The Blood Sport Has Begun

I didn't think the left led by NARAL (National Abortion Rights Action League) would hold its fire on this nomination...there is too much at stake. You would think they would be a bit more sophisticated though. They have tried to link Roberts to a position defending clinic bombings. One big problem...the case Roberts worked on defending pro-life groups happened years before the bombing they are trying to link him to. Here is a point by point rebuttal of the ad from over at Bench Memos:

"Even by the standards of the pro-abortion movement, the new television ad (which Kathryn links to here) that the group now calling itself NARAL Pro-Choice America has unleashed is particularly mendacious. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.” NARAL’s press release disingenuously claims that “we are not suggesting Mr. Roberts condones or supports clinic violence” when that of course is exactly what its ad does.

A few comments: 1. The case in which Roberts submitted an amicus brief on behalf of the United States, Bray v. Alexandria Clinic, presented the question whether the Ku Klux Klan Act of 1871 provides a federal cause of action against persons obstructing access to abortion clinics. The particular provision at issue had long been construed to require showing of a “class-based, invidiously discriminatory animus.” Relying on precedent and logic, the Supreme Court easily determined that opposition to abortion does not reflect an animus against women as a class, “as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations.”

2. Roberts never “excuse[d] violence against other Americans.” There are plenty of laws that criminalize violence outside abortion clinics. Roberts never took any action to undermine any of them. It is NARAL that has the “ideology” that every law should be distorted to advance the cause of abortion.

3. Following the Bray decision, Congress enacted into law in 1994 the so-called FACE Act, which imposes far more comprehensive and severe penalties against those obstructing access to abortion clinics. The fact that this law failed to deter the 1998 bombing that injured the clinic worker featured in NARAL’s ad makes it all the more ludicrous to suggest that Roberts’s proper reading of the Ku Klux Klan Act of 1871 in 1991 is somehow responsible."

Roberts on Judicial Restraint

Here is a draft article written by Judge Roberts from his time in the Reagan administration. It was released by the national archives (HT to Confirm Them). If Roberts still holds these views some 20 years later then he will make a fine trustee of the Constitution if confirmed by the Senate.

Here are a couple of excerpts

"The greatest threat to judicial independence occurs when the courts flout the basis for their independence by exceeding their constitutionally limited role and the bounds of their expertise by engaging in policymaking committed to the elected branches or the states. When courts fail to exercise self-restraint and instead enter the political realms reserved to the elected branches, they subject themselves to the political pressure endemic to that arena and invite popular attack. Recently, Judge Malcolm Wilkey of the United States Court of Appeals for the District of Columbia Circuit expressed a "sense of relief" upon learning that the federal government would raise arguments designed to limit courts to their proper role rather than thrust them further into the domains of the elected branches..."

"...Our concern is not with results in a particular case; it is with the institutional role of the courts in our federal system and the scheme of separation of powers. Our effort, therefore, will focus on the procedures and approaches which help define the judicial role. We will, specifically, urge courts to observe strictly the requirements of justiciability, to avoid testing the constitutionality of laws by those devices which permit ready intrusion into the domain of the legislature, and to exercise restraint in the formulation of equitable decrees."


"...Throughout history and to this day both liberal and conservative interests have sought to enlist an activist judiciary in the achievement of goals which were not obtainable through normal political processes...Now different groups urge judges to substitute their own policy choices for those of federal and state legislatures, but the evils of judicial activism remain the same regardless of the political ends the activism seeks to serve."


Read the Rest...

Froggy Went A-Courtin'

Here is a good piece on one of Robert's past decisions and the attempts of the left to twist it to their favor...(HT to Confirm Them)


Mr. Toad’s Wild Ride

By Alexander Schwab

A California toad is creating quite a stir in Judge John Roberts’ nomination to the Supreme Court of the United States. And no, it’s not Barbara Boxer.
Judge Roberts, whose indefatigably mainstream record on the bench has frustrated attempts to brand him an extremist, is now under fire for an opinion he penned that discusses the federal government’s power over the habitat of the Arroyo Southwestern Toad. Never mind that the opinion was a dissent, and so establishes no precedent; never mind that the court was simply ruling on whether or not to hear the case; never mind that Judge Roberts was not alone. Judge Roberts’ failure to support the toad (via the vehicle of federal regulation) proves he must be an anti-environmentalist reactionary.

Rancho Viejo v. Norton concerned a proposed housing development, blocked by the federal government through the Endangered Species Act after the Department of the Interior determined the construction project would endanger the Arroyo Southwestern. The DC Circuit panel upheld the governmental intervention, spurring a petition from Rancho Viejo urging the court to reconsider en banc. A majority denied the petition, but Judge Roberts and a fellow judge dissented, positing that the decision might merit examination in light of certain Supreme Court precedents limiting the extent of federal regulatory power.

However, the left-wing People for the American Way (PFAW), finding itself with extensive funds and no useful way to spend them, has decided to make an issue of an otherwise innocuous suggestion for greater scrutiny. They hope with their press releases that the general American populace comprehends as little of the judicial process as they do, transforming Rancho Viejo v. Norton into the public trial of Judge Roberts v. Endangered Species.

This method of “creative” simplification is just the latest example of a deep error in understanding the role of courts. The judges in this case were not asked to rule on whether they liked toads and found them worth protecting, but whether the Constitution provides Congress with the power to do so. Under Article I of the Constitution, Congress has the power to regulate interstate commerce (the so-called “Commerce Clause”). Judge Roberts simply observed that a toad that lives its entire life in one state and is not the source of any commercial dealings might not fall into the category of interstate commerce. What an atrocity.

To see this case as an indication of whether one likes or dislikes toads (at least the Arroyo Southwestern variety) is to view legal jurisprudence through the lens of political policymaking — the very fate Bush seeks to avoid in his judicial nominations. Instead, Judge Roberts nobly adheres to the words of his mentor, Chief Justice Rehnquist: “A judge is bound to decide each case fairly in a court with the relevant facts and the applicable law even when the decision is not what the home crowd wants.”

Environmentalism is not the issue; the Commerce Clause is. Through a near-boundless interpretation of “interstate commerce,” the Supreme Court has justified federal government encroachment in all aspects of American life. Special interests tout amphibian welfare, but their true concern is the restriction on government that stems from an honest reading of the Commerce Clause. As Barry Goldwater cautioned, "the government that can give you everything is the very same government that can take it all away."
When President Bush was sworn into office, he took an oath — as every President does — to protect the Constitution of the United States. Mr. Justice John Roberts may be his best means of fulfilling that obligation.

Back from Vacation...Thoughts on Roberts...

Well, I am back from a week of vacation where I was obviously unable to post. I was pretty much out of the loop in terms of news of the day. I did read one piece in Newsweek in an airport on the Roberts nomination. I had a couple of thoughts on this article.

I was struck by just how fair it was to Roberts. They described him as someone who was not an outcome based jurist who is looking to fit the law around their preconcieved notions of a given policy outcome (they did describe Rehnquist as an outcome based jurist, which is not fair or accurate description of Rehnquist in my opinion). The article described Roberts as someone devoted to the law, and an independent thinker. They described him as someone whose respect for the law would outweigh any political preferences he might have. Overall the article was pretty favorable.

The article even went so far as to predict that his confirmation was likely. It seemed to imply that the left my hold its fire on the Roberts nomination and go for broke on the next nominee.

So far it is all quiet on the western front and Roberts seems to have the support of moderate Democrats (or more critically members of the "gang of 14"). One's optimism is tempered however by remembering that the Clarence Thomas nomination went smoothly for 80 days before degenerating into a national spectacle full of unsubstantiated allegations and showboating by Senators. I am not as sanguine as some that this nomination may be bloodless. I do not think that the leftist political groups such as NARAL, or radical senators such as Kennedy, Schumer, and Leahy, will hold their fire. Everybody is being cautious and playing nice, even the press, but when the allegations come (and they will) they will say, "Hey we gave him the benefit of the doubt, but we didn't know about this (fill in the blank with the allegation of the day)!" By September 6th when the hearings are about to convene there will be some attempt to undermine Roberts, if they can manufacture some kind of semi-credible accusation. That is my belief. I hope it does not come true, but I just do not believe that the left will let Roberts slide through untouched. They haven't let a "trustee" nomination go through unscathed in nearing 20 years, why should they start now?

More on this article and Roberts in the coming days...