Roberts Set For Supreme Court Nomination

[gldstwmn]

http://www.cnn.com/2005/POLITICS/07/...ain/index.html

Bush to announce court choice
Sources say nominee will not be 5th Circuit's Edith Clement

Tuesday, July 19, 2005; Posted: 6:09 p.m. EDT (22:09 GMT)

WASHINGTON (CNN) -- President Bush will announce his pick to replace Justice Sandra Day O'Connor on the Supreme Court at 9 p.m. Tuesday, said White House press secretary Scott McClellan.

Bush said at a midday news conference that he has considered a variety of people, and "I'll let you know when I'm ready to tell you who it is."

"I do have a obligation to think about people from different backgrounds but who share the same philosophy -- people who will not legislate from the bench," he said. "That's what I told the people when I ran for president."

O'Connor, 75, was the first woman appointed as a Supreme Court justice, and has served on the court since 1981.

Her replacement must be confirmed by the Senate, and senators have braced for a battle since she announced her retirement July 1.

Speculation about a replacement focused much of Tuesday on another woman: Edith Clement, a judge on the 5th U.S. Circuit Court of Appeals, based in New Orleans, Louisiana.

But three informed sources told CNN on Tuesday evening that president would not choose Clement. One source said she was one of the finalists and confirmed she had met with Bush this past weekend.

Other names mentioned as a possible candidate include Attorney General Alberto Gonzales, Bush's former legal adviser; federal appellate judges J. Michael Luttig and James Harvie Wilkinson, both of whom serve on the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals; and another judge from the 5th Circuit, Emilio Garza.

This is the first Supreme Court vacancy since 1994, when President Clinton nominated Stephen Breyer. President Reagan appointed O'Connor, who took her seat as associate justice on September 25, 1981.

On Saturday, Bush said in his weekly radio address that he wanted the confirmation process to be nonpartisan.

"The nominee deserves fair treatment, a fair hearing and a fair vote. I will make my nomination in a timely manner so the nominee can be confirmed before the start of the court's new term in October," he said in his weekly radio address.

The president said he has been working with senators on the nomination process.

Bush and Vice President Dick Cheney met July 12 with four senators with key roles in the confirmation process: Majority Leader Bill Frist, R-Tennessee; Minority Leader Harry Reid, D-Nevada; Sen. Arlen Specter of Pennsylvania, the Republican chairman of the Judiciary Committee; and the committee's ranking Democrat, Sen. Patrick Leahy of Vermont.

The senators said afterward that potential nominees were discussed, although Bush did not offer any names. They did commit to having O'Connor's replacement in place by the start of the court's new term in October.

Bush also met separately with Specter at the White House Monday evening. The senator would not divulge what was discussed.

Specter indicated on "Fox News Sunday" that he favored someone more like O'Connor, who was often a swing vote on the court.

Bush, he said, should be able to stand "above the fray" and make an appointment that would be "in the national interest" -- not because he was "beholden to any group, no matter how much they contributed to his election."

"When you have these delicate questions, it's helpful to the country to have somebody who is a swing vote, which maintains the balance," Specter said.

The nominee is expected to meet with members of the Judiciary Committee next week before Congress takes a month off.

The Senate is scheduled to take a recess from August 1 through September 5, meaning confirmation hearings likely will begin after Labor Day.

Reid said hearings might last a "good long week" if the nominee is not controversial.

O'Connor remains at work; her retirement is effective when her successor is sworn in.

There had been speculation that Bush might have at least one more opening to fill on the court.

Chief Justice William Rehnquist announced Thursday that he has no plans to step down and will continue to serve as long as he can.

"I want to put to rest the speculation and unfounded rumors of my imminent retirement," Rehnquist said in a statement released through his family. "I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits."

The 80-year-old has been battling thyroid cancer since October and underwent a tracheotomy as part of his treatment. He endured weeks of chemotherapy and radiation.

[gldstwmn]

Who the hell is this guy?

[strandinthewind]

.C. Circuit Judge Gets on Supreme Court Short List

Tony Mauro
Legal Times
02-22-2005



John Roberts Jr., the newest judge on the U.S. Court of Appeals for the D.C. Circuit, was hanging back.

During a typical oral argument last week, colleague Harry Edwards fussed and fumed at the lawyers before him, while David Sentelle tossed out avuncular one-liners in his thick Southern drawl.

But Roberts, the third judge on the panel, was quiet. When he did speak finally, he was barely audible, politely asking a question or two, but never tipping his hand. To anyone watching for the first time, Roberts barely made an impression.

Suddenly, though, a lot of people are talking about this quiet judge, who just turned 50. The fickle spotlight on possible nominees to the Supreme Court if Chief Justice William Rehnquist departs has swung toward Roberts, and seems to be lingering.

In spite of Roberts' quiet manner, his credentials -- former Rehnquist law clerk, deputy solicitor general, top-flight practitioner at Hogan & Hartson and, in the estimation of some, the finest oral advocate before the high court in the last decade -- are speaking for him and winning fans. Add to that a brief 20-month tenure on the court that provides few targets for Democrats, and Roberts is emerging as a top candidate for the high court.

"He is well in the running, and he is superb," says C. Boyden Gray, partner at Wilmer Cutler Pickering Hale and Dorr and chairman of the Committee for Justice, which fights for President George W. Bush's judicial nominees.

"He's a great judge here, but I think we're going to lose him" to the Supreme Court, says a fellow D.C. Circuit judge who asked not to be named.

At a recent discussion before the local chapter of the Corporate Counsel Association, Roberts got considerable mention when a panel of Supreme Court experts was asked to handicap possible nominees.

"I think it will be John Roberts," said Latham & Watkins partner Maureen Mahoney, who is on some lists herself. "He has the brilliance, dedication and temperament to emerge as an intellectual leader of the Court," she said afterward.

Getting to this point has been a long and steady climb for Roberts, who was first nominated to the D.C. Circuit while he was in the Office of the Solicitor General in 1992. His nomination died, prompting Roberts to return to Hogan and build an esteemed and lucrative Supreme Court practice. He argued 39 cases before the Court in both the private and public sector, winning 25.

The current President Bush nominated him again in 2001, and again Roberts languished until finally winning unanimous confirmation in 2003. His pay cut is breathtaking: According to his financial disclosure form, Hogan paid Roberts just over $1 million in 2003, a combination of salary plus the payout representing a departing partner's ownership interest in the firm. As an appeals court judge, Roberts makes $171,800 a year.

ON THE SHORT LIST

With all the recent talk, Roberts has joined 4th Circuit Judges J. Michael Luttig and J. Harvie Wilkinson III and 10th Circuit Judge Michael McConnell on the short list of those who might get the nod, especially if President Bush replaces Rehnquist as chief justice with Antonin Scalia or Clarence Thomas.

But there is one way in which Roberts stands apart from -- and possibly ahead of -- the others. Luttig, with 13 years on the 4th Circuit, and Wilkinson with 20 have written enough opinions that it is easy to chart how conservative they are. McConnell has only two years on the 10th Circuit, but he has a provocative paper trail from his 17 years as a prolific conservative law school professor.

By contrast, Roberts, with 20 months on the D.C. Circuit, has few opinions or other writings that have attracted enemies. As a result, some conservatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the 1st Circuit before being appointed in 1990 by President George H.W. Bush failed to reveal Souter's moderate-to-liberal leanings on some issues.

Yet those who know Roberts say he, unlike Souter, is a reliable conservative who can be counted on to undermine if not immediately overturn liberal landmarks like abortion rights and affirmative action. Indicators of his true stripes cited by friends include: clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr among others, and even his lunchtime conversations at Hogan & Hartson. "He is as conservative as you can get," one friend puts it. In short, Roberts may combine the stealth appeal of Souter with the unwavering ideology of Scalia and Thomas.

But this take on Roberts puts some of his biggest boosters in a quandary. They praise Roberts as a brilliant, fair-minded lawyer with a perfect judicial temperament. But can that image as an open-minded jurist co-exist with also being viewed as a predictable conservative?

Florida personal injury lawyer Dean Colson of Colson Hicks Eidson in Coral Gables, who has known Roberts since they clerked for Rehnquist together in 1980, side-steps the question.

Colson calls Roberts "the smartest lawyer in America," someone who will "approach the cases with an intellectual viewpoint. I don't view him as having an agenda to promote."

But does that mean conservatives can't count on Roberts? "I don't know the answer as to how he would vote on specific issues," says Colson. "I would never ask him, and I hope he never tells anybody what he would do."

Mark Levin, author of "Men in Black," a new conservative critique of the Supreme Court, sees no conflict and is a fan of 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. He follows the Constitution, and he is excellent."

E. Barrett Prettyman Jr., a longtime Roberts fan and lifelong Democrat who worked with him for years at Hogan, says that if anyone can be both judicious and predictable, Roberts can.

"He respects the Court greatly, and would not ignore precedent," says Prettyman. "But if there's a loophole or a distinguishing factor, he'd find it."

Roberts himself declined to comment for this story, but during his January 2003 Senate confirmation hearing, he made it clear that he prefers impartiality over predictability. For example, he criticized the press for identifying judges according to whether they were appointed by Democratic or Republican presidents.

"That gives so little credit to the work that they put into the case," he said. "They work very hard, and all of a sudden the report is, well, they just decided that way because of politics. That is a disservice to them."

NOT ALWAYS PREDICTABLE

So far on the D.C. Circuit, 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.

"These decisions are troubling in a lot of ways," says Elliot Mincberg of the liberal People for the American Way, a point person in any battle over Supreme Court nominees.

But Mincberg's criticism of Roberts may be muted somewhat by the fact that he worked with Roberts at Hogan years back and 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.

Another person who might otherwise be a critic of Roberts is a longtime friend. Georgetown University Law Center professor Richard Lazarus, an environmental law advocate, was a classmate of Roberts at Harvard Law School and roomed with him when they first came to Washington 25 years ago.

"John Roberts and I are very good friends, and I think very highly of him as a person, lawyer and judge," says Lazarus with care. "After that, I have to bow out."

Lazarus would not comment further, but other friends say the roots of Roberts' conservatism can be traced to his days as a Harvard undergraduate, toward the end of the Vietnam War. Seeing fellow students demonstrate in sympathy with Ho Chi Minh, one said, did not sit well with Roberts, who grew up in Indiana.

As unassuming as Roberts is, he also has a keen sense of humor, friends say. When Roberts was deputy solicitor general in 1990, he and Hogan friend Prettyman were adversaries in Lujan v. National Wildlife Federation, a case that turned out to be a landmark decision narrowing the doctrine of standing. Prettyman's federation clients claimed they had standing to challenge certain Interior Department land management decisions because they used nearby land for recreational purposes. Roberts argued that was not a specific enough injury to achieve standing.

Before the argument, Prettyman says, Roberts went out West to look over the public lands at issue in the case. "He sent me a postcard from out there," Prettyman recalls. "He wrote that he had looked and looked for my client, but couldn't find her."

As it turned out, neither could the Supreme Court. It ruled 5-4 that Prettyman's clients had no right to sue. Roberts' argument won the day.

http://www.law.com/jsp/printerfriend...=1108389946956

[strandinthewind]

John G. Roberts

John G. Roberts is nominated to the DC Circuit of the Circuit Court of Appeals, widely perceived to be the most influential of the appellate courts and a stepping-stone to the United States Supreme Court. As an attorney in the Justice Departments of Ronald Reagan and George H.W. Bush, Roberts repeatedly argued for the reversal of Roe v. Wade stating that there was "no support in the text, structure or history of the Constitution" for the reasoning behind Roe. NAF believes that the appointment of Roberts will weaken the protections of Roe and its progeny. Numerous cases impacting the accessibility of abortion could come before this circuit, including administrative decisions such as the availability of mifepristone (RU-486).

http://www.prochoice.org/policy/cour...ch_oppose.html

[gldstwmn]

Thinks Roe v. Wade should be overturned. Oh, HELL NO.

[strandinthewind]

With strong conservative credentials but a slim paper record, D.C. Circuit Judge John Roberts Jr. is well respected by many Washington insiders, both conservative and liberal, but is less familiar to a broader conservative constituency. In 1990, as deputy solicitor general, Roberts was the lead lawyer in a case in which the government argued that Roe should be overturned. He has not dealt with the abortion issue while on the bench.

http://biz.yahoo.com/law/050711/b7c7....v=1&printer=1

[strandinthewind]

John G. Roberts Jr.

"With impeccable credentials ... the question marks about Roberts have always been ideological. While his Republican party loyalties are undoubted, earning him the opposition of liberal advocacy groups, he is not a 'movement conservative,' and some on the party's right-wing doubt his commitment to their cause. His paper record is thin: as Deputy Solicitor General in 1990, he argued in favor of a government regulation that banned abortion-related counseling by federally-funded family planning programs. A line in his brief noted the Bush administration's belief that Roe v. Wade should be overruled."
— Washington Post, July 1, 2005

"Roberts has been floated as a nominee who could win widespread support in the Senate. Not so likely. He hasn't been on the bench long enough for his judicial opinions to provide much ammunition for liberal opposition groups. But his record as a lawyer for the Reagan and first Bush administrations and in private practice is down-the-line conservative on key contested fronts, including abortion, separation of church and state, and environmental protection. ...

"For Bush I, successfully helped argue that doctors and clinics receiving federal funds may not talk to patients about abortion. (Rust v. Sullivan, 1991)"

— Slate Magazine, June 24, 2005

"The official, who declined to be named, said appellate judges J. Michael Luttig of Richmond, John Roberts of Washington and Samuel Alito Jr. of New Jersey might top the list, which published reports say also includes several other judges and Attorney General Alberto Gonzales. ...

"Roberts, 50, voiced opposition to abortion rights as a government lawyer. In 1991, he co-wrote a government brief in support of federal law barring federally funded family planning organizations from offering abortion-related counseling. The government argued that Roe v. Wade 'was wrongly decided and should be overturned,' and that the high court's ruling in the landmark abortion case was not supported 'in the text, structure or history of the Constitution."

— Atlanta Journal-Constitution, June 24, 2005

"Roberts, 50, has seen his stock rise in recent months. Widely considered one of the top appellate lawyers to argue before the Supreme Court, Roberts was first nominated to the bench near the end of the elder Bush's presidency, and the nomination died in the Senate. He was confirmed two years ago with bipartisan support, but less is known about his views than those of other contenders."

— Chicago Tribune, June 22, 2005

"Many liberals think Roberts may be a sign of what's to come. They grew nervous with his dissents challenging the constitutionality of the Endangered Species Act and because of his support of the White House decision to keep the Cheney energy task force records secret."

— The Village Voice, June 21, 2005

"In the meantime, Republicans close to the preparations say that the White House has assembled research on some 20 Supreme Court candidates, with more intensive research on a handful of the most mentioned, all federal appellate judges and all conservative: ... John G. Roberts Jr. of the District of Columbia ... "

— The New York Times, June 20, 2005

"White House officials have prepared for the prospect by culling long lists of possible candidates, poring through old cases and weighing a variety of factors from judicial philosophy to age. Bush and his inner circle have had tightly held deliberations and no one can say for sure whom he might pick for chief justice, but outside advisers to the White House believe the main candidates are federal appeals Judges John G. Roberts ... "

— The Washington Post, June 19, 2005


"A former Rehnquist clerk has also been mentioned as a possible court nominee. John G. Roberts, who has been on the U.S. Court of Appeals for the District of Columbia Circuit since June 2003, was one of President Bush's least contentious picks for the bench. ...

"Roberts, 50, has generally avoided weighing in on disputed social issues. Abortion rights groups, however, have maintained that he tried during his days as a lawyer in the first Bush administration to overturn Roe v. Wade."

— Associated Press, June 18, 2005

http://www.plannedparenthood.org/pp2...rt.xml#roberts

[Mad4stevie]

Originally Posted by gldstwmn

Thinks Roe v. Wade should be overturned. Oh, HELL NO.

Roberts on Roe

In his defense, Roberts told senators during his 2003 confirmation hearing that he would be guided by legal precedent. “Roe v. Wade is the settled law of the land. ... There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

From:

http://www.msnbc.msn.com/id/8625492/

[gldstwmn]

Jesus H. Christ. This is going to be a problem.

[strandinthewind]

Originally Posted by Mad4stevie

Roberts on Roe

In his defense, Roberts told senators during his 2003 confirmation hearing that he would be guided by legal precedent. “Roe v. Wade is the settled law of the land. ... There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent.”

From:

http://www.msnbc.msn.com/id/8625492/

Beat me to the puch

I do think, however, he was full of shiitte when he said that. I think this because although he may not have a problem with it personally, who the hell cares as he has openly advocated for its outright reversal in the past. I judge on actions not rhetoric.

[strandinthewind]

Originally Posted by gldstwmn

Jesus H. Christ. This is going to be a problem.

Well, let's hope we see the set of nads the D's purport to have.

My guess is he will be confirmed by "the seven" and that is ashame.

[gldstwmn]

Originally Posted by strandinthewind

Beat me to the puch

I do think, however, he was full of shiitte when he said that.

Based on your post above Heather's, I would have to agree. Nominate a fundie, take the heat off Rove. It's okay. We can multi task.

[gldstwmn]

Originally Posted by strandinthewind

Well, let's hope we see the set of nads the D's purport to have.

My guess is he will be confirmed by "the seven" and that is ashame.

He's a Craaaaaacker!

[Mad4stevie]

Originally Posted by strandinthewind

With strong conservative credentials but a slim paper record, D.C. Circuit Judge John Roberts Jr. is well respected by many Washington insiders, both conservative and liberal, but is less familiar to a broader conservative constituency. In 1990, as deputy solicitor general, Roberts was the lead lawyer in a case in which the government argued that Roe should be overturned. He has not dealt with the abortion issue while on the bench.

Jason, you know as well as I how often briefs are written from a client's viewpoint on the law and do not necessarily reflect our own personal views. Lawyers are paid to represent their client's viewpoint on the law; I don't think it is fair to pigeonhole him based on some line written in a brief over 10 years ago.

[strandinthewind]

Originally Posted by gldstwmn

He's a Craaaaaacker!

that he nominated a white male who appears to be from the upper crust is an appalling move given that he had other choices that would make The Court, already heavy with white males, more accurately reflect the population of America.