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Tuesday, September 27, 2005

Roberts Confirmation Debate In The Senate

To read the Congressional Record, you can access the 2005 index by date here. I'm following the debate over Roberts in the Senate with some interest. Yesterday it led off with Frist, of course:
The qualifications they expect us to look at for a Supreme Court Justice are unambiguous. They expect an individual who is qualified, an individual who will faithfully interpret the Constitution, an individual who will check politics and personal views at the door of the Court, an individual who will approach every case with a fair and open mind.
That's an attempt to frame the debate. I agree with him, but I doubt all of the senators will. Specter talks at some length about the recent spate of confusing decisions in the SC. He hopes Roberts will be able to bring more consensus to the Supreme Court. Specter also comments that he believes Roberts has a broad view of the Constitution and is not an originalist. He then reviews the history of confirmation hearings:
It wasn’t until 1955, with the nomination of Justice John Marshall Harlan, that nominees have appeared regularly before the Judiciary Committee. Only since 1981, following my own election in 1980, have the hearings taken on a little different approach as to what the nominees will answer. Justice O’Connor declined to answer many questions. The next nomination hearing was that for Chief Justice Rehnquist, who was a sitting Associate Justice. Initially Justice Rehnquist declined to appear, then was advised that if he wanted to be confirmed, he would have to appear. It was a contentious hearing. As the record shows, Chief Justice Rehnquist was confirmed by a vote of 65 to 33. He did answer a great many questions, although he did not answer a great many questions.
People forget that the battle here is not just between the pros and cons for Roberts, but a struggle over the entire confirmation process and what powers the Senate has over the Supreme Court. I strongly recommend reading Specter's comments for that reason. Specter's letter about the Commerce Clause has been inserted in the record; Congress does not wish to be bound by federalism. Specter also claims that Congress is contemplating legislation to give itself standing to fight cases challenging its legislation in the federal courts:
It seems to me that it might be a good occasion for Congress to exercise this authority to grant standing to Congress. Why should we rely upon the litigants to defend the constitutionality of these enactments which we pass very carefully and very laboriously, as we did the Religious Freedom Restoration Act of 1993 or the Americans with Disabilities Act? That is a move which might have material implications on reasserting the balance of power and the separation of power between Congress and the Court.
These issues are the ones which will be most significant in the next nomination, and I suspect this is why Specter wanted Bush to delay the next nomination. Specter wants to televise Supreme Court proceedings!
I ask unanimous consent, although I don’t know if I need to, to introduce a bill at this point, and it is right in line with the issues involved in the Roberts nomination. That is legislation that will call for televising the Supreme Court of the United States.
And is it me, or is Specter making a veiled threat with this?
The Congress has the established authority to set the date when the Supreme Court starts its session. We have legislated that it should be the first Monday in October. We have the authority to establish the number of Justices—nine. We all recall the famous court-packing effort by President Roosevelt in about 1937. We could increase the number as we would choose.
And let's not forget that Congress sets the justices pay! Leahy's speech starts here. You can skip the first page (he doesn't know the population of the United States) and go directly to the meat:
I took Judge Roberts at his word when he gave the committee assurances that he would respect congressional authority. His steadfast reliance on the Supreme Court’s recent Raich decision as significant precedent, contravening further implications from Lopez and Morrison, was intended to reassure us that he would not join in what has been a continuing assault on congressional authority.
Heh. I don't remember it that way. I'll have to look up the transcript, but I doubt that Roberts committed himself to follow Raich (medical marijuana). The Bill of Rights was originally passed purely to check federal power, and that includes Congressional power. The left no longer likes that idea. It's questionable whether much of the right subscribes to it either. There were two decisions that the average American distrusts last term - Kelo and Raich. Both decisions diminished individual freedom and enhanced federal powers, and Congress as a body approves of both. Remember that.

Leahy continues:
I expect Judge Roberts to act in the tradition of Justice Jackson and serve as an independent check on the President. When he joins the Supreme Court, he can no longer simply defer to Presidential authority. We know we are in a period in which the executive has had a complicit—and I believe compliant— Republican Congress that has not served as an effective check or balance. Without the Court to fulfill its own constitutional role as check and balance, excess will continue; the balance will be further tilted.
Interesting. Senator Milkulski (MD) started out in a very interesting manner:
This vote is crucial. A Senator is only called upon to make two decisions in our career that are either irrevocable or irretrievable. One is the decision to go to war. Once we vote to go to war, to put our troops in harm’s way, we cannot say a day later, Oops, we changed our minds or, 6 months later, cut off the money. Once they go, they go, and we have to stick with them.
Is that a direct rebuke to Leahy? In his questioning of Roberts, Leahy brought up the question of whether Congress had the ability to withdraw its consent to war. If so, it is very interesting. She will vote no because she wanted assurance on specific points (abortion, "nondiscrimination", etc) and didn't get it. She is bsing on the Voting Rights act, but I believe she is being quite sincere on the abortion issue.

Maybe I will pick up later on this. I'm very curious as to how this battle over Congressional power vs. the Constitution will play out in the next nomination.

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