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Wednesday, July 20, 2005

Judicial Nominee John Roberts

Seems like a good pick. The main point is that he will intrepret the Constitution as written (i.e. original intent).

Some good points =



Reproductive Rights.

argued that the government could prohibit doctors in federally-funded family planning programs from discussing abortions with their patients. The brief not only argued that the regulations were constitutional, notwithstanding the Supreme Court's decision in Roe v. Wade, but it also made the broader argument that Roe v. Wade was wrongly decided.

But was that HIS personal position or was he just doing his job and representing the views of the Bush 1 adminstration?


Civil Rights.

The Supreme Court had recently decided that certain sections of the Voting Rights Act could only be violated by intentional discrimination and not by laws that had a discriminatory effect, despite a lack of textual basis for this interpretation in the statute. Roberts was part of the effort to legitimize that decision and to stop Congress from overturning it.

The actual idea was that 'discrimination' was not discrimination if it was not intended to be so. How many things have been started under good intentions then later a flaw or bad loophole is found? Thats the rub here.



Religion in Schools.

While working with the Solicitor General's office, Mr. Roberts co-wrote an amicus brief on behalf of the Bush administration, in which he argued that public high schools can include religious ceremonies in their graduation programs, a view the Supreme Court rejected.
*applause*


Pro Bono.

Mr. Roberts has engaged in significant pro bono work while at Hogan and Hartson, including representation of indigent clients and criminal defendants.

Not to greedy ... thats good.


There are a couple things I don't agree with however.




Environmental Issues.

taking positions that would restrict Congress' ability to protect the environment.

As a lawyer in private practice, Mr. Roberts has also represented large corporate interests opposing environmental controls.
I worry about the environment, just not as wacked out as the Greenpeace people do. I just don't want us to completely ruin this planet so our descendants can enjoy the things we do today.

MSN/Slate reports -


Joined a unanimous opinion ruling that a police officer who searched the trunk of a car without saying that he was looking for evidence of a crime (the standard for constitutionality) still conducted the search legally, because there was a reasonable basis to think contraband was in the trunk, regardless of whether the officer was thinking in those terms. (U.S. v. Brown, 2004)
This is not good because it is giving to much power to a group that already has to much power. I understand his decision, however, because in my opinion the search was probably because of 'reasonable cause'.


Joined a unanimous opinion denying the claim of a prisoner who argued that by tightening parole rules in the middle of his sentence, the government subjected him to an unconstitutional after-the-fact punishment. The panel reversed its decision after a Supreme Court ruling directly contradicted it. (Fletcher v. District of Columbia, 2004)

I don't like this one either because I think the prisoner was right, but he was ruling by the current written law, and again once the written law was changed. The prisoner was right all along.

Now I realize that no one person can be in lock step with me on the issues. Hell, I got plenty of things I could bash Bush around this board about, but none of this disqualifies Judge John Roberts from my vote any more than the things I disagree with President G. W. Bush kept me from voting for him.

The main concern I have is that we do not have much to go on as far as his judicial rulings go. The last thing we need in America is another Justice Souter.


As Law.com writes ...


By contrast, Roberts, with 20 months on the D.C. Circuit, has few opinions or other writings that have attracted enemies. As a result, some conservatives have made unflattering comparisons between Roberts and Supreme Court Justice David Souter, whose short stint on the 1st Circuit before being appointed in 1990 by President George H.W. Bush failed to reveal Souter's moderate-to-liberal leanings on some issues.

Just as my previous article pointed out that Justice Sandra Day O'Connor turned out to be basically a 'stealth liberal'.

The original article also points out that he is not always "predictable". But that could be a good thing in some cases.


Last December, in United States v. Mellen, Roberts ruled in favor of a criminal defendant who challenged his sentence in a fraud case. Judge Karen LeCraft Henderson -- yes, an appointee of the first President Bush -- dissented.

In the July 2004 decision Barbour v. Washington Metropolitan Area Transit Authority (WMATA), Roberts joined Merrick Garland -- a Clinton appointee -- in deciding that sovereign immunity did not bar a D.C employee with bipolar disorder from suing the transit agency under federal laws barring discrimination against the disabled. Conservative Sentelle dissented.

But then there was another WMATA case -- known as the french fry case -- which some critics point to as a sign of a certain hard-heartedness in Roberts' decision making.

In the unanimous ruling last October in Hedgepeth v. WMATA, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a D.C. Metrorail station. "No one is very happy about the events that led to this litigation," Roberts acknowledged in the decision, but he ruled that nothing the police did violated the girl's Fourth Amendment or Fifth Amendment rights.
(Side note here. The system worked just like it should. He ruled according to law, then as the rulings were being made the Legislature was changing the law to avoid this type of incident in the future. Just how it's supposed to work.)

MSN/Slate reported that ...


For a unanimous panel, denied the weak civil rights claims of a 12-year-old girl who was arrested and handcuffed in a Washington, D.C., Metro station for eating a French fry. Roberts noted that "no one is very happy about the events that led to this litigation" and that the Metro authority had changed the policy that led to her arrest. (Hedgepeth v. Washington Metropolitan Area Transit Authority, 2004).
The system works if you let it.

Roberts also displayed what some viewed as insouciance toward arroyo toads in a 2003 case, Rancho Viejo v. Norton. Roberts wanted the full D.C. Circuit to reconsider a panel's decision that upheld a Fish and Wildlife Service regulation protecting the toads under the Endangered Species Act. Roberts said there could be no interstate commerce rationale for protecting the toad, which, he said, "for reasons of its own lives its entire life in California."

MSN/Slate again -

Roberts argued that the panel was wrong to rule against the developer because the regulations on behalf of the toad, promulgated under the Endangered Species Act, overstepped the federal government's power to regulate interstate commerce. At the end of his opinion, Roberts suggested that rehearing would allow the court to "consider alternative grounds" for protecting the toad that are "more consistent with Supreme Court precedent." (Rancho Viejo v. Nortion, 2003)
And he was right, he ruled according to the Constitutions original intent, and the Constitution does not give the Federal Government jurisdiction in this case.

In another decision last June, Roberts went even further than his colleagues in supporting the Bush administration in a case that pitted the government against veterans of the first Gulf War. American soldiers captured and tortured by the Iraqi government during the first Gulf War sued the Iraqi government in U.S. court and won nearly $1 billion in damages at the district court level.

But once Saddam was toppled in 2003, the Bush administration wanted to protect the new Iraqi government from liability and intervened to block the award. Roberts, alone among the circuit judges who ruled with the government, said the federal courts did not even have jurisdiction to consider the victims' claim. An appeal is before the Supreme Court.

For many reasons I agree with him here. The main point is that yet again he is ruling strictly according to the Constitutions original intent.

So far on the D.C. Circuit, Roberts' votes have mainly fallen on the conservative side, but not always.

I recognize that not always are the "conservatives" right. I just want a justice that will rule based on the Constitutions original intent, and so far I believe that Judge John Roberts will do so. I pray to not be proven wrong.

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