http://categorically-imperative.dailykos.com/story/2005/8/22/18180/3617John Roberts: A Bork in Sheep's Clothing (Part I of II)
by Categorically Imperative
Mon Aug 22nd, 2005 at 15:50:35 PDT
John Roberts could change all that. Whatever any media outlet or conservative pundit has to say about Judge Roberts being "kind," "brilliant," "family man," he's the Trojan horse that Bush wants to send to the Supreme Court to dismantle seventy years of jurisprudence. John Roberts on the Supreme Court will fundamentally change the nature of the United States. That is why he is the issue, and why we must all do whatever we can to keep him off of the Court. Why? Hopefully, the rest of this diary will provide the answer. First, our starting point: John Roberts is purportedly an originalist and a textualist. For many here, he already shapes up as a disastrous Justice based on that description alone. I disagree, being that when it comes to constitutional interpretation, I am a textualist and (when the text is vague) an originalist. "Textualist" and "originalist" need not be code words for "wingnut." But even I think Roberts is a disaster. Because in his case, his supposed interpretive style is merely a code. He is not a brilliant jurist, simply a clever one who Bush knows will use the trappings of constitutional interpretation to advance the agenda of the right wing. Roberts is cuddly, friendly version of Robert Bork. To illustrate the point, I will proceed by example, demonstrating why Roberts is neither a serious textualist nor a serious originalist, but merely a very serious right-wing hack.
Hamden v. Rumsfeld
To be fair, Roberts did not write this opinion. But he joined it in full, without writing a separate concurrence, so it is fair to assume that he agrees with it. Which is so much the worse for Roberts, because the Hamden opinion is about as absurd a piece of tripe as one will ever see entered into the Federal Reporter. For those who are not aware of the issue in Hamden, the primary question before the D.C. Circuit was whether a Guantanamo prisoner whose status as an enemy combatant had been affirmed by an independent tribunal could be tried by a military tribunal without a prior determination that he was not a prisoner of war under the Geneva Conventions. There are two aspects of the panel's holding on which I want to focus. First, its holding that the Geneva Conventions do not supply any rights enforceable against the United States in federal court (which would have been enough to decide the case). Second, and probably most important as far as Roberts' qualifications to sit on the Court, the panel's pernicious dicta which, as Yale Law Professor Robert Gordon wrote over at TPM Café, went out of its way to confirm every power the administration claimed for the executive, including the authority to set up military tribunals to try people he designates as "enemy combatants", with no protections of due process, exempt from the protections of the Geneva conventions, military justice, and the Constitution.
As for the panel's holding on the Geneva Conventions, its "reasoning" was that "treaties...do not create judicially enforceable individual rights." Which ought to seem bizarre to a thoroughgoing textualist or originalist, given that treaties, like the Constitution and federal laws (both of which inarguably create judicially enforceable individual rights), are "the supreme Law of the Land."
continued...
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
