting with Scalia and Thomas frequently. Bush promised a justice in the mold of Scalia and Thomas, and he delivered in a big way. Judicial conservatives are thrilled, and conservative Catholics should be as well.
For you Roberts-doubters, you’re just going to have to trust me on this. I know what I am talking about when it comes to who is and who isn’t a judicial conservative. I’ve lived and breathed this stuff for this last 12 years of my life (i.e., from the time I entered law school to date). And Roberts was one of my top three choices. Bush could not have made a much better selection.
So be happy and celebrate!



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BillyHW

posted July 19, 2005 at 11:32 pm


Father Pavone seems to approve of Roberts:
http://www.priestsforlife.org/judges/robertsnomination.htm
Looks like good news. Keep praying!



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BillyHW

posted July 19, 2005 at 11:34 pm


Oh, and I think this whole thing just goes to prove that the media is full of it. First it was Gonzalez, then Clement. Garbage.
Honestly, I don’t know why I even turn on the TV anymore.



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BillyHW

posted July 19, 2005 at 11:37 pm


Anyone know Roberts’ religious affiliation/beliefs???



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sissa

posted July 19, 2005 at 11:49 pm


“No matter how intense the questioning, Roberts is never flustered, and is always able to calmly answer any question whatsoever, while skillfully weaving in the substantive points that he wanted to make in the first place.”
Sounds like Joseph Ratzinger.



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mark

posted July 19, 2005 at 11:51 pm


“Anyone know Roberts’ religious affiliation/beliefs???”
I’ve been looking and looking, to no avail, except for this from the Corner at National Review, “devout, but light-hearted” –
WHAT I CAN TELL YOU ABOUT JOHN ROBERTS [Peter Robinson]
A couple of decades ago in the Reagan White House, John Roberts and I had adjoining offices, and we’ve kept in touch, in a desultory way, ever since. What can I tell you about him? That he’s one of the nicest guys I’ve ever met. Devout but light-hearted, a devoted husband, and the doting father of two adopted children. And so thoroughly modest that I had no idea of his reputation for brilliance within the legal community–I’d supposed he was a pretty good lawyer, but knew no more–until the President nominated John to the D.C. Court of Appeals.
We’ll all have to wait for the slicing and dicing of John’s legal work to form views of his judicial philosophy, but I can tell you from personal knowledge that what we have here is a thoroughly marvelous human being.



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Septimus

posted July 19, 2005 at 11:52 pm


Feddie, I hope you’re right. I have no doubt you’re decent, smart, wise and all other good things…
But, sorry — I heard “trust me” from John Sununu in 1990. We all did.
Not that prolifers’ options are that great, right now.
The best we can hope for, I think, is to put pressure on Roberts’ White House handlers, and on the GOP Senators, to get him to say the best right thing he can on Roe — like walk back from any idea that it’s “settled law.”
And premature celebrating won’t help make that happen.



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Feddie

posted July 20, 2005 at 12:00 am


Septimus-
Sununu was never one of us.
Roberts is one of us. He will vote to overrule Roe. You can bank on it.
Look, no one wants Roe overruled more than me. And I don’t know many people who follow the judicial nominations process as closely as I do. Just take a peak at my archives at Southern Appeal for the past 2 1/2 years. I live for this stuff.
And I am telling you, Roberts is solid. If he wasn’t, or there was any question about his originalist/textualist credentials, I’d be screaming about his appointment.
Trust me. You’ll be pleased with Roberts. I promise.



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mark

posted July 20, 2005 at 12:17 am


“Anyone know Roberts’ religious affiliation/beliefs???”
Wikipedia says “Roberts is 50 years old, lives in Bethesda, Maryland, and is the first Supreme Court nominee since Stephen Breyer in 1994. He is a practicing Catholic. He has three sisters, and is the second oldest of his siblings. He and his wife, Jane Sullivan Roberts, have two children, Jack and Josie.”
http://en.wikipedia.org/wiki/John_G._Roberts



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Zippy

posted July 20, 2005 at 12:30 am


I would tend to doubt that, having a pro-life wife, he would not himself be pro-life.
Yeah, OK.
“No, I don’t think it should be overturned,” Mrs. Bush told NBC’s “Today Show” when asked about the high court’s decision, Roe vs. Wade.
Roberts is Catholic, by the way.



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Zippy

posted July 20, 2005 at 12:45 am


And I am telling you, Roberts is solid. If he wasn’t, or there was any question about his originalist/textualist credentials,…
I don’t know precisely what is meant by textualist here, but I caution people against falling in to the trap of thinking that legal positivism with respect to the constitution is a good – or even ultimately rational – idea.



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BillyHW

posted July 20, 2005 at 12:53 am


He is a practicing Catholic.
Is that in the sense we understand it, or in the sense John Kerry understands it?
Because if it’s the former we’ve hit the jackpot!



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Jay Anderson

posted July 20, 2005 at 1:01 am


I’m cautiously optimistic about Roberts. I also think that Chuck Schumer will try to use his (and his wife’s) Catholicism against him – just like he did in the hearings for William Pryor.
But what I really want to know is why we are all wasting our time talking about the Supreme Court? Drat that Sandra Day O’Connor for retiring just to detract attention away from the treason over Valerie Plame!
(Apparently, ajb is working with a definition of “treason” that I’m unfamiliar with.)



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mark

posted July 20, 2005 at 1:09 am


“‘I would tend to doubt that, having a pro-life wife, he would not himself be pro-life.’
Yeah, OK.”
All right, Zippy, let me put it this way — Do you really think, does ANYBODY really think, that Mrs. Roberts, having served as executive vice president of Feminists for Life, would stay with a man who was pro-abortion???? Obviously, NO. Would she be able to stay, in good conscience, with a man that was agnostic on abortion???? Again, No. Someone who has been an executive officer for FFL is going to have a fairly hardline pro-life husband.



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David Kubiak

posted July 20, 2005 at 1:21 am


Thia will be the great test case of a question that has been much in people’s minds of late: Is it possible for a good Catholic to hold high public office in this country?



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mark

posted July 20, 2005 at 1:23 am


I wonder if it would be at all helpful, at this point in time, for the bishops to reassert the more recent statements regarding the obligations of Catholic politicians with respect to abortion and, specifically, to warn Catholic senators to not engage in scandalous demagoguery by suggesting that abortion is a fundamental right or that it is in anyway pro-woman? Is this a good time to bring up the communion and pro-abortion politician issue?
Perhaps we should be encouraging our own bishops to speak up at this time?



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Zippy

posted July 20, 2005 at 1:26 am


Do you really think, does ANYBODY really think, that Mrs. Roberts, having served as executive vice president of Feminists for Life, would stay with a man who was pro-abortion????
Two entirely separate thoughts:
1) “Pro-abortion” and “unwilling to overturn RvW” are not quite the same category, and what seems impossible to you and I seems quite possible for (e.g.) George and Laura Bush.
2) I don’t think the Church considers heresy on the part of a spouse to be grounds for divorce. (Mainly I don’t think that because the Church doesn’t consider anything at all to be grounds for divorce understood as the actual dissolution of a valid marriage). I don’t know anything about Mrs. Roberts, but I presume for the sake of charity that the answer to your question is “yes”.



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mark

posted July 20, 2005 at 1:31 am


“I don’t think the Church considers heresy on the part of a spouse to be grounds for divorce.”
Did I say “divorce” Zippy? No, I did not. I said would she stay with him. The Church recognizes that some situations will warrant that a couple no longer continue to live together. They would still be married, of course, but they would not be together. And all I can say is that, if my wife were pro-abortion, I would not be living in the same house as she.



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mark

posted July 20, 2005 at 1:37 am


I really don’t understand this tendency of so many pro-lifers to eat their own, to look for every excuse to attack and attack, not realizing that they are fragging their own troops.



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Zippy

posted July 20, 2005 at 1:37 am


Did I say “divorce” Zippy? No, I did not.
I think that is part of why we have these discussions: for the sake of clarification. Would you leave your wife if she were a supreme court judge and genuinely thought she didn’t have the authority to overturn RvW? And as a follow-up, how certain are you that Mrs. Roberts thinks just as you do?



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BillyHW

posted July 20, 2005 at 1:47 am


What’s with all the off topic posts?



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Zippy

posted July 20, 2005 at 2:09 am


What is off-topic about discussing Roberts’ pro-life credentials?



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Mark Shea

posted July 20, 2005 at 2:20 am


I gotta hand it to Dubya. He came through. May God help him get this guy on the Court! And may he pick somebody just as good when Rehnquist retires!
O Lord, hear our prayer for an end to abortion!



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Anonymous

posted July 20, 2005 at 2:29 am


I gotta hand it to Dubya. He came through. May God help him get this guy on the Court! And may he pick somebody just as good when Rehnquist retires!
But those with the Charism of Condemnation have spoken: Roberts is Souter II!



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BillyHW

posted July 20, 2005 at 2:47 am


Can anyone find out which parish Roberts attends and who his priest is?



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Mike Petrik

posted July 20, 2005 at 6:30 am


I know the Bush Admin lawyers who were responsible for vetting Judge Roberts. In fact, I was with them last night. It is absolutely true that we cannot know how Roberts will behave once on the Court. But news flash: that would be true of any nominee. It is also true that it would be highly inappropriate for a nominee to disclose how he would rule on a matter likely to come before him, since such a disclosure would fly in the fact of judicial impartiality. And the Bush Administration, properly and studiously, refrained from ever asking such questions.
That said, my good friends are very happy; and they are pro-life. Very pro-life.



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Shy One

posted July 20, 2005 at 6:36 am


I don’t like the way these posts are getting so personal. I understand why we’re so eager to dig into this man’s private life – (some of us sound like we’d pay to have his priest reveal the man’s confessions) – but in the end, folks, we have to trust God to protect this nation. In the end, we get the nation we deserve and pray for. Have we been praying, really?
There is no reason so far to be up in arms over Roberts. I am cautiously optimistic, and am leaving it to God to coninue to inspire him to make sound, morally good decisions for this country. Let’s pray for him, for the pressure will be awful to legislate differently.



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c matt

posted July 20, 2005 at 8:48 am


That’s why pro-aborts press the nominee to say it: it boxes them in. Don’t tell me it’s meaningless
I understand the confirmation process, but what is there to stop a nominee who says that, as a pracitcing lawyer, judge or academic, RvW is the settled law of the land, but as a SC Justice, “unsettling” that law? What are thy going to do, take away his seat or “unconfirm” him three years down the road because he changed his mind?
And what does it mean to say as a lawyer/lower judge “it is the settled law of the land”? Is that a personal opinion on RvW’s merits, or simply an opinion on what is the current state of the law? Settled does not necessarily = unchangeable, in lawyer speak, it generally means that precedent supports it.



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Susan Peterson

posted July 20, 2005 at 8:50 am


I really think marriage vows include being faithful to a person who has opinions which disagree with ones own, even on important matters. I don’t think “faithful” really includes abandoning the spouse even if one doesn’t have sexual relations with another person. When you promise to honor and cherish the person, that means you honor them as a separate person with the freedom which is proper to a person, including the freedom to have one’s own thoughts, ideas, feelings, and beliefs, political and religious-even if you are sure the person is completely, radically, mistaken. I can see that there would be issues such as giving common money to radically opposed causes, what do we tell the children etc and that these would be difficult and the impossibility of resolving them and living in peace could lead to a separation, but one would be obliged to try to reach a fair resolution of those issues before resorting to a separation.
And threads have branched out before, and this is something a lot more within the experience and the competence of a lot of us to discuss than speculation about how this new Supreme Court Justice will vote.
Susan Peterson



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TSO

posted July 20, 2005 at 8:52 am


It appears those who were skeptical about whether the Bush & the Republican party were playing pro-lifers for fools might be too cynical by a half.
Congrats to Mark Shea for being a stand-up guy and giving credit where credit is due.
The Knights of Columbus love him:
Supreme Knight Carl A. Anderson, head of the 1.7 million member Knights of Columbus, this evening called Judge John Roberts “a first rate choice for the United States Supreme Court.”…“Judge Roberts is exactly the kind of nominee that members of both parties have described as the kind of choice the President should make,” Anderson said. “He is one of the brightest legal minds in America, graduating at the top of his class at Harvard Law School, and has a well-deserved reputation for fairness, integrity and superb judicial temperament on the U.S. Court of Appeals for the D.C. Circuit.”“During his years in private practice,” Anderson recalled, “he argued a case pro bono – free of charge – on behalf of some of the District’s neediest welfare recipients, who were about to lose their benefits under the D.C. Public Assistance Act. He is someone who knows and appreciates the plight of the poor, especially those who have the most difficult time getting fair and even-handed treatment in our legal system.”



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c matt

posted July 20, 2005 at 8:54 am


“Settled law” and “stare (in)decisis” didn’t mean much in Lawrence, did it?



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jay

posted July 20, 2005 at 8:59 am


Talk about Much Ado About Nothing – can anybody here count? Roe v. Wade will not be overturned only on account of Roberts being confirmed. Even if he is so inclined, there is a five-vote majority supporting the travesty.
If Rehnquist is the next Justice to resign, the pro-life goal would just to replace the anti-Roe vote on the bench.
The real fight will likely come when Ginsberg or Stevens steps down. If a Republican president nominates the replacement, expect the Mother of All Smear Campaigns.
P.S.
For some really good laughs, visit Democratic Underground or Daily Kos. The ways in which they describe someone many know nothing about are quite humorous.



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mrp

posted July 20, 2005 at 9:01 am


According to an article at the Indystar.com site, Judge Roberts spent most of his childhood in Indiana and graduated from La Lumiere Catholic boarding school.



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Patrick Rothwell

posted July 20, 2005 at 9:13 am


FWIW, I’m very happy with the selection. Any attempt to slime Judge Roberts will not go over well with the country as a whole. The liberal pressure groups, and not the conservative ones – for once – have a real political problem on their hands.



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Maclin Horton

posted July 20, 2005 at 9:17 am


Well, Anonymous, since I have no way to credit you, you leave me with no choice but to steal this: those with the Charism of Condemnation have spoken. Great line.



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chris K

posted July 20, 2005 at 9:28 am


Since Roberts is Catholic, I’m waiting for somebody like a Kennedy to ask him if he is loyal to the bishops (well, at least those orthodox ones). And if so, does he receive the Eucharist (with all the necessary prerequisites of being worthy as understood by that teaching)? Thus, he must take no action which would have the influence to continue this killing of the unborn. Could such questioning form a clearer picture of the man without asking him to specifically comment on how he would rule?



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Septimus

posted July 20, 2005 at 9:36 am

Septimus

posted July 20, 2005 at 9:42 am


Lest I be misunderstood: I’m not saying Roberts is a BAD guy; I’m saying there’s not enough here to be so certain he’s a GOOD guy, on the salient, jurisprudential issue of our time: Roe v. Wade.
On that issue, we have only the barest glints; the one time he spoke of his own views, his comments gave us nothing to cheer about; the best anyone can say about his “settled law” comments is to dismiss them as essentially meaningless…
Which brings us back to NOTHING to go on, as to what promise he holds on Roe.



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chris K

posted July 20, 2005 at 9:48 am


Looks like Septimus has a friend in Ann Coulter (via Drudge):
http://drudgereport.com/flash3acj.htm



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Ed the Roman

posted July 20, 2005 at 9:51 am


Re Thomas for Chief, he’s the youngest Justice right now. The real argument against him for Chief is he has said he is not willing to go through another set of hearings.



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Matthias

posted July 20, 2005 at 9:56 am


Of course you can’t be positive Roberts would overturn RvW. Anybody who had a record so clear that you could be sure of it could not be confirmed and so would not be nominated.
Based on what I’ve read so far I’d say Roberts is about equally likely to follow in the footsteps of Scalia or Kennedy. For someone replacing O’Connor those aren’t bad odds.



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Rick

posted July 20, 2005 at 10:04 am


Which brings us back to NOTHING to go on, as to what promise he holds on Roe.
Any candidate who did provide “something to go on” — in Mike Petrik’s words, who “disclos[ed] how he would rule on a matter likely to come before him” — would never be confirmed.
Roberts would have been 32 or so at the time of the Bork nomination in 1987. Hardly time to establish much of a record.
But old enough to take this lesson: If a pro-life lawyer is to ascend to the SC, it is necessary to keep any reservations with the argument of Roe v Wade to him or herself.



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Mike Petrik

posted July 20, 2005 at 10:06 am


Mark my words: Roberts is a great nomination. Bush knows what he is doing.



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Septimus

posted July 20, 2005 at 10:16 am


I don’t accept the claim that no one not stealthy on Roe can’t be confirmed. It is a supposition, nothing more.
I cite for you what Fred Barnes, a bright and measured, solid conservative commentator, said this (via RealClearPolitics) at the Weekly Standard. Read it carefully.
The Roberts nomination didn’t prompt conservatives to jump for joy, though he was widely praised. Cornyn called him a “solid pick.” Republican Sen. Tom Coburn of Oklahoma offered no praise at all. He said the Senate must examine Roberts’ “loyalty to the Constitution and its strict construction.” Sounding a bit like Democratic Sen. Chuck Schumer of New York, who is sure to spearhead the opposition to Roberts, Coburn said senators have the right to ask “any appropriate question.”
Social conservatives were hoping for more. No doubt they’ll line up in support of Roberts when Democrats like Schumer and groups such as People for the American Way begin to attack him. But they dream of the day when there are five votes on the court to reverse the 1973 Roe v. Wade decision, which legalized abortion. Now there are only three. Is Roberts likely to join a anti-Roe bloc on the court? Probably not.
Noteworthy: Sen. Tom Coburn “offered no praise at all.” For a GOP Senator to jump for joy means little; what do you expect?
But for a GOP Senator — a freshman — to WITHHOLD praise is very noteworthy. Last night, I found myself wondering, what would Sen. Jesse Helms, the most reliable conservative pole-star in many years, have to say? Well, Coburn is very much a budding Jesse Helms.
Notice what’s happening here: everyone “on the right” was waiting, with baited breath, fearing the worst, hoping, hoping…they–we–WANT to be happy about this! It’s no surprise that after the threat of Gonzales, then Clement, everyone is breathing a sigh of relief.
Mike Petrik, and others: no offense, but your personal assurances don’t have much cash value. They express a HOPE, a hope I share. I WANT Roberts to be all you say. But wishes don’t make it so.
No, he’s no Souter. And probably not a Scalia. If he’s a Rehnquist, as some suggest, that’s pretty good. What if he’s a Kennedy?



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cc

posted July 20, 2005 at 10:38 am


For the reality-impaired among you: http://www.naral.org/



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Zippy

posted July 20, 2005 at 10:48 am


…those with the Charism of Condemnation have spoken. Great line.
It isn’t “condemnation” to point out public facts and raise reservations. I understand that when Roberts made his comments on Roe during his last confirmation hearing that he was doing what was expected of him. But proclaiming Roe settled law and stating that he has no problem enforcing it is at least material and probably formal cooperation with evil. No amount of objection that that is what the legal establishment expects, or that anyone who doesn’t formally cooperate with evil is confirmable, can make this not the case. It isn’t that I don’t understand the present legal system, it is that the present legal system demands formal cooperation with evil.
Susan Peterson wrote:
I don’t think “faithful” really includes abandoning the spouse even if one doesn’t have sexual relations with another person.
Exactly. My reaction was to the (apparent) “if my spouse became pro-choice I would abandon her” thesis as a valid premise to the “a pro-lifer like Mrs. Roberts can’t have a pro-choice or indifferent spouse” conclusion.
If someone claims to know Roberts personally and have all sorts of insider information that is all well and good. But based on public information not involving winks and backslaps the appropriate posture at this point is caution, not yelps of triumph.



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al

posted July 20, 2005 at 10:54 am


That Tribune article referenced above seems to have some positive indications: “Shannen Coffin, a Washington lawyer who has worked with and argued against Roberts, said he was also willing to take on cases that didn’t necessarily mold with his personal political views. He described Roberts as a “traditional Catholic” who does not talk about his religion.
“He’s a guy who’ll show up for mass on Sunday and that’s sort of his own business,” said Coffin, who attends the same church.”



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Zippy

posted July 20, 2005 at 10:56 am


No doubt they’ll line up in support of Roberts when Democrats like Schumer and groups such as People for the American Way begin to attack him.
This is the way our politics works in general. A grossly unacceptable candidate (John Kerry) is juxtaposed to a candidate who is relatively speaking less grossly unnacceptable (George Bush). But the thing about choosing the lesser of evils (speaking here about policy/programme choices, not persons) is that what you get is what you choose: evil.
And “Conservative” in the case of Judge Roberts appears to mean “has had 50 years to say something controversial and hasn’t done so yet”.



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Ed the Roman

posted July 20, 2005 at 11:00 am


It’s pointless to complain that trial and circuit judges don’t trumpet negative opinions of Roe. Because their opinions
D O
N O T
M A T T E R.
They are stuck with it, unless and until SCOTUS reverses or we have 2/3 of both Houses and 3/4 of the legislatures.



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Mike Petrik

posted July 20, 2005 at 11:02 am


Septimus,
My assurances are always bankable. Trust me on this. ;-)
That said, Jay is correct. Even with Roberts’ confirmation, Roe is likely still upheld 5 to 4. Rehnquist’s resignation won’t change that fact. We must wait for a resignation from Stevens, Ginsberg, Breyer, Souter or Kennedy. The two most likely to resign soon are Stevens and Ginsberg, but they will wait for a Democratic president if at all possible.
The pro-life legal forces have some tough sledding ahead. While stare decisis in Consititutional matters is of limited import at the Supreme Court level, it is not without some force. The more Roe is affirmed the more entrenched stare decisis is, even for the Supreme Court. A premature rechallenge of Roe could backfire by further solidifying its stare decisis value. Nothing is easy, I’m afraid. That said, I’m confident that Roberts is an important step in the right direction.



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Zippy

posted July 20, 2005 at 11:10 am


It’s pointless to complain that trial and circuit judges don’t trumpet negative opinions of Roe.
It isn’t the “it is settled [positive] law” comment that is the major problem, Ed. It is the “I personally have no problem enforcing it”. That is indicative, though not conclusively, of formal cooperation with evil.
Now of course we don’t want to hang the guy for one mistaken pronouncement a few years ago. We don’t really know much about him at all. But we also don’t want to propogate the meme that his mistake was not a mistake (and frankly I am more concerned about that at the moment than about the nomination itself).
I realize that nine out of ten Open Book commenters are attorneys. I think that implies a lot of specialized knowledge and intelligence but it also implies the blinders that often go with specialized expertise.



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Zippy

posted July 20, 2005 at 11:16 am


Mike: I am sure that your personal assurances are credible and I appreciate them, but perhaps you can appreciate that given your legal positivism that is, for me personally, an additional reason for caution.



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Bill

posted July 20, 2005 at 11:19 am


Septimus, I think you’re 100% correct in your analysis. Justice Roberts may turn out to be great on pro-life issues before the court, but, right now, all we have to go on are his “non-extreme”, although conservative seeming, background and the assurances of Jay Sekulow, Tony Perkins, etc. Granted, these are nice to hear and seem genuinely positive, but ultimately they may turn out to mean as much as Sununu’s assurances about Souter back in the day. Frankly, I’m disappointed that another Bush has opted for a stealth candidate. Why all the secrecy? Bush campaigned expressly that he would appoint judges like Scalia and Thomas. Why not follow through and actually nominate someone with a clear jurisprudence and a record to back it up? Is that really too much to ask? Procedurally, I agree with Sen. Schumer (however cynically he may make the case) that a nominee should reveal his jurisprudence and describe how he believes the consitution should be interpreted. (As I’m sure the Democrats know full well, just because the Republicans dropped the ball on Ginsberg and Breyer doesn’t mean that willful ignorance should be the basis for a yes-vote for confirmation.) Confirmation hearings should properly include a discussion of the nominee’s understanding of Roe and of the effect of stare decisis. Otherwise, all we are left with is wondering exactly how “devout” a Catholic he may be and guessing about his wife’s beliefs.



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mark

posted July 20, 2005 at 11:23 am


If the issue of Roe comes up, and it will, Roberts will have only two options –
(1) follow the text of the Constitution, in the light of 230 years of American history and tradition, and OVERRULE Roe, or
(2) if Roberts feels that, as a judge, he is bound by precedent, that caselaw is greater and more authoritative than the Constitution itself, and that he is bound to re-affirm Roe, then, as a Catholic, his only other option is NOT to so re-affirm, but to RESIGN from the bench.
And his bishop (the ever-popular Cardinal McCarrick, in as much as he is from Bethesda, Maryland), has an obligation to counsel him not to be a Cuomo/Kerry/Kennedy personally-opposed-but “Catholic.”



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Anastasia

posted July 20, 2005 at 11:23 am


Yes, I have doubts regarding Roberts’ nomination, but I believe a solid and wise pro-life attorney with judicial aspiration would wisely remain silent regarding pro-life issues. Sadly, in modern times, this is the only way a person can survive a nomination hearing considering the fact known pro-lifers do not have a chance at a SCOTUS nomination. To a certain degree, I am concerned regarding Roberts’s comment:
“Roe v. Wade is the settled law of the land. … There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”
However, considering the way our legal system work, while a judge may not agree with current established law, he or she must follow the established law of the land while in lower courts. The ability for the appellate courts to set precedent is limited and near impossible when established law and precedent exist. If a justice’s rulings do not stay within established bounds through rulings based solely on faith instead of well-reasoned legal grounds, this judge makes a fool of his or her self. Do we want a pro-life judge to doom his or her self early on or patiently play the needed game until precedent can be set?
Given the fact, this Catholic man quietly goes about his life gives the pro-life movement a ray of hope. Will Roberts move to the left as many after confirmation? In all honestly, none of us know and we should persevere prayerfully in joyful, hope that our prayers are about to be answered. While I have my doubts, I support those who believe we should support Roberts instead of tearing him apart at this moment.



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mark

posted July 20, 2005 at 11:29 am


Another point, and one on which we can all agree on, because he has said so very clearly in the past — CJ Rehnquist has no problem with overruling Roe, he does not believe that stare decisis demands that it remain the law.
That being so, do not forget that Roberts was his former clerk and, not only was Roberts influenced by him in his jurisprudential development (presumably), but I would expect him to continue to be amenable to influence from Rehnquist, if he is still on the Court when Roe returns, and that he would go along with Rehnquist in overruling it.



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Zippy

posted July 20, 2005 at 11:36 am


…considering the way our legal system work, while a judge may not agree with current established [positive] law, he or she must follow the established [positive] law of the land while in lower courts.
People keep repeating this as if it were settled fact, but it is directly contrary to Catholic doctrine and the natural law. If the positive law violates the natural law it must not be followed. Following it is material cooperation with evil, and asserting that following it is the right thing to do is formal cooperation with evil. And formal cooperation with evil in a serious matter is virtually always a mortal sin when done with knowledge and consent.
Septimus is right. If Roberts said it but didn’t really mean it, that is a problem. If Roberts said it and meant it that is even more of a problem, and I take it to be the more likely of the two. It isn’t that Catholicism and the natural law don’t understand the lawyers it is that the lawyers don’t understand Catholicism and the natural law.
Do we want a pro-life judge to doom his or her self early on or patiently play the needed game until precedent can be set?
We don’t want pro-life judges formally cooperating with evil, because we don’t want anyone formally cooperating with evil.



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mark

posted July 20, 2005 at 11:36 am


Besides, the easiest thing in the world would have been, in past confirmation hearings, for Roberts to placate and appease the rabid Dems. If he was pro-Roe, he would not have been as coy with the issue as he was. In order to take the heat off, he would have made more specific references to Roe, and he would have used pro-abort code words and phraseology, such as “reproductive freedom” and “choice.” To be sure, he could have met privately with the rabid Dems and told him that he is one of them, and it would have sped his prior confirmation, which was hung up for over 11 years. The fact that he did not, says to me that he is not one of them, he is not a personally-opposed-but-required-to-follow-precedent type of person.



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Bill

posted July 20, 2005 at 11:39 am


Anastasia,
Bush and pro-life Republicans have made political hay among social conservatives for years by griping about Roe. If they cannot get a clearly pro-life judge, who will be a reliable vote to overturn Roe, through a confirmation process when they control the choice of nominee, the Senate judiciary committee and the Senate itself, then what good are they? By accepting the view that a clearly pro-life judge is unconfirmable, you are driving the pro-life issue to the political margins, where, I suspect, many Republicans would like it to remain.



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mark

posted July 20, 2005 at 11:44 am


All I know is that my personal experiences in this area show that Roberts has been smarter than me (not hard to do, as I’m sure you all are) in not being outwardly and assertively pro-life. As for me, I was dumb enough to work too many jobs at pro-life organizations and I was dumb enough to put such jobs on my resume, thereby disqualifying myself and getting put on a blacklist at 85 percent of the law firms out there. Roberts clearly isn’t that dumb.



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Richard

posted July 20, 2005 at 11:45 am


Septimus,
It’s true that we don’t have a whole lot on him in the public record but from what I have heard, he smells like a Rehnquist. Or something close to it.
If that’s what we’re replacing Weathervane O’Connor with, I consider that progress.
If he turns out to be Kennedy, it wouldn’t be much progress at all. But I don’t get that vibe. He seems pretty well formed and less likely to “drift” or “grow” the way Kennedy has in recent years.
The scuttlebutt now is that both Stevens and Ginsberg are not in the best of health and that Stevens (85) in particular has taken a few actions which may be suggestive of a retirement in the next year or so.
So I think it’s quite likely Bush will end up with 3 or 4 Supreme Court picks. The ones which replace Stevens and or Ginsberg will indeed be volcanic.



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Bill

posted July 20, 2005 at 11:52 am


Zippy,
I agree that Roberts comments, as I understand them, about appying settled law do not seem to reflect very well on him. However, I do not see them as unreconcilable with the positivism of a Justice Scalia and that would amount to a vote for the reversal of Roe. I hope Roberts clarifies this issue during his hearings.



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James Kabala

posted July 20, 2005 at 12:06 pm


Zippy,
Whether it’s right or wrong, I don’t think ANYONE on Bush’s short list would have endorsed the position that lower court judges can ignore Supreme Court rulings by appealing to “natural law.” As much as we may hope otherwise, such a person simply isn’t going to come along.



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Tom

posted July 20, 2005 at 12:08 pm


If the positive law violates the natural law it must not be followed.
But Zippy! That’s contrary to the positive law!



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Ed the Roman

posted July 20, 2005 at 12:09 pm


I hope Roberts does NOT clarify them in his hearings. Prejudging a case tends to not work well for the nominee.
And if it is required that all Catholic judges refuse to enforce Roe, then there won’t be Catholic judges until AFTER Roe is gone. So get to work on that RtL amendment, because if Catholics depart the judiciary en masse, amendment is the only thing that will ever stop Roe.



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Zippy

posted July 20, 2005 at 12:10 pm


…I do not see them as unreconcilable with the positivism of a Justice Scalia and that would amount to a vote for the reversal of Roe.
I agree that Roberts sounds positivist. I just don’t agree that that is a good thing. Pro-lifers have fooled themselves into thinking that textual positivism and rejection of the natural law will get them the outcomes they want (just as protestants have fooled themselves into thinking that biblical positivism and rejection of extra-textual meaning will get them what they want). But their positivism can just as easily be turned against them, and in all likelihood it will be because they are completely unaware of the danger. What we need is not the Vienna Circle applied to the legal sphere. What we need is Augustine, Acquinas, Blackstone, and St. Thomas More.
Now probably a lot of conservatives are thinking “who cares about philosophical esoterica if we can save the babies?” But that is just the point: we won’t save the babies without getting the jurisprudence right. And we are never, ever justified in formally cooperating with evil in the attempt to do good.



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Zippy

posted July 20, 2005 at 12:12 pm


But Zippy! That’s contrary to the positive law!
Actually there is no statute or Constitutional provision that requires legal positivism. But if there was, natural law would trump it.



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Julia

posted July 20, 2005 at 12:14 pm


Dear blog folks -
Am eavesdropping here – this is Julia Duin from the Washington Times – can anyone help as to locating which parish the Roberts family attends? The archdiocese of Washington won’t say. Also, re this Feminists for Life connection, Jane’s name is nowhere to be found on their web site and the FFL staff is conveniently out of the office today. A coincidence?
Email is JDuin@WashingtonTimes.com if you have any insights. It’s one thing to read about this stuff on blogs – but we have to confirm all this. Any help would be appreciated.



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Zippy

posted July 20, 2005 at 12:16 pm


So get to work on that RtL amendment, because if Catholics depart the judiciary en masse, amendment is the only thing that will ever stop Roe.
I made that very point in the comments of my own blog, under the blog entry entitled “Sola Constitution”. Positivism is not where the money is: it is a total head-fake. Amendment is where – the only place where – the money is. And we are better off facing that fact than living in denial. We can’t save the day through positivism. We can only save the day by making the positive law align to the natural law.



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mark

posted July 20, 2005 at 12:17 pm


Since the Dems are all ga-ga over St. Sandra, I wonder what they would do if Roberts were to adopt O’Connor’s absolutely brilliant opening words to her dissent in Thornburgh (before we got the knife in the back) –
“This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 452 (1983) (O’CONNOR, J., dissenting). Today’s decision goes further, and makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion. The permissible scope of abortion regulation is not the only constitutional issue on which this Court is divided, but — except when it comes to abortion — the Court has generally refused to let such disagreements, however longstanding or deeply felt, prevent it from evenhandedly applying uncontroversial legal doctrines to cases that come before it. See Heckler v. Chaney, 470 U.S. 821, 838 (1985); id. at 839-840, n. 2 (BRENNAN, J., concurring) (differences over the validity of the death penalty under the Eighth Amendment should not influence the Court’s consideration of a question of statutory administrative law). That the Court’s unworkable scheme for constitutionalizing the regulation of abortion has had this institutionally debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade, 410 U.S. 113 (1973).”



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William Bloomfield

posted July 20, 2005 at 12:18 pm


I’m very happy with Roberts’ nomination, and as a follower of Feddie’s blog, am willing to trust him on this. Mike Petrik has given Roberts his support on this thread. Dick Thompson of the Thomas More Law Center is also supporting him. In short, I see no reason not to trust him. As others have said, for an appellate court judge, Roe is “settled law.” Being on the Supreme Court is a whole ‘nother ballgame.



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James Kabala

posted July 20, 2005 at 12:20 pm


By the way, if Roberts is confirmed, Catholics would outnumber Protestants on the Court for the first time in history.
Catholics: Scalia, Kennedy*, Thomas, Roberts
Protestants: Rehnquist, Stevens, Souter
Jews: Ginsburg, Breyer
Although he may deserve excommunication, I am counting all self-described Catholics.



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mark

posted July 20, 2005 at 12:20 pm


Hey Julia — please ask Cardinal McCarrick to comment on whether a good Catholic on the Supreme Court can vote to uphold Roe, or whether he would be obligated to either overturn it or resign.



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Zippy

posted July 20, 2005 at 12:24 pm


Whether it’s right or wrong, I don’t think ANYONE on Bush’s short list would have endorsed the position that lower court judges can ignore Supreme Court rulings by appealing to “natural law.” As much as we may hope otherwise, such a person simply isn’t going to come along.
I agree that the legitimate options for a Catholic are mainly to be honest and otherwise keep his mouth shut, and that those two things drastically reduce the chances of confirmation. A functional protestant is much more confirmable, and a legal positivist is (in the legal sphere) a functional protestant.
I mean, we are drilling down into a single comment made by the man at one time. And I have no problem with the first part of it – that Roe is indeed established positive law. I do have a problem with the second bit – no personal problem enforcing Roe.



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Bill

posted July 20, 2005 at 12:36 pm


Zippy,
Positivism is deeply flawed. I don’t consider origininalists like Justice Scalia to be quite the heroes that some of their overzealous fans believe them to be. (Indeed, Justice Scalia would seem to share my estimation of his fan club. I was at a talk he gave before a Catholic group in the late 1990s and he expressed his dismay that he was considered such a hero among convservative Catholics. In his view, he was just doing what a text and its history required him to do.) Even Justice Thomas, to my knowledge the only justice open to a natural law jurisprudence, grounds his openness to natural law in a species of positivism that sort of incorporates the Declaration of Independence into the Constitution. However, I do not see anything wrong with Catholics voting for or even lobbying for textualists who would vote to overturn Roe. The fetishistic regard some Catholics hold the text of the Constitution is unsettling, but support for positivist judges would seem to be a prudential matter to begin to bring the postive law into accord with the natural law.



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Jay Anderson

posted July 20, 2005 at 12:41 pm


I must admit that this post from Septimus has given me cause to reevaluate my “cautious optimism” over Judge Roberts:
Consider what John Yoo — a conservative, wired-in-to-the-Bush-White-House academic, said to the Washington Post: read his praise of Roberts carefully:
John C. Yoo, a conservative professor of law at University of California at Berkeley who served in the Justice Department in the current administration, emphasizes what he called Roberts’s traditional approach to the law. In the 39 cases that Roberts argued before the Supreme Court — 25 of which he won — Yoo said he never pushed the court to adopt “big new theories” but rather argued the facts of his cases.
He’s the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like,” Yoo said.
What the social conservatives want is someone who will overturn Roe. v. Wade and change the court’s direction on privacy,” he added. “But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they’re not out to shake up constitutional law. They might make course corrections, but they’re not trying to sail the boat to a different port.”



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Bill

posted July 20, 2005 at 12:44 pm


William,
Has Feddie, Mike P., Dick T., or any of the other conservative cheerleaders for Roberts provided any basis for their ringing endorsements? Isn’t that what we need to consider in our evaluation of the nomination? As that old natural lawyer St. Thomas pointed out, arguments from authority are the weakest form of argumentation.



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David R.

posted July 20, 2005 at 12:47 pm


A lower court judge would commit career suicide by disagreeing and refusing to apply Roe. Just as it would be suicide for an aspiring circuit judge to state that he or she would not apply Roe. That could be the context of Roberts’ confirmation hearing statements.
It would take a remarkable and heroic judge to refuse to apply binding Supreme Court precedent where the natural law require it. For example, I desperately hoped that at least one of the judges hearing the partial birth abortion cases would go against the previous Carhart decision. If one of the judges did, he would have done the right thing and earned praise from pro-life and Catholic leaders, but he would have received the scorn of the the legal community which has wholeheartedly jumped on the leftist cultural bandwagon. Basically, it is alot to ask for a lower judge to do what is required by natural law and Catholic teaching.



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mark

posted July 20, 2005 at 12:47 pm


Julia — a better question to ask Cardinal McCarrick, and the one I was really more interested in, is whether a Catholic Senator can permissibly oppose a Supreme Court nominee because he is, or is perceived to be, anti-Roe?



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Bill

posted July 20, 2005 at 12:51 pm


Julia,
Since no one seems to know much about Judge Roberts jurisprudence, maybe it is appropriate to look into other matters (like his parish). Do you know anything about his alma mater La Lumiere, which the NYT described today as a “nominally” Catholic school? Their website says the school is an independent Catholic school founded by local businessmen. Is this coded language meaning Opus Dei??



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James Kabala

posted July 20, 2005 at 12:52 pm


Of course, the argument for authority doesn’t work for John Yoo either.
His wife’s support of Feminists for Life is a good sign, but, of course, there’s no guarantee that spouses agree on abortion, although I find it hard to believe that two people could be truly compatible when disagreeing on something so fundamental.



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David R.

posted July 20, 2005 at 12:53 pm


That would be a good question, mark. Everybody knows that the battle here is about abortion, and nothing else. No doubt there will be many “catholics” attempting to block anyone they perceive as pro-life. I imagine that if they are ever called on it they will hide behinds some form of the “seamless garment” dodge.



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Mike Petrik

posted July 20, 2005 at 12:59 pm


Julia,
I understand it is St. Patrick at 619 10th Street.



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Bill

posted July 20, 2005 at 1:05 pm


James,
Who’s John Yoo? He just some guy that points out that Roberts fits the profile of an establishment Washington insider that is not likely to shake things up by overturning Roe. It’s Roberts profile that Yoo points out, not the fact that Yoo has doubts that Roberts will overturn Roe, that should cause pro-lifers to temper their enthusiasm.



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Zippy

posted July 20, 2005 at 1:08 pm


Basically, it is alot to ask for a lower judge to do what is required by natural law and Catholic teaching.
Indeed it is a lot, and at the same time it is the very minimum required for someone who has chosen the profession. That is true of most moral imperatives. He could have refused to answer the question, but that would have reduced his chances of confirmation.
Attorneys and judges have a noble calling, and one of the most heroic of patrons in St. Thomas More. It doesn’t surprise me that choosing a profession with More as patron would often require heroism of a sort that mirrors More’s own quite closely.



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Zippy

posted July 20, 2005 at 1:22 pm


However, I do not see anything wrong with Catholics voting for or even lobbying for textualists who would vote to overturn Roe.
Oh I don’t see anything necessarily wrong with it as remote material cooperation with evil in the pursuit of a good end, but I do see something wrong with it as formal cooperation with evil. My objection is to the constant litany about how textual positivism and rejection of the natural law are good or are morally required in our system. It isn’t tactical remote material cooperation with positivism to which I object. It is labeling as good what is evil in fact – proximate to formal cooperation with evil – to which I object.



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Previous Posts

There is nothing I shall want
A couple of weeks ago, a memorial Mass for Michael was held here in Birmingham at the Cathedral. The bishop presided and offered a very nice, even charming homily in which he first focused on the Scripture readings of the day, and then turned to Michael, whom he remembered, among other things, as on

posted 9:24:16am Mar. 05, 2009 | read full post »

Revolutionary Road - Is it just me?
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posted 9:45:04pm Mar. 04, 2009 | read full post »

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posted 9:22:07pm Mar. 04, 2009 | read full post »

Why Via Media
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posted 8:54:17pm Mar. 04, 2009 | read full post »

Brave Heart?
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posted 10:19:45pm Mar. 03, 2009 | read full post »




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