When Abraham Lincoln nominated Samuel Freeman Miller to serve on the Supreme Court, an eager Senate approved the Iowa lawyer within half an hour.

When Ulysses Grant tapped former War Secretary Edwin Stanton to fill a vacancy on the high court, the Senate confirmed him one day later.

Pointed questioning of nominees _ and their frequent dodging and weaving in response _ is a relatively new phenomenon in the confirmation of Supreme Court justices.

Harlan Fisk Stone in 1925 became the first nominee to testify before the Senate Judiciary Committee. It was not until the mid-1950s that the notion of a nominee facing a line of questioners became more typical.

If the president was making ideology an explicit criterion for selection, surely they could use it as a criterion for confirmation.

exactly right.

When Abraham Lincoln nominated Samuel Freeman Miller to serve on the Supreme Court,

Times were different. Is there really a comparison to be drawn here other than constitutional wanking? My constitution is better than your constitution! I am here to define America! Your leadership is in charge! No, you are a huger cocksucker!

Stop drawing on this and start acting like a human being.

Why I oughtta!

The silver rule: Do what you can and remember that it could be you.

It's true that ideology is always going to be a factor in Presidential nominations for the federal judiciary. Nonetheless, shouldn't the Senate recognize that no matter who the President selects, that nominee will undoubtably reflect the President's own ideology? Certainly, the Senate should insist on stellar qualifications and at least some moderation of ideology, but doesn't opposing Bush's nominations simply because they are of the classic conservative mold go a little too far? What's your alternative?

Also, a little self-link: I started LawTalk to discuss the pending Supreme Court nominations and confirmations. Please help me get it off the ground, if your interested in following this story through. </self-link>

*ahem* LawTalk

well, the problem is when their ideology overwhelms all over evidence--like qualifications and experience and paper trail.

Bork was qualified but was extraordinarily extreme. So after that they decided to only choose people without paper trails--without that, we have only the scraps we can find to judge with, and their resumes.

Self-link??? You will drown in lakes of blood!

But seriously. I like the site. Sadly I know naught of the law.

Certainly that's true, amberglow, and unfortunately I think a few of Bush's more extreme nominees fall into that category. I don't think, however, that Roberts is one of them. Roberts has a fairly substantial paper trail, including memos he wrote for Supreme Court Justices and the DOJ during the Reagan administration. While it's true that he does not have the paper trail of someone like Bork, that's because he's not a law professor, and is not paid to publish his own opinions. Roberts is perhaps the most experienced Supreme Court litigator in private practice in the country, and has shown that he is capable of handling his position on the D.C. Circuit with aplomb. Nearly everyone knowledgeable about Roberts and the law agrees he is qualified.

so far, all of the paper trail on Roberts is from the 80s, and it does not show him as qualified in my book. It shows a man unwilling to apply even existing laws (especially when it comes to women and minorities), let alone fight for new ones. I want to know exactly what he did in Bush v. Gore. I want to know what he was doing throughout the 90s and 00s and why there's no record of any of it. I want to know his work regarding torture, Guantanamo, and Abu Ghraib. ...

What are you talking about? Roberts was in private practice at Hogan & Hartson between 1993 and 2003. There is a paper trail, in the form of papers he filed on behalf of his clients. He became a federal judge in 2003, so he never did any work for this administration on torture, Guantanamo, or Abu Ghraib. He was on the panel of the DC Circuit that decided the Hamdam case [pdf opinion], but didn't write the opinion. He acted, for a brief time, as a litigation consultant on Bush v. Gore. How does any of that impugn his credentials?

As for refusing to apply existing law, I challenge you to provide specific examples.

I thought he was a lobbyist? and why did they refuse to release all the stuff from Bush 1?

We don't know exactly what he did and didn't work on--they didn't reveal the Bush v. Gore at all--it was exposed.

...Although the current White House has broken with precedent[12] and refused to give senators access to key documents from Roberts' tenure in this top legal job - documents that could more fully reveal Roberts' thinking on crucial constitutional questions - the legal positions taken and briefs filed by the office during Roberts' tenure reflect the same restrictive view of individual rights and liberties and the same narrow role for the government and the courts in protecting them that he expressed while in the Reagan administration. In the absence of those internal memos, senators must assume that the views expressed in the solicitor general's briefs signed by Roberts are his own. “Even if his internal memos from his days in the solicitor general's office are not released, the final briefs that Roberts approved are important evidence,” according to American University law professor Susan Carle, who worked in the Justice Department during that period. “In his capacity as second-in-charge in the solicitor general's office, Roberts held a political appointment of great power. The briefs on which his name appeared reflect his considered and thoughtful use of that power….He can and should be held accountable for his views as expressed in the briefs on which his name appears.”[13]

Additionally, in his limited time on the bench as a federal appeals court judge, Roberts has shown enormous deference to the executive branch, with a broad and expansive view of presidential power. He has shown troubling signs that he continues to embrace the ideology of a legal and political movement that uses terms like “federalism” to mask the radical nature of its goals - to weaken Congress' ability to protect Americans' rights and interests, potentially threatening decades of progress the nation has made since the New Deal in safeguarding air, water, and public health, protecting the right to vote, resisting discrimination, addressing poverty, and protecting students and others from religious coercion by the government.

This judicial philosophy is evident throughout Roberts' career at the Reagan Justice Department, the Reagan White House, and the Bush I administration's solicitor general's office. That is why the radical right leaders who loudly and aggressively demanded that President Bush select a nominee in the mold of the current Court's most extreme members - Justices Antonin Scalia and Clarence Thomas - are rejoicing over Roberts' nomination and trumpeting him as another Scalia or Thomas. ...

Documents: Roberts worked in the Solicitor General's office under Ken Starr during the Bush I administration. The SG's office is the branch of the DOJ that represents the government in appeals, particularly in the Supreme Court. That's where the briefs that Roberts helped author--like the one in Rust v. Sullivan--come from. In the process of drafting those briefs, the members of the SG's office draft memoranda discussing the law and recommending a course of action to the SG. The decision about the SG's position in briefs, of course, lies first with the SG, but ultimately with the President. As I understand it, the current administration has released some, but not all, documents that Roberts wrote during his tenure at the SG's office. This is consistent with the practice of other administrations, in that some chose to release documents reflecting internal deliberations, and others did not. The administration has released over 50,000 pages of Roberts documents, including all of the documents available from the Reagan administration.

Ideology: As for the rest of your block quote, the description could easily match any Republican nominee, and goes only to ideology, and not qualifications--not to mention being exaggerated for political effect.

Lobbying Activity: Roberts was registered for three different clients as a lobbyist, which is not at all uncommon for D.C. lawyers. Anytime you represent a client, particularly in D.C., you may be involved in negotiation with or petitioning an agency or Congress, and might have to register as a lobbyist. Roberts was by no means a full-time lobbyist, and indeed, it would have been difficult to do so, given his practice at Hogan & Hartson.

I understand it wasn't the administration that released the Reagan docs at all, but the Reagan library (and they "lost" some too).


Supreme Court nominee John G. Roberts failed to include his lobbying of Bush administration officials on behalf of the cosmetics industry in 2001 in his Senate questionnaire released yesterday.

The omission is notable because the Senate asked for a list of all of his lobbying, and his work for the Cosmetics, Toiletries and Fragrance Association resulted in the controversial suspension of stricter rules for labeling sunscreen products.

The White House did not have an immediate comment.

Roberts listed two 1998 lobbying registrations for peanut grower associations. In another section, he lists an address he delivered to the cosmetics association in April 2000, but does not note the lobbying. ...

Federalist Society stuff, lobbying stuff, Bush v. Gore stuff--what else did he leave off his application?

and tell me why this is--
A “Large Volume” of Roberts’s Files “Mislabeled”-- First the National Archives “lost” John Roberts’s affirmative action file after it was reviewed by two administration lawyers. Now the National Archives says it “mislabeled” a bunch of other files related to Roberts. The AP reports:

The National Archives announced on Tuesday that the Top of Form Ronald Reagan Presidential Library in Simi Valley, Calif., had discovered a “large volume” of unreviewed and unreleased Roberts documents that were filed under a code instead of under Roberts’ name. Additional employees from the Archives have been sent to the Reagan library to review the documents to determine what or how much can be released, officials said.

(For archivists, these guys sure have a hard time keeping track of papers.)

Someone needs to explain why these files were located now, less than a week before Roberts’s hearing begins. ...

(really tho--the most important reason to be against Roberts is bec Bush and Rove picked him--they couldn't pick a competent or qualified person for any job--ever. i wonder what Bush's nickname for him is?)

(really tho--the most important reason to be against Roberts is bec Bush and Rove picked him--they couldn't pick a competent or qualified person for any job--ever. i wonder what Bush's nickname for him is?)

See, there's your real reason for not liking him. While I can appreciate the loathing of Bush's cronyism, I can tell you that Roberts is a qualified candidate. I'm not a Republican, and I didn't vote for Bush, but I honestly believe that Roberts will make a good Chief Justice. Roberts is well-liked, and by all indications is not the ideologue that Bork was. Roberts is genuinely qualified, and what's more, I think Democrats need to preserve their political capital for the next nominee, who may not be so well thought of.

As for the omission of minor lobbying activity, I'm willing to believe that it was a genuine mistake. He included other lobbying activity, and even included the cosmetics client on a different part of the application. I don't think it's that big a deal.

As for the lost and mislabeled files, even if the administration did that intentionally, that can't be attributed to Roberts. Also, have you ever been to the National Archives? They keep track--or attempt to keep track--of literally hundreds of millions of pieces of paper. I hate to see how many have been misplaced or mislabeled. It happens.

I guess I'm as much of an insider as is going to post on these boards, and I can tell you, I really don't think there is anything nefarious going on here. Roberts is unabashedly conservative, and if you oppose him on those grounds, I understand. Roberts is, however, well-qualified for the post.

brain, i get fired if i lose a single piece of paper, and my job is not to take care of pieces of paper--as theirs is. I don't see why these things deserve the benefit of any doubt. It's clear i don't think he's qualified--either realword experiencewise or ideologywise. I don't think that just because he doesn't breathe fire that makes him acceptable. He's going to be Chief Justice for at least 30 years--and will be ruling on innumerable cases of vital importance to all of us.

amberglow, I'm still not sure what you mean when you say qualified, either in the "real-world experience" sense or in the ideological sense. Maybe you can describe in more detail what it would mean to be qualified in your mind.

In my mind, at least with respect to real-world experience, Roberts is more than qualified. Indeed, it would be hard to script a better resume. He was a top law school student, a Supreme Court clerk, a lawyer in the DOJ and the SJ's office, a premier Supreme Court litigator at one of the nation's top law firms, and a federal judge on the D.C. Circuit. He is collegial, humble, and has a self-deprecating sense of humer. He is highly professional, and was more than willing to assist colleagues working for the plaintiffs in Romer v. Evans in the Supreme Court--plaintiffs who eventually won, by the way.

As for ideology, I'm not sure how that affects his qualifications. What do you mean that he is not qualified "ideologywise"? Why would you expect a Republican President to nominate anyone less conservative? Would you expect a Democrat to nominate someone less liberal than Roberts is conservative? Because if you do, you're dreaming.

NY Review of Books:

John Roberts: The Nominee