It's no surprise that President Bush resisted postponing the Senate confirmation hearings on Samuel Alito's nomination to the Supreme Court until January. The more Americans learn about Alito, the more worrisome his appointment becomes.

For a great take on Alito's stance on civil rights, check out today's column in The Boston Globe by Derrick Jackson.

A nominee so willing to prostrate himself to an administration that left virtually nothing to be proud of on civil rights is a solid warning that if Alito gets on the court, he will have no shame exhuming the ideology he claims has been buried.

This week... Kelly is on assignment in Wisco, but the rest of the roundtable (Adam, Tim and Dr. Oth) are set for a big show. We're not sure whether to call this the "all testosterone show" or the "all off-message show." No matter what, check us out tomorrow for SCW 33.

We know. It’s been forever. We’ve just been so busy lately. And yes, we hate that excuse, too, but when we say "it’s not you, it’s us," we really mean it! (And we totally meant to call, too.) As you’ve no doubt noted, quite a bit has transpired since last week.

The biggest news has swirled around the disclosure of a 1985 Justice Department job application in which the young Alito expressed great affection for the Reagan administration’s work to roll back a virtual cornucopia (getting in the Thanksgiving spirit here) of rights and protections – efforts he had been a part of as a lawyer in the Solicitor General's office. Alito wrote that he was "extremely proud" to have worked on recent efforts against affirmative action and women's reproductive choice, and shared his belief that "the constitution does not protect a right to an abortion." Judge Alito moved quickly to try and temper the serious concerns raised by this document, telling Senators he was just trying to get a job, and that those clearly expressed views really don’t matter today. While we certainly understand the need for gainful employment, it strikes us as a little more than odd that the judge would suggest that he wasn’t being entirely straight with the DOJ. More strikingly, as it turns out, Alito’s judicial record tracks very comfortably with the statements he made in the application, as we’ve outlined in this handy document. And... Ads ads ads! So, what are we doing about all this? Today, Alliance for Justice and our partners in IndependentCourt.org are launching a nationwide campaign to raise awareness and opposition to President Bush’s nomination of Judge Alito. In addition to events being held around the country, we've also launched this ad highlighting the major areas of concern in Alito’s record. Check out the ad and more information here.

In a 1985 application to be Deputy Assistant Attorney General, Supreme Court nominee Samuel Alito wrote that he "disagree[s]" with landmark Supreme Court decisions regarding "criminal procedure [and] the Establishment Clause" and "personally believes very strongly that... the Constitution does not protect a right to an abortion." He also said he "believe[s] very strongly in... federalism."

For more, take a look at the AFJ fact sheet, Connecting the Dots: Samuel Alito's 1985 Job Application Previewed His Judicial Record, here (PDF).

To read what he wrote click here (PDF).

• We've Heard That Before: Judge Alito and Stare Decisis - In his meetings on Capitol Hill, Supreme Court nominee Samuel Alito has been telling senators what they want to hear - stressing the importance of stare decisis. But his recognition of the importance of precedent is not a predictor that he would follow it if confirmed to the Supreme Court. Click here for more (PDF).
• On November 01, 2005 The Coalition for a Fair & Independent Judiciary organized a legal briefing composed of senior lawyers from several prominent organizations on Judge Samuel Alito's judicial record, and the impact his decisions have had on ordinary Americans. If you're itching to listen to something before tomorrow's edition of SCW, check it out here (mp3).
• Read all about AFJ president Nan Aron (plus another mention of your favorite podcast) in today's Washington Post here.

Nominated by President Bush to replace moderately conservative Justice Sandra Day O’Connor, Third Circuit Judge Samuel Alito has a 15-year record of trying to push the law sharply to the right. He is what the Right calls a "movement" judge.

Okay, I admit it's late... but, if you missed it on Friday at the main page, here's the latest Insider Scoop:

So, the Gang of 14 met yesterday. And while it sounds like something out of Alias, it is a bit more prosaic than that. Though still important. At their meeting, they determined that they were "united" and "withholding judgment." A couple of gang members senators (DeWine and Graham) have made remarks about voting to go nuclear should things get to that point, but their support for the nuclear option was never a question in the first place, no matter how many gangs they did or did not join, so it doesn't exactly fall into the "stunning revelation" category.

More interestingly (to us, anyway, since it plays into our winter travel plans. Looks like St. Tropez in January is out.), a hearing date has been set. The party begins January 9th. It will continue throughout the week, with an exec (executive session/Judiciary Committee vote - we like shortened words, acronyms and near-incomprehensible jargon in this town) scheduled for the 17th of January. We also think it is fun that the Judiciary Committee will vote on the nomination that would de-diversify the Supreme Court the day after we observe Martin Luther King Junior day. It's a little too ironic, don't you think? (And despite that line, not even in the Alanis Morisette kind of way.)

Finally, we have to belabor a point. Something we never do, of course. And certainly never this point. An article ran in the New York Times today talking about how philosophy is at play in this nomination. Yes. Yes it is. Why? Because philosophy matters.

Apparently, we are starting a special expose series, and we didn’t even plan it. Well, if people just keep handing us the material, we have to run with it. So, we here at the Scoop bring you another installment of our hard-hitting series on cracking the code used by the the radical right. (We sort of wish we had some sort of dramatic music, or perhaps John Stossel or Stone Phillips to narrate, but we’ll have to make do with the limitations of our format. It’s probably for the best.)

So, on this edition of Codebreakers (yes, we know, weak title—we may have been watching a bit too much of the History Channel lately. Work with us here), we’re covering the idea of dignity. Hey, we like dignity, even if we end up sacrificing it a bit every now and again due to our charming clumsiness. But certain members of the Senate *coughMitchMcConnellcough* have taken to throwing around the word “dignified� when it comes to the hearings process. It was said a lot during the Roberts hearings as well. Funny thing about the use of their use of the word “dignified.� We’re going to have to borrow from/paraphrase Inigo Montoya here: we do not think that word means what you think it means. Because when the right starts making pronouncements about a “dignified� hearing process, what they actually mean is “non-substantive� and “rushed.� These are not good qualities in a hearing. And they certainly aren’t synonyms for “dignity� no matter what some people try and tell us.

The Senate Democrats, perhaps as part of their Cosmo “bold and sassy!� makeover of late, are pushing for hearings in 2006, rather than rushing Judge Alito through the process to get him on the Court by sometime in December. This is exactly what needs to happen—a thorough and substantive process that examines issues and allows both the Senate and the American people time to really understand Judge Alito and his judicial philosophy. And when we say “thorough� we mean a close examination of his record, his legal views and judicial philosophy. Pushing Alito through the process without having him provide substantive answers isn’t “dignified� it’s irresponsible.

So, onto the nomination! President Bush announced his nomination of Samuel Alito of the Third Circuit Court of Appeals to the Supreme Court yesterday morning. Ahh, there’s nothing like the satisfying feeling of completely caving to the fringe elements of your base. Because the radical right loves Samuel Alito. He is everything that Harriet Miers was not - a guarantee that the balance of our nation’s court will be tipped far to the right in pursuit of an ideological agenda. Funnily enough, we can say the same thing about Samuel Alito that people sometimes say about us: he’s no Sandra Day O'Connor.

But Bush said Alito will show "judicial restraint." Yeah, that’s one of those fun code words like "strict constructionist" that sounds good, but pretty much means that the person is a conservative activist with an ideological agenda. Fun, huh? Code words are always great. Without them, they won’t let you into the Federalist Society Clubhouse. (We think they came up with some extra code words like "constitutionalist" so they could waive the secret knock.)

And yes, we have reasons for saying this. Reasons like Alito's attempt to rescind Congress' authority to ban machine guns. (Maybe he’s a Rambo fan?) Or his disregard for the Supreme Court’s decision on spousal notification in his decision to allow such a provision in a New Jersey statute. Or the time he approved the strip search of a mother and her ten-year-old daughter by police, despite the search warrant not naming them or authorizing the search.

So, of course, the papers are abuzz with all of the comments and reactions and possible outcomes of this nomination, but the real heart of the story is this: while Judge Alito may have the on-paper qualifications, his judicial philosophy falls far short of the requirements needed of a Supreme Court justice. He will not stand up for the rights and freedoms of the American people. He was not selected to be a justice for every American, he was selected to be a justice for Phyllis Schlafly and James Fund and all of the other uber-conservatives who pitched a fit over the Miers nomination and didn’t even allow her the courtesy of a hearing. (What was that tired old refrain about the supposed mistreatment of Robert Bork again?) Alliance for Justice has opposed this nomination because we've looked at his extensive judicial record and found it wanting.

Sorry to end on such a serious note. We’ll try and do better next time. In the meantime, don’t forget to check out our preliminary report on Judge Alito.

Washington, DC - Alliance for Justice opposes the nomination of Third Circuit Court of Appeals Judge Samuel Alito to the United States Supreme Court. "Influential segments of the radical right torpedoed the nomination of Harriet Miers because she didn't have a proven record of being a 'movement' conservative, dedicated to carrying out their political agenda on the bench. The right is now giddy about the nomination of Samuel Alito – undoubtedly because he has such a record. If confirmed to the pivotal O'Connor seat, Judge Alito would fundamentally change the balance of the Supreme Court, tipping it in a direction that could jeopardize our most cherished rights and freedoms," stated Nan Aron, president of Alliance for Justice.

"The president and the right claim to value judicial restraint. Yet Judge Alito has not demonstrated such restraint," noted Aron. Alito has voted to:

• Strike down a federal law prohibiting the possession of machine guns, leading his colleagues to accuse him of disrespecting the considered decision of Congress by requiring it to "play 'Show and Tell' with the federal courts";
• Invalidate part of the Family and Medical Leave Act;
• Scuttle Congress' intentions by making it much harder for civil rights plaintiffs to prove sex and race discrimination. In one case, his colleagues noted that the federal law prohibiting employment discrimination "would be eviscerated if our analysis were to halt where [Judge Alito] suggests."

Judge Alito has also:

• Upheld intrusive police searches of women and children who were not named in search warrants and weren't the subjects of any investigation. In one case, President Bush's own Director of Homeland Security, Michael Chertoff – who formerly served with Judge Alito on the Third Circuit – criticized Judge Alito's position.
• Excused race discrimination by prosecutors in jury selection and upheld a death sentence that the Supreme Court overturned - with Justice O'Connor casting the deciding vote;
• Upheld abortion restrictions that the Supreme Court struck down in a landmark case.

"With Judge Alito, President Bush has sought to appease the radical right and fuel a revolution on the Supreme Court," said Aron. The National Law Journal reported that lawyers believe that Judge Alito is "much more of an ideologue than most of his colleagues." A prominent legal observer, who strongly supported John Roberts' nomination, has similarly called Judge Alito a "conservative activist" and asserts that his "lack of deference to Congress is unsettling."

"While it's clear Judge Alito possesses a keen intellect, it is equally clear the president selected him for his backward-looking judicial philosophy. The Supreme Court is not a place for 'movement' judges of any kind. Supreme Court Justices do not rule for a narrow segment of the population, but for all of us. It is truly disheartening that President Bush thinks otherwise. Instead of going to the Senate for advice and consent, President Bush chose to go to the right wing, injecting divisiveness and controversy into a situation that calls for unity. We call on Democrats and Republicans alike to reject this nomination," concluded Aron.

The latest buzz is that the choice will be Judge Samuel Alito from the 3rd Circuit Court of Appeals. Pardon my cynicism, but "the latest buzz" and a buck sixty-five gets you a tall house coffee at the Dupont Circle Starbucks. Take it for what it's worth.

A Weakened President Faces New Risks, Washington Post

Washington, DC - "An influential segment of the right wing was profoundly disappointed that, with Harriet Miers, the president did not nominate a proven 'movement' conservative who would carry out their political agenda on the bench. They have been clamoring for the withdrawal of Ms. Miers' nomination for weeks. What has happened today is an ominous indication of capitulation to such pressure. An independent judiciary is the crown jewel of our democracy. It is too vital to be used as a means of placating a political party's base.

"As the president makes another attempt to fill Sandra Day O'Connor's pivotal seat, we encourage him to work in good faith with members of both parties to choose a consensus nominee who is committed to equal justice. The new nominee should not merely serve the interests of the radical right. He or she must serve the interests of the American people - in their entirety - by protecting and enforcing our rights, freedoms and legal protections."

Now we in Washington get to start playing our favorite game again—Speculation! (Well, we’ve been playing it for weeks on a number of matters, but now we’re playing Speculation: Supreme Court edition again.) Speculation is played in a similar manner to a high school journalism seminar exercise: Who? What? When? (The "Where" and the "How" play into it depending on the situation.)

We would like, at this time, to give credit to our editor. As we waited and waited for her questionnaire to come in, he predicted "She's not going to turn it in because she’s going to withdraw. You heard it here first." Well played, Editor. Well played, indeed.

President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. He blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege.

Shades of the Krautheimer exit strategy we mentioned in SCW 26.

Miers withdrawal letter
President Bush's statement

Adam Curry (A.K.A. the "Podfather") is often credited with bringing podcasting to the mainstream... it's great to be mentioned on the show. Thanks Adam!

Just two weeks shy of her hearings, we still don't know who Harriet Miers is. Senators and advocates on both sides of this nomination agree we need more information.

She has a heavy burden to meet to convince both the Senate and the American people that she is independent and qualified for a lifetime appointment to the Supreme Court.

Harriet Miers must prove that she will impartially enforce the rights, freedoms and legal safeguards protected by the Constitution.

Check out the rest of the statement here (PDF).

Look for the next show sometime in the next day or so... with all of the hurricane related power outages messin' with our host, we want to make sure everyone can actually get the show before we put it togeteher!

We hope everyone is dry and safe in Florida. We at Supreme Court Watch are eagerly awaiting the end of hurricane season on 11/15!

• Intro
  • News views and insight on the future of the Supreme Court
  • Shownotes and blog at supremecourtwatch.org - hit the podcast badge
  • Intro the roundtable
    • No droth or Dr. Oth
    • Louis the pug is sitting in
• Whaddaya got?
  • Kelly - Specter, Miers and Griswold
    • Team Is Preparing Miers for Tough Senate Hearing, NY Times
  • Adam - Questionnaire issues
    • T he Questionnaire
    • AFJ letter to Sen. Leahy and Sen. Specter
    • Specter-Leahy letter to Miers
  • Tim - Miers Prep
    • Blunder of the First Order, WSJ editorial excerpt via Washington Post's nomination blog
    • The Miers Support team: Gloomy, National Review
    • Miers: The Only Exit Strategy, Charles Krauthammer editorial in The Washington Post
    • A Friend in Need, Slate
• Magic 8 Ball
  • Will the White House shut down the Senate "meet and greets" between now and the hearings?
  • Will the Harriet Miers hearing provide enough common ground amongst Democrats and Republicans to cause party merger, ushering in The Era of Good Feelings 2: Electric Boogaloo?
• Close
  • Shownotes - podcast graphic on supremecourtwatch.org
  • Email - podcast@afj.org

New podcast tomorrow... welcome to everyone who's been introduced to us via the Yahoo Podcasts page!

So, onto the news as promised. First of all, Reuters (via The Washington Post in this link) is reporting that the Miers hearings will start on November 7. This makes sense, especially given Senator Frist's vow to adjourn this session of Congress by Thanksgiving. Of course, it makes less sense in terms of giving senators and the American people more time to learn more about Harriet Miers, but her public record is pretty slim, so the hearings will be our best shot to find out something. Or so we hope. If Miers fully answers questions. Hopefully she doesn't follow the precedent she set for herself on her Judiciary Committee questionnaire. Miers was asked (see question 17) what specific constitutional issues she has worked on during her time at the White House and her answer was crystal clear (and we paraphrase here): "I've worked on lots of issues. Moving on!" Oh, well, that clears it right up then.

Alliance for Justice has sent a letter to Senators Specter and Leahy reiterating the need for the Judiciary Committee to conduct thorough hearings and ask Miers substantive questions -- and demand substantive answers -- about the issues she has addressed during her time at the White House.

There was also an upsetting backtrack from Ms. Miers after her meeting with Senator Specter. The senator had reported that when he asked Miers about her views on two key cases on the constitutional right to privacy -- one of which, Griswold v. Connecticut, even Chief Justice John "I can't comment on that case" Roberts openly agreed was settled law -- she told him that she believed the cases were correctly decided. Hey! A definitive answer that gives some insight into her legal views. That's wonderf... Oh, wait. Never mind. She called the senator and said her remarks had been "misinterpreted." We should have known it was too good to be true.

So, that's the report for this morning. There's more for you, but since we're meaner than JJ Abrams* (and clearly more entertaining--Les Moonves is trying to broker a deal with us right now, in fact), we're going to leave you with a cliffhanger and get back to you when we have more solid information to report.

*We got some push-back from our pop-culture-illiterate editor on this one. For any other television philistines out there who don't feel like following the link, JJ Abrams is the creator of both Lost and Alias and master of the "What the...?" cliffhanger. Well, not so much on Alias this season, but we don't like to talk about that.

"She's a born-again Christian, owns a handgun, and headed the Texas Bar Association. I have a hard time understanding why this is a bad thing," says Ed Naile, chairman of the Coalition of New Hampshire Taxpayers.

Outstanding... Miers hits Ed's trifecta.

• Intro
  • News views and insight on the future of the Supreme Court
  • Shownotes and blog at supremecourtwatch.org - click on the podcast badge
  • Intro the roundtable
• What do ya got?
  • Kelly - Assurances over Roe
  • Adam
    • Sen. Feinstein and cutting ties
    • Adam also mentioned the Anthony Lewis op-ed, License to Torture from The New York Times
  • Dan - B-I-N-G-O
  • Tim
    • Maureen Dowd on Chris Matthews
    • Tim also mentioned the "chummy" post here
• Magic 8 Ball
  • Will the hearings for Harriet Miers be completed before Thanksgiving?
  • If this whole Supreme Court thing doesn't work out for Harriet Miers, does she have a future in the greeting card business?
• Close
  • Shownotes - podcast badge on supremecourtwatch.org
  • Email - podcast@afj.org

  UPDATE - Late breaking news... Looks like our Magic 8 Ball predictions were right on. GOP Senators want the Miers hearings to begin on November 7. See the AP report here.

Now, if you'd like to throw a little love back at us, make sure you mention the show to your friends and family. Our numbers are already much larger than we ever imagined when we started this little dog and pont show, but we've become greedy and want an even larger audience.

Still not satisfied? Do you need to do more? Consider voting for us at Podcast Alley or Yahoo Podcasts. Thanks and have a great weekend... we're keeping an eye on the continuing developments (Miers had a glint of liberalism in the 90's? El Rushbo will love that.). Look for a new show (#25!) on Monday.

According to the poll, 29 percent say she's qualified to serve on the Supreme Court, while 24 percent think she's unqualified. Forty-six percent say they don't know enough about her.

"There is nothing to suggest that people have turned on her," [Democratic pollster Peter] Hart said. "But there is just a huge question mark behind her at this stage. She has to establish her own bona fides."

Stay tuned...

When we were little, we always really enjoyed the movie Alice in Wonderland. It was one of the first videos we owned, along with Winnie-the-Pooh and a Strawberry Shortcake number. Ah, the early ’80s. But we are not here to talk about our childhoods spent growing up in the early ’80s—sorry Freud and VH1—we are here to talk about the Miers nomination. And one thought that arises, courtesy of Lewis Carroll (yes, we DID eventually read the books), is “curiouser and curiouser.� It’s been an odd week.

The right-wing is divided against itself for the first time in… Well, perhaps since we were happily watching that Alice in Wonderland video. And all because of Harriet Miers. Many are concerned that she won’t drive their radical revolution on our nation’s highest court because she doesn’t have the conservative track-record of, say, a Priscilla Owen. So, the Bush administration has begun a charm campaign aimed at the right wing. The thing is, it’s not going quite as well as they might have hoped (even normally staunch Bush supporters like Senator Brownback are expressing reservations and some, like William Kristol of the Weekly Standard, outright opposition). And their charm campaign isn’t really all that reassuring to us, since it seems to be focused on off-the-record conversations and special treatment of certain people rather than a transparent and inclusive process. We think that Patrick Leahy should get to know just as much as James Dobson, not to mention the millions of Americans Leahy and other senators represent.

We’re also not particularly thrilled with some of the comments the reassurances are engendering. They certainly don’t make us think “Wow, check out THAT judicial independence.� We’ve heard a lot about her loyalty to the president and the way he thinks, and not anything concrete about her views and outlook. And that’s what we, the Senate, and the American people really need to know. For a look at exactly what the Bush administration has been up to in trying to sell Miers’ nomination, click here.

The Miers nomination continues to divide conservative commentators. George Will's column is a must-read today. Meanwhile the rest of us are taking a closer look at Harriet Mier's record... stay tuned!

Count Sen. Orrin Hatch (R-UT) on the pro-Miers side however. The Washington Post's Campaign for the Supreme Court blog offered this quote from the good Senator:

"A lot of my fellow conservatives are concerned, but they don't know her as I do," said Hatch, a former Judiciary Committee chairman. "She's going to basically do what the president thinks she should, and that is be a strict constructionist."

Meanwhile, we're gearing up for the record review. Stay tuned...

"Because Ms. Miers does not have any record providing a window into her legal views, the Senate must take its advise-and-consent duties very seriously. A thorough, searching review of Ms. Miers' legal philosophy and the role she has played in some of the most controversial policies of the Bush administration is imperative. This is particularly true given what’s at stake: the balance of the Court, which has often shifted with Justice O'Connor’s vote," emphasized Aron. "The president clearly has some idea what Ms. Miers thinks. She has served by his side for more than a decade. It is now incumbent upon the Senate to obtain the information needed to let the American people know what the president does."

"We trust the Senate to do its job. It must be vigilant in ensuring that Ms. Miers, if confirmed, would meaningfully enforce the safeguards our legislatures have enacted and the rights our Constitution protects. The burden in on Harriet Miers' to demonstrate her fitness for a seat on the Supreme Court to the Senate and the American people." concluded Aron.

* * *

PODCAST UPDATE... we'll have a show for you later today on the Miers nomination. Stay tuned!

Earlier today John Roberts was confirmed as the nation's 17th chief justice. He is to be sworn in around 3:00 this afternoon. We here at Alliance for Justice are simply stunned, if stunned can be defined as "knowingly expectant," at any rate. We are disappointed, certainly, but not exactly surprised given the commentary of the last few days. We would, however, like to take notice of the 22 senators who cast principled "no" votes on this nomination.

But we here at the Scoop don’t want to dwell. The president will shortly be announcing his next nominee to fill the shoes of Justice O’Connor. We know the nominee will be conservative, we just hope that the nominee will be a pragmatic conservative in the mold of O’Connor. Oh, if only hoping would make it so... We have to say that some of the names that have been floated are a little scary (*cough* Priscilla Owen and Janice Rogers Brown *cough*). If the president chooses to reject consensus and nominate an ideologue who will tip the balance of the Supreme Court, we are prepared to stand up for the fairness and independence of our courts.

Alliance for Justice is deeply disappointed with the Senate's vote to confirm John Roberts to be the 17th Chief Justice of the United States but commends the 22 senators who stood for the interests of ordinary Americans and cast a vote of no on Roberts' confirmation.

Judge Roberts has supported weakening women's rights and civil rights laws, cutting back the vital role of our courts in enforcing legal protections and restricting the ability of the people's democratically elected representatives to enact crucial, nationwide worker, anti-discrimination and environmental safeguards.

We'll be podcasting later today... stay tuned.

Not to brag about our test scores, but some of us did extremely well on the reading-comprehension section of the Iowa Basics. (How do you think we attained the glamour and status we hold today as an anonymous blogger?) Some Republican senators, however, may want to brush up on their reading and listening skills before making speeches.

Senator Specter noted that “[Roberts] said the decision of the Supreme Court of the United States in Griswold v. Connecticut was a correct decision and he extended the contraception issue beyond marriage to those who were single, saying that right of privacy existed, and upheld the propriety of the decision of the Supreme Court in the Eisenstadt case. Other nominees had refused to answer such questions.

Senator Snowe said that “specifically, he testified that he ``agree[d] with the Griswold Court's conclusion that marital privacy extends to contraception'' and agreed with the later Eisenstadt decision that confirmed this right for unmarried couples as well.

Hey, we sense a theme! Looks like the Republicans have some talking points on John Roberts. That’s great, really, except for the part where Roberts didn’t say or do anything of the kind when it comes to Eisenstadt. (This is the case that extended Griswold—it said that unmarried persons also have a right to contraception.)

According to these factually-questionable-at-best Republican talking points, Roberts agrees with the Eisenstadt decision. Except he doesn’t necessarily—he never said such a thing. He said he has “no quarrel� with it, as he did with a number of other Court decisions including Plyler v. Doe, Franklin v. Gwinnett County (where the Supreme Court rejected Roberts’ own legal reasoning 9-0) and other important decisions. By applying our approved-by-the-Iowa-Basics reading comprehension skills to Roberts’ own written responses to questions posed by Senator Schumer, we discovered that Roberts only acknowledges the decision as a precedent of the Court. Nothing more. This is not the same thing as affirming the decision itself. This is a key distinction. It does not mean he accepts the reasoning of Eisenstadt. (For more on the “no quarrel� quandary, please check out this helpful discussion from the National Women’s Law Center.)

But you don’t have to take our word for it… (We HAD to do the Reading Rainbow shout-out given the reading comprehension issues highlighted in this entry. We’re pretty sure we have LeVar Burton to thank for our aforementioned Iowa Basics scores.) You probably should, though, since the words of these senators aren’t exactly packed with accurate information.

No shownotes for SCW 21, but we'll make good and get them up for #22 next week. Have a great weekend, and stay safe if you're in the Houston area. We're looking forward to the end of hurricane season...

Okay, lots going on. Senator Harry Reid declared his opposition to John Roberts’ nomination, as did a number of other prominent senators. Unfortunately, a majority of the members of the Judiciary Committee did not take the same critical view of Roberts’ record on rights and protections. His nomination will now move to floor for a vote sometime next week, perhaps as early as the 27th, though more likely it will be a bit later in the week.

Meanwhile, Washington is playing its favorite game: Speculation! (Trivial Pursuit is second, followed by pub trivia. Hey, we’re that kind of town.) There are lots of names (some of them more than a little scary) floating about town, as well as continued discussion of the gender and ethnicity of the next nominee. An announcement could come on the heels of the full Senate vote on Roberts, though that is again from Speculation! (nowhere near as reliable as Trivial Pursuit). We hope that the White House will take some time and work with senators on both sides of the aisle in a meaningful way. Since Justice O’Connor has said she will not retire until the confirmation of her successor, there’s no need to rush the process.

Second, we have a special edition Supreme Court Watch coming at you tomorrow. Our Student Action Campaign event is tomorrow, and we'll post the audio as SCW 20 as soon as we can. What is the Student Action Campaign? Glad you asked!

Student Action Campaign is an annual, campus-based program designed to raise awareness about vital social justice issues. This year, Student Action Campaign focuses on the crucial role the U.S. Supreme Court plays as guardian of the liberties and protections guaranteed by the Constitution. We will kick off the campaign by spotlighting the nomination of Judge John Roberts to the Chief Justiceship.

Alliance for Justice will facilitate the discussion by hosting a live debate on Wednesday, September 21, 2005, featuring Professor Charles Ogletree, founder and Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, and Ronald Cass, Co-Chairman of Committee for Justice and former Dean of Boston University School of Law. The debate will be transmitted live via satellite and webcast so that every college, university, and law school can participate. To view the list of participating schools, click here.

This week, we'll have a show following the committee vote on Thursday, and additional editions as warranted. Stay tuned!

Okay, our hopefully-still-loyal readers, we are still experiencing some… hiccups, but we think we've come up with a workaround. Posting may not be as speedy, but it will happen. We know we fell behind, so we decided to challenge ourselves: could we sum up each senator's portion of questioning that we didn't cover yesterday in 100 150 an average of 165 words or less? Let's find out:

Senator Schumer ended the day with some additional questioning. He told Roberts that nobody wanted tailored answers, but that answers in general might be nice. He also asked where Roberts felt he fell on the ideological spectrum (Rehnquist was asked the same question when he was nominated to be chief justice and answered). Roberts didn't really answer. We barely recovered from the shock of that ourselves. Sometimes he votes one way, sometime another. He wouldn't even commit to being a moderate. We've heard that commitment can be scary before, but we've never really bought it.

In her follow-up round of questions, Senator Feinstein also tried to get a better sense of Roberts as a person, and how he keeps connected to the concerns of every day Americans. Apparently he attends soccer games. (Given our comments on sports metaphors, we're pretty sure it will surprise none of you when we say some of us here at the Scoop do not share that predilection.) We still really didn't get a feel for who Roberts is as a person at all, but considering he's barely giving us a handle on his judicial philosophy, that's not surprising.

Senator Durbin for Illinois tried to get at who Roberts is, and if he has any connection to the concerns of ordinary Americans. He asked if Roberts "[could] see the people people behind the precedents, the families behind the footnotes?" (Does using senators' words count against our word count? I guess if this is a real challenge, yes.)

Durbin also raised the point that Hispanic groups, including the League of United Latin American Citizens, are opposing Roberts' nomination (this is the first time that group has ever taken a position on a Supreme Court nominee). This has a lot to do with writings Roberts had on the Plyler case—he advocated a position that would have denied an education to the children of illegal immigrants. (Whom he delightfully referred to as "illegal amigos," but we've already commented that Judge Roberts may need to work on his comedy routine a bit.) We're getting tired of typing "he declined to give a real answer," but that's what he did, so we'll faithfully report it. Frankly, we're hoping for a Senate Judiciary Committee kick-line number, but so far, no luck. We're still watching, though! (They already pretty much have the matching outfits.)

We certainly learned a lot with Senator Schumer's questioning: John Roberts likes old movies: Dr. Zhivago and North by Northwest. We're split on this. North by Northwest? Great, really informative. (Since we know you care, we didn't love Dr. Zhivago so much, even though when some of us were teenage girls we were apparently supposed to. We also thought Love Story was obnoxious, so we have our own set of standards.)

But this is a hearing for the chief justice of the United States, not Inside Sundance. One extremely provocative thing arose out of Schumer's questioning: the senator asked Judge Roberts about the Thomas hearings. During his hearings, Clarence Thomas told the Senate that he believed in the right to privacy. His opinions on the bench have completely belied that. Schumer pressed Roberts, trying to get him to say he wouldn't go the same route Thomas did. Roberts was unable to offer us any real reassurances. We have to admit this is a little nerve-wracking: we've seen what Thomas has written on the Court, which completely contradicts his testimony about the right to privacy. With no real reassurance that Roberts won't act the same way, how can we really be certain he believes in and will uphold the right to privacy?

Senator Lindsay Graham began his latest round of "questioning" with damage control on allegations that Roberts unethically failed to recuse himself from the Hamdan case. Graham's approach certainly took a different tack—and viewpoint—than did Senator Feingold. He introduced law professors' statements into the record and threw Roberts yet another softball on the implications of holding him accountable for his alleged conflict of interest.

Graham used most of his remaining time to hold court on his own views on enemy combatants and to advertise legislation he intends to introduce – strengthening the president's hand in interrogation, indefinite detention and punishment outside the regular legal channels for non-state enemy combatants.

The senator also took a moment to castigate the 9th Circuit for "declaring war on religion" – erroneously attributing to the circuit court a decision actually made by a judge on the Eastern District of California, which declared that the Pledge of Allegiance's reference to one nation "under God" violates school children's right to be "free from a coercive requirement to affirm God." He is the second Republican senator to jump on this as a rallying point, despite Roberts' inability to answer because it could come before the Supreme Court.

Senator Feingold came back to the Hamdan case. There was an ethical issue at question here: Judge Roberts heard a case about a detainee in which the president was the defendant and the attorney general advised the president on the challenged policy. At the same time Roberts was considering the case, he was interviewing with the attorney general and the White House in anticipation of a nomination to the Court. Senator Feingold, always very attuned to ethical issues, tried to get some answers and was one of the few senators to visibly shake Roberts' impressive composure. Feingold asked a series of questions about when Roberts was interviewing with the White House and when Hamdan was being discussed.

Feingold also covered death penalty issues, though Roberts again retreated from providing any sort of substantive response behind "could come before the court" and an explanation of what the written opinions said, rather than his actual thoughts on the matter.

There’s not much to say because Sessions barely allowed Roberts to speak. An unscientific assessment leads us to think that 97.3% of Sessions’ questioning was taken up be Sessions himself. (He already had his hearing to be a federal judge, we found out what he thinks, which might be why he’s a senator now, rather than a judge.) There was a total newsflash though: this country has a deficit. Without these hearings, we’d never have known. Thanks, Senator Sessions! We’ve been ignoring newspapers, television and general conversation for the past few years.)

He did bring up the just-decided Pledge of Allegiance case (by a California district court). (Seriously, moments ago.) Sessions, maybe worried that if Roberts said something about the case, he wouldn't be able to decide the case (like Scalia did the last time the case came before him), directed Roberts not to answer any questions about the issue. So, nothing illuminating or even related to questioning Roberts there. (3:20)

Again, Senator Dianne Feinstein just provided some dramatic moments in today’s “Round II.� In one of the most personal exchanges of the week, she brought up her own experiences with difficult end-of-life issues and asked Roberts whether he himself would want the government making such personal decisions for him. Judge Roberts replied that it’s a very difficult thing to conceptualize until one is in the situation, but seemed to agree that he wouldn’t want the government to decide on his behalf.

Feinstein also said that she detected a change in Roberts’ openness over the course of yesterday’s questioning, and asked whether anyone cautioned him to be less forthcoming during lunch, which Roberts denied. (To our dismay, she didn’t ask him what he’d had for lunch, and whether that affected his afternoon at all.)

Feinstein also covered some new ground on the executive power front, asking Roberts about treaties and their status as the “supreme law of the land.� Roberts agreed that treaties do have “law of the land� status, and said that as a general matter, a president cannot decide to violate a treaty. Feinstein also revisited the areas of right to privacy and federalism, but didn’t elicit much new material from the nominee. (3:13)

We weren’t particularly taken with anything in Senator DeWine’s questioning period. There was a nifty little overview of how administrative agencies work (again, not that this told us anything about what Judge Roberts might possibly think about anything) and how it applies to the idea behind the three branches of government. Roberts even referenced high school civics lessons. We wish he would have gone the 3-Ring Circus Schoolhouse Rock route, not because we’re obsessed with Schoolhouse Rock or anything, though.

Senator Herb Kohl is largely viewed as one of the more unassuming members of the Judiciary Committee. (It’s the Midwestern humility, perhaps.) But in the second round of questions, Senator Kohl boldly went where no senator had gone before… He brought up the elephant in the room: Bush v. Gore. You may remember that. Something about hanging chads and unfortunate make-up choices. Not to mention the appointing of a president by a 5-4 majority split along party-appointed lines.

After Kohl’s initial question (Should the Court have asserted itself into an election in such a fashion?), Roberts actually gave a real answer. He said that the court should have because of the importance of the issue to the country (most legal scholars disagree with Judge Roberts on this). Kohl then asked Roberts if the Court made the right decision. Roberts returned to form and gave a long-winded answer that wasn’t terribly illuminating. Kohl pressed him, saying that Roberts had not, in fact, answered the question. Apparently because it was “inappropriate for [Roberts] to comment.� Why? According to Roberts, because the issue could come up again (we hope not!). But the majority opinion of Bush v. Gore clearly states that “consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.� Roberts did leave himself some wiggle room though, and said that it was “too recently decided� for him to really be able to discuss it.

A couple of other notes about some interesting things that came out of Kohl’s questioning He may be unassuming, but he’s wily: he got Roberts to say things that other senators have been unable to elicit. Now we want a Herb Kohl Judiciary Committee action figure (he could come with a cheesehead hat and a Kohl’s shopping bag as accessories)!

Kohl and Roberts had a discussion about “granting cert,� the decision of the Supreme Court to review a case. In addition to a laundry list of reasons, Kohl managed to get Roberts to say that personal views and inclinations do play into a judge’s role—it can in granting review in any event.

There was another interesting remark that came out of this session, evidence of John Roberts trying to have it both ways. In the questions about anti-trust, John Roberts said that his representation of the government in the Microsoft anti-trust case is proof of his devotion to the principles behind anti-trust. How? Wasn’t he just representing his client? We thought that meant nothing, gave no indication of a lawyer’s personal views. At least that’s what Roberts says any other time anyone asks him about something he did as a lawyer representing various clients, especially when those pesky Reagan-era memos come up. (2:32)

Senator Grassley's portion of the questioning was flatter than an Iowa cornfield and Roberts’ responses didn’t add any life to the party.

Grassley focused much of his questioning on the False Claims Act and whistleblower provisions. Roberts demonstrated that he knows what the False Claims Act is about and we can add the term "qui tam" to the long list of Latin phrases being thrown about at these hearings. Unfortunately, after all the rhetoric and explanation, we still haven’t a clue as to Roberts’ personal opinions.

Senator Orrin Hatch returned this morning to his game of softball (we have help with these, and people seem to love the sports metaphors) and to two of his favorite hearing themes: 1) the nominee’s duty NOT to answer questions in what both senators Schumer and Biden have called the one “democratic moment� in this process before what is a lifetime appointment to the highest seat on the highest court in our country; and 2) his warm fuzzy feelings about John Roberts.

Hatch chastised his colleagues for asking questions, telling Roberts there is no excuse for being pushed to answer questions about cases likely to come before the court - shortly after Specter noted Roberts evaded questions about cases already decided and/or cases that are unlikely to appear on the same facts before the court. Hatch chastised his colleagues for view that Roberts had “failed to distance himself� from very controversial views - on women’s rights and Title IX - that he espoused as counsel to the White House. In what is NOT the biggest surprise of the hearings, Hatch said he didn’t find these views “cramped,� a common criticism from many on Roberts’ writings on these issues. Hatch did, however, acknowledge that he had been wrong in originally opposing restoring an effects test to Section 2 of the Voting Rights Act, and that's why he changed his position after voting against the law in Committee and voted for it on the floor. Judge Roberts still hasn't conceded -- like Sen. Hatch -- that he, too, was wrong in opposing restoring the effects test.

Hatch ended his comments with the equivalent on a big wet kiss, telling the nominee he has never seen anyone do a better job of explaining himself – i.e. refusing to be “pushed to answer questions.� Senator Hatch apparently is also apparently in possession of a Magic 8 Ball, because he made the prognostication that anyone who can’t vote for Roberts just can’t vote for any Republican nominee. We guess making sure that Roberts is the best judge for the job doesn’t include wanting real answers to form a real opinion. (11:45)

Senator Kennedy, one of the authors of the Voting Rights Act of 1965 (he has a bit of experience with this sort of thing), pressed Judge Roberts about his efforts (on behalf of the Reagan administration Roberts is quite to point out) to restrict certain parts of that landmark piece of legislation when it was up for renewal.

At issue was the idea of whether the "effects test," which had been used for years, should be restored to Section 2 of the Voting Rights Act following a Supreme Court decision eliminating that test (which then prompted the Justice Dept. to drop numerous important voting rights cases). The basic idea with the effects test is that a litigant only has to prove that practices that have the effect of restricting an individual’s ability to vote, rather than that the practices are intentionally discriminatory. Because of the extraordinary difficulty of proving that discriminatory voting practices are intentionally discriminatory, restoration of the effects test had overwhelming bipartisan support in Congress, despite the Reagan adiministation's -- and Roberts' -- initial opposition. The ultimate passage of the Voting Rights Act extension, with the effects test, has paved the way for exponentially increasing the number of minority elected officials in both state and federal government.

Senator Kennedy put it to Judge Roberts very specifically: “Do you believe the effects test in the VRA is constitutional?� Well, after 6 minutes of pretty words with no substance and another round of direct questioning from Kennedy, there was finally an answer out of Roberts. Too bad it was qualified to the point of not having much meaning or reassurance.

Frankly, we wonder if Judge Roberts is getting tired of finding ways to avoid answering substantive questions that could have important, and illuminating, answers. We know we’re running out of ways to make snarky comments about how many ways Roberts has of avoiding giving meaningful answers. (11:25)

Senator Leahy had a spirited exchange with Judge Roberts over the review of death penalty cases. The question as stake was Roberts’ views on the constitutionality of review of death penalty cases—do defendants on death row have the right to have their cases reviewed in the face of new evidence. Roberts, shockingly, said he wasn’t really in a position to answer. Even though he wrote on that very topic, as Senator Leahy pointed out.

Roberts wrote about this issue during his time in the Solicitor General’s office, in a case called Herrera v. Collins. Senator Leahy pursued Roberts’ on views based on the writings at the time, but we got the same old “representing my client� line and would not give his personal views on the case. (There a quite a number of catch-phrases, maybe we can get a whole line of t-shirts out of it.) His refusal to divulge his personal views make it even more important that the Senate demand the memos he wrote in the solicitor general’s office on Herrera and 15 other cases. This is the only other avenue besides direct questioning that we have to discover Roberts' own views. If only someone would point out how critical those documents are to understanding Roberts’ legal viewpoints. Though we are having flashbacks to an appearance Senator Leahy made on Meet the Press a few weeks ago. As well as some polling data that shows the American people really want to see what is in those documents. It’s not just us, because it’s vital. (10:55 am) Unlike many of his Republican colleagues, Senator Specter pressed Roberts to reveal his views on specific issues. But again, Roberts played the duck and deflect game. When Senator Specter asked Roberts whether he believed the record that Congress amassed in the Morrison case was sufficient to support the Violence Against Women Act, Roberts refused to answer, claiming that this issue may come before the Court. Senator Specter called Roberts out, noting that this is a past case and there is nothing to suggest it would come before the Court again. Senator Specter also asked Roberts whether the “congruence and proportionality test�, a test that the Court developed to analyze legislation enacted by Congress pursuant to section 5 of the 14th amendment, is an example of judicial activism. Roberts again refused to answer on the ground that the congruence and proportionality test is implicated in cases coming before the Court. As Specter pointed out, however, this question is not about a specific case; it is about Roberts’ legal philosophy. Is Roberts extending his refusal to answer beyond specific cases and even beyond discussing issues all the way to basic philosophy? It looks that way, and that's quite troubling. (10:45 am)

Are these hearings a soap box for the “abortion twosome� (our podcast listeners know to what we refer)? Senators Brownback and Coburn have whiled away time that could have been spent trying to understand Judge Roberts’ views by scaling their own personal soap boxes on abortion. At least Judge Roberts is an equal-opportunity dodger—he declined to answer or respond to their provocations, instead giving what is going to be the catchphrase on the I Was At The John Roberts Hearings t-shirt: “I cannot answer that as it is an issue that may come before the court.� (Okay, as catchphrases go, it’s no Dyn-o-mite, but these are congressional proceedings, after all.)

Senators Brownback and Coburn also addressed issues beyond abortion, even if they did spend a fair majority of their time making grandiose pronouncements that has very little to do with the hearing at hand, since Roberts had already stated his inability to answer in that area.

On abortion, Brownback, bolted from the conservative pack yesterday to tell The Kansas City Star that he had concerns about Judge Roberts's views on abortion. Mr. Brownback's words reflected what is in fact worry in some conservative quarters about exactly what Judge Roberts thinks about abortion."

However, his concerns that Judge Roberts would not be staunchly pro-life appeared to have been allayed, as he this morning there was a 180 turn—Brownback seemed satisfied, demanding no answers and even praising non-answers. What does he know?

Beyond abortion, Senator Brownback dealt on property rights and the Kelo case, though didn’t seem to get an answer that was entirely to his satisfaction. Roberts discussed both sides of the argument, and didn’t tell Brownback what he wanted to hear: Congress should usurp the power of the courts. We didn’t get a clear sense where Roberts fell, but Brownback didn’t get to pat himself on the back over the Terri Schiavo case, either.

Coburn was more of the same: “good behavior� of judges based on their use of international law in reaching decisions, congressional authority, nothing that really deviated from the points Brownback was trying to make. Coburn wasn’t terribly successful, either.

We’re not going to talk about Coburn’s discourse on body language. We read a book about it in junior high, too. (Though sadly it didn’t tell us if our crush liked us back, which was our reason for reading it in the first place.) We do commend him for yielding his remaining time back, however. If he’s not going to say anything, he may as well not say anything in the more literal sense. (10:15 am) Well, yesterday we had a civics lesson from various senators, and today we got some instruction in grammar from Senator Specter. He backpedaled a bit on yesterday’s “They may be misleading, but they are his answers,� remark with an explanation involving the subjunctive verb form. We prefer “Conjunction Junction,� but that could just be us. (9:30)

We’re going to keep the wrap-up for today brief because today itself was, in fact, the opposite of brief. (Hey, politicians were involved, they haven’t gotten the brevity/wit memo, though we admit at times sometimes we forget about it, too.) Charts! Dodging! Weaving! Soooo many baseball metaphors! To be honest, we’re a bit tired, so we’re going to wimp out on you a bit and let you read what Alliance for Justice president Nan Aron had to say. We’ll see you tomorrow bright and early for tomorrow’s 9 am kick-off. (Another sports metaphor—we’re getting the hang of this. And, for some of us, 9 am does feel “bright and early.�)(8:15)

We don’t have much to say on Senator Cornyn’s portion of the hearing since it didn’t cover any new ground, though we did get to hear some lovely sound bites and buzzwords, so that was fun. (7:23 pm)

Senator Schumer continued to try to get Roberts to answer questions about Congress's power. He asked Roberts about a case from the 40s giving Congress wide latitude to legislate, Wickard v. Filburn. Roberts said he couldn't. Schumer pointed out that he answered questions about a controversial case from twenty years later, Griswold v. Connecticut, finding that the right to privacy bars states from restricting married couples from buying contraception, but Roberts said that Griswold was settled and Wickard wasn't. Schumer pointed out that many people believe the Constitution does not contain a right to privacy and the issue came up a few years ago in Lawrence v. Texas, dealing with gay rights. No dice. Roberts just won't say what latitude Congress has to judge. He also seems to have some logic in applying (the Ginsburg) precedent that lacks any real consistency. It would seem he applies it when it suits him to do so. (7:10 pm)

Reputed Republican “maverick� Lindsay Graham disappointingly used his half-hour to ask Judge Roberts about whether he agreed with the policies of the “Reagan Revolution� and issues of judicial selection. Nothing at all seeking to elicit his views on the law. You know, the views he would rely on if he were confirmed. How illuminating!

On the judicial selection front, Graham suggested the process shouldn't be politicized. and then proceeded to politicize it. inaccurately. Referring to Justice Ginsburg as an ACLU lawyer who had lots of views with which he disagrees, Graham noted that she was confirmed overwhelmingly in spite of those views. Note to Graham: it would have been really weird for the Republicans to oppose Ginsburg, given that her nomination was suggested to President Clinton by none other than the highest-ranking Republican on the Judiciary Committee, Senator Orrin Hatch. (He's the guy who now sits a few seats to your left, Senator Graham, if you want to check with him). President Bush engaged in no such meaningful consultation in his selection of Judge Roberts. (7:00)

Following Senator Sessions’s civics lesson that exposed the practice of, among other things, the Circuit Court judges discussing their cases behind closed doors, we’re back in the thick of actual questioning with Senator Russ Feingold (D-WI).

There was actual questioning, but not a lot of actual answering on the part of Judge Roberts.

Sen. Feingold asked if Judge Roberts feels the gains made since the extension of the Voting Rights Act have been positive.

Voting rights are good, we were working on how to extend it. (There’s that brilliant legal mind again, the same one that sought to weaken the VRA and watched his position be overwhelmingly and in a bipartisan manner rejected by both houses of the Congress.)

Senator Feingold finished up his questioning by asking if the intent test that Roberts wrote in favor of, the position that Congress overwhelmingly rejected, is still the right one. Would the clear benefits that we have seen from the forceful implementation of the VRA have happened if Roberts’s position had been adopted?

Judge Roberts, lauded by several members of the Judiciary Committee the most brilliant lawyer in America, never thought to find out if he was correct. Something that Senator Feingold clearly found hard to believe and said so. It’s funny how much the nominee clams up when he faces questions that go deeper than Sen. Sessions’s “how does the appeals process work?� Apparently real questioning in this case does not necessarily yield up any real answers. (6:15 pm)

Wow. For awhile, we were ready to tune out Senator Sessions because the first part of his “questioning� because, well, it wasn’t much beyond an ode to John Roberts.

But then our ears perked up. The first thing that caught our attention was Sessions’ assertion that Roberts would “call [things] as he sees [things].� The problem, however, is that what we know about how Roberts sees things isn’t all that comforting, and Roberts is dodging a number of questions that would let us know how he “sees it.�

Then Sessions started to talk about Roe v Wade. He even chose to read a quotation about supporting a conservative president who would nominate a justice that would overturn Roe. Sessions then immediately asked Roberts if he would “evaluate the matter fairly.� Fairly? What does that mean to you Senator Sessions? Roberts asserted that he would certainly come to the question with an open mind, but with no mention of respect for precedent or stare decisis in his response. Was Roberts telling Sessions what he wanted to hear, or is Roberts’ decision not to mention the precedents that uphold Roe cause for alarm? (5:15 pm)

Candor doesn’t seem to be a hallmark of John Roberts’ responses. Careful, perhaps. Measured. Calculated. But candid? We’ve heard “I cannot comment on that because it could be a case before the Court� a few too many times to fully come across as candid.

However, he did say that his department in the Reagan administration “encouraged candor.� If that’s the case, doesn’t that mean Roberts’ real opinions were wanted and that is what he gave in those memos? That the client he was representing asked for and received Roberts’ candid opinion? So are Roberts’ attempts to claim that he did not inject personal opinions into his memos because he was “just working for his client� at odds with the statement he made to Senator Feinstein defending his joke on the basis of the environment of “candor� encouraged by his employers?

(Just to note: we don’t judge Judge Roberts for making the lawyer joke – suggesting homemakers shouldn’t be encouraged to become lawyers – we just wish that it would have been funny. But maybe that’s what passed for humor in the Reagan administration.)

Senator Feinstein’s questions provided more ground for follow-up: Judge Roberts seemed to assert a conception of individual rights as a zero-sum game – suggesting that giving some people certain rights impinges on the rights of others. We're not sure how Judge Roberts thought end of life decisions would impinge on other person's rights. He seemed to argue that the rights that would be impinged was the right of the legislature to act in this area. Hopefully the Senate will flesh out whether he believes privacy rights can be trumped whenever the legislature acts. (4:57 pm)

Senator Dewine of Ohio covered a lot of ground in his questioning – from civil liberties and national security to free speech and the Americans with Disabilities Act – but didn’t press too hard for clear answers. We were glad to hear him raise concerns about the FISA court – an 11-member court that holds secret proceedings reviewing government intelligence actions that may violate civil liberties – and ask Judge Roberts about his role in appointing those judges.

We now know that Judge Roberts believes the FISA judges should be “above reproach� given the “unusual� nature of the court. Dewine went on to discuss his own views on free speech, religion and pornography, with unfortunately little input from Judge Roberts. Hopefully someone will actually ask questions on these vital topics. Dewine also raised concerns about the Supreme Court’s treatment of Congressional fact-finding – and its dismissal of such findings in its decision to strike down part of the Americans with Disabilities Act. Roberts responded that the Congress has an important fact-finding role that court’s can’t do, and that those facts can be very helpful to judges, yadayadayada… We’d like to ask a follow-up… (4:20 pm)

Senator Kohl asked John Roberts a rather open-ended question about distancing himself from his Reagan-era memos. Broad, yes, but it allowed Roberts the opportunity to meaningfully distance himself from some of the more objectionable views he held. He didn’t take advantage of the opportunity. Rather, he prevaricated and avoided the question. If he truly no longer hold these views, wouldn’t he be more than willing to admit he doesn’t? Or is he scared of alienating conservatives despite protestations that judges do not hold political positions? (3:22 pm)

Remember how we didn’t dwell to much on Senator Kyl’s remarks yesterday? Well, we’re continuing with that theme. He’s not saying much, though we’re surprised he’s not in a sweater with a big “R� on it rather than a suit, such a cheerleader he’s proving to be.

Kyl used his time to ask Roberts about his CV, rather then trying to address anything substantive. Kyl also talked a lot about his views, and what he thought progress is. Granted, we’re not on the circulation list for right-wing talking points, but the impression we got from some of the Republican members of the Judiciary Committee is that personal views are immaterial. If that’s so, why did Senator Kyl dwell so long on his? Maybe he didn’t get the full set of talking points?

Roberts didn’t say very much this round, but this time it isn’t because he was dodging questions and declining to answer so much as he wasn’t asked much of anything. (2:49 pm)

In our wrap-up podcast yesterday, we discussed the possibility of Judiciary Committee action figures (with, of course, kung fu grip). We didn’t have Joe Biden in mind, really, when we discussed such a (great) possibility, but his performance today shows that he could be Joe “The Terrier� Biden.

After a few minutes of ruminating about strike zones (hey, where have we heard that before?), he finally “got to it.�

With Joe Biden’s usual… flair. Oh, okay, combativeness. But beneath the bombast were some very pointed questions on Roberts’ views on gender equality and the Ginsburg standard.

Senator Biden examined Roberts’ stances in memos relating to gender discrimination. As a young lawyer, he had written that governments could intentionally discriminate against women as long as they had a rational reason for it (such as it would cost more money to treat women equally with men). Roberts squirmed a bit, but once he got the memos, he fell back on his old argument that, as a staff lawyer, didn’t have positions. Biden wasn’t having it. Use of phrases like “strongly agree� indicate that John Roberts had a view on these matters at the time he was writing.

Biden also very clearly pointed out the inconsistencies in Roberts’ approach to answering questions. Ginsburg answered a much broader spectrum of questions than did Judge Roberts, despite his claims he was just following Justice Ginsburg’s lead.

There’s more there, but, like everyone in the hearing room, we think we need to take a few breaths before getting back to it. (1:00 pm)

We’ve had our first judicial filibuster. Or at least a filibuster by a judge. In the sharpest exchange of the hearings thus far, Senator Kennedy questioned Roberts about voting rights and other civil rights issues.

Rather than giving clear, succinct answers to these questions, Roberts chose to opine at length on the Reagan Administration's views and the state of the law rather than give his own views. Roberts also tried to toe a fine line of making sure conservatives would not become angered if he disavowed his Reagan-era memos advocating the restriction of certain aspects of the Voting Rights Act without agreeing that he believed in the statements he wrote. We heard a response of “I was merely representing my client.� No agreement, no disavowal even when asked about memos in which he had specifically given his own views, such as the application of Title IX to schools that receive federal financial aid. But, the measures that Roberts advocated would have so undermined advances in civil rights and equality, they must be disavowed. As a Supreme Court justice, John Roberts would become one of nine ultimate authorities on the protection of rights. A restrictive and dismissive view of such critical protections does not bode well for his potential position as an adjudicator and protector of hard-won rights and freedoms. (12:00 pm)

From hardball to softball. (That was an easy sports reference, so we came up with it all by ourselves. Please don’t ask us anything else about the subject, though.) Senator Hatch just questioned John Roberts. He concluded his first round of questioning with a high, soft lob (hey, we’re on fire! Though we think that might be tennis so we’re mixing our metaphors…). “As chief justice, would you encourage other lawyers to engage in pro bono work?� Don’t put him on the spot too much, Senator Hatch!

A fairly interesting statement did come out of Senator Hatch’s questioning period, notably Roberts’ statement that when a court or judge votes in a way to overturn legislation like in the Morrison case (dealt with the Violence Against Women Act), they are not engaging in activism, they are simply “wrong.� An interesting view. So, when courts expand rights they are activists, but when they restrict rights, rights protected in congressional legislation, they are wrong but not activists? Funny how that works. (11:30 am)

It’s a one-two punch. Senators are playing hardball. It’s… well, never mind, we just exhausted our capability of coming up with sporting metaphors (we have help with those most of the time). But Senator Leahy, the Ranking Member on the Judiciary Committee just gave Roberts a very thorough questioning. He addressed issues ranging from torture to detainment to the war time powers of Congress. Roberts had some fairly slick answers on those topics.

Then we came to the Gwinnett v. Franklin case. Long (and horrible) story short, Christine Franklin, a high school student was harassed and raped by a coach and teacher at her school. She sued the Gwinnett School District under provisions of Title IX.

During his time in the Solicitor General’s office, Judge Roberts argued for denying Franklin the opportunity to seek damages – the only meaningful remedy available to her. The Supreme Court unanimously disagreed with Judge Roberts. Writing for six justices, Justice White condemned the argument that Judge Roberts advanced for leaving the girl “no remedy at all.�

So Roberts’ arguments in the hearing that this student could have sought “other remedies� such as “back pay� are absurd on their face. Roberts’ approach left her with no avenue, no matter how many different ways he tried to explain “statutory interpretations.� Senator Leahy wasn’t buying it, either. What sort of recompense for her suffering could this girl expect in a law interpreted by Roberts? None. (10:58)

Wow, it’s quite a morning. We were struggling to wake up a bit, dragging despite a grande vanilla latte (too bad we don’t like espresso), but then Senator Specter started his questioning. Charts! Stare decisis! Privacy! Roe vs. Wade! Evaded questions! Did we mention charts?

Senator Specter engaged in a very thoughtful back and forth with John Roberts over stare decisis, the legal principle of respecting precedent. Roberts had an answer for these questions, even if they were non-answers. (Roberts seems to have gotten the message from the Republican members of the Judiciary Committee about answering questions: don’t. There was a lot of “I decline to answer.�)

And then came the chart. A list of the 38 cases that the Court had taken that challenged Roe. Roberts again nimbly stepped around a direct answer, instead going back to his buzzwords of “stability� and “humilty.� But it seems Roberts is taking the advice of Senator Kyl. et. al. that evasion, and in some cases outright refusal to answer (albeit very neatly phrased) is better than elucidation. (10:15 am)

And the first day of hearings has wrapped. We’re a bit tired (though apparently not as tired as some of the senators and their staff who seemed to be unaware they were visible in the background. We thought about doing a blind item on which senator was caught picking his or her teeth live on national television, but then thought that was perhaps too much), and the actual hearing (you know, questions and answers) hasn't even started yet.

Judge Roberts gave what appeared to be an extemporaneous opening statement (he has had years of lawyerly training in front of the Supreme Court after all—but his eloquence is not at question here) that touched on the issues raised by many of the senators. His answers, however, must go much deeper than comforting buzzwords like “modesty,� “humility� and “restraint.� He MUST answer the substantive questions in a substantive fashion.

He said that a judge acts as an umpire, just calls balls and strikes. That's true, but some umpires have a low strike zone, some have a high one, and some change their strike zone depending on who's pitching. At the risk of going too far with this metaphor, the Committee needs to know what kind of umpire Roberts will be.

There was a theme for the day, as we noted before. Republicans repeated over and over again their talking points about why Judge Roberts should not answer questions. We heard about Justice Ginsburg’s hearings and the way she did or did not answer questions. There was quite a disconnect between reality vs. rhetoric on Ginsburg and on what conservatives once thought judges should be asked. Take a look. We’ll have more for you tomorrow as we get into the questioning portion of the hearing. (4:12 pm)

Senator Durbin urged the senators to evaluate Judge Roberts based on one criterion: whether Judge Roberts will restrict or expand individual freedom. Will Judge Roberts stand up for civil rights in the vein of Judge Frank Johnson--a Republic judge from the South who was branded a judicial activist for protecting the rights of African Americans to protest during the civil rights movement? As Senator Durbin recognized, judges, particularly Supreme Court justices, have a profound impact on our lives. It is important to assess what impact Judge Roberts will have, if confirmed, on issues involving privacy rights, the power of the executive branch during the war on terror, and the separation of church and state. The American people deserve a nominee who will protect us all, one who will expand not narrow rights, and one who will do justice without fear or favor. To ensure that Judge Roberts would be such a justice on the Supreme Court, Judge Roberts needs to answer the questions posed to him during the hearings. (3:30 pm)

The then and now game is not treating the Republican members of the committee kindly. First Orrin Hatch and now Charles Grassley. Senator Feingold just brought up remarks Senator Grassley made years before about the importance of asking about judicial philosophy-a slightly different tack than the good senator from Iowa took today.

And now the junior senator from Wisconsin (On Wisconsin!) is making the case for releasing the solicitor general documents. Does the administration have something to hide? Feingold points out that by stonewalling, the White House is doing Roberts no favors, but creates troubling questions about what those documents might contain.

All in all, a refreshing blast of common sense from Sen. Feingold. (We expect nothing less from the fine state of Wisconsin. We're not showing our biases here, are we?) As many legal scholars have been saying in recent weeks, there's no reason the Senate should be kept in the dark about Judge Roberts' views on the law before voting on his confirmation. After all, Feingold and legal scholars say, we know what the sitting justices think already, and Supreme Court arguments are invariably geared to how they think. If there's nothing untoward about knowing how sitting justices approach the law, why should the Senate and the American people be forced to know anything less as it relates to Judge Roberts? (2:07 pm)

Senator Feinstein just made a very powerful statement on what the true impact of Roe v. Wade was on society, with a chilling vision of what women faced—from morbidity to imprisonment—before Roe became the law of the land. This is why it is critical senators ask a nominee their views on issues like privacy and unenumerated rights—we must protect the march of progress this country has made. (2:00 pm)

Here's a shocker-the approach of Republicans and Democrats to these hearings differs sharply. We know! Normally they skip merrily hand in hand through the tulips, but not today. We'd tell you all about what Senator Kyl said, but it was, to be kind, more of the same.

Republicans are focusing on the process-trying to set the stage for a justified evasion of questions by the nominee. Our Magic 8 Ball indicates this may not tell us a lot about Judge Roberts judicial philosophy. His record backs up the 8 ball.

Meanwhile, their Democratic counterpoints are focused on a constitutional vision, the idea that, as Senator Biden put it a vision "that allows for expanding protections for liberty and personal dignity and giving the national government the ability to protect the powerless." (Senator Biden also made probably the most provocative comment on the hearings thus far-though we are only an hour or so in-saying that based on Roberts' record thus far, he would vote no on the nomination.)

The approach by the Democrats is backed up by the American people. According to recent polling, Americans by a large majority think that not only is it proper to question a nominee about their views, but that the Senate must ask these questions. A majority also believes that a refusal to answer questions on important legal issues would justify rejecting the nominee. Sounds different than the line the American people's elected representatives were trying to take, huh?

Senator DeWine of Ohio bucked the Republican trend a bit, actually talking about the Constitution rather than relying on talking points and platitudes. (We also want one of those snazzy water bottles with the Senate seal on them like the senator had next to him. Our nerdy friends back home would be very jealous.) Let's hope the rest of his compatriots on the committee realize how important this approach is--the approach of actually discussion a nominees views--in truly examining a potential lifetime appointee to our nation's highest court. (1:46 pm)

Do we have a theme for these hearings? We certainly do on the Republican side of the aisle. Senator Grassley from Iowa joined the chorus of his peers in trying to claim that these hearings were not the proper forum for real questioning. Grassley stressed "civility." Well, funny thing, civility and thoroughness are not mutually exclusive, as just about every case argued before the Supreme Court demonstrates.

Grassley also belabored the idea of checks and balances and accountability. Frankly, we're a bit surprised by those who have so clearly pre-judged Roberts and given him a free pass want to dwell on this point. After all, Roberts writings (the one's we've been allowed to see, in any event) indicate the checks and balances aren't so important to him, at least not as important as expanding presidential power beyond all reasonable restrictions and curtailing judicial authority to protect individual rights.

Grassley also said that the people's elected representatives should have the power to legislate and that the courts should have minimal involvement. Yet Roberts has, time and again, advocated the position of a Court to limit congressional authority to pass laws that protect our rights and freedoms. So far, we're hearing a lot of talking points from the Republican senators at the expense of ignoring the facts before us in Roberts' record. The Senate needs to take its advice and consent role seriously, not become a PR machine for the nominee. (1:09 pm)

Oh, Senator Kennedy. We knew we had a soft spot for you for a reason, and not just because you sound like Mayor Quimby. The senior senator from Massachusetts is a lion of the Senate, with a deep commitment to civil rights.

Senator Kennedy pointed out that we cannot continue to ignore the Americans who are left behind and that we must confront the injustice, inequality and gross disparities that are evident in our society.

Kennedy rightly describes these hearings as Judge Roberts’ interview with the American people. We have a right to know what Judge Roberts thinks, and the Senate is acting as our interviewer. So the question that keeps popping into our head is: “Why is the White House withholding critical documents from Roberts’ time in the solicitor general’s office?� The Senate needs those documents to fully do its job.

Senator Kennedy laid out the issues at stake—progress, equality, accountability. See the full text of his statement here. (1:00 pm).

A second Repubican senator, Orrin Hatch of Utah (defying conventional political tie conventional wisdom in a very nice gold striped number), seems to be trying to lay the groundwork that it’s okay for Judge Roberts not to answer questions he find uncomfortable. Nice try. Roberts has duty to answer the questions of the Senate. They have a Constitutionally prescribed co-equal role!

Hatch tried to bring up a Harding nomination from years ago, citing a same-day nomination and confirmation as some kind of gold standard. Because to respect the separation of powers that Hatch praised so highly the Senate should be a rubber stamp for the executive branch? No. Speed is not the standard here, thoroughness of review is.

Senator Hatch himself in 1997 said “"[T]he Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining which will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails... Determining which of President Clinton's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of nominees' jurisprudential views." (Address of Senator Hatch before University of Utah Federalist Society chapter, February 18, 1997) (12:35 pm)

And they’re off! The hearings have begun, and Senator Specter kicked off proceedings with his opening statement. He made a couple of comments that were, if nothing else, surprising. He seemed to call the Supreme Court of now—the Rehnquist Court, we might add—as a super legislature. (Judge Roberts has, at times been called a Rehnquist protégée—he clerked for the late chief justice early in his career.)

Specter is largely focused on the Court vis-à-vis congressional authority, referencing the Violence Against Women Act and Americans with Disabilities Act among others.

Specter belabored the point of answering questions and that Roberts could choose to answer or not answer as the situation applies. Just as senators have a duty to ask proper questions—and judicial philosophy certainly falls under that rubric—the nominee must answer all appropriate questions. Don’t believe the Ginsburg standard hype. Specter called the questioning a “subtle minuet.� This is a nice metaphor, but this isn’t a dance, it’s the future of our country.

Meanwhile, when we were in college, we didn’t think that sitting around eating Chinese take-out and watching PBS qualified as a “party,� but that’s what people in our office are calling it. (12:20 pm)

Well, today’s the day. The Roberts hearings begin. Today is primarily focused on the opening statements from the senators, and tomorrow we will begin the real questioning of Judge Roberts. And there is much questioning to be done. Linda Greenhouse of the New York Times has done a nice overview of what topics certain senators are likely to cover, and a series of op-ed contributors to the same publication has provided a list of questions that should be asked of the nominee (all five pieces are accessible from this index.

We here at the Scoop will be live-blogging the hearings to give you an up-to-the minute account of the hearings, from startling statements to revelations to unfortunate neckwear choices. Your courtside and color commentary starts at noon. (We knew we were telling our mothers the truth when we said we could so get paid for watching television.)

In other Court-related news, speculation continues to run rampant over the will he/won’t he nominate Attorney General Gonzales to fill departing Justice Sandra Day O’Connor’s seat. Senator Arlen Specter threw another log on the fire with remarks on Meet the Press that it was “too soon� to nominate Gonzales for the high court. There are a number of political tensions the White House would face with a Gonzales nomination, both from the right and left, so perhaps Senator Specter was providing cover for the White House, or, given his long-standing service in the Senate and his position as Chair of the Judiciary Committee, he got a sense that a Gonzales nomination, on top of the already-controversial Roberts pick, would not go over well.

For the true junkies, tune into the hearings live on C-SPAN radio or C-SPAN 3 (channel 372716768 on some cable systems... check your local listings), or stream it from C-SPAN.org or from C-SPAN's Capitol Hearings site. The Senate Judiciary Committee also has a link to a live feed on its web page. C-SPAN 2 will rebroadcast the hearings at 9 PM.

Here is what C-SPAN says regarding its coverage:

Roberts Supreme Court Confirmation Hearings Monday -- 11:30 am ET

On Monday, the confirmation hearings for Judge John Roberts, nominee for Chief Justice of the Supreme Court, begin at 11:30 am ET. We'll be airing them live as they happen on C-SPAN3 and C-SPAN Radio, or watch anytime online at c-span.org. And every day of the hearings, we will re-air them in their entirety in prime time at 9 pm ET on C-SPAN2 when you're home to watch.

Check local listings for C-SPAN2 and C-SPAN3. C-SPAN Radio is available in the Washington, D.C., area at 90.1 FM, and nationwide on Sirius Satellite Radio and XM Satellite Radio.

Yes, Virginia, there is a Rehnquist standard!

In the past few weeks, you’ve probably heard right-wing groups casually throwing around the term “Ginsburg standard.� Well, there’s a new standard in town, the Rehnquist standard.

When William Rehnquist was nominated for elevation to chief justice, even then-President Ronald Reagan noted that the release of documents was important because “Supreme Court nominations are so important that I did not want my nominees to enter upon their responsibilities under any cloud.� Documents from Chief Justice Rehnquist’s time in the Justice Department were provided by the Reagan administration, despite previous claims of privilege.

We are in the same situation again. Judge Roberts is now nominated to be Chief Justice of the United States. If confirmed, he would be the head of our nation’s judiciary. The Bush administration has been stonewalling on releasing critical memos from Roberts’ time in the Solicitor General’s office. But, as William Rehnquist’s elevation to chief justice shows, the stakes are now different and critical documents must be released.

Sorry we’ve been quiet and short with you in these last couple of days—we experienced some minor technical difficulties that have now been corrected. (NOTE - We've been fine here at the podcast page, it's the main page that was hit with a gremlin or two.)

Today is Chief Justice William Rehnquist’s funeral. A service for family and friends will be held at St. Matthew’s here in DC, with a private burial at Arlington National Cemetary. Again, our thoughts and sympathies are with the Chief Justice’s friends and family.

Today's post, again, is short, but be prepared for a deluge of information starting tomorrow. In the meantime, if you must have your fix, why not check out our podcast (linked in case you missed the highly-visible graphic on the homepage), which is chock-full of commentary and analysis on the events of the past few days.

UPDATE - The Judiciary Committee will announce the hearing schedule tomorrow.

We want to take a break from our regularly-scheduled musings on the Supreme Court for a moment. The devastation wrought by Katrina is horrific. Our thoughts are with the millions of people affected by this disaster. We here at the Scoop, knowing that our readers are the sort to take action and get involved, encourage everyone to do what they can—monetary donations, care packages, giving blood. For more information on what is most needed, the American Red Cross is a good place to start. We’ve also received word that the United Way of Acadiana is coordinating the feeding of a huge number of refugees, so they can use your help, too. Do what you can. You can do something.

Judge Roberts’ hearings begin after the Labor Day weekend—things kick-off at 1:30 on September 6th with opening statements from senators. In the following days, we will hear from John Roberts and testimony from witnesses both for and against his confirmation. (The latest edition of our podcast explains what the hearing week will look like in more detail.)

As cheesy as it sounds, this is a historic moment. If you are a regular reader, you are probably pretty into this stuff and might like the opportunity to see the hearings live and in person. Well, too bad. Radical shifts in procedure have been introduced for the Roberts hearing, unprecedented shifts that will limit the public’s ability to get into the hearings.

Passes are required for, but still do not guarantee, admission. The hearing room is equipped to handle 250 people, but space is being allocated for only 72. Standing will not be allowed, even though it has for every past Supreme Court hearing.

Citizens are being denied the opportunity to watch these historical proceedings of their government in action because of excessive, and unnecessary, restrictions.

Why? We don’t know. (Security does not account for these measures.) But there is something you can do—contact Senate Judiciary Committee Chairman Arlen Specter and let him know that the hearings should be an open and transparent process and that any and all unnecessary restrictions should be lifted.

Every few days, it seems that the right has a new rallying cry, a new battle flag, a new standard, to wave. (And, to channel our study of Macbeth in high school, these talking points are generally full of sound and fury, signifying nothing. We'll leave you to recall the rest of the quotation to find out who tells the tale.) For the past few weeks, the official mouthpieces of the right keep trying to hoist what they call the "Ginsburg Standard." Everyone's favorite calm and reasoned commentator Robert Novak first raised the point (such as it is) several weeks ago. Progress for America brought it up again yesterday. Too bad they are so married to a point they can't let it go even when it has been thoroughly refuted.

What is the Ginsburg Standard? Or should we say the so-called Ginsburg Standard? The claim is that Justice Ginsburg refused to answer questions about her views on controversial issues. Therefore, the right is claiming, John Roberts should be allowed, and even encouraged, to evade senators' questions regarding his views on critical issues. There are so many things wrong with that, we don't really know where to begin.

The thing is, Justice Ginsburg did answer questions and, in fact the Judiciary Committee noted that they knew far more about her views on controversial issues like reproductive rights than they had learned about any previous nominee. Furthermore, encouraging John Roberts to be evasive in his confirmation hearings shows a contempt for the constitutional role of the Senate.

Senator Charles Schumer will be addressing the American Constitution Society about "the myth of the Ginsburg precedent" tomorrow. Stay tuned. Also, for a good look at the flaws in the argument, the National Women's Law Center has put together a very good document, as has the American Constitution Society.

We have a team of over 10 lawyers here at Alliance for Justice, and for the past several weeks, they have been poring over documents, briefs, statements, memos and countless other documents to get an understanding of John Roberts’ views on the law. What we (okay, they) uncovered, was not reassuring. So, after extensive research, fact checking and re-checking, Alliance for Justice has decided to oppose John Roberts’ nomination to the Supreme Court. We have the report for you—105 pages of fun. Beach reading for your Labor Day weekend.

Honestly, though, this is a thorough and comprehensive look at the Roberts record we know about. We may be a bit biased since it is our report, but we think this is required reading for those who really want to educate themselves about John Roberts’ record.

UPDATE... if you'd like to catch the press conference again, it will be rebroadcast at 5:30 PM EDT on C-SPAN 2.

Join us next week for a fresh helping of the Insider Scoop and, of course, the next podcast. Have a great weekend...

Apparently, people debate the use of Astroturf in sports. Some of us here at the Scoop have a better idea about this than others. We all know, however, that there is no substituting genuine engagement by people in the political process.

Other groups seems to be taking a dimmer view of this. In the past two days, we’ve seen support for John Roberts from “Women for Roberts� and “Project 21,� an organization calling itself a civil rights group. Funny thing. Both of these events were sponsored by Creative Response Concepts. They sound like a PR firm because they are a PR firm… A highly partisan PR firm behind such fun forays into truth and high-minded debate like the Swift Boat Veterans for “Truth.� They are engaging in something called astroturfing—trying to create the illusion of grassroots support where none exists.

CRC has a history with the Bush administration, and these events showing “genuine� support for Roberts are nothing more than a part of the carefully-choreographed White House script for the Roberts nomination.

Roberts’ record shows high troubling stances on women’s rights and civil rights. But the spokespeople for Creative Response Concepts didn’t want to go into that. So, we did it for them. Find out who CRC really is and what Roberts’ record looks like in terms of women’s and civil rights.

For a federal judge and highly-educated lawyer, John Roberts doesn’t seem to have the best grasp of the whole “checks and balances� thing. (Maybe a refresher would be helpful.)

He seems to have almost a ranked order for our branches of goverment… Executive over Congress, Congress over the courts. Recently-released documents indicate that Roberts holds an expansive view of presidential power-—memos indicate he believed that the president should be able to wage war “without the interference of Congress,� and also strongly supported presidential recess appointments in the face of Congressional opposition.

That is not to say that Congress gets left out in the cold in Roberts’ hierarchy. No, no. Roberts was a staunch advocate of court-stripping. And not the fun page-99-of-America-the-Book kind of way, either. Roberts felt that it was perfectly reasonable to limit the courts’ jurisdiction over certain (politicized) issues like choice and desegregation. (He did admit it may not be the smartest choice politically, constitutionality issues aside.)

So, in John Roberts’ eyes, it would seem that while the branches of government are separate, they are certainly not equal.

Hope everyone had a good weekend. We at The Scoop woke up to an article in The Washington Post that reminded us why we are continuing to have that uneasy feeling about one John Roberts. Set aside political philosophy for a moment and consider the structure of government. The judiciary stands as the only means for an individual to get a hearing on the law when there has been some sort of harm, whether that harm came from an individual, a corporation, or the government. It is a bedrock principle of our democracy.

So why has John Roberts wanted to limit Americans' ability to protect their rights? The Post article describes the movement amongst conservatives to limit access to federal courts by restricting technicalities for admission like "standing" (limits on the person able to make a claim) and "justiciability" (limits on the powers a court has to hear a claim). It should come as no surprise that Roberts has been wanting to jack up the limits on both of these since he was a young attorney in the Reagan administration. So, even if Congress passes laws to protect civil rights and the environment, they are rendered completely useless because there is no place to go.

And John Roberts is perfectly ok with that.

Ahh, but we digress. This week on the podcast... more on the continuing revelations from the docs we do have... another segment of Meet John Roberts, and, of course, a brand new Magic 8 Ball. There might be a couple of shows this week, so keep your podcatchers tuned into the feed!

It’s a Document Day! Trees have been killed, hundreds of thousands of copies have been made, the press, lawyers and researchers are rushing to get their copies—just like the release of the latest Harry Potter. Well, not really, but this is what passes for excitement in Washington during August.

What will be found in the documents? (And will documents be found? Certain memos Roberts wrote on affirmative action, Bob Jones University and presidential pardons are MIA right now.) What we’ve come across so far doesn’t exactly inspire us to jump for joy. We are willing to hazard a guess that the new documents won’t provide much reassurance regarding John Roberts’ commitment to individual rights. Even Ed Whelan, president of the conservative Ethics and Public Policy Center, agrees with us. “Those who try to paint Judge Roberts as a squishy moderate will not find any supporting evidence in these documents.� Well, we certainly haven’t seen any signs of moderation, squishy or otherwise, so far.

In a statement, Reid said “all this talk about whether Democrats will support the Roberts nomination is laughably premature. The hearings have not even begun. The White House has so far refused to produce relevant documents, and the documents we have seen raise questions about the nominee's commitment to progress on civil rights.

Senators Kennedy and Leahy also quickly offered rejoinders. Senator Leahy, in particular, is vehement, saying that Roberts’ views were "among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women's rights, privacy and access to justice."

So, the Senate isn’t backing down or rolling over or whatever other language people are using. It is taking time and deliberating, and taking the steps to ensure it has the information it needs—despite the blocks being thrown up by the White House—to make an informed decision.

More documents = more red flags. Yesterday’s release of over 5,000 documents from the Reagan Library – and the withholding of several hundred – has raised more concerns about what we’re learning and what we still don’t know about Judge Roberts.

As reported in the Washington Post, Roberts slammed three Republican House Members, including current Senator Olympia Snowe, for supporting a principle guaranteeing equal pay for different jobs deemed to have comparable worth, calling it a “radical redistributive concept,� and comparing it, in the Post’s words, to “Marxist dogma.� Roberts also signed off on a presidential telegram that invoked the Gettysburg Address and the legal principle of Plessy v. Ferguson (that African-Americans were not considered “persons� for the purposes of the U.S. Constitution) as analogs to legalized abortion. The Postalso reports that, on the church-state front, Roberts wrote that a Supreme Court decision barring a moment of silence for prayer in schools “seems indefensible.�

The removal of 478 documents from yesterday’s delivery also raised eyebrows here at The Scoop. Many of the documents were “withdrawn� on claims of protection by the Privacy Act. But the usual way to conform with that law is to simply blot out, or “redact,� sensitive information about individuals, not to leave out entire documents as was done yesterday. On that note, 20 of 27 pages in a box of documents on the Equal Employment Opportunity Commission were listed as “Withdrawn.� Wherefore? Also, in what appears to have been a mistake by library staff, a folder containing discussions about affirmative action has gone missing.

Of course, we couldn’t let the report about Roberts’ advice to deny Michael Jackson a presidential thank-you note slide by without noting that the then-White House lawyer wrote snidely that “I hate to sound like one of Mr. Jackson’s records, constantly repeating the same refrain...� Say what you will about the former King of Pop, but this was 1984, and “Thriller� still ruled.

They're baaa-aaack… From the same producers who brought us Justice Sunday, we now have Justice Sunday Part Deux: Our Kind of Activism. (Sadly nothing like Festivus for the Rest of Us, and not nearly as entertaining.)

Okay, so maybe that isn't exactly the title, but that was the purpose of this weekend’s event. Such luminaries of logic and tolerance as Tom DeLay, James Dobson and Tony Perkins turned out on the bully pulpit in their Sunday finest. There was even a come-back role for Robert Bork.

They threw around words like "oligarchy" and "activism" and "autocracy." They railed against so-called “judicial activism� and rallied to support John Roberts. But when the Justice Sunday crowd talks about activism, let us be clear—they are demanding their own brand of activism, one that suits their political agenda, nothing more nothing less. It is the Rehnquist Supreme Court, after all, that overturned six decades of precedent in the 1990s when it began limiting Congress’ power, and has continued to strike down federal statutes at a rate that has alarmed legislators on both sides of the political aisle.

In a letter to Judge Roberts, Republican Judiciary Committee Chairman Arlen Specter decried this activism and its implication that the Supreme Court has on too many occasions decided that Congress lacks competence to decide certain issues of national importance. The fact that Roberts has expressed that the Rehnquist Court is “not very conservative,� suggests that the nominee has doesn’t share Specter’s (and our) concern that that this type of activism is a problematic revision of constitutional checks and balances.

Mildly encouraging news out of the White House yesterday evening: in a letter to Sen. Patrick Leahy, Ranking Member of the Judiciary Committee, White House Counsel Harriet Miers sets forth a timeline for the release of more Reagan-era Roberts documents. Though this is encouraging, at least two issues of great concern remain.

First, the Bush administration has not backed off from its refusal to release documents from the three-plus years Roberts spent as the Principal Deputy Solicitor General during the Bush I years his most recent and most powerful public policy-making position. Hopefully, today's letter from Judiciary Democrats to Attorney General Gonzales will change some minds.

Second, Miers' letter contains three eyebrow-raising references to a so-called Constitutionally-based privilege, which she says may be invoked to withhold some of Roberts' documents. You can do your due diligence and check for yourself, but the Constitution we've been reading doesn't contain any passages about a presidential privilege to shield information from the public.

For a little Friday levity, check out the far-right's latest demagoguery extravaganza, "Justice Sunday II," where, among other things, activists plan to continue trying to paint the Democrats on the Judiciary Committee, half of whom are Catholic, as anti-Catholic. Along related lines, the New York Times reports that John Roberts did some politico-religious profiling of his own back in the day, promoting a friend of his who was applying for a high-level Justice Department job as a "deeply religious Protestant."

Yesterday, the New York Times reported (repeated also here and here) that Sen. Ron Wyden of Oregon asked John Roberts whether Congress had the power to intervene in a case like the late Terri Schiavo. Specifically he asked, "whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy."

Roberts responded, "I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court, and prescribe particular remedies in particular cases, Congress has overstepped the bounds."

As you can imagine, this is a bit of a bombshell for conservative extremist types that thought it was perfectly appropriate to pass a law in the wee hours of the morning that was specifically aimed at one woman's ongoing private tragedy. Despite the fact that Sen. Wyden's staff wrote John Roberts' response down "word-for-word," everyone's favorite faux District Attorney (and Roberts shepherd) Fred Thompson has a remarkably different recollection. And his staff has notes to back him up too! Hmmm.

So, we have a bit of a mystery here gang, but underlying that is a very important revelation. A Supreme Court nominee, when asked a hypothetical question regarding a specific issue related to Congressional authority and privacy has answered the question. Write that on a sticky note and tack it on the fridge... we at the Scoop think a precedent has been set for the hearings starting September 6th.

Starting today we'll be spreading the content around a bit more by publishing the Insider Scoop here as well as on the main SCW page. Today was our number one podcast download day yet, so thanks for listening!

* * *

Jo Becker of the Washington Post reports that the administration is holding back thousands of pages of documents, looking for any “surprises.� Clearly this demonstrates the administration’s commitment to an open process and respect for the Constitution’s role for the Senate. Certainly it is more important for the White House to get its way than it is for the Senate to be able to perform its advice and consent duty. Do they want a chance to whitewash a record that may be too far out of the mainstream for most Americans, Americans who overwhelmingly prefer a moderate justice?

Becker also notes that “three weeks [after the nomination of Roberts], [White House] officials say they recognize that Roberts's record is going to be central to Senate confirmation hearings.� This is a revelation? It comes as a surprise that the Senate and the American people might be interested in the record of a person who could be making decisions that impact their lives every day for decades to come? Yes, that is quite the stunning revelation.

And it seems like the Bush administration just can’t make anybody happy lately—conservative groups supporting Robert charge that the White House isn’t doing enough to stand up for John Roberts and his record. That instead of trying to spin what he’s done into something palatable, the White House should stand up and say Roberts was unequivocally correct in his thinking on these issues. Here we have to agree with Sean Rushton. (Blue moons do happen.) Well, kind of. If Roberts’ record demonstrates that he is committed to the rights and protections enshrined in the Constitution, why is the White House trying so hard to obfuscate or run a public relations campaign? The record can and should speak for itself. So, let the Senate and the American people take a look at that record without further delay.

- Tim

With a significant chunk of the District off on summer vacation, we at Supreme Court Watch like to kick back, relax and... read a lot of John Roberts' old memos. Well, it beats some retread Danielle Steele novel.

This week on SCW... John Roberts speaks (sort of)... the White House says you don't deserve to know more about its nominee... more Meet John Roberts... and yet another Magic 8 Ball. Look for SCW #7 in your podcatcher on Wednesday.

UPDATE... we'll also be covering the latest news regarding a rather pointed letter coming out of Sen. Specter's office that shows he's got a few questions for Mr. Roberts. Take a look at today's Insider Scoop for the um, insider scoop.

Special note... our hosts at Liberated Syndication are having some issues as they move to a new set of servers that make Hal from 2001 seem like a toaster with an irritating disposition. The upshot is that download times should be much better when this is all figured out. If you've been having downloading problems, let us know at podcast@afj.org and we'll find a super secret back way to get you the shows you need.

Because vacations are for suckers... enjoy this tidbit from the Washington Post.

As we transition into August and slide into the Congressional recess, the Roberts nomination promises to put a hold on the traditional "quiet time" in DC.

But at SCW podcast, there is no rest for the weary... this week... more Meet John Roberts, more fun with audio clips of highly rated crime dramas, more Magic 8 Ball, and... best of all... slightly higher audio quality!

So, subscribe to the feed and consider listening to us at the beach with your mp3 player... it might be our only shot at actually getting to the beach this summer...

- SCW #4

- Roberts documents released
Documents Show Roberts Influence In Reagan Era, Washington Post

- Meet John Roberts - Voting rights
Alliance for Justice report (PDF)
Prof. Rick Hasen's blog post
Some Documents of Supreme Court Choice Will Be Released, New York Times

- Fred Thompson on NBC's Meet the Press - contradicts his own position on attorney-client privilege?
Meet the Press transcript
Thompson's contradictory statements on the Senate floor. 141 Cong. Rec. S18972 (Dec. 20, 1995). Click here and search for page S18972 on 12/20/95
Fair Questions For Roberts, op-ed column by Walter Dellinger, Washington Post

- The first 50-year justice?
Supreme Surprises, Carlos Watson, CNN

- The Federalist Society... it depends on what the definition of "member" is
Roberts Listed in Federalist Society '97-98 Directory, Washington Post

- Magic 8 Ball... Will the White House release all of John Roberts' documents from prior administrations?
For reference... Magic 8 Ball answers

- What's next?

- Next time... A SCW special edition, Nominations 101

- Comments to podcast@afj.org

We'll be putting together two editions this week... a full episode with your favorite segments including a new Magic 8 Ball question and more Meet John Roberts. Look for that to be posted sometime Wednesday.

Later in the week we'll be putting together a special edition of Supreme Court Watch... Nominations 101. Do you listen to Adam, Kelly and Tim but miss some of the references? Join us for Nominations 101 and we'll back up and give the big picture on the process. Look for that in your podcatcher by Friday.

- SCW #3

- Meet John Roberts... a regular segment each podcast where we highlight a particular area of his record. This edition... Judge Roberts and his perspectives on big business

- Disappointment in the Latino community? Hispanics for a Fair Judiciary expresses disappointment

- Rope-a-dope... Ann Coulter opposes the nomination? See SOUTER IN ROBERTS' CLOTHING

- The Daily Show on liberals' reaction to the nomination

- Magic 8 ball question of the week... create a scenario (crazy or not so crazy) and have us flesh it out. At the end of the segment, we each give our "Magic 8 ball" answer (i.e. outlook not so good).
Will the nomination kick the Karl Rove scandal off the headlines?

- "What's next?"

- Check out supremecourtwatch.org for more information

- Shownotes are at allianceforjustice.libsyn.com

- Email podcast@afj.org

- Next edition... more Meet John Roberts, magic 8 ball, news, views and insight on the future of the Supreme Court

UPDATE - SCW was featured in this morning's Seattle Times.

SCW is now also available for one-click subscription through iTunes. Click here or on this logo

Using another podcatcher like iPodder? Copy the url for the RSS feed on the left side of the page, or here and copy it into your subscription feed box.

Who is John Roberts?

Senate role?

Where does this go from here?

Next show... an expanded edition with more news, views, and insight.

Date: Mon, 18 Jul 2005 11:53:21 -0700

Subject: dig the podcast

I'm still trying to figure ou how to configure everything on my itunes to roll with it, but I listened to the whole grab you've got on the blog and I found it very informative. You rock.

Also take a look at coverage of the podcast in the Washington Post here and here.

Opening

Introduction to Supreme Court Watch podcast

Weekly show - more frequent as events warrant

Future shows will include news, views and guests at our roundtable

Alliance for Justice history and expertise

The Alliance for Justice is a national association of environmental, civil rights, mental health, women's, children's and consumer advocacy organizations. Since its inception in 1979, the Alliance has worked to advance the cause of justice for all Americans, strengthen the public interest community's ability to influence public policy, and foster the next generation of advocates.

Since its inception in 1985, the Alliance's Judicial Selection Project has taken a leading role in efforts to ensure a fair and independent federal judiciary. The Project monitors judicial nominations at all levels of the federal bench. It encourages public participation in the selection and confirmation process and raises public awareness about the significant impact the federal judiciary has on the country. The Project promotes support for the nomination and confirmation of highly capable and fair judges who have demonstrated a commitment to equal justice.

News

O’Connor vacancy

Rehnquist non-retirement announcement

Roundtable

Closing

Visit supremecourtwatch.org for our Insider Scoop blog and more information to subscribe to the podcast.

Visit www.allianceforjustice.org for more information on Alliance for Justice.

Comments – email and audio to alliance@afj.org