Thursday, July 28, 2005

Questioning Roberts on Roe

It would appear to be the "elephant in the room," whether or not members of the Senate Judiciary Committee can expect Judge Roberts to answer questions regarding how he feels about Roe v Wade.

I don't care to spend time considering the arguments of the interest groups that oppose Roberts because they fear he indeed will be a vote to overturn Roe.

But here is a fabulous discussion at The Volokh Conspiracy about the difficulty, not of asking the question (or how to ask it), but of answering it. The professor begins:

"The question that seems least answerable to me by Roberts in a confirmation hearing is the one in which most people are concerned--whether he would overrule Roe v. Wade. Not because of the issue of whether Roe was rightly or wrong decided in the first place, but rather because there is a separate and independent question of parsing the Supreme Court's confused and confusing stare decisis jurisprudence."

There follows an informative discussion (including excerpts of the impressive jurisprudence of Judge Edith Jones) about the difficulty of applying the doctrine of stare decisis at the Supreme Court level because of the unusually fact-intensive examination that is required in order to determine whether the doctrine should be applied. He concludes:

"The key point here, though, is that there is a big difference between whether to uphold precedent, versus deciding whether a case was correctly decided in the first place. The former seems to be exactly the sort of question that can't be answered in the abstract. Given that, I don't see how Judge Roberts could meaningfully answer that particular question based on the lack of a solid factual record."

Mr. Volokh (as usual) provokes widely variant (and all interesting) comments from his readers, some of whom have taken up the challenge of formulating just the kind of question that will corner the nominee, and one of whom (based upon the analysis by Judge Jones) comes up with the right response.

It's a great read, if you want to look behind all the blather that you're likely to hear from MSM and the advocates.

Wednesday, July 27, 2005

A Shocking Development

Here's something that makes me very nervous.

The taser gun, which has caused the deaths of as many as 105 suspects in confrontations with law enforcement, is now being marketed directly to the public -- and in many states, such as Florida, they can be purchased with no background check or other regulatory hurdle.

Oh I can hear my Second Amendment friends squawking already. You can buy a knife, you can buy a hammer, "when beer bottles are outlawed only outlaws will have beer bottles."

But these weapons do something that others do not. They (at least as intended) immobilize the target, rendering him (or her) helpless. How better to rape, rob or kidnap someone than to gain the easy upper hand for the first moments it takes to subdue them and take them under control. A victim cannot scream, blow a whistle, reach for his/her mace or handgun.

"The Taser stun gun, which looks like a pistol, uses compressed nitrogen to fire electrified barbs connected to the gun by insulated copper wires. Once the probes strike, the target is subjected to a 50,000-volt electric shock that lasts at least five seconds and -- in most cases, although not all -- proves incapacitating." (link)

And you can hit someone with a taser from as far as 25 feet away.

Bruce, Jay G -- give me your best rationale for making a device that delivers fifty-thousand volts of electricity freely available to the general public.

And So It Begins

The onslaught of cynical and insinuative attacks on John Roberts' conservatism has begun.

Consider this opening by the Boston Globe's Charlie Savage (great name for a reporter, yes?):

"As a young aide in the Reagan administration's Justice Department, John G. Roberts Jr., now a Supreme Court nominee, advised his conservative colleagues to cloak their views behind broadly acceptable terms such as ''judicial restraint," according to memos released yesterday."

Cloak their views. How sinister and dishonest! What was he referring to?

'In 1981, for example, when the Justice Department was prepping Supreme Court nominee Sandra Day O'Connor for the same Senate confirmation questioning that Roberts will soon face, Roberts counseled her to avoid giving direct answers on legal issues facing the court.

" 'The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the Court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments,' Roberts wrote in one memo describing the mock questioning sessions he held with her."

This is hardly groundbreaking strategy, and has been employed (as prudence requires) routinely by court nominees for decades. For what legitimate journalistic reason would Savage characterize this advice as "advising his conservative colleagues to cloak their views?"

It is clear from a fair reading of the material (insofar as it is quoted in the article) that, in fact, there was nothing sinister or controversial about Roberts' comments or advice -- he was (as the article briefly notes) simply counseling in favor of "the need to avoid the sharper edges of debate."

Sounds like prudent politics to me. Oddly, however, "avoiding the sharper edges of debate" is an art that has been entirely lost on the vast majority of Congress.

Savage's work here stands out (even among the Globe writers) in its biased innuendo.


And what do we make of this:

This morning's Globe carried a story by AP reporter David Espo, the headline of which was "Democrats seek more on Roberts." The story focused on the Senate Democrats' "struggle to unearth [Roberts'] elusive views on abortion, civil rights, and other controversial issues," highlighting the dispute over whether or not the White House should release documents from Roberts' days in the solicitor general's office.

[Ed.: "elusive views," as though Judge Roberts had something to hide, or indeed was hiding them.]

The article raises, only at the very end, the point that the attorney-client privilege has been the basis of refusal by seven former solicitors general from both Democratic and Republican administrations. But Joe Biden disagreed, saying "That's a big mistake [witholding the documents]. There's precedent for these kinds of documents being released in the past." And the article closes with Biden asking, "And why are they always looking for a fight?" (Huh??)

By noon today, the Espo article was no longer posted on the Globe's on-line version (and I could locate it nowhere else through Google). Instead, the Savage article had taken its place (in the Globe).

Like Savage's article, Espo pointed out Roberts' memorandum regarding the prepping of nominee O'Connor. But it also included reference to a later memo in which Roberts counseled Attorney General Smith how to respond to conservative sniping that judicial nominees were not conservative enough:

"...we should shift the debate and briefly touch on our judicial restraint themes. It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process," Roberts wrote.

Curiously, Charlie Savage did not find this portion of Roberts' counsel as worthy of reporting as did Espo.

Happily linked to OTB.

Tuesday, July 26, 2005

Karl Rove

Some Faces Lend Themselves to Caricature.

Like This One.

Monday, July 25, 2005

Spot the Irony

In today's Boston Globe, in an article entitled "Opposition to Roberts Slow to Muster," a member of the U. S. Senate had this to say:

''I hope that both Judge Roberts and the Bush administration will release all documents related to his professional record, including memoranda written during his time in the Justice Department. These documents should be released to the Congress in their entirety."

This member of the Senate was:

A. Arlen Specter
B. Orrin Hatch
C. Barbara Boxer
D. John "Band of Brothers" Kerry

Of course, the irony is that documents evincing attorney-client communications between John Roberts and the Oval Office (such as are released at all, that is) will have been forthcoming with much more alacrity than the military records of the Senator quoted above.

And let's bear in mind that the attorney-client privilege is not Judge Roberts' to waive.

Thursday, July 21, 2005

Mr. Justice Roberts

Some of you might have discerned that my brother, Jim, is the cartoonist featured liberally on this site. Like any "A-list" editorial cartoonist, he has a rapier wit, exercised more circumspectly some times than others.

Here is a typical demonstration of the perfection of his craft -- one of the many profiles he does on a regular basis of important people in the news.

On the other hand, sometimes Jim's cynicism gets the better of him, as in this cartoon, which is curiously susceptible to the ridiculous notion that Judge Roberts is an "empty suit." I'm sure that Jim only intended to suggest that "we don't know enough about" Judge Roberts and need to look into him closely. The left will be inclined to say many inaccurate things about Judge Roberts, deliberately. But I don't believe being an empty suit will be among them.

Wednesday, July 20, 2005

The Personification of Judicial Restraint

While some of my most conservative friends are busy fretting that Supreme Court nominee John Roberts doesn't have enough of a track record to guarantee that he'll rule the way they want him to,Tim Chapman at points us to Judge Roberts' clear and eloquent articulation of the meaning of "judicial restraint":

My own judicial philosophy begins with an appreciation of the limited role of a judge in our system of divided powers. Judges are not to legislate and are not to execute the laws. . . . My judicial philosophy accordingly insists upon some rigor in ensuring that judges properly confine themselves to the adjudication of the case before them, and seek neither to legislate broadly not to administer the law generally in deciding that case.
Deciding the case . . . . requires an essential humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic, a humility reflected in doctrines of deference to legislative policy judgments and embodied in the often misunderstood term “judicial restraint.” That restraint does not mean that judges should not act against the popular will. . . .[T]he framers expected them to be discerning the law, not shaping policy. That means the judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose those preferences from the bench.

And you don't like him why??

Wednesday, July 13, 2005


This is truly amazing.

Nice suit, Bernie

Bernie Ebbers was sentenced to 25 years in federal prison for his role in the corporate accounting scandal at WorldCom.

Depending on where he is assigned, he'll have plenty (but not enough) company.

Friday, July 08, 2005

Wonder Wie

I would have titled this Wonder Woman, but Michelle Wie is only fifteen years old, and Wonder Girl is, is patronizing in this instance.

The 15-year-old shot 1-under-par 70 at the John Deere Classic in Silvis, Ill., yesterday, keeping her hopes alive of being the first woman in 60 years to make a cut on the PGA Tour.

This was her second-lowest round in a PGA Tour event, and she beat both her playing partners. She played her last 10 holes in 3 under, had five drives over 290 yards, and missed only one putt from inside 10 feet.

She also had one of the most impressive shots of the day, getting within 10 feet of the pin from about 260 yards out on the par-5 17th. She missed her eagle putt, but made a 3-footer for birdie to get to 1 under.

She is 15. She is 6'1". She hits the ball over 300 yards. And she has finished in the top ten in 5 of the 8 majors she has played in (2d in the LPGA Championship).

After this weekend's torunament, she heads to the USGA Men's Public Links Tournament, the first female ever to qualify. Why? Because the winner gets an invitation to The Masters, which, she says, is her goal.

This lady is the real deal, and she will do for the LPGA what Tiger Woods has done for the PGA.

A Constitutional Right to Inebriation

This is an interesting development on the eve of multiple Supreme Court vacancies:

Eric Laverriere was celebrating last New Year's Eve at a friend's house in Waltham when police broke up the party. They took him into protective custody and kept him locked in a cell for nine hours until the effects of a night of beer drinking wore off....

....''One thing people should be able to do is drink in their own house," Laverriere said in a phone interview yesterday. ''That's the beauty of the land of the free."...

...Laverriere asserts in his lawsuit that he had ''a constitutional right to be drunk in private, a privacy and liberty right founded in the Due Process Clause of the Fourteenth Amendment to the US Constitution."...

[at this point, you, the cynic, are saying to yourself, "this bozo must have done something to provoke the police." Let's proceed...]

Laverriere said that he drank several beers, but wasn't drunk, when officers arrived at his friend's duplex on Lyman Street about 2:30 a.m. and said someone had thrown bottles at a passing police cruiser. When everyone denied throwing bottles, Laverriere said, officers began screaming and ''becoming more threatening," prompting him to pick up a friend's digital camera and start videotaping.

Officer Jorge Orta ''came running to me, ripped the camera out of my hand and threw me down on the floor," Laverriere said in the interview, adding that he injured his shoulder and is scheduled to have surgery next month.....

Now then. A Constitutional right to get drunk in one's home without fear of arrest.

Moral: When intoxicated, don't take pictures.

Thursday, July 07, 2005

Never Give In

In light of the despicable crimes that have been perpetrated upon the people of London this morning, it is instructive to contemplate the words of Winston Churchill in his speech to the Harrow School on October 29, 1941. The words are as true today that they were then -- and the stakes are evermost high.

"Almost a year has passed since I came down here at your Head Master's kind invitation in order to cheer myself and cheer the hearts of a few of my friends by singing some of our own songs. The ten months that have passed have seen very terrible catastrophic events in the world - ups and downs, misfortunes - but can anyone sitting here this afternoon, this October afternoon, not feel deeply thankful for what has happened in the time that has passed and for the very great improvement in the position of our country and of our home? Why, when I was here last time we were quite alone, desperately alone, and we had been so for five or six months. We were poorly armed. We are not so poorly armed today; but then we were very poorly armed. We had the unmeasured menace of the enemy and their air attack still beating upon us, and you yourselves had had experience of this attack; and I expect you are beginning to feel impatient that there has been this long lull with nothing particular turning up!

But we must learn to be equally good at what is short and sharp and what is long and tough. It is generally said that the British are often better at the last. They do not expect to move from crisis to crisis; they do not always expect that each day will bring up some noble chance of war; but when they very slowly make up their minds that the thing has to be done and the job put through and finished, then, even if it takes months - if it takes years - they do it.

Another lesson I think we may take, just throwing our minds back to our meeting here ten months ago and now, is that appearances are often very deceptive, and as Kipling well says, we must "…meet with Triumph and Disaster. And treat those two impostors just the same."

You cannot tell from appearances how things will go. Sometimes imagination makes things out far worse than they are; yet without imagination not much can be done. Those people who are imaginative see many more dangers than perhaps exist; certainly many more than will happen; but then they must also pray to be given that extra courage to carry this far-reaching imagination. But for everyone, surely, what we have gone through in this period - I am addressing myself to the School - surely from this period of ten months this is the lesson: never give in, never give in, never, never, never, never-in nothing, great or small, large or petty - never give in except to convictions of honour and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy. We stood all alone a year ago, and to many countries it seemed that our account was closed, we were finished. All this tradition of ours, our songs, our School history, this part of the history of this country, were gone and finished and liquidated.

Very different is the mood today. Britain, other nations thought, had drawn a sponge across her slate. But instead our country stood in the gap. There was no flinching and no thought of giving in; and by what seemed almost a miracle to those outside these Islands, though we ourselves never doubted it, we now find ourselves in a position where I say that we can be sure that we have only to persevere to conquer.

You sang here a verse of a School Song: you sang that extra verse written in my honour, which I was very greatly complimented by and which you have repeated today. But there is one word in it I want to alter - I wanted to do so last year, but I did not venture to. It is the line: "Not less we praise in darker days."
I have obtained the Head Master's permission to alter darker to sterner. "Not less we praise in sterner days."
Do not let us speak of darker days: let us speak rather of sterner days. These are not dark days; these are great days - the greatest days our country has ever lived; and we must all thank God that we have been allowed, each of us according to our stations, to play a part in making these days memorable in the history of our race.

Thank you, Sir Winston.

Such Facile Mendacity

Just a few multiple choice questions prior to the impending firestorm over the selection of new Supreme Court justices.

Question: Who said the following:

"It is offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single-issue interest group." —

A. Karl Rove
B. Orrin Hatch
C. Robert Bork
D. Edward Moore Kennedy

The answer is (D), Senator Kennedy, during Sandra Day O'Connor's 1981 confirmation hearings.

Question: Who said the following:

"Justice Owen's consistently conservative legal opinions reflect a judicial activism that falls outside the mainstream of judicial thought."

A. Michael Moore
B. Charles Schumer
C. Hillary Clinton
D. Edward Moore Kennedy

The answer is (D), Senator Kennedy, on his U. S. Senate website.

Question: Who said the following:

"[Judge] Brown has often been the lone justice to dissent on the California Supreme Court, illustrating that her judicial philosophy is outside the mainstream."

A. Edmund G. "Gerry" Brown
B. Arnold Schwartzenegger
C. Former California Chief Justice Rose Bird
D. Edward Moore Kennedy

The answer is (D), Senator Kennedy, on his U. S. Senate website.

And he does it so easily. This is a paradigm for Professor Franfurt's concept of bullshit.


The Politics of A Roe Reversal

James Taranto recently wrote an interesting piece about the “Roe effect,” the theory that Roe has resulted in a decrease in the number of Democratic voters and the ascendancy of the Republican majority. He makes the following point in conclusion:

"If Roe were overturned, the politics of abortion would change dramatically, and in the Democrats' favor. With the legality of abortion itself on the line, the debate would shift away from the pro-choice extremes, forcing pro-choice politicians to take a more centrist (and popular) position. Republicans would be torn between their antiabortion base and more moderate voters, for whom an outright ban on abortion is a bridge too far."

Let's examine this in the context of the claim made by liberals in Congress that a reversal of Roe v. Wade will result immediately in the return to the days of the "back alley abortionist" and other unpleasant results.

Of course, if the Supreme Court were to reverse Roe v. Wade and declare that there is no constitutional right to an abortion, the direct result would be that Congress and the legislatures of the several states would have expanded legislative authority to adopt laws regulating the practice of abortion. Because it is possible (if not probable) that Congress and some of the more conservative states would be inclined to propose outright bans, the proponents of choice equate the Supreme Court’s action with the result of ensuing legislative action. But if indeed that were the case, there is an obvious response: laws are enacted by democratically elected people, who serve at the pleasure of the electorate. If a majority of a state’s citizens do not want their elected representatives to regulate such privacy decisions, then the place for action is the ballot box, not the halls of the Supreme Court.

[The same constitutional argument being made by abortion supporters has been made for decades here in Massachusetts, where Catholic sympathizers have sought a repeal of a constitutional amendment banning any form of aid for sectarian schools (blogged earlier here). The amendment was adopted out of rabid anti-Catholic hatred during the rule of The Know Nothing Party in the 1800’s. Opponents of the repeal argue that “we should not give taxpayer money to private schools.” And they may be absolutely correct; and we will not, because the Massachusetts legislature would never enact such a statute.]

Here in Massachusetts, no citizen ought worry about the prospect that the right to abortion would be further infringed. With the current vast majority of left-leaning legislators, such an action is clearly out of the realm of possibility.

Even outside of Massachusetts,
polling statistics on abortion taken by a multitude of organizations during the past several years demonstrate that, across the political spectrum, there is a remarkably resilient consistency in the electorate’s opinions on abortion. With (to me, surprisingly) slight deviations between Republicans and Democrats, the majority of Americans believe that abortion should be legal, but not in all circumstances, and not without some conditions.

The percentage of Americans who believe that abortion should be illegal all of the time is a significant minority. Gallup’s results during the past 30 years range from a high of 22% (1975, 2002, 2005) to a low of 12% (1990). Washington Post’s results between 1996 and 2005 range from a high of 20% (2004, 2001) to a low of 13% (1998).

But those who believe abortion should be legal all of the time are similarly a significant minority, although somewhat larger group than diehard opponents. WaPo 19-24%, Gallup 21%-31% (24% today).

So the prevailing opinion in America today is that abortion should be legal, but subject to important limitations and exceptions. And they want the qualified access to abortion to be maintained within the framework (constitutional or not) of the nation’s laws.
This mountain of polling data suggests that, even if a newly constituted Supreme Court were to reverse Roe contrary to the preference of a majority of Americans, legislatures would have a very challenging political time enacting outright bans in their respective states.

A Roe reversal would result in a significant change in political activity across many states. Because a ban on abortion has not been constitutionally permissible for over thirty years, and because, it appears, a majority of Americans support the type of restrictions and conditions on abortion that have passed constitutional muster (and even some that have not), the majority of the electorate has not regarded the political issue of abortion to be so grave and immediate. As a pro-life legislator in a very pro-choice district, I faced considerable disagreement over the issue, but it did not significantly affect the percentage of my victories – principally, I believe, because my pro-life position did not represent much of a threat to those who disagreed with me.

With a reversal of Roe, however, pro-choice voters would be more energized to ensure the election of a firmly pro-choice legislator, and pro-life voters the opposite. Annual or biennial legislative elections are more likely to become true battlegrounds over this single issue, whereas in the recent past, abortion was only one of many issues that form a voter’s intentions, and with the constitutional protection of the right to abortion, a candidate’s position on the issue was not of such immediacy that the issue leaps to the foreground of voter motivation. That is likely to change if Roe is reversed, perhaps especially so in Congressional races.

While this may result in unusually urgent political activity, who’s to argue that this is a bad thing? In fact, one might argue that something is urgently needed to energize the voting-eligible population, and this would surely be an excellent catalyst to energize the electorate and spur an increase in participation.

In light of the overwhelming majority of people who express opposition to a total ban on abortion, then, it would seem likely that a reversal of Roe would cause ardent pro-life politicians who enjoyed support from the hard right to re-evaluate their positions. It is one thing to say to your pro-life constituents that you “favor a constitutional amendment banning abortion” when the real prospect of such an eventuality is slim. It is quite another to case a recorded vote on a specific legislative proposal that has such immediate and profound an impact. Roe has given this group of politicians some degree of cover for over three decades. Its reversal would change the game entirely.

[Humbly submitted to OTB and Wizbang.]

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