Who's listening to/watching the Supreme Court Chief Justice hearings?

[west3man]

I've been listening on and off - the last hour, especially.

The philosophical questions being asked and considered are fascinating as hell, imo. In particular, I'm interested in what types of questions should or shouldn't be answered by a prospective SCJ and why.

Are you following the hearings? What are you digging/not digging about'em?

[Slam_Bradley]

I've been listening to them sporadically on NPR. Roberts is clearly very articulate and well prepared. Interesting stuff.

[Shellhead]

According to Business Week, Bush wants Roberts as the new chief justice because Scalia is too abrasive and too old. Scalia is 69, while Roberts is only 50, and Bush really wants to have a long-term impact on the court.

[VCreed32]

My (for the most part uninformed) friend told me that they were discussing the Voter's Rights Act.
S'at true?

[Slam_Bradley]

My (for the most part uninformed) friend told me that they were discussing the Voter's Rights Act.
S'at true?


Yes, they were discussing it earlier today. What I heard centered on the "effects test" versus the "intent test".

[VCreed32]

Earlier today, but not previously?
Cause this was last night.

[Slam_Bradley]

Earlier today, but not previously?
Cause this was last night.


It may have carried over from yesterday.

[west3man]

I'd like to see Judge Roberts provide more substantive and directly relevant answers to the precise questions being asked of him.

It's also of-interest to me to hear WHY he says he shouldn't answer some of them.

Still, I have a problem with the dodging, although I can almost understand it.

[Slam_Bradley]

I'd like to see Judge Roberts provide more substantive and directly relevant answers to the precise questions being asked of him.

It's also of-interest to me to hear WHY he says he shouldn't answer some of them.

Still, I have a problem with the dodging, although I can almost understand it.


Roberts has answered very substantively to questions dealing with issues that are unlikely to come before the Court. His answers on the role of stare decisis were exceptionally forthcoming.

On issues that may come before the Court he absolutely should not be taking any stands as the issues will vary depending on the facts of any given case.

[west3man]

Roberts has answered very substantively to questions dealing with issues that are unlikely to come before the Court. His answers on the role of stare decisis were exceptionally forthcoming.

On issues that may come before the Court he absolutely should not be taking any stands as the issues will vary depending on the facts of any given case.
All he'd be doing is stating his opinion. We often form opinions automatically, so I find it unlikely that he HAS no opinion.

If he knows he'd keep his opinions separate from his execution of his prospective duties, what harm is there in sharing them? I know he says the opinion is irrelevant, but they paint a picture of his mental calculator. That picture seems pretty relevant.

When questions about his judicial methodology were raised (while I was listening), he seemed to be similarly evasive.

[Dennis K]

I don't really see the point, seems pretty obvious he's going to be confirmed.

[Slam_Bradley]

I don't really see the point, seems pretty obvious he's going to be confirmed.


You're right, it's pretty clear he's going to be confirmed. But there's some pretty interesting stuff coming up in the hearings. Even as a practicing attorney I've learned a thing or two. I should be getting CLE credits for listening.

[west3man]

I don't really see the point, seems pretty obvious he's going to be confirmed.
The point, I think, is that they owe it to us to do what they can to make sure he's the right person for the job... at least as much as they can.

[Dennis K]

The point, I think, is that they owe it to us to do what they can to make sure he's the right person for the job... at least as much as they can.


Owe it to us? Wow, I like your optimism. Quite frankly I don't think the vast majority is even paying attention or has a clue.

[StoneGold]

The only thing that could keep him from being confirmed is someone digging into his background, finding out he raped a goat when he was 14 or something. Nothing on the senate committee, short of him standing up and randomly murdering a senate page on camera, is going to get him disqualified. And the whole point is he's not going to do that. He's going to play it nice and safe, not give them committee any rope to hang himself with, and he'll be fine. All he has to do is play it vanilla.

[west3man]

Owe it to us? Wow, I like your optimism. Quite frankly I don't think the vast majority is even paying attention or has a clue. I'm not saying they are - just that it's owed to them. Whether they pay attention to whether that "debt" is another matter.

[Dennis K]

I'm not saying they are - just that it's owed to them. Whether they pay attention to whether that "debt" is another matter.

I suppose, but I'm of the opinion that those in power really don't give a shit about the vast majority until election time, and I'm beginning to question that too.

[west3man]

I suppose, but I'm of the opinion that those in power really don't give a shit about the vast majority until election time, and I'm beginning to question that too.
I'm kinda moving in that direction, too... Strangely enough, that's not as disheartening, to me, as one might expect. This is partly due to conversations I've had at CBR with people with very different opinions from mine. In this case, Alex's comments keep popping into my head.

It does matter why a person does a thing, but sometimes, it matters more that it got done. If political ambition is some people's motivator, that's unfortunately, but at least it's something that may compell them to do things in the best interests of their constituents. *shrugs*


I'm still trying to wrap my head around the idea that a prospective judge's opinions are irrelevant to the extent that Judge Roberts says they are.

[Slam_Bradley]

I'm still trying to wrap my head around the idea that a prospective judge's opinions are irrelevant to the extent that Judge Roberts says they are.


The reason is that the first Canon for a Judge is to not pre-judge a case. His opinions have nothing to do with the case before him. He is bound by judicial ethics to judge the case on the facts presented, applying those facts to the law as it is set forth by the Constitution, the applicable statutes or the existing precident.

[west3man]

The reason is that the first Canon for a Judge is to not pre-judge a case. His opinions have nothing to do with the case before him. What about his opinions on judicial methodology or broad versus narrow interpretations or other things which don't require him to prejudge?



Also, when asked about specific situations, even if they were hypothetical, why couldn't he judge the scenario as-described and then state that he's doing so? That's not prejudging.

[Ray R.]

The reason is that the first Canon for a Judge is to not pre-judge a case. His opinions have nothing to do with the case before him. He is bound by judicial ethics to judge the case on the facts presented, applying those facts to the law as it is set forth by the Constitution, the applicable statutes or the existing precident.


Bingo. Slam's got it exactly right. I'd love to hear Roberts' comments on various and sundry legal issues, but there are abortion and other cases ripe for judgment coming up before the court, and to provide his personal opinions is to effectively recuse himself from acting on these cases, because he's already proffered an opinion before the facts and arguments of those particular cases come before the court.

I agree it seems dodgy, but Roberts is not doing anything that is new. When Byron White was confirmed, he answered all of eight questions before the Senate. The process is a lot more elaborate and intensive than it used to be, believe it or not.

I don't have any strong opinion against confirmation of Roberts. He has openly supported the legal standard of stare decisis, which means that standing precedent shouldn't be overturned. So, since Roe v. Wade has been upheld 37 times, a legal standard of stare decisis implies that it's the rule of the land.....again, we could do a lot worse than Roberts.

[west3man]

Bingo. Slam's got it exactly right. I'd love to hear Roberts' comments on various and sundry legal issues, but there are abortion and other cases ripe for judgment coming up before the court, and to provide his personal opinions is to effectively recuse himself from acting on these cases, because he's already proffered an opinion before the facts and arguments of those particular cases come before the court.

I agree it seems dodgy, [snip] It does.

Having the opinions is the problem (if anything is). All sharing does is define the existence and nature of the opinion, which seems like an odd distinction to make.

Comic book creators supposedly shouldn't read unsolicited story submissions because there's a concern that being exposed to someone else's ideas might taint their own (which is on the less harmful end of "stealing" ideas). If the comic book creators read those submissions, anyway, but don't SAY that they did the substantive problem is the reading. What reveals its existence is the admission, but that revelation isn't necessarily the problem. Similarly, I think it's the admission that's being mistakenly identified as the problem.

[Dreadstar]

Having the opinions is the problem (if anything is). All sharing does is define the existence and nature of the opinion, which seems like an odd distinction to make.

It's sort of in the vein of Schrodinger's cat.

[west3man]

It's sort of in the vein of Schrodinger's cat.
I never touched her.



No, really. I dunno what that means.

[i_mmmchocolate]

I only saw the bit when Kennedy and that man from Iowa made speeches.

[west3man]

You're right, it's pretty clear he's going to be confirmed. But there's some pretty interesting stuff coming up in the hearings. Even as a practicing attorney I've learned a thing or two. I should be getting CLE credits for listening.
What've you learned? If you've gotta say it generally, to keep us from drowning in legalese, it'd be appreciated.

[Dreadstar]

No, really. I dunno what that means.

It's a fundamental component of quantum theoretics:

"Here's Schrödinger's (theoretical) experiment: We place a living cat into a steel chamber, along with a device containing a vial of hydrocyanic acid. There is, in the chamber, a very small amount of a radioactive substance. If even a single atom of the substance decays during the test period, a relay mechanism will trip a hammer, which will, in turn, break the vial and kill the cat. The observer cannot know whether or not an atom of the substance has decayed, and consequently, cannot know whether the vial has been broken, the hydrocyanic acid released, and the cat killed. Since we cannot know, the cat is both dead and alive according to quantum law, in a superposition of states. It is only when we break open the box and learn the condition of the cat that the superposition is lost, and the cat becomes one or the other (dead or alive). This situation is sometimes called quantum indeterminacy or the observer's paradox: the observation or measurement itself affects an outcome, so that it can never be known what the outcome would have been if it were not observed."

In admittedley poor analog to Roberts refusing to be pinned down, until the judge voices his position, we cannot infer what that opinion may be. And the inferrence itself might alter the position.

I'm kind of of the opinion that until applied to a case decision, it's none of our damn business.

[west3man]

Thanks for the explanation.In admittedley poor analog to Roberts refusing to be pinned down, until the judge voices his position, we cannot infer what that opinion may be. And the inferrence itself might alter the position. I see no connection between our inferences regarding the existence of his opinion and the nature of that opinion.

I'm kind of of the opinion that until applied to a case decision, it's none of our damn business.In a job interview, anything pertinent to the prospective employee's execution of his or her job seems pretty damned relevant to me.

[Dreadstar]

Past performance is sufficient for job evaluation basis in this case (and truthfully, in most job interviews). Especially if commenting on future "possibilities" could be deterimental to doing as unbiased a job as possible.

Hey, if you won't accept two legal-types explaining that it'd be poor form for a Justice to do, and you won't accept my layman's opinion that it's none of our business, what would you accept?

[Ray R.]

It does.

Having the opinions is the problem (if anything is). All sharing does is define the existence and nature of the opinion, which seems like an odd distinction to make.

Comic book creators supposedly shouldn't read unsolicited story submissions because there's a concern that being exposed to someone else's ideas might taint their own (which is on the less harmful end of "stealing" ideas). If the comic book creators read those submissions, anyway, but don't SAY that they did the substantive problem is the reading. What reveals its existence is the admission, but that revelation isn't necessarily the problem. Similarly, I think it's the admission that's being mistakenly identified as the problem.

Well, if I understand you correctly, your issue is that sharing the opinion during the confirmation hearings shouldn't have any bearing on future dealings before the court? "All sharing does is define the existence and nature of the opinion...."

The problem is that ethically, you're not supposed to pre-judge or proffer personal opinions before the facts are in and the arguments are made by the opposing party. If I say that I believe "X" and a case involving "X" is coming up before the court in the next term, I've basically publically taken a stand already, and the parties who oppose "X" have a decent justification to say that they are not going to get a fair chance with me, because I've already come down publically against them. Like I said, recusal, where a judge must excuse himself or herself from proceedings due to a personal or professional conflict seems like a decent option to request in those cases where a judge has already made his personal judgment on an issue public.

With the comic book example, I think you're talking more about misappropriation of intellectual property, rather than judicial ethics. Whether a genuine issue of material fact exists, might very well come down to admission of the misappropriation, as interpretation of whether knowledge of the unsolicited material led to misappropriated use could be tough to determine. Admission in that context could lead to supposition of guilt and/or damages, admission from the context of judicial appointment could lead to certain parties in cases fairly believing that ethically a judge can't rule objectively or impartially after making his personal opinions on a case public. I don't think they're necessarily analagous, but I see your point.

[west3man]

Well, if I understand you correctly, your issue is that sharing the opinion during the confirmation hearings shouldn't have any bearing on future dealings before the court? "All sharing does is define the existence and nature of the opinion...."

The problem is that ethically, you're not supposed to pre-judge or proffer personal opinions before the facts are in and the arguments are made by the opposing party. Unless we think there's a human-being out there capable of having gone through his or her entire life without having formed opinions on situations they experience and observe, I think we could confidently say he HAS already formed those opinions.

The instant a Senator or whomever mentioned a hypothetical situation to him, he'd have to fight NOT to have an opinion on it as-presented.

There's no need, that I see, to assume that 1) he has no opinion if he states none, 2) if he states his opinion that it'll definitely affect any similar case, or 3) that he'll consider all similar cases to be identical to the hypothetical one.

[Gordon Smith]

On issues that may come before the Court he absolutely should not be taking any stands as the issues will vary depending on the facts of any given case.

Am I correct in thinking that Chief Justice Roberts would have to recuse himself from cases he's previously heard? As an example, I understand Roberts was a member of the panel that upheld the right of the government to try Salim Ahmed Hamdan by military commission. As Chief Justice, he couldn't hear this case if it's tried before the High Court?

[west3man]

Past performance is sufficient for job evaluation basis in this case (and truthfully, in most job interviews). If that were all it took, people would hand in resumes then get hired. There'd be no need for interviews.

Especially if commenting on future "possibilities" could be deterimental to doing as unbiased a job as possible. For the reasons I've explained in my most recent posts I don't see why it would be detrimental.

Hey, if you won't accept two legal-types explaining that it'd be poor form for a Justice to do, and you won't accept my layman's opinion that it's none of our business, what would you accept? This assumes I won't accept those things.

It's the message, not just the messenger. If you want to understand my issues with the message, the reasons are in my posts.

[Dreadstar]

If there's no reason to think that his opinion will affect a future case or any similar future cases, then what's the need for asking for his opinion? Curiosity?

[Justin Davis]

It's a fundamental component of quantum theoretics:

"Here's Schrödinger's (theoretical) experiment: We place a living cat into a steel chamber, along with a device containing a vial of hydrocyanic acid. There is, in the chamber, a very small amount of a radioactive substance. If even a single atom of the substance decays during the test period, a relay mechanism will trip a hammer, which will, in turn, break the vial and kill the cat. The observer cannot know whether or not an atom of the substance has decayed, and consequently, cannot know whether the vial has been broken, the hydrocyanic acid released, and the cat killed. Since we cannot know, the cat is both dead and alive according to quantum law, in a superposition of states. It is only when we break open the box and learn the condition of the cat that the superposition is lost, and the cat becomes one or the other (dead or alive). This situation is sometimes called quantum indeterminacy or the observer's paradox: the observation or measurement itself affects an outcome, so that it can never be known what the outcome would have been if it were not observed."

In admittedley poor analog to Roberts refusing to be pinned down, until the judge voices his position, we cannot infer what that opinion may be. And the inferrence itself might alter the position.

I'm kind of of the opinion that until applied to a case decision, it's none of our damn business.

Very well put, Dread. Seriously, that's a very good application of scientific theory to a judge's mindset. I'm pretty sure I never would've thought of it like that.

Roberts Questioned on Eminent Domain Ruling (http://www.washingtonpost.com/wp-dyn/content/article/2005/09/14/AR2005091401195_2.html)

Notice the headline isn't "Roberts Answers Questions on Eminent Domain Ruling". I've watched the confirmation hearing off and on over the last couple of days. At times, like when Roberts stated his opinion on stare decisis (http://en.wikipedia.org/wiki/Stare_decisis) (hey, I had to look it up so I thought I'd provide for other people), I thought this was a helpful and useful hearing. At other times, I have no idea what I'm watching. When Jeff Sessions of Alabama made what seemed to be a 10 minute or longer dissertation on abortion, quoting numerous sources that supposedly give a feeling of change in the country's view of abortion, injecting his own personal opinions as to why he thinks that change happened, and then, going into some plea for Roberts to keep an open mind since cases like Roe v. Wade are not as open and shut to the public as they're often portrayed before Sessions asked Robert simply, "Can you promise to keep that open mind? Can you do that? Can you make that promise?" I had no idea what I was watching then. Honestly, I don't even think Roberts knew what was going on at that point. He was probably just as clueless when Senator Feinstein wouldn't shut up about that stupid memo about female employment or some such thing where Roberts made a joke about how women shouldn't become laywers since there are too many lawyers in the world already and she took it as an affront to women instead of as the joke about lawyers which it clearly is.

I do have a question about stare decisis for our lawyer posters. Since it's simply a precedent, is it absolute that it's followed? Was jurisprudence constante mentioned at all in the hearing? Would it matter?

[Ray R.]

There's no need, that I see, to assume that 1) he has no opinion if he states none, 2) if he states his opinion that it'll definitely affect any similar case, or 3) that he'll consider all similar cases to be identical to the hypothetical one.

To handle in order:

1.) I don't think that's the case or the assumption. Absence of a spoken opinion does not necessarily suggest "no opinion."
2.) Why not? Why, ethically, should anyone believe otherwise? You've made a public pronouncement on a legal issue. Why wouldn't it be seen as prejudicial to the same legal issue coming up before the court?
3.) Bar exams are filled with hypotheticals, law school is filled with hypotheticals, moot courts are filled with hypotheticals. You provide legal justification to a hypothetical, and it stands to reason that the same legal justification will bear out in a "real case."

[Slam_Bradley]

Am I correct in thinking that Chief Justice Roberts would have to recuse himself from cases he's previously heard? As an example, I understand Roberts was a member of the panel that upheld the right of the government to try Salim Ahmed Hamdan by military commission. As Chief Justice, he couldn't hear this case if it's tried before the High Court?


Yes, that is correct. If he heard it as a member of the DC Circuit it would be inappropriate for him to rehear it as a member of the Supreme Court.

[Ray R.]

Am I correct in thinking that Chief Justice Roberts would have to recuse himself from cases he's previously heard? As an example, I understand Roberts was a member of the panel that upheld the right of the government to try Salim Ahmed Hamdan by military commission. As Chief Justice, he couldn't hear this case if it's tried before the High Court?

That is correct. If he has already ruled on a lower court matter, he cannot participate in the decision of the high court on the same matter on appeal.

[west3man]

If there's no reason to think that his opinion will affect a future case or any similar future cases, then what's the need for asking for his opinion? Curiosity?
The expression of the opinion is what I'm saying will not affect those cases.

[Dreadstar]

Wait, are you trying to draw a line between the opinion and the expression of the opinion?

[west3man]

Quote:
Originally Posted by west3man
There's no need, that I see, to assume that 1) he has no opinion if he states none, 2) if he states his opinion that it'll definitely affect any similar case, or 3) that he'll consider all similar cases to be identical to the hypothetical one.To handle in order:

1.) I don't think that's the case or the assumption. Absence of a spoken opinion does not necessarily suggest "no opinion."
2.) Why not? Why, ethically, should anyone believe otherwise? You've made a public pronouncement on a legal issue. Why wouldn't it be seen as prejudicial to the same legal issue coming up before the court?
3.) Bar exams are filled with hypotheticals, law school is filled with hypotheticals, moot courts are filled with hypotheticals. You provide legal justification to a hypothetical, and it stands to reason that the same legal justification will bear out in a "real case."

1) Okay. So, he may already have an opinion on these issues. Maybe the better question to him would be, "Judge Roberts, do you HAVE an opinion on..." Of course, he could lie, but it'd keep the focus where it ought to be.

2) If the exact same situation comes up, then what's the problem? If it's a different situation, then there's no need to assume his response wouldn't be different.

3) If hyptheticals are fine in every other instance I see no reason why they shouldn't be here.

[west3man]

Wait, are you trying to draw a line between the opinion and the expression of the opinion?
I did it a while back.

[Alex]

Im enjoying when you can see Roberts getting upset.
In general, he's being very cool and collected, but (yesterday in particular) when he was quoting the exact ethics code that was preventing him from answering certain questions (This after a question was basicly repeated 5 times), you coudl tell he was annoyed.

[west3man]

Im enjoying when you can see Roberts getting upset.
In general, he's being very cool and collected, but (yesterday in particular) when he was quoting the exact ethics code that was preventing him from answering certain questions (This after a question was basicly repeated 5 times), you coudl tell he was annoyed.
I just heard an apparently well-intentioned woman find a somewhat new way to ask him the exact same question he'd been asked multiple times before. I can't blame him for getting annoyed (although I didn't notice it). I also can't blame you for being amused by it.

[Ray R.]

I do have a question about stare decisis for our lawyer posters. Since it's simply a precedent, is it absolute that it's followed? Was jurisprudence constante mentioned at all in the hearing? Would it matter?

Good points, Justin. I think you've exposed the confirmation process for the high drama that it represents rather than the true exploration of a confirmee's legal ethos. Senators get the spotlight, so Senators hog the spotlight.

As to jurisprudence constante, my vague recollection is that it basically is the same as stare decisis, except dealing with civil law precedent, particularly in a state civil law context, like Louisiana. I think in context of federal law, the stare decisis discussion would incorporate jurisprudence constante as part and parcel.

As to stare decisis, it's far from an absolute. (The word absolute is a word seldom used around courts in general.) Placing a firm belief in stare decisis is a two-edged sword, it shows the due deference given previous sitting courts by respecting precedent, but also it relies upon precedent beyond changing circumstances. The rule of the land might apply because of precedent, but that doesn't make it right. You look at the Dred Scott decision, where a human being was considered property and as "stolen" property needed to be returned to his "owner" as a decision held up, until the court overturned the decision as unconstitutional. "Brown vs. Board of Education", "Griswold v. Connecticut", "Gideon vs. Wainwright", etc., all were decisions that went against established precedent. So, to put it short and sweet, stare decisis is far from absolute, particularly if the court as a majority, interprets previous precedent as supporting an unconstitutional proposition or law.

[Alex]

I just heard an apparently well-intentioned woman find a somewhat new way to ask him the exact same question he'd been asked multiple times before. I can't blame him for getting annoyed (although I didn't notice it). I also can't blame you for being amused by it.
It's all a pony show in my opinion, unless Roberts says "I hate america and think the judiciary should be dissolved" he's going to get confirmed.
Insuating he's a misognist based on a joke in a memo he wrote 15 years ago (Especialy considering his entire history contradicts such a claim)seems like a big waste of time to me.
Then again, C-Span cut it off to show the house of reps, so im not even seeing it anymore.

[Tom]

Maybe the lawyer types can explain something for me, then. Why is it that someone like Antonin Scalia can be quite openly opposed to Roe v. Wade and think it should be overturned and John Roberts isn't allowed to state specifically his thoughts on the matter?

[Slam_Bradley]

Good points, Justin. I think you've exposed the confirmation process for the high drama that it represents rather than the true exploration of a confirmee's legal ethos. Senators get the spotlight, so Senators hog the spotlight.

As to jurisprudence constante, my vague recollection is that it basically is the same as stare decisis, except dealing with civil law precedent, particularly in a state civil law context, like Louisiana. I think in context of federal law, the stare decisis discussion would incorporate jurisprudence constante as part and parcel.

As to stare decisis, it's far from an absolute. (The word absolute is a word seldom used around courts in general.) Placing a firm belief in stare decisis is a two-edged sword, it shows the due deference given previous sitting courts by respecting precedent, but also it relies upon precedent beyond changing circumstances. The rule of the land might apply because of precedent, but that doesn't make it right. You look at the Dred Scott decision, where a human being was considered property and as "stolen" property needed to be returned to his "owner" as a decision held up, until the court overturned the decision as unconstitutional. "Brown vs. Board of Education", "Griswold v. Connecticut", "Gideon vs. Wainwright", etc., all were decisions that went against established precedent. So, to put it short and sweet, stare decisis is far from absolute, particularly if the court as a majority, interprets previous precedent as supporting an unconstitutional proposition or law.


Nice explanattion of stare decisis, Ray. I actually had to go to my Black's Law Dictionary for jurisprudence constnate. It didn't help. It's not in there.

[Justin Davis]

It's all a pony show in my opinion, unless Roberts says "I hate america and think the judiciary should be dissolved" he's going to get confirmed.
Insuating he's a misognist based on a joke in a memo he wrote 15 years ago (Especialy considering his entire history contradicts such a claim)seems like a big waste of time to me.

While I agree it was a stupid thing for Feinstein to harp on, I haven't seen the part about entire history contradicting such claims. How so?

[Justin Davis]

Nice explanattion of stare decisis, Ray. I actually had to go to my Black's Law Dictionary for jurisprudence constnate. It didn't help. It's not in there.

Hey, I wouldn't know of the term if I didn't see it in that Wikipedia link I put up for stare decisis.

Tom, I was just about to make similar posts as you. Both about Scalia and West and Dreadstar. Kooky.

[Alex]

While I agree it was a stupid thing for Feinstein to harp on, I haven't seen the part about entire history contradicting such claims. How so?
Female members of his staff for one thing, him never doing anything official that suggests it, that one memo being the only concrete evidence.
...
Oh, and the joke he made being in referance to female lawyers, when the guy is married to a female lawyer.
I don't even think she harped on it, she actually took his answer very well. But if they only have 30 minutes to talk, id assume she'd better use her time.

[Ed Cunard]

Maybe the lawyer types can explain something for me, then. Why is it that someone like Antonin Scalia can be quite openly opposed to Roe v. Wade and think it should be overturned and John Roberts isn't allowed to state specifically his thoughts on the matter?

I'm not a lawyer type, but I'll give it a shot. I think it has something to do with the fact that having opinions on things and sharing those opinions doesn't matter as much to a SCOTUS Judge as it does to, say, a Senator or Representitive because the Judge's duty isn't to an ideology, but to a codified system of law and precedents and the like.

(Did I get it right, lawyer types of the internerd?)

[Ray R.]

Maybe the lawyer types can explain something for me, then. Why is it that someone like Antonin Scalia can be quite openly opposed to Roe v. Wade and think it should be overturned and John Roberts isn't allowed to state specifically his thoughts on the matter?


Well, Scalia is already on the court, and has made his specific reasoning as to his opposition to Roe v. Wade in numerous dissents already in the public domain. Judge Powell could speak to an audience about his reasoning on Kelso (eminent domain). Even if more cases come up that deal with Roe v. Wade or eminent domain, since the judges have already ruled on these issues previously as members of the Supreme Court, they would have no reason to be considered to be in conflict of interest by speaking about them.

Roberts has not ruled on any issues before the Supreme Court since he hasn't been confirmed yet. Public pronouncements of how he would rule on issues would effectively pre-judge cases before they even landed on his desk. It would also affect whether parties filed petitions for certiorari, whether parties made requests for recusal, etc.

Having made a decision in dissent in numerous cases concerning the constitutionality of Roe v. Wade, Scalia cannot be accused of pre-judging. Roberts can.

Does that make sense?

[west3man]

I'm wondering what distinguishes *Chief* Justice from the rest of them, but that doesn't require experience as a Justice, first.

[Ray R.]

Nice explanattion of stare decisis, Ray. I actually had to go to my Black's Law Dictionary for jurisprudence constnate. It didn't help. It's not in there.

Thanks, counselor. Half the time I feel like I'm pulling things out of my ass, so the professional courtesy and recognition feels good.

And again, I might be wrong on jurisprudence constante, I just vaguely remember it having a place in state civil practice, which I do very little of.

[Alex]

Thanks, counselor. Half the time I feel like I'm pulling things out of my ass, so the professional courtesy and recognition feels good.


...
Pssssst
Most of us wouldn't know anyway

[Slam_Bradley]

I'm going to take a stab at answering Wes' concerns, Re: Roberts not getting in to specifics on cases and controversies.

Let's say that you're a litigant and you have a case coming before the Court (frankly, any Court). You as a litigant, want the judge to look at YOUR case and apply the facts of YOUR case to the existing law. On any given case, you expect the judge to, and it is his duty to, look at the case impartially with no preconceived notions. Now, you may have an inkling how a particular Court will rule based on its past rulings and on the existing precident, but every case is different.

The last thing I want is a judge that, going in, is wedded a certain outcome.

If that isn't sufficient...we can agree to disagree.

[Tom]

Well, Scalia is already on the court, and has made his specific reasoning as to his opposition to Roe v. Wade in numerous dissents already in the public domain. Judge Powell could speak to an audience about his reasoning on Kelso (eminent domain). Even if more cases come up that deal with Roe v. Wade or eminent domain, since the judges have already ruled on these issues previously as members of the Supreme Court, they would have no reason to be considered to be in conflict of interest by speaking about them.

Roberts has not ruled on any issues before the Supreme Court since he hasn't been confirmed yet. Public pronouncements of how he would rule on issues would effectively pre-judge cases before they even landed on his desk. It would also affect whether parties filed petitions for certiorari, whether parties made requests for recusal, etc.

Having made a decision in dissent in numerous cases concerning the constitutionality of Roe v. Wade, Scalia cannot be accused of pre-judging. Roberts can.

Does that make sense?

Sort of?



___

[Ed Cunard]

Was I close, Slam?

[west3man]

I'm going to take a stab at answering Wes' concerns, Re: Roberts not getting in to specifics on cases and controversies.

Let's say that you're a litigant and you have a case coming before the Court (frankly, any Court). You as a litigant, want the judge to look at YOUR case and apply the facts of YOUR case to the existing law. On any given case, you expect the judge to, and it is his duty to, look at the case impartially with no preconceived notions. Now, you may have an inkling how a particular Court will rule based on its past rulings and on the existing precident, but every case is different.

The last thing I want is a judge that, going in, is wedded a certain outcome.

If that isn't sufficient...we can agree to disagree.
I appreciate your taking the time to reply.

Any case that preceded yours (i.e. the litigant's) and that was similar to yours and that this particular judge ruled on has just as much, if not more, potential to spark those preconceived notions.

If judges recuse (sp?) themselves from cases that are similar to those they've already seen or read about, that's illustrative. Sharing an opinion about a hypothetical is no worse.

Again, it's the sharing I'm talking about because Judge Roberts hasn't objected to hearing the hypotheticals. He's objected to sharing his opinion about them.

[Justin Davis]

Sort of?



___

I understand him just fine. You must be too stupid to get it.

[Tom]

I understand him just fine. You must be too stupid to get it.
I'll admit I had to read it more than once, but it's just more the idea of...I don't know, it just seems a little silly. Like we're all supposed to go along with the charade that he has no opinion on the topic already.

Not that this is about abortion or anything. I just think the whole process as it's conducted is a little silly.

[Ray R.]

Was I close, Slam?


I think your point is very valid, Ed. Combine it with mine, and we've got a winner, I hope.....

If not, then my final answer is: "Life isn't fair."

[Ray R.]

I'll admit I had to read it more than once, but it's just more the idea of...I don't know, it just seems a little silly. Like we're all supposed to go along with the charade that he has no opinion on the topic already.

Not that this is about abortion or anything. I just think the whole process as it's conducted is a little silly.


It IS silly. I call it "high drama" because it's about a bunch of Senators asking questions they know they're not going to get answers to. They love the camera, and the longer the question, the more smart they must appear to look.

Look at the guys who've been rejected: Douglas Ginsburg, because he smoked marijuana at Harvard, took himself out of the running. Robert Bork, because his writings, moreso than his legal opinions, were radical right to say the least, and he was messily involved in Watergate (plus the Dems had the majority in the Judiciary Committee). Clarence Thomas got read the riot act, because he was the head of EEOC, and was accused of sexual harassment (i.e., fox in the chicken coop), and he STILL got confirmed.

It is a charade. Judicial nominees are specifically instructed not to spill the beans on potential judicial outcomes because of the judicial ethics of non-spoilation of potential votes, but also because the less said, the better the chances for nomination. "A rolling stone gathers no moss...." I'm sure Roberts has his judicial views locked in tighter than a drum, but this is not the time or place for him to have to elaborate on them.

And because it's a charade, supposedly "safe" picks for Republicans turn into centrists like Kennedy and Souter, or Breyer on the other side, or judicial activists like Warren Burger, who showed no signs of being the firebrand for privacy and civil rights that he turned out to be, was nominated by Richard Nixon.

The nomination process doesn't tell us much, that's been the history for at least the twentieth and twenty-first centuries. Most presidents can only look at prior writings, interview the potential justice, and cross their fingers and hope for the best. A lot of justices, when they get to the Supreme Court, come to the realization that there needs to be consensus-building, and that extremism comes at a high price, and that being on the Supreme Court means you answer to no President, no constituency, no agent of the press and their supposed ideology gets replaced with conventional pragmatism and a "don't rock the boat" mentality.

[Dreadstar]

II call it "high drama" because it's about a bunch of Senators asking questions they know they're not going to get answers to.

Heh, there's even the angle that some of them would consider it a negative if he *did* answer their questions.

[Justin Davis]

I'll admit I had to read it more than once, but it's just more the idea of...I don't know, it just seems a little silly. Like we're all supposed to go along with the charade that he has no opinion on the topic already.

Not that this is about abortion or anything. I just think the whole process as it's conducted is a little silly.

I agree. I just wanted to call you stupid. It had nothing to do whether you are stupid or not though.

High drama is a good word for it. So is melodrama. Or are those essentially the same thing? I see part of the hearing as just as way for senators who would normally never get any kind of national, maybe even international spotlight, to use this opportunity to get some. Hell, most of these people probably don't get much press in their own states. I'm curious if the senator from my state has spoken yet.

[Ray R.]

I agree. I just wanted to call you stupid. It had nothing to do whether you are stupid or not though.

High drama is a good word for it. So is melodrama. Or are those essentially the same thing? I see part of the hearing as just as way for senators who would normally never get any kind of national, maybe even international spotlight, to use this opportunity to get some. Hell, most of these people probably don't get much press in their own states. I'm curious if the senator from my state has spoken yet.

You are wise, young grasshopper.

As to any representation from the great state of Mississippi, unfortunately they don't have a Senator on the Judiciary Committee....

http://judiciary.senate.gov/members.cfm

I've got noone from the Commonwealth of Virginia, either. But once he's approved by the Committee he'll get a clear majority of a full vote from the Senate....

[west3man]

I'll admit I had to read it more than once, but it's just more the idea of...I don't know, it just seems a little silly. Like we're all supposed to go along with the charade that he has no opinion on the topic already.
That's what I think it is. Pretending.

[Slam_Bradley]

http://judiciary.senate.gov/members.cfm

I've got noone from the Commonwealth of Virginia, either. But once he's approved by the Committee he'll get a clear majority of a full vote from the Senate....


Odd that both Senators from Wis. are on the committee. One would usually like to spread out the states influence in to as many areas as possible.

[Alex]

The real question is, a conservative president choice a conservative guy to replace a conservative justice.
We assume his feelings on things are pretty consistance with Reinquists, so can't they just look at what reinquist thought about the biggest issues if they don't get an answer?

[west3man]

The real question is, a conservative president choice a conservative guy to replace a conservative justice.
We assume his feelings on things are pretty consistance with Reinquists, so can't they just look at what reinquist thought about the biggest issues if they don't get an answer?
They, like anyone, can always assume. They very well may choose to do so regarding the questions he refuses to answer.

I'd ask first, though.

[Ray R.]

Odd that both Senators from Wis. are on the committee. One would usually like to spread out the states influence in to as many areas as possible.


I'm pretty sure it's a seniority thing, and you get your pick of committees (with Judiciary and Ways and Means being two of the biggies) and I would imagine the chairman can add members of his party since Cornyn, Coburn and DeWine are relatively low on the seniority scale. The Dems are all old-guard, more or less, when you see names like Biden, Kennedy, Leahy, Kohl, etc.

[Alex]

They, like anyone, can always assume. They very well may choose to do so regarding the questions he refuses to answer.

I'd ask first, though.
But they know what questions he won't answer already, and they know the reasons he won't answer them.
All it really does is give them an excuse to vote against him by saying "Well, i can't vote for him as i thought he was avoiding the questions."
Which is BS because they knew he couldn't answer them anyway.

[Slam_Bradley]

I'm pretty sure it's a seniority thing, and you get your pick of committees (with Judiciary and Ways and Means being two of the biggies) and I would imagine the chairman can add members of his party since Cornyn, Coburn and DeWine are relatively low on the seniority scale. The Dems are all old-guard, more or less, when you see names like Biden, Kennedy, Leahy, Kohl, etc.


Yeah...it just seems a lil odd. There are certain committees that almost always have people from certain states (there's almost always an Idaho Senator on Interior).

It just seems odd to have two from the same State on a single committee.

[Ray R.]

The real question is, a conservative president choice a conservative guy to replace a conservative justice.
We assume his feelings on things are pretty consistance with Reinquists, so can't they just look at what reinquist thought about the biggest issues if they don't get an answer?

Safe assumption, but the Senators are asking questions probably provided from people at NARAL, the Heritage Foundation, the Brookings Institute, the ABA, the American Enterprise Institute, etc. They have "special interests" and constituencies that want answers specific to their particular policy directives and mission statements, even if Roberts won't take the bait.

And as I mentioned before, a lot of Supreme Court Justices find "religion" when they get to the higher court, and with notable exceptions like Scalia on the right, and Bader Ginsburg on the left, they tend not to vote or deliberate on ideological grounds across the board. That's why it's been seen as a centrist court for at least a decade or so, despite the fact that very conservative Republicans nominated the majority of justices on the court.

[Loren]

Out of curiosity, does anyone have any recollection of the last two Supreme Court confirmations, for Ginsberg and Breyer?

I was only about 14 at the time, so maybe I just wasn't paying attention. I remember the hubbub over the Thomas confirmation earlier, though.

I'd just chalk it up to there being a unified government at the time, but then again, that's what we have now. Maybe it's just the case that 10 years from now, we'll have similarly forgotten about the Roberts hearings.

[west3man]

But they know what questions he won't answer already, and they know the reasons he won't answer them.
All it really does is give them an excuse to vote against him by saying "Well, i can't vote for him as i thought he was avoiding the questions."
Which is BS because they knew he couldn't answer them anyway.
Maybe "wouldn't," but not couldn't.
Sometimes, even if we think we know the answer, the fair and polite thing to do is to ask the question.

Just my opinion.

[Samurai]

Out of curiosity, does anyone have any recollection of the last two Supreme Court confirmations, for Ginsberg and Breyer?

I was only about 14 at the time, so maybe I just wasn't paying attention. I remember the hubbub over the Thomas confirmation earlier, though.

I'd just chalk it up to there being a unified government at the time, but then again, that's what we have now. Maybe it's just the case that 10 years from now, we'll have similarly forgotten about the Roberts hearings.
There are some great audio tapes of Ginsberg refusing to answer question after question on topics like the death penalty and abortion, and Joe Biden finally stepping in and saying "You not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 forms probably, over your tenure on the court." A rather striking difference from his complaints about Robert's unwillingness to answer the very same kinds of questions.

[Alex]

Maybe "wouldn't," but not couldn't.
Sometimes, even if we think we know the answer, the fair and polite thing to do is to ask the question.

Just my opinion.
He can't actually answer the questions they want to know the answers too.
You call it fair and polite, i call it pandering to special interests for no purpose other then removing yourself from their attack range.

[west3man]

He can't actually answer the questions they want to know the answers too.
You call it fair and polite, i call it pandering to special interests for no purpose other then removing yourself from their attack range.
You say "can't" and I say "can." He chooses not to do, from what I've seen.

I DID hear part of an NPR broadcast that may have said one HAS to keep certain things to oneself, but I'm not sure. If that's the case then your "can't" is on-point.


Past cases have come and gone. He could comment on those, from what I understand. The Supreme Court's role in the 2000 Presidential Election, is an example. They said he didn't need to comment on the outcome of the case, just on whether it should've been heard in the first place.