In Defense of Roberts...

[nashuaadvocate]

...and I make this defense on one point and one point only: I'm pretty aggravated by all the non-lawyers out there who are using misleading language like "Roberts argued for...," "Roberts insisted that...," and "Roberts claimed..." to describe briefs Judge Roberts wrote on behalf of his client while he was Deputy Solicitor General of the United States: his then-client being, of course, a prior Republican presidential Administration.

Any argument or suggestion that a Deputy Solicitor General who advances on behalf of his client a certain legal principle thereby asserts that that principle reflects his own personal beliefs is an ignorant argument and is certain, frankly, to have come from a non-lawyer with little familiarity with our profession's surprisingly-stringent ethical codes.

I'm a public defender and I make legal arguments before judges in the United States every single day. I frequently argue legal positions which are well-founded in the law, but which may or may not reflect my personal opinions. That's because I'm a lawyer and the ABA Code of Professional Conduct mandates that I argue zealously on behalf of my client, and not sell out him or her because I happen to disagree with a particular statute, rule, common law precedent, evidentiary procedure, or regulation already on the books or which is not on the books presently but which (on behalf of my client) I can colorably argue should be. To skewer Roberts--for all his manifest faults, jurisprudentially--because he represented a client in the past (the Administration) whose views may or may not have reflected his own is completely inappropriate. It's politics, not debate; bile, not principle. There are plenty of good reasons to vociferously and zealously oppose this nomination without resorting to trickery and disingenuous rallying cries about how attorneys and the legal system work.

To see the beginnings of this deceitful attack, go here. Frankly the Democrats should know better, particularly given their close affinity to national trial attorney organizations. I'm a life-long, unwavering progressive Democrat, but this line of argument from groups like, say, NARAL strikes even me as reprehensible.

The purpose of hearings on this nomination is to determine the views of the nominee as best as we (the Democrats) can. The purpose of the pre-hearing build-up is clearly, from what I can tell, to pigeon-hole Roberts into views he may or may not hold now and may or may not have ever held. And yes, I agree, if he won't answer questions in five weeks--honestly, candidly, comprehensively, articulately, intelligently--he should be voted down in the Senate. But the pre-game spin from both sides is, thus far, fairly predictable: and predictably disappointing. Those of us who battle in the trenches of the legal system on behalf of our clients deserve better, particularly from the party to which so very many of us belong.

S.

[Goldmund]

1. Good post

On an unrelated note -- is the Advocate going to start up again? It was one of my absolute favorite blogs. :)

[nashuaadvocate]

64. The Advocate is, for the moment, defunct. But you can go to

this link for my personal blog, FWIW. There's a good deal of political commentary there.

S.

[Goldmund]

79. Sounds great

Thank you! :hi:

[noamnety]

2. Clarification on who his client was

Was his client a Republican Administration? Or The American People?

Who paid his salary?

[nashuaadvocate]

7. The Administration.

The Solicitor General is the Administration's attorney. Given that 50% of the country typically disagrees with what a given Administration is doing, 50% of the country typically disagrees with everything a Solicitor General (or Deputy Solicitor General) says. You can't have a Solicitor General who takes a vote from the American people before every court appearance.

For myself, I don't think I've ever agreed with a single word that's come out of, say, Ted Olsen's mouth. But that doesn't bother me because Olsen doesn't (or, I should say, didn't) speak for me, and I know when we get a Democrat in the Oval Office again we'll have a Solicitor General with some sense, and, unlike everyone in the present Administration, some class.

S.

[noamnety]

24. I'm really asking

in the court case itself, who was he officially representing? Who, specifgically, is the defendent, who is the plaintiff?

I thought one of them, the one he was representing, was "The People of the United States of America" or some such thing. Not "The Republican Administration." I read that on another DU post. That's a problem for me.

[nashuaadvocate]

27. This is what I call the "Law & Order" paradox...

...remember how they say, before every episode of that show, that prosecutors represent "the people"?

And (as you may know) legal cases in some states are deceptively titled to further that illusion (e.g., in California, People v. _______)?

Well, as a lawyer, I'm afraid to relate--because, alas, it's true--that prosecutors technically do not represent communities, or "the People," or "the country."

They work for the government, and the government is their sole boss, unless (unlike the Deputy Solicitor General position) they're an elected official.

S.

[realFedUp]

3. I think there's plenty we don't know about him yet

but there's plenty we already do. When you
don't have a lot of decisions made in a short
stint as judge (which is one reason he was
helped up by Bush 1) you look for other
opinions, statements, associations, partisan
actions etc.

You are correct in that many lawyers don't
represent the opinions or cases of their
clients, so there are other ways to reveal
what they are all about. It's also good
to look at who he hangs with and who is
supporting him as nominee.

[BurgherHoldtheLies]

4. Agree. That is a faulty line of argument

However, there are plenty of other red flags on this guy that should result in aggressive and surgical precision questioning during the confirmation hearings...if he is evasive or he refuses to answer pertinent lines of questioning that should yield NO votes from the Democrats as a block along with moderate Republicans.

[Walt Starr]

5. Well said.

I could see Roberts coming down, as a matter of law, on the side of Roe at least narrowly so that Roe is not overturned. * could then state, "I had no litmus test for a nominee. Although I am disappointed in the views expressed by Justice Roberts on this issue, I continue to maintain he closely represents my views in most legal matters."

I wouldn't count on it, but it is a possibility.

[trotsky]

6. Good points, and...

his work fighting against democracy in 2000 is reason enough to reject him. We shouldn't have to go anywhere else.

[bloom]

8. The best argument might be that he is too inexperienced a judge

to be a Supreme Court Judge.

[nashuaadvocate]

I agree! I actually think that's the best charge against him.

3 contested opinions as a jurist is too few for a Supreme Court nominee.

I love what someone else here (can't remember who) said about that, and I think it's a great rallying cry: "The Supreme Court isn't an entry-level position."

Precisely!

S.

[Demit]

9. Thanks for that. It makes sense to me.

I haven't known what to think about this nomination but was already on edge from the barrage of emails I got from progressive organizations to fight it. It felt predictable, which was exactly the groundwork laid by the press in recent weeks, that Dems would fight whoever was nominated.

It's nice to have some clear thinking injected into the situation, to help guide me. Thanks again.

[napi21]

10. I agree, but answer me one question please.

As I understand it, Roberts did 2 things that I find questionable.

He inserted the "I think Roe was decided wrongfully" as a footnote in a brief.

He advised Jeb Bush during the 200 vote count on how to get the count stopped and the SC to name Shrub President.

In my opinion, those were done, at least one of them, by him, and not as an advocate position in a hearing. The footnote was not a main part of the brief, and the advice to Jeb wasn't part of any trial.

[nashuaadvocate]

33. Again, words matter...

...I believe what Roberts wrote was "we think..." not "I think..."

"We" would, in legal terms and in the context of that filing, reference the Administration.

As to the Jeb Bush affair in 2000, that's fair game--if true, it's individual advocacy which, as Skinner rightly notes (simply in the wrong context) was engaged in "by choice."

S.

[Igel]

45. Somewhere I read that he didn't advise on how to get

the vote count, but concerning the possibility of the vote being thrown to the legislature.

But that was almost certainly third hand, if not fourth hand, information, and I cringe at the idea of sourcing it now.

[nashuaadvocate]

47. Raw Story is running that news right now...

...however, the link they direct us toward also says that even People for the American Way doesn't think this is a deal-breaker, largely because--and they're right--every major legal scholar in America was in on that case in 2000. My contracts professor from Harvard went down to help Bush, too, and I don't remember him being particularly political (though, of course, I'll assume now he was a Republican).

S.

[zoids]

11. I hate the fact bushy will slip him in with little

resistance from the Dems! Come on guys, this dictator gets everything he wants!

[Skinner]

12. Tell me, nashuaadvocate.

As a life-long progressive, I will assume that you are a supporter of abortion rights.

If you were a lawyer (I see that you are), would you choose to take on as a client someone who is petitioning the Supreme Court in order to overturn Roe v. Wade?

To be clear: I am not asking if that client has a right to legal counsel -- We both know that they do. I am also assuming that the client would not have much difficulty finding a different lawyer to argue their case if you refuse to take the job.

So -- as a life-long progressive -- would you take the check and sign-on to provide counsel to someone who is trying to overturn Roe? I most certainly would not.

I will admit that there is a shred of merit to your argument. It is true, the fact that he was acting as the lawyer for a group trying to overturn Roe v. Wade does not *prove* that he personally supports overturning Roe v. Wade.

But let's not be purposefully naive here. He did not have to take the case. And if he REALLY gives a shit about abortion rights, it is highly unlikely that he would have taken the case.

ON EDIT: The fact that he was an employee of the government acting as counsel for the government does leave him some wiggle room. But I still think it unlikely that a true supporter of abortion rights would willingly provide support to those who wish to have Roe overturned.

[WilliamPitt]

14. I'm not sure his position afforded him the choice

The OP makes a great point. Roberts stood for the administration. They were his client in all things before that court. I suppose he could have flatly resigned his position if an issue came along that went against his beliefs, but it takes a pretty special kind of person to bag their whole career like that.

[Skinner]

16. It's official: We're fucked.

Apparently now the fact that someone was Deputy Solicitor General under a Republican president is evidence that he might actually be a supporter of abortion rights. Has the world gone completely mad?

I understand the point that the OP is making, but let's not set aside our own capacity for critical thought.

Really now: What are the chances that this guy supports Roe?

[nashuaadvocate]

19. I'll just say this:

one of the things I read most recently about Roberts was on the progressive Talking Points Memo (see here), where a liberal Yale Law Professor, Robert Gordon (a member of the liberal counterpart to The Federalist Society) observes--in the context of criticizing Roberts--that he nevertheless believes Roberts would not vote to overturn Roe, "merely" (and I'm not trying to squeeze that word in deceptively) to curtail its purview without resorting to criminalization.

S.

[WilliamPitt]

28. Slim

It is the glory of DU that we can split hairs infinitely if we so choose.

This discussion is not about whether he supports Roe. It is about whether his position afforded him the ability to allow his own beliefs to determine what cases he would take. It is also about the well-made point that just because he argued a case for the government does not mean he believed in the merits of the case.

Like the OP, I come from a legal background: Mother, father, uncle, grandfather, great-grandfather and several friends are lawyers. I was a litigation paralegal for years and took part in many trials. Lawyers represent their clients...and then often go back to the office to talk about what dogshit assholes their clients are.

[bigtree]

39. Is this a good thing?

It seems sleazy to argue a case before the court that adversely affects lives that you don't actually agree with. Do you really think Roberts disagreed with BushII on abortion?

Are we all credible in participating in actions that adversely affect lives just to hold on to a career, or just lawyers?

[nashuaadvocate]

46. It's not just to hold onto a career, and it's not just lawyers.

Have you ever voted for a candidate who you didn't agree with on every issue? Supported a party whose platform isn't 100% the platform you would write if you had your own party? Worked for a corporation that laid off workers when it could have just lowered managerial salaries? Known someone who entered the military even though they didn't approve of everything the American military's ever done? I have no doubt Roberts supports 90% of the current Bush Administration platform--hell, maybe 100%, we don't know yet--but we can't presume that he opposes as a judge the Roe decision based upon the fact that he believed in the policies, by and large, of the first President Bush, when those policies were taken "as a whole" (meaning, when he made the decision to work for that Administration, did he think that, by and large, that Administration acted consistently with his political beliefs? And do we know whether or not that included a desire, as a judge, to overthrow the right to choose?).

And I do have to point out that attorneys and judges are different from civilians: they are more likely to recognize the line between the law and personal belief. Which means, incredible as it may be to non-lawyers, Roberts may oppose abortion personally but not as part of his jurisprudence. There is a principle called stare decisis which says that present court decisions must rest upon the decisions previously made by the U.S. Supreme Court. While that applies with much less force to current Supreme Court Justices--that is, Scalia can say he thinks Roe was wrongly decided and militate for its overthrow at every turn--there's a chance that Roberts does, indeed, accept the binding precedent of that decision (as he has publicly claimed he does, remember he called it "settled law" while under oath in a prior confirmation hearing), even if he's pro-life in his own affairs (as, for example, no less a prominent Democrat than John Kerry claimed to be).

S.

[bigtree]

53. None of the examples you cited relate to Robert's direct participation

in the advocacy of the gag rule and defense of abortion protesters. I may work for a company that does unethical things, without my knowledge, but does that really compare with arguing before the Supreme Court as an advocate for BushI? As I said before, Robert's actions and the effect of his advocacy is not an abstraction, nor was he as removed from responsibility for the success of the the harmful initiatives as someone who may be in the positions you describe (member of a corporation, member of the military, voting for a candidate . . .) Although, there is even some responsibility involved in choosing to serve corps., military, voting . . .

As for Robert's intent, I don't think we have to suspend disbelief because he was operating in a profession that sometimes requires a detachment from personal belief and intentions when discharging and applying the law. In this case Roberts argued in a political position, not a criminal defense position or an administrative one. He was a willing advocate in a political office. This is about Roberts priorities.

Again, what was of redeeming value that Roberts thought the BushI wanted to achieve that outweighed any objection that Roberts may have had to his advocacy of the gag rule, or his defense of abortion clinic protesters?

That's the question. This is not about some poor sap who got branded with the crimes of his boss. Roberts was a willing accomplice. How do I know? In his political office, he stayed with and represented Bush on issues that he either agreed with or disagreed with. Either way it shows a hostility to abortion rights or at best, a profound lack of demonstrable principle. How weak to come before America, as he might, and claim that he was just doing his job when he participated in and advocated for, the evisceration of women's rights.

[nashuaadvocate]

63. I'm sorry, but I do think we're rather afield from reality right now...

...as what I'm hearing here is that if folks worked for the Clinton Administration and the Department they worked in--say, Justice, or Interior, or State--did something they didn't like, or asked them to, once per year, argue a position they personally disagreed with (perhaps as a matter of law, perhaps as a matter of personal preference) they would quit the job immediately.

I'm sorry, but that just doesn't pass the proverbial smell test.

S.

[bigtree]

70. It does when you are considering basic rights

in this case, women's rights.

You seem to feel that these issues are perfunctory and should be subjugated to some routine consideration. Many of us feel that these issues are fundamental and vital. I certainly do feel that they are important enough to merit extreme action in defense of these basic rights.

[nashuaadvocate]

72. No.

There is no adequate excuse for intentional, knowing deceit, especially when it involves making personal statements about another person one does not have a sufficient basis to believe are true, and in fact has some reasonable basis to believe are false.

Not even in the pursuit of something you (we) care about.

S.

[bigtree]

73. I believe them to be true

the fact that you don't doesn't necessarily make me a liar.

Extreme action doesn't have to include deceit, and shouldn't for moral and practical reasons. I really don't know why you insist that my assertion that Roberts must have believed in what he advocated for in front of the Supreme Court is dishonest. I think it's a slippery argument to assert that he was just doing his job as an officer of the government in a detached manner.

It's interesting how tortured that arguement is. The argument that Roberts didn't believe in the cases that chipped away at abortion rights that he represented before the Supreme Court makes him either duplicitous on this issue (as he has never repudiated the positions he argued for), or complicit. Neither gives him any credibility to assert at this late date that he will actually support abortion rights and uphold Roe v. Wade.

[WilliamPitt]

52. It is an absolute good

Without lawyers who can defend a client to the utmost, despite their own beliefs, there is no justice.

If you ever get in bad trouble and need a lawyer, you'll be damned thankful that lawyer will defend you no matter what they think of you. Or, put another way, everyone hates lawyers until they need one.

[bigtree]

54. I don't think many would argue about the need for representation

in a criminal case, but Roberts was operating in a political office, advocating for BushI.

Why should we suspend disbelief and assume that he didn't support the issues that he was advocating before the Supreme Court? Representing a case before the Court seems to be no small task.


BTW, I think lawyers are facinating. Their profession requires more than perfunctory skill. They have to be humanists to some degree, with a broad view of society and humanity, like teachers.

[WilliamPitt]

55. Bit of a straddle

He was operating from a political nomination, but he was acting as an officer of the court.

US Attorneys are nominated by Presidents in all 50 states. It is part of the political spoils system. Once appointed, however, they are officers of the court.

[bigtree]

56. Yeah, I straddle. But, I wonder . . .

have any ever resigned over principle? Is it reasonable to assume Roberts didn't realize he would be tasked to chip away at abortion rights as BushI took office?

Also, did Roberts ever repudiate his advocacy of these cases? Has he EVER said that he was wrong? He was wrong, you know.

[WilliamPitt]

74. Hm

Has a lawyer ever dogged out a former client after winning a case for them?

Not if that lawyer wants to keep working and avoid getting disbarred.

[bigtree]

84. so, what could/would he say?

I advocated these cases before the Supreme Court that threatened women's rights but I didn't believe in them?

Who's gonna believe that? This is politics. How many Americans do you think will buy it? We shouldn't grease the skids for such an argument by conceding that he has a nit to hide behind on this issue.

[Zomby Woof]

103. Precisely

Which is why Gerry Spence defended someone as personally abhorrent as Randy Weaver. Purely for the good of the Bill of Rights and due process for everyone.

[Skinner]

57. It's not just about that.

You say that this thread "is about whether his position afforded him the ability to allow his own beliefs to determine what cases he would take."

Yes, that is the central argument presented in the OP, but it is not the primary point of the thread. The point of this thread is to argue that attacking Roberts as anti-choice is improper. In fact, such attacks were called "deceitful" and "reprehensible." The question of "whether his position afforded him the ability to allow his own beliefs to determine what cases he would take" is an argument which is made to support the conclusion.

I do not disagree with those who say we do not know for certain where Roberts' true feelings lie.

But I disagree STRONGLY with the suggestion that NARAL is acting in a manner that is improper. And I also disagree STRONGLY with the suggestion that we should abandon the issue of choice if we want to have any hope of sinking this guy.

We are not in a court of law. This man is not on trial, and we're not required to prove our case beyond a reasonable doubt. This is politics, and it's not for the faint of heart. As far as I am concerned there is more than enough evidence for NARAL to conclude that this guy is an enemy of choice, and there is more than enough evidence for them to shout it from the mountaintops. For NARAL to sit this one out, while we all wait for proof that will never come, is FOLLY. It is, as I said in another post, derelection of duty.

If NARAL says this guy represents a threat to abortion rights, then they should damn well say so. And my response, and the response of anyone who cares about the future of this country, is going to be "Damn right!" I'm sure as hell not going to point my finger at NARAL and say "shame on you!"

[WilliamPitt]

60. "to argue that attacking Roberts as anti-choice is improper"

I disagree that this is the point of the thread. The OP correctly states that Roberts arguing an anti-Roe opinion for a client is not a good basis for anyone flatly declaring that he believes x or y or z.

The confirmation hearings will establish the facts of the matter decisively when he is asked a direct question. There may well also be other paper out there with his name on it that describes his stand on this.

Frankly, I'm not doubting that Roberts is anti-Roe, and I believe we all have to get gamed up to get loud about this. But I do believe you misstate the point of this thread. The OP is making a fine point here, like the lawyer s/he is. Just because he argued a case does not mean he shares the cause with the client.

Was Manson's attorney a fan of mass-murder and race war? Was Ted Kozinski's attorney a mad bomber by proxy? No and no. A client is represented zealously, period.

The OP is correctly pointing out that if we use the cases he has argued for as the sole means of determining what he believes in, we fail to account for that central fact of practicing law.

[Czolgosz]

88. Your analogies are all wrong. No one would say Manson's attorney is a fan

mass-murder or Kozinski's attorney was a mad bomber by proxy. But there is the difference between those legal advocates and Roberts.

Roberts was both (1) the lawyer who helped the BushI administration formulate its positions in cases where the administration chose to voluntarily assert itself as a friend of the court and (2) the lawyer who advocated those positions.

Manson and Kozinski were criminals and their attorneys were charged with representing them in their criminal cases so those attorneys' roles were analogous to part (2) of Roberts's role. If Manson's and Kozinski's attorneys actually helped Manson and Kozinski formulate their criminal plans of action before assuming the role of advocating for them in the courts of law, then the analogy with Roberts would be true. Of course, if Manson's and Kozinski's attorneys helped formulate criminal plans, they would be fairly tarred with their clients' actions.

Roberts is fairly burdened with the BushI administration's opinions in the cases where Roberts acted as principal deputy solicitor general.

[nashuaadvocate]

62. Okay, let's be really clear here...

1) Who argued that "we should abandon the issue of choice if we want to have any hope of sinking this guy"? Anyone?

2) Who said that "(t)he point of this thread is to argue that attacking Roberts as anti-choice is improper"? Anyone?

3) Who said "NARAL (should) sit this one out"? Anyone?

Skinner, I respect you, but these comments seem a bit hot-headed. What I clearly said was:

1) This isn't the right way of going about determining Roberts' views on abortion--that is, under a "liability" theory which makes Roberts responsible for every government position he had to argue in his role as Deputy Solicitor General.

2) We don't know yet whether Roberts is anti-choice, and while there may come a time when it is completely proper to argue that he is anti-choice, we don't have evidence of that right now, in fact we technically have evidence of the opposite--a statement from Roberts, under penalty of perjury before the United States Senate, that he believed the right to choose an abortion is "settled law." No, we're not in a court of law, but common decency mandates that we don't lie publicly or disseminate propaganda which may be untrue just because it suits us. That's worse than anything lawyers do, and for those who've talked about "hypocrisy" in this thread, I hope they'll have enough intellectual honesty to take a bite out of that bugbear, too.

3) NARAL should shout from the rooftops the following: that Roberts needs to be questioned aggressively on the abortion issue, not because (politically or legally or pragmatically) they think it's actually going to be an automatic disqualification for the nominee if he is pro-life--there's no rule which says a radical conservative President can't nominate a conservative judge who agrees with 40% or so of America on the abortion issue--but because he previously swore under oath that Roe was settled law, and it needs to be determined if anything from his work as a Deputy Solicitor General changes that view for him. But to shout from the rooftops right now that he is anti-choice is no better than what Fox News does: it's propaganda, Skinner, and you (and we) are better than that.

S.

[bigtree]

68. So, Roberts says Roe v. Wade is settled law. So what?

That doesn't cancel out his advocacy for the gag rule, or the support of abortion protesters who sought to harrass and intimidate women seeking abortion services.

When has Roberts ever taken the opportunity to say that he disagreed with the positions he advocated before the Supreme Court in those two cases?

When has Roberts ever taken the opportunity to say that he disagreed with the position in the brief he wrote that calls for an end to Roe v. Wade? Why should we accept some mealy mouthed repudiation (if it comes) at this late date?

Where has Roberts shown that he disagrees with the assertion in the brief that Roe v. Wade should end outside of the mere statement of fact that Roe. v. Wade is "settled law"? As a Supreme Court Justice he will have ample opportunity to unsettle it.

Where has he shown or said that he does not intend to undo Roe v. Wade? Contrary to what you assert here, all of the evidence we have says that he threatens to undo the law.

[Czolgosz]

95. It is irrelevant that Roberts "swore under oath that Roe was settled law"

As an appointee to the Federal Circuit, Roberts OBVIOUSLY did not have the institutional authority to overrule a Supreme Court precedent standing for several decades. For him to recognize that Roe v. Wade was settled law demonstrates nothing more than the fact that he has a grasp of stare decisis that I would also expect from a freshman pre-law student at the crappy on-line community college that advertises on Drudge's website. Roe v. Wade is settled law? No shit!

The pertinent question is will it remain settled law if Roberts is elevated to a position where he DOES enjoy the institutional authority to overrule it. The answer is unambiguous: Not it Roberts has anything to say about it.

[TahitiNut]

124. Precisely! Furthermore, what seems to be lost in this thread ...

... is the fact that Rogers was arguing/briefing on behalf of HHS in a case that was brought on 1st and 5th Amendment grounds, not regarding any question of protections decided in Roe v. Wade. The political posturing he did vis-à-vis Roe v. Wade was procedurally and legally irrelevant and so noted by the court (iirc). It is more than fair, therefore, to ascribe such over-reaching to Rogers' own crusading spirit and personal beliefs, no matter how obtusely rationalized by his professional opinion. This does not indicate a 'judicial temperament' - which is even applicable to Solicitors General, afaik.

[Czolgosz]

83. AMEN! NARAL's arguments are fair, accurate, and well reasoned.

The OP is simply wrong in his or her assumptions about the scope of John Roberts's role as principal deputy solicitor general.

[nashuaadvocate]

15. Fair question, Skinner...

...and yes, as I've said elsewhere on the board in the last 24 hours, I'm staunchly pro-choice and have been since I first became interested in politics in high school. And if one more person questions my commitment to the issue simply because I'm a man--that's already happened about ten times on this board--I will scream. I have a mother, two sisters, and a wife-to-be, and I respect their reproductive rights every bit as much as I respect my own dignity rights.

As to your question about my view of the legal profession and my own career: I've represented, in my years as an attorney, alleged attempted murderers, armed robbers, unarmed robbers, burglars, shoplifters, thieves, batterers, vandals, stalkers, drug-dealers, harassers, con-men, scofflaws, drunks, deceivers, and ne'er-do-wells of all stripes. I don't represent these alleged criminals because I approve of, believe in, or wish to condone or support attempted murder, armed robbery, burglary, shoplifting, theft, domestic assault, criminal mischief, stalking, drug-dealing, harassment, fraud, drunk-driving, or other forms of anti-social deceit and illicit conduct.

I do what I do because I believe in our legal system. I believe the adversarial system of justice is the best in the world and that only when you have zealous advocacy on both sides do we run a real chance of both a) getting to the truth of a given matter, and b) placing appropriate checks and balances on governmental over-reaching.

I can absolutely see working for a Democratic Administration which has two or three policy positions--including major, hot-button policy positions--with which I vehemently disagree. In those cases I would swallow my tongue and act like the professional my employment calls on me to be. It's entirely possible--we'll know in five weeks--that Judge Roberts has done the same thing in his own legal career.

And one final point: I am the last line of defense in the criminal justice system. No one wants to do what I do. So, I'm not well-versed in assuming that there are "other attorneys available" to do the important work of defending unpopular positions. Now, are there always other people willing to be Deputy Solicitor General? Of course. But would you refuse to work for a Democratic President because, say, he believed that OSHA should be repealed? Or favored the death penalty? Or opposed aggressive environmental regulation? Or favored stiffer penalties for marijuana possession? I recognize abortion is a bigger issue by far than all of these, but it is not so much a deal-breaker that I would refuse service to my country in an Administration whose views differed from mine, assuming that that Administration's principles were, by and large, consistent with my own. There is no harder task as a lawyer (and perhaps merely as an American) than arguing a point you personally do not believe, but which serves the interests of justice by upholding the standards of our adversarial legal system: and frankly, if Roberts did that on abortion--because, say, he personally would not criminalize it--then on some level my hat goes off to him as a fellow attorney and as a fellow traveler in believing so fervently that this nation is a nation of laws and not of rhetoric.

Thank you for the question.

S.

[Skinner]

23. I believe in our legal system as well.

And if I were a lawyer, I would -- with a clear conscience -- provide counsel to anyone who is a defendant in a criminal trial. But I would not, under any circumstances, go to the Supreme Court and argue that Roe v. Wade should be overturned -- or even that we should chip away at it.

In your OP, you have called NARAL "deceitful" and "reprehensible." Sorry, but that's just wrong. There is ample evidence for NARAL to reasonably assume that this guy is probably an opponent of abortion rights, just as there is ample evidence for the National Right to Life Committee to conclude the same thing. By pointing the finger at NARAL, rather than at the rat-bastards in the White House, you are helping clear the way for this guy's confirmation.

Why must I be required to give this asshole the benefit of the doubt, when he is on the verge of being placed on the highest court in the land? He has spent his professional life working for clients who oppose everything I believe in. Is it deceitful and reprehensible to assume that he might actually belive in the crap that he is supporting?

[nashuaadvocate]

25. Skinner, words are important...

...I did not say NARAL was "deceitful and reprehensible." I said these attacks, which I believe partly endorsed by NARAL, can and should be classified as so.

I support the work NARAL does, but I don't believe these particular attacks do their very just cause any favors.

I think there are other grounds to attack Roberts on, albeit fairly few. But it would be foolish and harmful to both the Democrats and the anti-Roberts campaign for Roberts to get before the Senate and say again (as he has before) that Roe is "settled law" and then have our response be those government briefs he wrote for his client.

That simply won't hold up, it will make us look foolish, and to the extent there's any chance of defeating this nomination, such a tactic will push us further from that.

S.

[Skinner]

41. It is true that words are important.

If you call attacks by NARAL "deceitful" and "reprehensible" it is very hard to argue that you are not passing judgment on the organization responsible for those attacks. You chose words that imply strong moral condemnation. You weren't just calling their attack "factually incorrect" or "not supported by the facts" or "a stretch." Was it unfair for me to accuse you of attacking NARAL itself? Perhaps. Was my interpretation of your white-hot rhetoric totally off-base? Unlikely. As you said, words are important.

At this point, Roberts has not gone before the Senate as a Supreme Court nominee and said that Roe is "settled law." When he made that statement before, he was a nominee for a lower court. And as I'm sure you know, deference for precedent is different for the lower courts than it is for the Supreme Court. Lower court judges need to follow precedent, because if they don't the Supreme Court will overturn their decisions. But nobody can overturn the Supreme Court. They are expected to respect precedent, but nothing is stopping them from completely disregarding it when they disagree. If he goes before the Senate this time and still says that Roe is settled law, then we can (hopefully) conclude that he really means it. (Unless, of course, he's a liar, and he doesn't mind the whole world knowing it when he later votes to overturn Roe. Call me naive, but I think it unlikely that any self-respecting Supreme Court Justice would do that.) If he refuses the opportunity to make a clear statement in favor of Roe this time, then we should be very afraid.

But, IMHO, NARAL has most certainly not overstepped the bounds of acceptable political discourse. It is their job to defend the reproductive rights of all Americans, and in that capacity they have the right -- nay, the obligation -- to evaluate any nominee and decide if he supports abortion rights. Just as it is the job of the National Right to Life Committee to make the same decision. In fact, NARAL and The NRLC both came to the same conclusion. I think that means something.

Furthermore, I consider it a dereliction of duty for NARAL to sit back and wait until we have 100% certainty of this guy's position before they rally the troops. We won't know for sure until he's sitting on the court. But there is enough evidence for them to reasonably conclude that this guy is not worth the risk. Hell, I think I'm going to go send them a donation right now.

[nashuaadvocate]

49. Two things...

...one, Roberts has already sworn under penalty of perjury that he thinks Roe is settled law. The notion that--especially for a lawyer--he didn't mean it then, but will be honest now, is absurd, isn't it? Would he really threaten his own legal career by lying to the Senate under oath?

Second, I think Clinton's welfare bill was "deceitful and reprehensible." I still voted for him twice. So what's your point? NARAL can act abominably without being an organization I don't support. Hell, I support this country even though I think we've acted abominably in the past, so I'm not sure what the confusion is here.

I'll repeat: I do support them.

S.

(EDIT: Correction: I voted for Clinton once. I was too young to vote in 1992. I'm thinking of the 1998 elections. I did vote for Clinton in 1996, and undoubtedly would have voted for him in 199 over Bush I, even knowing, prospectively, his views on welfare).

[nashuaadvocate]

66. P.S. I think THIS is the right strategy:

(from Raw Story's printing of the leaked RNC talking points on Roberts):

"The battle is likely to occur over Robert’s position in Roe and the Democrats are likely to request all memoranda that Roberts wrote while he was in government service."

Now, memoranda could be used against him, if they were not written at the request of a superior--e.g., "Show me how can argue X, find some law on it, John"--but rather were statements of Roberts' personal or, as some might say, personal-legal, opinions.

We must not jump the gun on this or it will bite us in the ass later on in the nomination process, i.e. in terms of lost, destroyed, or diminished credibility.

[H2O Man]

44. "chip away at it"

That is, of course, what will happen. The court will not overturn Wade. They will begin a series of restrictions. As a very intelligent person said on MSNBC last night, it isn't a matter of moving to the left or right, it's about his moving us backwards in time.

Perhaps the most common sense way to look at it would be with his environmenmtal views: he isn't going to be part of a single decision that overturns environmental protections all at once. But he will move us backwards. And he will do so on a number of issues that should be of interest to all of us.

There is, as has been pointed out, an enormous difference between an attorney defending someone on principle, and an attorney attempting to promote an agenda. Roberts certainly has a few examples where he has worked to promote the principle of free speech, for example. But he has enough of an investment in promoting a rigid, conservative agenda, that it is important to understand the consequences of his sitting on the Supreme Court.

[Jersey Devil]

50. But Skinner, wasn't Roberts working for the government at the time?

I am a lawyer to and agree with nashuaadvocate. Personally, no, I wouldn't take a case trying to overturn Roe v Wade. But if I were a young lawyer working for the Solicitor General's Office (a job every young lawyer would practically kill for) I would probably argue such a case knowing that not doing it would probably cost me my job and my future.

[bigtree]

128. There you are, young, idealistic, in a public office, public service

and you've made the decision that in these two cases women's rights are less important to your retaining your plum job.

That is exactly the type of attitude that allows Bush's to strip away our rights. There's always someone in government who decides that preserving their position of power or authority is more important than the preservation of our rights.

Can you explain to me how this is an admirable stance worthy of consideration to the highest court in the land?

If you advocated for the gag rule or against a law protecting women from anti-abortion protestors who would obstruct access to clinics, if you signed on as the #3 senior advocate in your politically appointed office to the musing in an unrelated brief that Roe v. Wade should be overturned, and then wanted to say later that you didn't agree with the cases that you advocated for, you'd be, in my estimation, unprincipled and unconvincing in a confirmation hearing which renders political judgements, and doesn't normally use fine points of law to gauge nominees.

[necso]

13. "Honestly, candidly, comprehensively, articulately, intelligently".

Ok, and how are we going to evaluate whether or not this is the case?

[nashuaadvocate]

17. Use our skills as humans.

Every single day you are called upon to assess whether the individuals you meet in your life are "honest, candid, articulate, and intelligent." What makes this any different? Because there's more at stake? Of course there's more at stake, so we'll use the data we have, but not settle for bad data simply because we don't have as much as we would like. And frankly, as I said, if we have too little data we can simply (or our Democratic Senators can) vote "no" and say why we're doing so.

But really: we do not walk down the street with a dossier on every person we're forced to judge, assess, or evaluate, do we?

S.

[necso]

26. Well,

I can (try to) evaluate "articulate" and "intelligent" on-the-fly.

But evaluating "honesty, candor and completeness" requires me to evaluate what is said against what other information about this person that I can gather.

And if I must leave out (in this case) his work as an "advocate", then there might not be much of a basis to make this evaluation on.

Moreover, I think that there is a big difference between doing everything ethical to protect a defendant -- and arguing in support of a principle that you don't support -- especially if this is done with vigor (etc).

[nashuaadvocate]

29. There *is* a distinction...

...for non-lawyers.

The duty of an attorney is quite different, however, which is why many people do not wish to become (and do not respect) attorneys.

As to the advocacy issue, see my other posts: I absolutely think Roberts' advocacy work is fair game, provided it's outside the attorney-client relationship (with the caveat to that distinction that I provided in my other post, entitled "Fair enough!").

S.

[necso]

43. Well,

as much as some in the legal profession argue differently, I just don't buy the line that because a lawyer takes a client (or assignment -- that typically can be refused -- and which normally means being paid), that is okay to argue for a principle other than what the lawyer believes in.

Now, if a lawyer can't refuse a client (because the client has no other reasonable option), then the issue is more complicated. And if the lawyer can't refuse a client (or assignment) because of the requirements of his (the lawyer's) survival, then this would also complicate the issue.

But, in practice, to argue for some principle that you don't believe in is, at best, hypocrisy. And it can be seen as demonstrating a lack of principle.

However, I am making a fine distinction. I would never argue that all murderers should go free -- but given some set of circumstances (like insufficient evidence -- or even a technicality), I might argue that some particular murderer go free.

[necso]

59. And the use of the word "client"

so broadly bothers me.

When an individual lawyer is defending some individual client in a criminal case, then this lawyer can be seen as serving "justice" -- and having some very tangible client -- someone whom the government is trying to jam up. And, personally, in this case, I can see providing the defendant with the full protection of the law, even where this might mean leaning in the direction of "letting ten guilty men go free so that one innocent man is not wrongly convicted", (the guilty ones might well be back in any case) -- if only as a restraint on government power.

But when you become an agent of the government, then you are tacitly accepting all that the government might ask you to do in enforcing the law (etc). And, in practical terms, this means convicting people, enforcing government power, etc.

As I see it, whenever (however) you make a choice, you are accountable for it. And if you go after the existing law (the status quo, whatever), then you must answer for it.

And "I was just doing my job" or "I was just following orders" just doesn't cut it. Why did you make this choice or that? Why did you do this or that? And why did you do it the way that you did?

[hippiegranny]

18. good post, but

there is that nagging little fact that he has a history of being a political activist and contributor to right wingers. So I still don't like this, even if I can understand the point you made.

[nashuaadvocate]

20. Fair enough...! :-)

I agree that anything he did as a citizen--meaning, not on behalf of a client of the sort I've described in my other post (an Administration whose other beliefs he may have avidly supported)--is fair game, including individual acts of advocacy.

S.

[punpirate]

21. Well, perhaps all true...

... except for this. Roberts' position as Deputy Solicitor General is considered to be the political arm of that office. He made himself available to that office. He made a voluntary decision to work for them, and in that sense, one can reasonably assume that his aims and those of the office converge.

In that context, what about this exchange with the Supreme Court in his capacity as Deputy Solicitor General?:

"The Court was so accustomed to the Solicitor General and the Deputy Solicitor General arguing for the overturn of Roe that during John Roberts’s oral argument before the Supreme Court in Bray, a Justice asked, 'Mr. Roberts, in this case are you asking that Roe v. Wade be overruled?' He responded, 'No, your honor, the issue doesn’t even come up.' To this the justice said, 'Well, that hasn't prevented the Solicitor General from taking that position in prior cases.'"

http://www.dkosopedia.com/index.php/John_G._Roberts_Jr.


I think most reasonable people may properly recognize that voluntary work toward the aims of a highly conservative government, and with such particular focus on a topic, indicates that Roberts himself agrees with those aims.

Cheers.

[nashuaadvocate]

30. OTOH...

...if Roberts was such an ardent anti-abortion advocate, he had the necessary clout within his Office to turn cases like Rust v. Sullivan INTO cases involving the criminalization of abortion, if he had wanted to.

He didn't, as the quote you provided readily attests.

Devil's advocate, that's all.

S.

[punpirate]

35. Surely you will admit, though...

... that Rust v. Sullivan, as the case was presented by the litigants, did not directly bear upon Roe v. Wade. The crux of that case was the government's ability to carry out a so-called gag order because federal funds were involved, i.e., the government has the right to call the tune if it's paying for it.

And yet, Rust v. Sullivan is the case in which Roberts' brief included the remarks about Roe v. Wade being "wrongfully decided" and "should be overturned."

In contrast to your interpretation, I would suggest that in a case in which it was impossible to address the criminalization of abortion, Roberts still tried to wedge Roe v. Wade into the discussion and was, in fact, a part of the pattern described by one of the SC judges which I quoted.

Cheers.

[bigtree]

36. so because he didn't use his office to go all the way to criminalization

that shows he wasn't interested in overturning Roe v. Wade? Strettccccchhhh. Incremental evisceration of the law may have been his political preference. Just as damning.

[nashuaadvocate]

37. No, it doesn't show that.

I was arguing in the context of saying that it doesn't prove the opposite, and to the extent it "tends to prove" anything, it is more likely to prove that, at least in that case, Roberts didn't use any clout he had to broader the import of the case at hand: which the questioning from the bench seemed to imply could have happened.

That doesn't itself mean he's pro-choice.

S.

[tx_dem41]

22. Ballsiest. Thread. Title. Ever. n/t

[VelmaD]

31. Question...are Deputy Solicitors General appointed?

If so it's highly unlikely he disagreed with the positions he was arguing. If it's a political patronage job then he got it because he was acceptable to the Republicans who appointed him...and they aren't exactly known for appointing pro-choice liberals.

[nashuaadvocate]

32. Good question...

...and I think the answer is "no."

The Solicitor General is appointed, but the D.O.J. (like most legal organizations structured as the D.O.J. is) typically has a large number of deputies for each post, which deputies are not, I believe, appointed. They all report to their boss: the Solicitor General (who himself reports to the Attorney General, who himself reports to the President).

It's like how the country has literally hundreds of "Assistant United States Attorneys," or AUSAs, all of whom sound more important by title than they actually are (as though they're the "sole" Assistant to some mythical "United States Attorney").

S.

[bigtree]

34. In Defense Of NARAL's Position

from NARAL:
http://216.109.117.135/search/cache?ei=UTF-8&p=naral+roberts&u=www.naral.org/facts/loader.cfm%3Furl%3D/commonspot/security/getfile.cfm%26PageID%3D1916&w=naral+roberts&d=3D33F15C2C&icp=1&.intl=us

Overturning a woman’s right to choose was a cornerstone of the first Bush Administration as signaled by the fact that Solicitor General Kenneth Starr himself argued reproductive rights cases before the Supreme Court. The Court was so accustomed to the Solicitor General and the Deputy Solicitor General arguing for the overturn of Roe that during John Roberts’ oral argument before the Supreme Court in Bray, a Justice asked, “Mr. Roberts, in this case are you asking that Roe v. Wade be overruled?” He responded, “No, your honor, the issue doesn’t even come up.” To this the justice said, “Well that hasn’t prevented the Solicitor General from taking that position in prior cases.”

In Rust v. Sullivan , the Supreme Court considered whether Department of Health and Human Services regulations limiting the ability of Title X recipients to engage in abortion-related activities violated various constitutional Roberts, appearing on behalf of HHS as Deputy Solicitor General, argued that this domestic gag rule did not violate constitutional protections.

Roberts, again as Deputy Solicitor General, argued as amicus curiae for the United States supporting Operation Rescue and six other individuals who routinely blocked access to reproductive health care clinics, arguing that the protesters’ behavior did not amount to discrimination against women even though only women could exercise the right to seek an abortion. Intervening as amicus is a wholly discretionary decision on the part of the Solicitor General. Here the government chose to involve itself in a case in support of those who sought to deprive women of the right to choose. Roberts argued that the protesters’ blockade and protests merely amounted to an expression of their opposition to abortion and that a civil rights remedy was therefore inappropriate. (The case – Bray v. Alexandria Women’s Health Clinic –presented the Supreme Court with the question of whether the Civil Rights Act of 1871 provided a federal cause of action against persons obstructing access to abortion clinics. The year after Bray was rendered, Congress enacted the Freedom of Access to Clinic Entrances Act to protect women and health care providers from violence and harassment.


I don't think, as one poster said, that it would take a special type of person to give up a plum job in the first Bush administration because of some principled opposition to cases he was tasked to argue before the Supreme Court.

1. I would never work for the likes of Bush, especially as an advocate for his assault on civil and constitutional rights and liberties. Who didn't know his views on these issues? Who didn't know he intended to eviscerate Roe v. Wade? Roberts didn't know when he accepted the job?

2. If I did advocate for Bush on these issues that could affect the lives of generations of women, I wouldn't expect to be able to come before the country and argue that I was just doing my job. Roberts didn't know of the potential impact of his advocacy? Didn't he care?

3. I work in a grocery store. I would never knowingly contribute my time, for money or anything else, in pursuit of the cases that NARAL has outlined their objections to. I don't understand the argument that a lawyer has no choice in the issues that they represent with their advocacy or objection because they have to make a living. Why do lawyers get to do irreparable harm to individuals and society with their lawyering just because 'they have to make a living?' What sort of standard is that?!

[nashuaadvocate]

38. That's a straw-man...and not what was said...

YOU WROTE:

"I don't understand the argument that a lawyer has no choice in the issues that they represent with their advocacy or objection because they have to make a living. Why do lawyers get to do irreparable harm to individuals and society with their lawyering just because 'they have to make a living?' What sort of standard is that?!"

I WROTE:

"I can absolutely see working for a Democratic Administration which has two or three policy positions--including major, hot-button policy positions--with which I vehemently disagree. In those cases I would swallow my tongue and act like the professional my employment calls on me to be. It's entirely possible--we'll know in five weeks--that Judge Roberts has done the same thing in his own legal career....Now, are there always other people willing to be Deputy Solicitor General? Of course. But would you refuse to work for a Democratic President because, say, he believed that OSHA should be repealed? Or favored the death penalty? Or opposed aggressive environmental regulation? Or favored stiffer penalties for marijuana possession? I recognize abortion is a bigger issue by far than all of these, but it is not so much a deal-breaker that I would refuse service to my country in an Administration whose views differed from mine, assuming that that Administration's principles were, by and large, consistent with my own."

How do you get from what I said to what you're saying now?

[bigtree]

42. You describe : "major, hot-button policy positions"

These are not just abstractions. We all know what the impact of Robert's advocacy was. The gag rule passed. That's partially a result of his advocacy.

The answer to your questions are yes, emphatically, yes. I would refuse to work for a Democratic president who wants me to evicerate Roe v. Wade. I would employ principle in my choice to represent anyone on anything.

What I understand you are saying is that Roberts may not have viewed the actions he was tasked to represent on abortion as important or consequential in relation to other overriding considerations in working for BushI. What was of redeeming value that Roberts thought the BushI wanted to achieve that outweighed any objection that Roberts may have had to his advocacy of the gag rule, or his defense of abortion clinic protestors?



edit: BushI

[Straight Shooter]

40. I'll make one point: Roberts chose the pack he wants to run with.

We all have skills, talent, and experience. Whom do we serve with those attributes? Some of us have little choice as to the corporation or person we work for; we get stuck in a vicious cycle because our choices were limited from the beginning. Roberts, however, is a child of privilege. He was born with not only family connections, but he was blessed with the gift of superior intellect. Wherever he wanted to be, the red carpet was rolled out for him.

My concern is not that Roberts has done his job well in his assigned duties. My concern is Roberts as a human being. He chose to put himself in that particular position of DSG to begin with. He could have declined, but that would have interfered with his personal ambition. Roberts' head is on straight, but his heart is definitely not in the right place.

[A-Schwarzenegger]

51. Good post. He signed with the devil voluntarily.

[noiretextatique]

67. exactly

he made his bed of nails, so let them prick him in the ass.

[crispini]

48. Thank you for your clearheaded and insightful post. Recommended.

[gizmo1979]

58. I think we could of done worse

than roberts.I mean Coulter doesn't like him so that's encouraging.He doesn't have any raving lunatic decisions out there,Souter was suppose to be a neocon,and he turned out ok.

[Zomby Woof]

61. All fine and well he 'is doing his job'

I do not oppose his nomination because of his ethics. I have no doubt he does his best to adhere to high ethical standards for whichever post he held or whichever client he represented.

I do not oppose his nomination because I think he did his job poorly. I am sure he is as competent as anyone who held his job (Ken Starr would be an example of failing on this and the previous count).

I oppose him (as do thousands of progrssives), because his ideology does influence his legal reasoning, no matter how ethically or competently arrived at. I expect judges to fall into different schools of Constitutional scholarship - strict constructionists, etc., and Roberts quite simply falls into the same mold, in decision after decison, as Scalia, Thomas, and Rehnquist. He seems to fall much less into the mold of a Souter or a Kennedy, the justices his apologists seem so eager to compare as his model.

[LittleClarkie]

65. I think I heard that point made yesterday on CNN

that he'd argued a pro-life stance on behalf of the administration, and that regardless of his own personal beliefs, he regards Roe v Wade as established ... what the word... law?

[TahitiNut]

69. I disagree. As the Deputy Solicitor General, his "client" was ...

... "The People of The United States of America" who paid his salary, NOT the Repbulican National Committee. Yet he went overboard in his brief, beyond any point of litigation, to proclaim opposition to Roe v. Wade.

This was NOT advocacy. It was political posturing under cover of litigation.

Furthermore, in cases where he WASN'T representing a litigant, he filed amicus briefs taking essentially the same anti-Roe postures.

[Name removed]

71. Deleted message

Message removed by moderator. Click here to review the message board rules.

[TahitiNut]

75. Bullshit! Try reading instead of arrogantly posturing.

http://www.law.duke.edu/journals/lcp/articles/lcp61dWinter1998p165.htm#H1N6

CONCLUSION

No simple formula can capture the complex nature of the Solicitor General's responsibilities. The conventional wisdom of career lawyers in the Solicitor General's Office is that the Office serves the institutional interests of the United States. But the government's institutional interests cannot be identified in isolation from a particular Administration's policy priorities. In addition, it is difficult to explain why the Solicitor General cannot occasionally take a position in the Supreme Court solely to vindicate an Administration's vision of the Constitution; the costs of the Solicitor General's doing so are unlikely to outweigh the benefits on every occasion.

On the other hand, there are substantial costs when the Solicitor General departs from the institutional conception of his role. It is no answer to incant that the Solicitor General is a member of the Executive Branch and therefore subordinate to the President. The President, and the responsibilities of the Executive Branch, can be served in many ways. By and large -- not in every <*pg 177> imaginable circumstance, but by and large -- the Solicitor General's Office serves them best by pursuing an institutional mission.

Your hallucinatory claim of 'fact' is thereby shown for the FICTION it is!!

For another (consistent) perspective, see ...
http://www.law.duke.edu/journals/lcp/articles/lcp61dSpring1998p65.htm
From that one, we can also see that it's also a question of character, integrity, and ethics ... something not found in anything approaching abundance in the Federalist Society and its practicing prostitutes.

[H2O Man]

76. Impressive.

"Checkmate" on that issue, eh?

[TahitiNut]

77. It's not a new ethical failing of right-wing Solicitor Generals

The same issues of over-reaching narrow-interest advocacy have come up regarding both Ted Olson and Carolyn Kuhl. I try to do my homework. I wish others would do the same. :grr:

It should be noted that I chose to reference treatises authored by right-wing attorneys, members of the Reagan/Bush adminstration ...

NELSON LUND, Professor of Law, George Mason University. The author has served in the Office of the Solicitor General (1985) and the Office of Legal Counsel (1986-87) at the United States Department of Justice, and in the White House as Associate Counsel to the President (1989-92).

DAVID A. STRAUSS, Harry N. Wyatt Professor of Law, University of Chicago. The author was an Assistant to the Solicitor General from 1981 to 1985.

So, the attack on my veracity is just more DU DUng!

[bigtree]

85. good work

this make sense, even to a non-lawyer like me

[nashuaadvocate]

86. Okay, let me get this straight...

...you cited a law review article in which someone posited their opinion of what a Solicitor General should do as "proof" that the client of the Solicitor General is, as you put it, "the People of the United States of America" (whatever the hell that means)?

And then you call me hallucinatory?

Wow.

[TahitiNut]

91. What part of "Professor of Law" do you fail to comprehend, bucko?

For what it's worth, I did not "call you" anything! I comment on the message, not the messenger. I dare say some might do better to do the same, bucko!

If you'd like some advice on what to do with your characterization of 'fact' vs. 'opinion' ... just let me know. :evilgrin:

[nashuaadvocate]

98. Okay, whatever.

S.
(Attorney-at-Law)

[hunter]

78. God'effin'dammit, this is not about Roe v. Wade or lawyerly ethics.

The Bush Administration doesn't give one flying fuck about Roe v. Wade, or gay marriage, or any other sort of "moral" or "ethical" issue, except as these issues can be used to divide their opposition.

Do you think any sort of legislation would bar, um let's say the Bush twins, from safe abortions? Do you think any gay couples within the Bush administration are threatened by anti-homosexual legislation? Hell no. They don't give one flying fuck about what we think. Suck Jeff Gannon's dick before a press conference, lick your lips, and go out smiling before the cameras. Nobody will ever call you on it. Fox News and CNN are your lapdogs.

Roberts is nominated for one reason, and one reason only, and that's to cover up all aspects of the impending "energy crisis" which now include everything from Iran-Contra, to 9-11, to the war in Iraq.

If we'd paid just a little bit of attention to Jimmy Carter, and we'd laughed that damned fool Ronald Reagan off of our political stage, then we wouldn't be so far down shit creek without a paddle.

But here we are now, sucking down the sewage, and claiming we are making some sort of progress.

CTD. Circling The Drain, we are circling the drain...

Personally I think this nation is about to die. But still I pray there will be a few brave souls in the Senate who will go after Roberts with long knives drawn. Let Roberts fear for his very soul; let Roberts show us what he is truly made of. If he has been, as nashuaadvocate claims, only following the ethical codes of his profession, let him explain to us exactly how and why he stands by Bush. Let him explain that he is a public defender.

What a fucking farce. Do you truly believe that nashuaadvocate? Yeah, yeah, Bush is represented by a public defender... Ha, ha. Listen now as Bush squeals in mockery of Karla Faye Tucker, "Please don't kill me!" (So sorry, I'm Catholic. I have issues about the death penalty. What about you, Roberts, huh, huh? You are Catholic, right? You are opposed to the death penalty, right?)

Ideally the blatant corruption of the Bush Administration will be revealed to all, and if not, may all future Bush Administration Supreme Court appointees be innocuous eighty year old men with very severe health problems. May Dick Cheney walk among them as an electric stallion, and when this bloody show is over, when we have a true President of the United States, perhaps then we will have Justice.

[ElsewheresDaughter]

80. there ya go

[Czolgosz]

81. I STRONGLY DISAGREE, and I am not a "non-lawyer." In fact, I am a board

certified appellate lawyer with a nationwide law practice.

You are mistaken when you say, "Any argument or suggestion that a Deputy Solicitor General who advances on behalf of his client a certain legal principle thereby asserts that that principle reflects his own personal beliefs is an ignorant argument."

Your statement fails to account for the fact that, as the principal deputy solicitor general, John Roberts was a partisan political appointee, not a staff appointee. Perhaps you (and I) make arguments on behalf of our clients which cannot be fairly assumed to be our personal beliefs, but Roberts was the political appointee with responsibility for formulating his "client's" beliefs. Roberts cannot distance himself from his role as client advocate in the same manner as you or I because he is the one who helped his "client" formulate those views.

You have called the arguments based on Roberts's anti-choice and anti-free-speech positions in his briefing ignorant, deceitful, and reprehensible. You wrongly assume that Roberts's role was merely arguing those positions while you ignore Roberts's in formulating those odious positions. The arguments based on Roberts's briefing are fair.

[nashuaadvocate]

87. That makes sense--

--if you have reason to know what Roberts' marching orders were in those abortion-related cases. You are presuming, I'm not sure why, that he was lead counsel on those issues and responsible for developing the strategy of the case--both in terms of whether to litigate, and how. Yet it seems highly unlikely, given his position, that he had this authority.

Do you have any information to support your counter-intuitive assertion?

S.

[bigtree]

89. well

Here's the list of respondants from the brief. Does the order listed denote level of involvement? Looks like Roberts was in the upper three with title and all. Starr, Gerson, and Roberts

Solicitor General Starr argued the cause and filed a brief for respondent in both cases. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Roberts, Jeffrey P. Minear, Anthony J. Steinmeyer, Lowell V. Sturgill, Jr., and Joel Mangel.Fn

[Czolgosz]

92. Maybe the ultra-naive can say that "we don't know Roberts's true position

on reproductive freedom, the first amendment's protection of privacy, the freedom of speech, etc.," but is ANYONE so naive that they doubt whether BUSH (and, say, Ken Starr, etc.) know Roberts's true positions on these issues? You have to be DAFT to doubt that Bush appointed Roberts without knowledge aforethought of Roberts's beliefs on these topics.

[bigtree]

93. Exactly

he's not going to be able to distance himself from his destructive hosts.

[Czolgosz]

96. He will if Walt Starr or nashuaadvocate have any say in the matter!

[nashuaadvocate]

99. Good grief!

You guys heard of Justices Blackmun, Stevens, Souter, Kennedy, O'Connor, and a couple dozen more? There is a LONG history of Republican Presidents mistakenly nominating conservatives who either turn out to be moderate or who gradually become moderates--or even liberals--on the bench. There is virtually NO history of judges going the other way. To say "Bush knows all" denies the much-published and widely-acknowledged history of the Court.

S.

[Czolgosz]

116. So your best hope is that Bush messed up? That's some hope (he screws up

often), but not much. Your statement "there is virtually NO history of judges going the other way" shows little historical knowledge of the Supreme Court.

[Czolgosz]

90. Do you know the origin of the principal deputy solicitor general office?

This partisan political position was created during the Reagan administration in the hope of having a loyal partisan in that position so that the administration did not have to fear a repeat of the "Saturday Night Massacre," where Nixon had Archibald Cox fired because Cox was not sufficiently loyal to Nixon to participate in de-railing the Watergate investigation. The position has been filled ever since by a lawyer most loyal to the administration. The job is a policy position and not merely an administrative attorney like a prosecutor or public defender.

Here is one source, but there are dozens:

He entered private practice in 1986 as an associate at the Washington D.C. law firm of Hogan & Hartson, but left to serve from 1989-1993 as Principal Deputy Solicitor General under Kenneth Starr, during the administration of President George H.W. Bush. He was the "political deputy" in the Solicitor General’s office and thus, unlike career Deputy Solicitor Generals, cannot dismiss positions he took as simply arguments he was forced to make as part of his obligation to zealously represent the interests of his client, the federal government. While in the Solicitor General’s office during the Bush administration, Roberts co-authored briefs in a number of controversial cases.

<http://www.dkosopedia.com/index.php/John_G._Roberts_Jr.>

[TahitiNut]

94. That makes him a "commissar" or "zampolit" in the AG Office.

Just another party-line enforcer along with Ted Olsen and Carolyn Kuhl. Now he's nominated to be another fascist commissar on the SCOTUS.

[Czolgosz]

97. He's Ken Starr with a better haircut and two cute kids.

[opusprime]

82. Thank You...

for saying that. I feel the same way. This guy could easily turn out to be a decent middle of the road Judge.

And after the Joseph Wilson/Plame affair, I've had enough of the character assasination, and politics of mutual destruction.

Good post.

[hunter]

100. Oh fine, let me turn on NPR and eat my pablum.

Everything will be all right.

:puke:

I make no apology that my own reaction is deeply visceral. While I can appreciate much of the "reasoned" comments in this thread, I do not believe This guy could easily turn out to be a decent middle of the road Judge. There is nothing in his history that indicates he is anything more than a right wing hack who has flown in under the radar.

The fact that Roberts was an "unexpected" choice by Bush tends to reinforce my suspicions.

Words are tools, and Roberts may know the right things to say in the name of Justice, but he has not demonstrated to me that he knows Justice. Show me any difficult decisions he has made in his legal career or his personal life.

If I do not see him bloodied and battered in the Senate before he is confirmed I will know this nation is lost.

[progressoid]

101. Thank you

[Inland]

102. Sometimes the lawyer, however, chooses the client.

I don't know who put the anti Roe footnote in the brief. I don't know how insisted on it. I don't know that Roberts opposed it or merely accepted it or did it on his own or just followed a million other briefs.

And I don't know if Roberts didn't become the lawyer for the govenrment because he believed it. I don't see the SG office hiring a lot of prochoice liberals, do you?

So let's ask him and expect him to answer.

[whistle]

104. Lawyers stick together as a matter of professional survival and

...protection which is why there is an ABA Code of Professional Conduct. What is the ABA Code of Ethical Conduct state? And where does doing one's professional job stop and doing the "right thing" begin?

We lay persons see it like it is. We have to allow the legal profession to split hairs over all of the professional legal jargon that has been developed and hope that it never loses sight of what the real purpose of the law is, the have a fair and just society.

It's attacks like, "I'm pretty aggravated by all the non-lawyers out there who are using misleading language like...." that seems to cast a major chill over discussions about justice and fair play and allows the radical elements of our society to take advantage of the law instead of being responsible to the law.

Couldn't you just cool your heels Nashua-advocate and provide us with some real examples of where Roberts stands based on his history of legal advocacy and as a jurist, so that the rest of us can size this person up as being a fair replacement for someone like Sandra Day O'Connor?

Right now, there are few hard facts to be found on John Roberts and in fact, site after site that supposedly has information on the man's background and record other than neo-con friendly sites, have been locked down. Who is this man John G. Roberts......an objective and fair and balanced intellectual attorney, the "best of the best" as Senator Frist claims, or just another neo-conservative reactionary fascist whose principles are for sale to the highest bidder on the far right?

[nashuaadvocate]

106. Fair enough...read "Rancho Viejo v. Norton" and tell me...

...why you disagree with it.

Most progressives I know within the legal system actually agree with Roberts' position in that case--in general principle, if not necessarily in the specific application--and yet it's considered the man's most "controversial" opinion.

Roberts agrees with the U.S. Supreme Court that the Commerce Clause does not give Congress unfettered power to regulate anything and everything which conceivably could be described as interstate commerce, and those of us who are wary of federal government over-reaching, particularly in criminal matters, are inclined to agree. For example, I agree with the position in the Morrison case which said that Congress can't regulate domestic violence crimes simply because some individuals cross state lines to commit domestic violence; I agree with the position in the Lopez case which says that Congress should not be regulating gun possession cases which arise near a school zone--the states should handle those situations and, frankly, most do so admirably.

In Rancho Viejo, Roberts simply said that if the activity to be regulated does not naturally cross state lines--such as the arroyo toad, which lives in California and is non-migratory--then the Commerce Clause doesn't apply. That's just common sense. His opinion seemed to imply that a migrating animal--one which crosses state lines--could be regulated (read: protected under the ESA). I think that's probably sound jurisprudence and constitutional interpretation, even if over-reaching Congressmen (for obvious reasons) don't like it. While I regret the impact of that case on the arroyo toad, the legal analysis of Roberts seems not entirely unreasonable to me.

S.

[whistle]

108. I'm not a lawyer and I'm not at all likely to understand what...

.... the legal ramifications of "Rancho Viejo v. Norton" are and frankly it's completely inappropriate and pompous for someone like yourself who is licensed in the legal profession to challenge someone like myself who is not, to go to such a document and legally defend or oppose it.

Now what you sir need to answer is what is the consequence of Robert's ruling in Rancho Viejo and the arroyo toad. You say you "regret the impact of that case on the arroyo toad"....well what was the impact? Can you tell us all here on DU without raising the legal right or wrong?

The toads are near extinction, that's what. And Roberts decision has allowed that. This time it's the arroyo toad that is expendable so that no laws are legislated from the bench. Next time it will be human beings who are expendable so that this neo-conservative principle can be advanced.

Roberts has been selected by President Bush because, by Bush's standard he will not legislate law from the bench. Bush knows it with 99.99% certainty, and the neo-cons have big plans once they've loaded the SCOTUS with like minded jurists.

[Czolgosz]

112. One example of where Judge John Roberts stands (I promise more tomorrow)

Judge Roberts is far outside the mainstream with respect to his exceedingly narrow views of the first amendment and Congress’s authority to pass nationwide legislation that only indirectly affects interstate commerce (see his decision in Rancho Viejo v. Norton and his briefs in US v. Eichman, Lee v. Weisman, Bray v. Alexandria Women's Health Clinic). Conservative judges generally refrain to the greatest extent possible from making law from the bench (i.e., they will not be quick to disregard Congress's legislative authority based on non-mainstream theories and they will respect stare decisis rather than ignoring past legal decisions which have already resolved a particular legal issue). Roberts is the opposite of conservative in his views of the first amendment and the scope of Congressional authority; he is a radical right wing judicial activist.

In Rancho Viejo v. Norton, <http://laws.lp.findlaw.com/dc/015373b.html>, Roberts identified himself as a member of the furthest right wing contingency of the Republican dominated DC Court of appeals. Confirming that his views are extreme even compared to the other judges of this ultra-conservative court, Roberts dissented from a simple case involving the Endangered Species Act that caused no trouble for seven other DC Circuit judges. His dissent shows that Judge Roberts has little respect for precedent or the environment in that he refused to join the majority opinion even though he admitted that it "faithfully applied" the court's prior decisions (this is the very essence of judicial activism). Most disturbing, the basis for Judge Roberts decision is his unprecedentedly narrow view of Congress's authority to regulate matters that only indirectly affect interstate commerce. This view is contrary to the long-held interpretation of Congressional authority developed in large part in the '30s and used to fight racism tolerated by state governments in the '60s. If Roberts will not agree to follow the precedents decided by his own court and will not respect legal precedents going back 70 years, how far will he roll back justice in America?

More tomorrow.

[whistle]

105. So, what have DUers learned about John Roberts...

...from this thread? I now know without a doubt that he is a lawyer and seems to have other lawyer advocates who will post here attacking and splitting hairs, but who have cast no new light on what John Roberts position as a jurist on the highest court of the land will likely be. What a clever waste of posting time!

[nashuaadvocate]

107. Put your money where your mouth is. Read #106 and engage me.

P.S. Saying all lawyers stick together is asinine and, as limited as your capabilities may or may not be, you know it.

S.

[whistle]

110. "Asinine", you are attacking.....well done...you get an A++ in ....

...argumentative style. So what have the consequences been of Robert's rulings in all of the cases that he has given opinions on?
The senate will be looking for these and other answers directly from the nominee.

As a DUer who understands both the law and what is just you can help the rest of us here understand whether this man will be a conservative moderate, say along the lines of Sandra Day O'Connor, or a flaming fu*king fascist neo-conservative closet card carrying Federalist Society hack!

[nashuaadvocate]

113. Thank you.

You've proven to me that there's no further need to engage you.

You opined that I "have cast no new light on what John Roberts position as a jurist on the highest court of the land will likely be," and then you savaged me when I gave you an example of his jurisprudence, explained it in layman's terms, and then challenged you to actually have the conversation about Roberts' "position as a jurist" that you were so melodramatically calling for.

You've shown, now, that you have no interest--and worse than that, you pulled a bait-and-switch on me by calling me "arrogant" when I responded to your request in good faith.

Again, thank you and goodbye.

S.

[whistle]

118. Best defense is retreat I see.......another legal tactic, but just ....

...answer the question. What was the consequence of Robert's opinion on the case involving the arroyo toad? And what would the consequence be if this man is appointed to the SCOTUS and sides with the anti-abortionists and helps to bring down Roe vs Wade? Help us out here and quit hiding under the skirt of Lady Justice.

[Czolgosz]

115. in your terms, Roberts will be a flaming fu*king fascist neo-conservative

closet card carrying Federalist Society hack not a conservative moderate along the lines of Sandra Day O'Connor.

[whistle]

119. I see.....so the senate review may in fact lead to a filibuster by dems

[Czolgosz]

120. Unfortunately, that's not likely (at least not unless something unexpected

comes out during the process).

[whistle]

122. Well, let's hope that facts and examples will flood the review

...process like it did with John Bolton. BushCo is hiding the truth on John Roberts and throwing up all sorts of flak and trying to paint this guy as a moderate. That is total BS.

[Czolgosz]

117. Put your money where your mouth is. Read #90 and dispute it.

[whistle]

121. Oh Jesus, now that's the kind of example I've been looking for....

....this thread should be loaded up with stuff like that on John Roberts. He will be not only a neo-conservative hack if appointed to the SCOTUS, but he will be the first to retrograde even further into ultra-conservative rulers on the high court. This man has now shame. He is a true-believer and a fascist. Thanks Czolgosz!

[dsc]

109. Great post

and I can very well see your point. I could actually see myself doing that in reverse. If I were a lawyer and asked to be Deputy SG for a Democratic administration I would do so in a heartbeat. I would also willingly argue that Roe v Wade is established law and shouldn't be overturned (despite my being pro life and believing differently). I would try to find others to do it instead but if that weren't possible I wouldn't give up that opportunity over one issue. That would be nuts.

[Geoff R. Casavant]

111. THANK YOU!

I made the same observation a while back and took some grief for it. I actually thought to post the observation that PD's make arguments every day that more than likely do not comport with their own personal opinions. Not only did you beat me to the punch, you made the point more eloquently than I.

[LibertarianVoice]

114. I agree with most of what you said.

Except when it comes down to the end paragraph.

"The purpose of hearings on this nomination is to determine the views of the nominee as best as we (the Democrats) can."

Honestly the real question is not what his personal views are, but whether or not, or to what extent, he would allow such views to influence his jurisprudence over a case.
Because judges, like lawyers, are suppose to be apolitical. A good judge, by definition, is one who will not let his personal views influence his ruling on the law at hand.
I think most of you would have to agree with me on this.

"And yes, I agree, if he won't answer questions in five weeks--honestly, candidly, comprehensively, articulately, intelligently--he should be voted down in the Senate."

If your intent is to drill him to discover the extent to which he may let his personal views influence the letter of the law, then I agree that every judge should be put to that test.
What we shouldn't do, however, is roadblock a guy solely on his personal believes if the evidence clearly shows that he has no history of letting his personal views get in the way of his judicial rulings.

Having said that; You and I both know he's going to abstain from the questions on the principle that every SC judge nominee before him has used; The idea that it would not be ethical for him to comment on, and prejudge in a sense, cases that could potentially come before him in the future.
I may not agree with that idea of ethics, but the fact is that's whats going to happen and politically there isn't anything anyone can do about it.

[whistle]

123. Wow, first post LibertarianVoice...welcome to DU.....

...You said above, "...(should not) roadblock a guy solely on his personal believes if the evidence clearly shows that he has no history of letting his personal views get in the way of his judicial rulings."


You appear to be a thoughtful poster LibertarianVoice, so could you please provide the examples of where John Robert's has no history of letting his personal views get in the way of his judicial rulings? Thank you and hopefully you will find your journey on DU a rewarding and most enlightening one.

[H2O Man]

127. Very interesting.

I think that this entire thread is interesting, and valid points are raised by the OP and a number of others. Other than the occassional flashes of crankiness -- which I always try to avoid -- this is a thought-provoking discussion on an important topic. Your post certainly adds to it. Thanks!

[bhunt70]

125. good post.

[MaraJade]

126. I do agree with you. . .

But I am still anxious to see one of these non-woman, non-female,
"pregnant persons" he referred to in his Amicus Brief in the
Bray v Alexandria Womens Health Clinic case.

http://www.dkosopedia.com/index.php/John_G._Roberts_Jr.#Bray_v._Alexandria_Women’s_Health_Clinic


I sure hope he brings one of these "persons" to his confirmation hearings. I really want to see an alien creature before I die. . .