← Autodidact Archive · Original Dissent · Walter Yannis
Thread ID: 20222 | Posts: 7 | Started: 2005-09-15
2005-09-15 08:37 | User Profile
[URL=http://www.nytimes.com/2005/09/15/politics/politicsspecial1/15legal.html?th&emc=th]New York Times[/URL] September 15, 2005 In Roberts Hearing, Specter Assails Court By LINDA GREENHOUSE
WASHINGTON, Sept. 14 - Senator Arlen Specter's testy interrogation of Judge John G. Roberts Jr. on the Supreme Court's treatment of Congress may well have left viewers scratching their heads on Wednesday morning, with cryptic references to the "congruence and proportionality test" and to unfamiliar case names like "Lane and Hibbs."
But the line of questioning that Mr. Specter, the Pennsylvania Republican who is Judiciary Committee chairman, chose to pursue offered a window on the increasingly troubled relationship between the court and Congress, as well as on one of the most consequential developments of the Rehnquist court's later years.
In a series of decisions, many written by Chief Justice William H. Rehnquist himself, the court declared unconstitutional acts of Congress that had been passed by broad bipartisan majorities.
Laws permitting public employees to sue state employers for discrimination on the basis of disability and age, and also giving women access to federal court to sue rapists for damages, ran up against the court's new definition of the limits on Congress's power and the justices' insistence that they alone have the final word in interpreting the Constitution.
"I take umbrage at what the court has said, and so do my colleagues," Senator Specter told Judge Roberts.
From 1995 to 2003, the Supreme Court overturned all or parts of 33 federal statutes, 10 of them on the ground that Congress had exceeded its authority either to regulate interstate commerce or to enforce the constitutional guarantees of due process and equal protection. Until then, the modern court gave Congress wide berth to define its own role under both of the Constitution's relevant provisions, the Commerce Clause and the 14th Amendment.
Senator Specter took particular exception to the court's conclusion in several of the cases that Congress had not compiled an adequate record showing the existence of the problems the statutes sought to solve.
He said that leading up to the passage of the Violence Against Women Act, for example, "there were reports on gender bias from the task forces in 21 states, and eight separate reports issued by Congress and its committees over a long period."
In United States v. Morrison, the court's decision in 2000 that overturned the private-lawsuit portion of the statute, Chief Justice Rehnquist said that "Congress's findings were weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected," namely that various instances of violence against women could be added together to demonstrate an impact on the nation's economy sufficient to bring the subject within Congress's authority over interstate commerce.
Turning to Judge Roberts, nominated to succeed the late chief justice, Senator Specter said, "Do we have your commitment that you won't characterize your 'method of reasoning' as superior to ours?" The nominee demurred and, in fact, was so cautiously nonresponsive as to leave the senator to continue with what amounted to a monologue.
"There isn't a method of reasoning which changes when you move across the green from the Senate columns to the Supreme Court columns," Mr. Specter said. "And we do our homework, evidenced by what has gone on in this hearing. And we don't like being treated as schoolchildren, requiring, as Justice Scalia says, a taskmaster." Then he demanded, "Will you do better on this subject, Judge Roberts?"
"Well, I don't think the court should be taskmaster of Congress," Judge Roberts replied. "I think the Constitution is the court's taskmaster, and it's Congress's taskmaster as well. And we each have responsibilities under the Constitution."
Senator Specter's reference was to a dissenting opinion by Justice Antonin Scalia in a decision last year, Tennessee v. Lane, which permitted states to be sued under the Americans With Disabilities Act for failing to provide accessible courtrooms. On the surface, at least, the decision conflicted with a 2001 ruling, Board of Trustees v. Garrett, which gave states immunity from lawsuits by their employees under the same law.
Justice Scalia, who had joined the majority in the 2001 case, said the conflicting results showed the "judicial arbitrariness" of the court's approach. "It casts this court in the role of Congress's taskmaster," he said.
Justice Scalia objected to the requirement the court has placed on Congress to show that its legislative approaches are "congruent" with, and "proportionate" to, the problem it is seeking to address.
Mr. Specter asked Judge Roberts: "Isn't this 'congruence and proportionality' test, which comes out of thin air, a classic example of judicial activism? Isn't that the very essence of what is in the eye of the beholder, where the court takes carte blanche to declare acts of Congress unconstitutional?"
Judge Roberts started to reply that in its two most recent cases in this series, the Lane case from Tennessee and another case, Nevada Department of Human Resources v. Hibbs, the court had shifted gears and rejected constitutional challenges to the laws in question. The Hibbs case, from 2003, allowed suits against states under the Family and Medical Leave Act.
But no sooner had Judge Roberts started to explain "Lane and Hibbs," than Senator Specter cut him off: "But Judge Roberts, they uphold it at the pleasure of the court. Congress can't figure that out. There's no way we can tell what's congruent and proportional in the eyes of the court."
Mr. Specter asked Judge Roberts if he agreed with Justice Scalia's critique of the "congruence and proportionality test." The nominee declined to say, noting that another such case is on the docket for the coming term.
That case, United States v. Georgia, scheduled for argument on Nov. 9, raises the question of whether prisoners can sue states under the disabilities act, as Congress intended.
Senator Specter was not satisfied, but it was clear that he knew the dialogue was over. Before turning to a less freighted subject - how the nominee would, as chief justice, lead the other justices, all of whom are his elders - he made one last try.
"Judge Roberts, I'm not talking about an issue," he said. "I'm talking about the essence of jurisprudence. I'm talking about the essence of a man-, woman-made test in the Supreme Court which has no grounding in the Constitution, no grounding in the Federalist Papers, no grounding in the history of the country. It comes out of thin air."
2005-09-15 19:31 | User Profile
From 1995 to 2003, the Supreme Court overturned all or parts of 33 federal statutes, 10 of them on the ground that Congress had exceeded its authority either to regulate interstate commerce or to enforce the constitutional guarantees of due process and equal protection. Until then, the modern court gave Congress wide berth to define its own role under both of the Constitution's relevant provisions, the Commerce Clause and the 14th Amendment. The trend of the SC overturning Congressional legislation should be not only continued, but carried much further. Congress has been overstepping its bounds, with virtually no checks on its legislative power apart from interparty bickering, for far too long. The Commerce Clause in particular has been abused beyond belief.
It's not like the SC will ever do us proud, though -- say, by striking down noxious federal gun legislation as contrary to the Second Amendment. Neither the SC nor Congress nor the Executive Branch really cares about the Constitution. They merely pay lip service to it.
2005-09-15 21:42 | User Profile
Nothing to see here just some last minute posturing from an old man of the senate (the special branch) trying to impress upon the kid the virtue of being a team player.
The discrepancy in power between the appointment about to be granted and the granteors is plainly on display here. An average senator fairs poorly in comparison to the chief justice when it comes to means to push forth agenda. Perennial haggling with a vast body of fellow cogs, minimal control over items to consider, and limited opportunity for indulging a hobbyhorse is his lot. Conversely, the justice only bargains with a handful of peers, has some control over docket, and never need look at another opinion poll. Then there is the biggie. A lifetime appointment versus lifetime of looking over your shoulder and checking that the real ââ¬Åtaskmastersââ¬Â are satiated lest the war chest take a beating because they decided to park their tokens behind a more amenable candidate.
This lack of monetary and populist control over the position is why it matters. I think that absent mutilated corpses being dug up on his estate Roberts is in, and nothing short of a mind-melt will reveal whether heââ¬â¢ll be good, bad, or irrelevant. It's the unknown the special shiny people object to.
Hereââ¬â¢s further sampling:
Roberts: 'I am not an ideologue'
[URL=http://www.cnn.com/2005/POLITICS/09/15/roberts.hearings/index.html]full story[/URL]
While summarizing his arguments for and against the nomination, Sen. Charles Schumer, D-New York -- who said he had woken up in the middle of the night to consider the nomination -- praised Roberts for his intellect and his modest judicial philosophy.
"You've devoted your entire life to the law and it's clear that you love it," Schumer said. "Most people in that position tend not to be ideologues."
But Schumer said Roberts' refusal to answer specific questions troubled him.
"What we need to know are the kinds of things that are coming before the court now. And it makes it hard to figure out what kind of justice you will be, particularly in light of the fact we have little else to go on," Schumer said.
"Now we must take the evidence we have and try to answer the fundamental question: What kind of justice will John Roberts be?"
Earlier, Sen. Dianne Feinstein, D-California, told Roberts, "I don't know what I'm going to do." She said after three days of his public testimony, "My impression today is that you are a very cautious, very precise man ... and that concerns me more."
2005-09-16 01:38 | User Profile
Just found this tidbit concerning the deceased chief justice, courtesy of the birdman. Maybe old news around here. Somewhat dated but intriguing considering that Roberts clerked for Rehnquist and thought highly of the man.
Meanwhile, Feinstein is unable to make up her pretty little mind and Schumer is loosing sleep over something. The drama of it allââ¬Â¦
[URL=http://www-stu.calvin.edu/chimes/2001.04.27/perspectives/story02.shtml]link[/URL]
April 27, 2001 Volume 95, Issue 26
[size=3]William Rehnquist's racist record revealed[/size]
Given Rehnquistââ¬â¢s racial record, it is puzzling why he was chosen as the commencement speaker.
By Brian Bork PERSPECTIVES CO-EDITOR
ââ¬ÅI realize that it is an unpopular and unhumanitarian position for which I have been excoriated by ââ¬Ëliberalââ¬â¢ colleagues, but I think Plessy v Ferguson was right and should be reaffirmed.ââ¬Â
For those unfamiliar with American legal history, Plessy v Ferguson was a landmark case in the Supreme Court in 1896 that gave consent to legalized segregation in the southern United States. The aforementioned quote is taken from a memo written by a young law clerk named William Rehnquist to Justice Robert Jackson in the mid-1950ââ¬â¢s. The memo went on to read: ââ¬Åitââ¬â¢s about time the Supreme Court faced the fact that the white people of the South donââ¬â¢t like the colored people.ââ¬Â While they are overtly racist, these statements become even more shocking when one realizes that they were written by the future Chief Justice of the Supreme Court and the keynote speaker at Calvin Collegeââ¬â¢s 2001 commencement.
Some might say that Rehnquistââ¬â¢s comments simply show that his viewpoint was a product of its time ââ¬â it wasnââ¬â¢t uncommon during the 1950ââ¬â¢s to find white men in positions of power holding racist attitudes. Therefore, it would be undue and unfair to criticize a man based on things he said forty-five years ago; after all, his opinion on such matters might have changed entirely.
Others may say that Rehnquistââ¬â¢s beliefs are representative of a young man whose ignorance was a result of a lack of experience and education concerning matters of racial equality. Sadly, the past 50 years of Rehnquistââ¬â¢s professional career illustrate that his views may not have changed at all since the days of segregation.
During elections from 1958 to 1962, Rehnquist was the director for the Republican Partyââ¬â¢s ââ¬ÅOperation Eagle Eyeââ¬Â program in Arizona. Leading teams of lawyers to various polling stations in Arizona, members of Operation Eagle Eye (dubbed ââ¬Åballot securityââ¬Â) attempted to use legal methods to dissuade black voters. Before the passage of the Voting Rights Act, Rehnquist and his colleagues were often quite successful at using legal methods to rig ballots, thereby creating an undemocratic election.
The house in which Rehnquist lived during this time had a deed stating that the home could not be sold to any person not of the Caucasian race. Upon moving in 1974 Rehnquist bought a home in Vermont that contained a covenant prohibiting the sale of the property to ââ¬Åany member of the Hebrew race.ââ¬Â
In 1980, Rehnquist made his thoughts on the case of United States v Sioux Nations known to the press: ââ¬ÅWe conquered them, why should we pay for their land?ââ¬Â
Since becoming Chief Justice in 1986, Rehnquist has hired 82 aides, 81 of which were white. Not a single one of his aides over the past 15 years has been African-American, and when asked why this is the case, he answered: ââ¬Åwait for the demographics to change. There is no need for a wider net the system is working just fine.ââ¬Â
Perhaps the most recent incident that shows Rehnquistââ¬â¢s racial prejudice occurred in 1999 at the Fourth Circuit judicial conference. Rehnquist joined others at the conference in a rousing sing-along to ââ¬ÅDixie,ââ¬Â the national anthem from the defunct Confederate States of America. Today this musical relic from the Civil War has come to represent the brutality of slavery and Jim Crow laws to many people, not just minorities.
As Chief Justice of the Supreme Court, Rehnquist is called to be fair and impartial to all Americans. By singing ââ¬ÅDixie,ââ¬Â he displayed a partiality and insensitivity that is not becoming of a man who supposedly has the best interests of everyone in mind.
The issue of Rehnquistââ¬â¢s myopic racial convictions bears a special significance at Calvin because he has been selected to give the commencement address this year.
For a school that prides itself on multicultural acceptance and promotion, it seems odd that a man with such a sordidly racist past would be chosen to speak here. I wonââ¬â¢t assume any motives for his selection, aside from the fact that he is a prominent figure in a respected public office. Perhaps the person(s) who selected him merely overlooked his offensive racial record. My purpose for writing this article is not to attack those at Calvin who selected Rehnquist. Rather, it is to make the Calvin community aware of his true colors (an appropriate cliché).
While Iââ¬â¢m sure that Rehnquistââ¬â¢s commencement speech will not contain any of the hateful rhetoric of his past utterances, it remains a perfect opportunity for us as members of the Calvin community to let our views become known. Pass the word around, hold up a sign, or walk out of the auditorium in protest immediately before his speech. Whatever you do, make it known that the Calvin community does not tolerate those who are intolerant.
2005-09-17 05:24 | User Profile
Wasn't Specter one of the brilliant minds who came up with the "magic bullet" theory on the Warren Commision?
2005-09-17 08:20 | User Profile
[QUOTE=Angler]The trend of the SC overturning Congressional legislation should be not only continued, but carried much further. Congress has been overstepping its bounds, with virtually no checks on its legislative power apart from interparty bickering, for far too long. The Commerce Clause in particular has been abused beyond belief.
It's not like the SC will ever do us proud, though -- say, by striking down noxious federal gun legislation as contrary to the Second Amendment. [B]Neither the SC nor Congress nor the Executive Branch really cares about the Constitution. They merely pay lip service to it[/B].[/QUOTE]I pretty much agree with you here. If you read carefully, you can see what's really at issue is not Constitutionality but power.
[QUOTE]Justice Scalia, who had joined the majority in the 2001 case, said the conflicting results showed the "judicial arbitrariness" of the court's approach. [B]"It casts this court in the role of Congress's taskmaster," he said.[/B]
Justice Scalia objected to the requirement the court has placed on Congress to show that its legislative approaches are "congruent" with, and "proportionate" to, the problem it is seeking to address.
Mr. Specter asked Judge Roberts: "Isn't this 'congruence and proportionality' test, which comes out of thin air, a classic example of judicial activism? Isn't that the very essence of what is in the eye of the beholder, where the court takes carte blanche to declare acts of Congress unconstitutional?"
Judge Roberts started to reply that in its two most recent cases in this series, the Lane case from Tennessee and another case, Nevada Department of Human Resources v. Hibbs, the court had shifted gears and rejected constitutional challenges to the laws in question. The Hibbs case, from 2003, allowed suits against states under the Family and Medical Leave Act.
But no sooner had Judge Roberts started to explain "Lane and Hibbs," than Senator Specter cut him off: "But Judge Roberts, they uphold it at the pleasure of the court. Congress can't figure that out. There's no way we can tell what's congruent and proportional in the eyes of the court."
Mr. Specter asked Judge Roberts if he agreed with Justice Scalia's critique of the "congruence and proportionality test." The nominee declined to say, noting that another such case is on the docket for the coming term.[/QUOTE]
An interesting exchange. Coming from a vainglorious squirrel like Spector though, you can see this is all posturing. Spector doesn't care about the constitution, he's one of the most liberal pubbies in the Senate. He is certainly a man on a power trip though who doesn't like being overruled.
2005-09-17 10:07 | User Profile
My two cents:
The problem with judicial review is that it wasn't in the Constitution and was not foreseen by the Framers. As you know, judicial review was pronounced by judicial fiat by Justice Marshall in Marbury vs. Madison - the right of SCOTUS to say exactly what the law is.
Since our legal system is based on precedent, and since SCOTUS makes all precedent, SCOTUS in effect took on to itself the power to amend the constitution through caselaw.
This is very dangerous, and has had many very baleful consequences in our history, including the whole Dred Scot debacle, and the many laws in the early 20th century striking down state attempts to regulate working conditions under the contracts clause. Not to mention of course the horrific 14th amendment cases attacking Christianity, legalizing sodomy, denigrating marriage, and so forth.
Again, the problem is that the Constitution's system of "checks and balances" contains no "check" of SCOTUS because Marbury vs. Madison judicial review was quite simply not foreseen.
The solution is to include a check on SCOTUS's judicial review. Judge Bork's proposal is to allow the Senate to depublish any federal court case upon a simple majority vote. This would provide finality of disputes AS TO THE PARTIES, but would prevent every pronouncement of SCOTUS becoming CONSTITUTIONAL LAW without some say from the Senate.
I would add that the Senate should have some appellate power to overturn any SCOTUS decision, and to replace it with its own decision, upon a 2/3 vote.
We don't need to do away with judicial review, we just need to put a serious check on it.