Tony Mauro of the Legal Times reported in February 2005 that SCOTUS nominee John Roberts’ votes “have mainly fallen on the conservative side, but not always:”
Last December, in United States v. Mellen, Roberts ruled in favor of a criminal defendant who challenged his sentence in a fraud case. Judge Karen LeCraft Henderson — yes, an appointee of the first President Bush — dissented.
In the July 2004 decision Barbour v. Washington Metropolitan Area Transit Authority (WMATA), Roberts joined Merrick Garland — a Clinton appointee — in deciding that sovereign immunity did not bar a D.C employee with bipolar disorder from suing the transit agency under federal laws barring discrimination against the disabled. Conservative Sentelle dissented.
But then there was another WMATA case — known as the french fry case — which some critics point to as a sign of a certain hard-heartedness in Roberts’ decision making.
In the unanimous ruling last October in Hedgepeth v. WMATA, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a D.C. Metrorail station. “No one is very happy about the events that led to this litigation,” Roberts acknowledged in the decision, but he ruled that nothing the police did violated the girl’s Fourth Amendment or Fifth Amendment rights.
Roberts also displayed what some viewed as insouciance toward arroyo toads in a 2003 case, Rancho Viejo v. Norton. Roberts wanted the full D.C. Circuit to reconsider a panel’s decision that upheld a Fish and Wildlife Service regulation protecting the toads under the Endangered Species Act. Roberts said there could be no interstate commerce rationale for protecting the toad, which, he said, “for reasons of its own lives its entire life in California.”
In another decision last June, Roberts went even further than his colleagues in supporting the Bush administration in a case that pitted the government against veterans of the first Gulf War. American soldiers captured and tortured by the Iraqi government during the first Gulf War sued the Iraqi government in U.S. court and won nearly $1 billion in damages at the district court level.
But once Saddam was toppled in 2003, the Bush administration wanted to protect the new Iraqi government from liability and intervened to block the award. Roberts, alone among the circuit judges who ruled with the government, said the federal courts did not even have jurisdiction to consider the victims’ claim. An appeal is before the Supreme Court.
Mauro quotes Mark Levin, author of “Men in Black,” praising Roberts. “In the short period he has been on the court, John Roberts has shown he does not bring a personal agenda to his work,” Levin told Mauro. “He follows the Constitution, and he is excellent.”
Levin’s colleagues at Bench Memos also seem to have positive impressions.
Mauro reports that Roberts is on good terms with Elliot Mincberg of People for the American Way, a key liberal interest group. The two men worked together years ago and Mincberg likes him personally. “He’s a very smart lawyer and easy to work with, but there is no question he is very, very conservative,” says Mincberg.
Roberts will probably have less luck with The Alliance for Justice, which opposed his nomination to the D.C. Circiut Court of Appeals two years ago, and NARAL, which objects to the work he did as Deputy Solicitor General under Bush I. Both groups say Roberts is hostile to reproductive rights.
There was some very useful discussion of Roberts at The Volokh Conspiracy back in May. See here. Orin Kerr wrote on May 24:
I am repeatedly struck by how people from across the political spectrum are tremendously impressed by him and his work. Especially as a replacement for a conservative Chief, Roberts seems like the best shot at a consensus candidate.
Props to Bradford Berenson, who predicted Roberts’ nomination several weeks ago. “If I had to pick, I’d say it will be John Roberts,” Berenson told the L.A. Times. “Roberts “is young, conservative, a Bush appointee — and his would be an easier confirmation.”
Frank J. at IMAO, on the other hand, was not even close!
Hugh Hewitt’s having a radio marathon tonight on the SCOTUS nominee.
Confirm Them has posted Roberts’ intros from his SJC hearing.
The indefatigable N.Z. Bear has already set up a John Roberts tracking page here.
Right Side Redux has some quick pro and con links.
Sunday WaPo profile of Roberts here.
The Political Teen has video of Fox News’s announcement.
www.JudgeRoberts.com has been taken.
Tim Chapman at Townhall.com says Roberts is “rock solid” and points to Roberts’ response to Sen. Charles Schumer’s question about his judicial philosophy:
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.”
848pm EST Carl Cameron reports that Roberts and his wife dined with President Bush and the First Lady this evening. Bush “offered Roberts the job” at 1235pm.
9pm EST. President Bush: John Roberts has devoted his entire professional life to the cause of justice…earned a reputation as one of the best legal minds of his generation. He will strictly apply the Constitution and laws, not legislate from the bench…He is prepared for even greater service.
This confirmation can be done in a timely manner…It is important that the newest justice be on the bench when the Supreme Court reconvenes this coming October…
907pm EST. Roberts: [paraphrase] Experience arguing cases before Supreme Court gave him vaulable perspective. Always got a “lump in his throat” before entering hall. Thanks family. Over. (Full text here via NRO).
911pm EST. Sen. Patrick Leahy. Mumbling about “ordinary Americans” and “special interests.” Blah. “No one is entitled to a free pass” to a lifetime appointment on the Supreme Court. Praise for Sandra Day O’Connor, attacks “extreme right” for criticizing her. I’ll work with Sen. Specter for a fair hearing. “It’s going to take a fair amount of time” to do that.
***Schumer. There is no question that Judge Roberts has outstanding legal credentials. [But] only 2 years on the D.C. Circuit court…many of his personal views “unknown.” It is his obligation during the nomination process to know those views. The burden is on the nominee to prove that he is worthy. I voted against him because he did not answer questions openly.***
0924pm EST. Fox News H&C. Ken Starr. He’s terrific. He’s a great human being. He has a stunning record…universally respected, one of the premiere lawyers of our time.
The NY Times reports tonight:
Senator Harry Reid of Nevada, the Democratic minority leader, was cautious. “The president has chosen someone with suitable legal credentials,” Mr. Reid said, promising a thorough review by the Senate.
Politics aside, Judge Roberts is very much a part of the Washington legal establishment, on good terms with many Democrats as well as Republicans. When he was nominated for the D.C. Circuit in 2003, President Bill Clinton’s former solicitor general, Seth P. Waxman, called him an “exceptionally well qualified” lawyer, according to a profile in The Washington Post.
Marathon Pundit is tracking Sen. Dick Durbin’s reax.
Sen. Teddy Kennedy’s statement here.
Lots of good, insider-y stuff at Southern Appeal.
Last word for the night: Joe Gandelman has a huge-tastic round-up of predictions and round-ups from left and right.blog comments powered by Disqus
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