The 18 senators on the Judiciary Committee, 10 Republicans and 8 Democrats, are keenly aware that they too will be judged. The proceedings will be the first Supreme Court confirmation hearings in 11 years, and they will occur not only against the backdrop of public furor over the federal response to the hurricane but also with a second opening on the court.
Democrats, who were already planning to press Judge Roberts on civil rights, are likely to be even more aggressive on that front, citing the racial divisions exposed by the hurricane. But they must be careful not to push too hard, some political analysts say, because the suffering on the Gulf Coast has left the public with little appetite for a partisan slugfest.
A survey last week by the Pew Research Center for the People and the Press found that 71 percent of Americans were paying attention to stories about gasoline prices and 70 percent to the hurricane, but only 18 percent to the Roberts nomination. So it will be all the more difficult for senators intent on using the hearings to reshape their public personas.
The above is from Sheryl Gay Stolberg's "Roberts Spotlight Falls on Senators, Too" in this morning's New York Times.
Stolberg has covered Roberts since the nomination (as have other reporters for the Times). Why should America pay attention? The reporting has been nothing but soft balls and "beach balls" (to steal from Norman Solomon's phrase that Jess enjoyed in War Made Easy).
Why has the Times still not seriously adressed the issue of Roberts hearing a case in which the government was a party and at the same time meeting with Bully Boy and others in the administration? He should have excused himself. The press could report that, but the Times not interested.
From Democracy Now!:
Amy Goodman: As we reported previously, Roberts was part of a three-judge panel that handed President Bush an important victory the week before he announced Roberts' nomination to the bench. The appeals court ruled in the Hamdan V. Rumsfeld case that the military tribunals of detainees held at Guantanamo Bay, Cuba, could proceed. The decision also found that Bush could deny terrorism captives prisoner-of-war status as outlined by the Geneva Conventions.
New details eventually emerged concerning the timing of Roberts' interviews for the Supreme Court post with senior Bush administration officials which called into question his impartiality in the Hamdan case. Roberts' answers to a Senate questionnaire revealed that he met with Attorney General Alberto Gonzales six days before hearing oral arguments. The Hamdan case was argued on behalf of the administration by a top Gonzales deputy, Assistant Attorney General Peter Kiesler.
In addition to Gonzales, he met with Vice President Dick Cheney, the vice president's chief of staff Lewis "Scooter" Libby, White House chief of staff, Andrew Card, Bush's top political strategist, Karl Rove and White House legal council Harriet Miers. And, on the day the ruling was issued in favor of the administration, Bush himself conducted the final job interview with Roberts.
Two members of the Senate Judiciary Committee - Democrats Chuck Schumer of New York and Russ Feingold of Wisconsin - have since called on Roberts to explain before his confirmation hearings tomorrow why he continued to judge the suit as he was being interviewed to be a justice.
On August 18th, Democracy Now co-host Juan Gonzalez and I spoke with Georgetown University Law Professor, David Luban. He co-wrote an article for the online magazine, Slate , entitled "Improper Advances: Talking Dream Jobs with the Judge Out of Court." We also spoke with Michael Ratner, President of the Center for Constitutional Rights. David Luban began by talking about the chronology of events of Roberts' meetings.
DAVID LUBAN: Well, he knew that he was on the three-judge panel as early as last December. The case was argued, the oral argument was on April 7. Six days before that, as Juan mentioned, he had an interview with Attorney General Gonzales. And then while the case was being deliberated on, there's a gap between April 7, when the oral argument took place, and July 15, when the court issued the decision. He had numerous other interviews for the Supreme Court judgeship. Now, that's the period of time in which he is deliberating and presumably discussing with the other judges on the panel what the ruling should be in the case.
One of the important things about it, the three-judge panel, the case raised a number of different issues. They were unanimous on most of the issues. There was just one really crucial issue, though, in which they split two-to-one, with judge Roberts among the two. So, if he had recused himself from the case, then that issue would have been a one-to-one issue, and it wouldn't have been settled, and that's the issue about whether the Geneva Conventions give al Qaeda captives any rights at all. So, now it is decided that, on the basis of this case, that Geneva doesn't give any rights at all, including the rights against cruel and humiliating and degrading treatment, along with the rights to a fair trial that Mr. Hamdan was litigating about. So, this is an important issue that Judge Roberts' vote really swung.
JUAN GONZALEZ: But, David Luban, some legal experts say, number one, the discussions occurred before there was even a vacancy on the court. Sandra Day O'Connor did not announce her retirement until much later on. And the - and are federal judges to not have these kinds of discussions when -- for the possibility of promotions within the federal judiciary while they're holding -- while they're handling cases, especially in the D.C. Circuit, where much of the caseload is about the federal government.
DAVID LUBAN: Yeah. That's a fair question, but I don't think the chronology quite bears that out. Remember that Justice O'Connor's retirement came as a surprise, but what wasn't a surprise was that there was very likely going to be an opening on the court, and that's because the Chief Justice developed thyroid cancer and it was unclear whether he was going to resign or not. Now, as early as February 22nd of 2005, the New York Times mentioned that Roberts was a prominent possible successor to Chief Justice Rehnquist. So, at least from February on-that's a couple of months before the Hamdan case is argued-it's already being reported that there's very likely going to be an opening on the Supreme Court and that Judge Roberts is a candidate for the opening.
Now, one of the other things that's important: You said correctly the case is called Hamdan v. Rumsfeld, but President Bush was himself a defendant in the case along with Rumsfeld. That's because the President personally signed the finding that there was reason to think that Mr. Hamdan was a terrorist. So, here you don't just have a case of a lawsuit against the government. You know, the government could be anything. It could be any of thousands of offices. This is a case against the President, the President personally, among other defendants; and the people who are conducting the interviews with Judge Roberts while this case is going on, are the President's very top aides.
I don't know why the Times feels the public should be interested when the mainstream press has largely refused to address any serious issue. Instead they've all sung, "You're A Good Man, Charlie Brown" repeatedly. (Words and music by Clark Gesner.)
Remember that Democracy Now! has assembled all their Roberts coverage into a one hour special available online (audio, video and text format):
ONLINE EXCLUSIVE: An Hour-Long Special on John Roberts, President Bush's Nominee to Be Supreme Court Chief Justice
In this hour-long online special we examine the legal background and history of Judge John Roberts. Earlier today President Bush nominated Roberts to be Chief Justice of the Supreme Court replacing the late William Rehnquist, who died at the age of 80 on Saturday.
Let's note Elaine Cassel's "On the Far Right of a Far Right Party: The Brief on Judge Roberts" (CounterPunch):
I have to admit that I was fooled by the Cleaver family images displayed by the Roberts family that sultry July night. Not a bad guy, I thought. Doesn't look like a Scalia. Doesn't talk like a Scalia. Maybe President Bush won't make good on his nuclear-type promises to put a Thomas or Scalia on the high court. Maybe Roberts will be a guy with a nice demeanor, a bright man and one who is - as judges should be - fair and open-minded.
No such luck. While others were sleeping, I was up reading memoranda and briefs from days when Roberts was a political operative disguised as a lawyer working in the Reagan administration. It did not take long for the nice-guy image to fade. In its place is a judge in the mold of Scalia more than Thomas, one who is mightily impressed with himself and his intellect and one who does not care a flip for everyday Americans.
When he and his fellow "conservatives" talk about not "legislating from the bench," what they mean is that the 14th Amendment that guarantees constitutional rights to all Americans, regardless of what state they live in, should, in effect, be abolished. The Bush line on "legislating from the bench" means that the courts should not protect the people from governments who interfere with those rights so inimical to American values - freedom of religion, press, speech, freedom from unreasonable searches and seizures, and due process and reproductive rights.
Roe v. Wade was third in a line of cases that struck state laws against contraception. If you think that Roe v. Wade won't be reversed in the next few years with Roberts in the majority, you are living in a dream world. Roberts writes contemptuously about Roe v. Wade and the right of women to have any say over their own bodies. Any state laws that prohibit end-of-life decision making by competent adults would also be in jeopardy.
At Bonnie's request, the two entries from last night are "Reporting from outside the US mainstream media focused on Iraq" and "Reporting from outside the US mainstream media."
We'll close with "Editorial: Who decided Roberts could play leap frog on the Court?" (The Third Estate Sunday Review):
Last Monday the hearings on John Roberts Jr. nomination to the Supreme Court were supposed to start. They were postponed. Now they are due to start tomorrow. In a week's time, Roberts' nomination has shifted. He's no longer just nominated to the Court, he's now nominated as Chief Justice.
Only in a Bully Boy world could someone who's never served on the Court be considered worthy of not only serving but also presiding over the Court. That's the kind of thinking that puts roommates and pals and campaign workers into public posts and we've seen the damage that can do.
Now the press has taken a pass on Roberts from day one. They're eager to see the boy get confirmed. So we aren't surprised that in the last week little was made of the fact that there's a world of difference between the federal courts and the Supreme Court.
But we'll ask the questions they won't? (Seems to be the function of our editorials.)
Are you telling us that of the seven justices currently sitting, and planning to continue sitting on the bench (we're leaving out the eighth who's announced her retirement), that there's not one, with their years of experience, who's actually qualified to be Chief Justice?Are you saying that Bully Boy's boy, who's never served on the Court, has something that trumps all of them?In a country that preaches the hard work ethic, it's hard to reconcile that notion with the idea that Roberts is going to play leap frog over the backs of seven sitting Justices.
We would assume that a new Justice would need time just to assimilate and grasp the workings involved in the Highest Court of the land. Instead of getting his toe wet, he's diving straight into the deep end. Well, a swimmer can do whatever they choose with their own lives and fate. But we're talking about a Court that is the final say in matters across the nation.
Exactly how does someone who's never served on the Court qualify to be elevated to Chief Justice?Volunteering on Bully Boy's legal squad in 2000 appears to be one qualification. That's a qualification that's resulted in many appointments. On most of those appointments, the press failed to examine the resumes of the appointees. Case in point, Michael "Brownie" Brown. Thomas & Scalia (and the rest of the Gang of Four that's not retiring -- Gang of Five until Rehnquist's death), you just got served.
You're "good," just not good enough to be Chief Justice in the eyes of the Bully Boy. Put it another way, you're Irish-Americans trying to fit into the Italian mob. You'll never be a "made man." Put that in your Constitutional shredder and smoke it.
It's as though Roberts showed up to work the line at McDonalds and got put in charge of the franchise.
Something doesn't add up. But the press doesn't want to touch on it. They want to act as though it's perfectly natural for a man who was just a nominee to the Court a week ago to suddenly be in line to become Chief Justice.
We're hoping that the Democrats have some strategy here. Honestly, we've got more faith in Ted Kennedy than in any of the others. We're praying that lion will roar and drive home the questions to Roberts nominations.
But will anyone ask the neophyte would-be lifetime Chief Justice exactly what qualifies his starting at the top? Or will we continue to remain mute in this up-is-down Bully Boy world?[Note: This editorial was written by Jim, Dona, Ty, Jess and Ava of The Third Estate Sunday Review', Elaine of Like Maria Said Paz, Cedric of Cedric's Big Mix, Rebecca of Sex and Politics and Screeds and Attitude, Betty of Thomas Friedman is a Great Man, Kat of Kat's Korner (of The Common Ills), Mike of Mikey Likes It!, and C.I. of both The Common Ills and The Third Estate Sunday Review.]
posted by Third Estate Sunday Review @ Sunday, September 11,
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