My latest "Scoring Scotus" update is on Eric Alterman's Altercation today.

One more note: Legal Times reports that Judge Robert's nomination has been two decades in the making and is the flower of the Reagan revolution.

The results have been telling: a reined in commerce clause diminishing Congress' ability to regulate, sweeping state immunity from most private lawsuits, an increasing emphasis on state and individual rights, and, ironically, a smaller Supreme Court docket as appellate courts fall in line with current Court sympathies.

While conservatives label these developments as classic examples of restraining the power of the federal government and the judiciary, liberals see something very different -- an activist, right-wing judiciary shaping the courts to conservative standards.

"The conservative seizing of political power is part of a very broad vision to change the culture of the United States," notes New Democratic Network President Simon Rosenberg. "The federal judiciary fits into the context of the broader march."

Among the documents released from Judge John Roberts' tenure as Associate White House Counsel during the Reagan era are memos criticizing the Supreme Court Justices for accepting too many death penalty appeals and prisoners-rights cases:

Mr. Roberts wrote in a memorandum to his boss, Fred F. Fielding, the White House counsel, that ...the court had only itself to blame for its burden of cases.

"If the justices truly think they are overworked, the cure lies close at hand," Mr. Roberts wrote. "The fault lies with the justices themselves....He wrote that if the court took fewer death penalty and prisoner-rights cases, the docket would be cut by at least a half-dozen cases a year. He added a comment that may signal his view of the Supreme Court's proper role.

by TChris

Earlier posts (here and here) have suggested questions that could usefully be posed to John Roberts at his confirmation hearing. Continuing in that vein, Vikram David Amar suggests that senators ask Roberts to analyze the Supreme Court's rulings in five "blockbuster" cases that were decided by 5-4 majorities.

Amar refutes the notion that a judicial nominee shouldn't be asked about legal issues if those issues might again come before the court:

This is nonsense. Of course the nominee should not make, or be asked to make, promises about future rulings. But the disclosure of specific views about past cases does not commit the judge to rule in any particular way in the future. He remains free to change his mind if he is persuaded by sound legal arguments, the same way sitting justices are free to do so.

The White House today said it will refuse to turn over Supreme Court Nominee John Robert's tax returns.

Courting Influence has his 10 page financial disclosure statement (pdf) from his 2003 application to the D.C. Circuit Appeals court, filed in May, 2004. Net Worth: $3,782,275.

Not bad for a lawyer who was only in private practice for 13 years of his career. Roberts was a government lawyer from the beginning of his legal career in 1979 until he left for Hogan & Hartson in 1986. He was an associate for a year, and then made partner. He left the firm to return to Government employ as Deputy Solictitor General in 1989. Total time spent in private practice at this point: 3 years. He left his job as Deputy Solictor General to return to private practice with Hogan and Hartson in 1993.In 2003, he was confirmed as a D.C. Circuit Appeals Court Judge.

In a new interview with the Associated Press, Attorney General Alberto Gonzales said that once Judge John Roberts becomes a Supreme Court Justice, he is no longer obligated to follow precedent like Roe v. Wade...in other words, unlike an Appeals Court Judge who is bound by Supreme Court precedent, as a high court Justice, if he disagrees with it, he could vote to overturn it.

The legal right to abortion is settled for lower courts, but the Supreme Court ``is not obliged to follow'' the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday as the Senate prepared to consider John Roberts' appointment that would put a new vote on the high court.

In an interview with The Associated Press, Gonzales said a justice does not have to follow a previous ruling ``if you believe it's wrong,'' a comment suggesting Roberts would not be bound by his past statement that the 1973 decision settled the issue.

Excerpts from the interview:

Press Release:

NARAL Pro-Choice America filed a formal request with the Bush White House that asks for records or descriptions of any contacts between President Bush or other administration officials and radical right organizations that have praised his selection of John Roberts for the Supreme Court.

Nancy Keenan, president of NARAL Pro-Choice America, said the jubilant reaction from organizations that have advocated the overturning of Roe v. Wade reflected the undue influence these groups may have had on this selection.

My latest "Scoring Scotus" is up at Eric Alterman's Altercation today. (the first one is here.) I won't be cross-posting, so please read both. I still have some reservations about Roberts. Does a brilliant legal mind trump a lack of experience in the trial courts? The Senate Questionnaire submitted by Judge Roberts when he applied for his seat on the D.C. Circuit Court of Appeals is available here(pdf), courtesy of Courting Influence.

It's somewhat curious to me that so many have touted his qualifications to a position on the nation's highest court when:

• He has never tried a case before a jury
• He has never presided over a trial as a judge
• He has little criminal law experience or expertise
• He has almost no experience practicing before state courts
• The sum total of his appellate experience is arguing 65 cases in 17 years.

By all accounts, Judge Roberts has a brilliant legal mind and a terrific temperament. But in addition to trying to ascertain his position on abortion, states' rights, the environment and the Commerce Clause, I hope the Judiciary Committee doesn't overlook the fundamental question of whether his experience makes him qualified for the job.

by TChris

In addition to the useful questions suggested here to pose to John Roberts at his confirmation hearing, a NY Times editorial offers another useful question: If, as you claim, you've never been a member of the right wing's favorite legal organization, the Federalist Society, why were you "listed in a Federalist Society Lawyers' Division Leadership Directory for 1997-1998 as a member of the steering committee of the Washington chapter"?

by TChris

Sen. Arlen Specter provides a not-very-helpful user's guide to judicial confirmation hearings in today's NY Times. Senators can ask any question they like, Specter reminds us, and the nominee can evade the question as he sees fit. Any controversial question will be met with "I don't want to give the impression that I've prejudged any issue that might come before the Court," a shorthand way of saying "If I answer that, half the country will think I'm unfit for this job."

Specter suggests that process based questions are more appropriate, but coaxing a nominee to assure the Senators that he respects precedent isn't likely to provide much insight into the kind of Supreme Court Justice John Roberts might be. More useful questions the Senators should consider asking: Did anyone in the White House ask you about Roe v. Wade? If the word abortion came up during any conversation with a member of the White House, please repeat that conversation for us. Was Guantanamo mentioned during your job interview? If given the chance, would you go duck hunting with Dick Cheney? Who should decide elections: voters or the Supreme Court?

by Last Night in Little Rock

Caution: The following post contains lawyertalk and opinion quotes.

Judge Roberts today dissented in a 2-1 reversal of a denial of a motion to suppress the search of the trunk of a car based on the park police officers' belief that it might contain documentation of ownership or a stolen license plate, a concept the majority found illogical. United States v Jackson (D.C. Cir. 04-3021, July 22, 2005). This is his first Fourth Amendment opinion since being nominated to the Supreme Court, and it led to an interesting exchange on the panel.

It appears that Judge Roberts prefers to defer to police discretion in determining the reasonableness of a search and seizure. This does not bode well for the Fourth Amendment.

via The New York Times:

But retiring Justice Sandra Day O'Connor quickly weighed in on the president's nomination for her replacement, calling Judge Roberts "good in every way, except he's not a woman." Justice O'Connor made the comments in an interview on Tuesday after a fly-fishing trip with the outdoor editor of The Spokane Spokesman-Review, where she was also quoted as saying that she was almost sure Mr. Bush would not appoint a woman to replace William H. Rehnquist because she did not think he would want a woman as chief justice.

"So that almost assures that there won't be a woman appointed to the court at this time," Justice O'Connor said.

The article also has details about the interview process Bush went through. 4th Circuit Judge Harvie Wilkenson said he wasn't asked his opinion about Roe v. Wade or any other issue:

The 14 Senators that sold us out on Janice Rogers Brown and Priscilla Owen are meeting Thursday. Why? Don't we still have a Senate Judiciary Committee? Who annointed them the arbiters of a Supreme Court nominee?