Roberts and Alito Misled Us...


Awww.

Reveling in gulibility again, are we. Are you ever in step with the
events of the day? Maybe you spend too much time embracing the victim
role, but no doubt somebody somewhere led you in that direction as
well, and so whaddaya gonna do, right.

Poor, poor you.

james g. keegan jr. wrote:

Roberts and Alito Misled Us

By Edward M. Kennedy
Sunday, July 30, 2006; B01

I have had the honor of serving on the Senate Judiciary Committee for
43 years, during which I've participated in confirmation hearings for
all the justices who now sit on the Supreme Court. Over that time, my
colleagues and I have asked probing questions and listened
attentively to substantive responses. Because we were able to learn a
great deal about the nominees from those hearings, the Senate has
rarely voted along party lines. I voted, for example, for three of
President Ronald Reagan's five Supreme Court nominees.

Of course, an examination of a nominee's views may cause the Senate
to withhold its consent. That is what happened in 1795 to John
Rutledge, who was given a temporary commission as chief justice by
President George Washington (while Congress was in recess) and was
then rejected by the Senate several months later. In 1970, President
Richard M. Nixon's nomination of G. Harrold Carswell was derailed
when the Senate learned of his segregationist past. At that time, I
explained that "the Constitution makes clear that we are not supposed
to be a rubber stamp for White House selections." That was also the
Senate's view in 1987, when its rejection of Robert H. Bork's extreme
views led to the unanimous confirmation of the more moderate Anthony
M. Kennedy. The Senate's constitutional role has helped keep the
court in the mainstream of legal thought.

But the careful, bipartisan process of years past -- like so many
checks and balances rooted in our Constitution -- has been badly
broken by the current Bush administration. The result has been the
confirmation of two justices, John G. Roberts Jr. and Samuel A. Alito
Jr., whose voting record on the court reflects not the neutral,
modest judicial philosophy they promised the Judiciary Committee, but
an activist's embrace of the administration's political and
ideological agenda.

Now that the votes are in from their first term, we can see plainly
the agenda that Roberts and Alito sought to conceal from the
committee. Our new justices consistently voted to erode civil
liberties, decrease the rights of minorities and limit environmental
protections. At the same time, they voted to expand the power of the
president, reduce restrictions on abusive police tactics and approve
federal intrusion into issues traditionally governed by state law.

The confirmation process became broken because the Bush
administration learned the wrong lesson from the failed Bork
nomination and decided it could still nominate extremists as long as
their views were hidden. To that end, it insisted that the Senate
confine its inquiry largely to its nominees' personal qualities.

The administration's tactics succeeded in turning the confirmation
hearings for Roberts and Alito into a sham. Many Republican senators
used their time to praise, rather than probe, the nominees. Coached
by the administration, the nominees declined to answer critical
questions. When pressed on issues such as civil rights and executive
power, Roberts and Alito responded with earnest assurances that they
would not bring an ideological agenda to the bench.

After confirmation, we saw an entirely different Roberts and Alito --
both partisans ready and willing to tilt the court away from the
mainstream. They voted together in 91 percent of all cases and 88
percent of non-unanimous cases -- more than any other two justices.

A few examples help illustrate how the confirmation process failed
the American people. During Roberts's hearing, I asked him about his
statement that a key part of the Voting Rights Act constitutes one of
"the most intrusive interferences imaginable by federal courts into
state and local processes." In response, he suggested that his words
were nothing more than an "effort to articulate the views of the
administration . . . for which I worked 23 years ago."

Today -- too late -- it is clear that Roberts's personal view is the
same as it was 23 years ago. In League of United Latin American
Citizens v. Perry , the Supreme Court held that Texas's 2003
redistricting plan violated the Voting Rights Act by protecting a
Republican legislator against a growing Latino population. Roberts
reached a different view, concluding that the courts should not have
been involved and that it "is a sordid business, this divvying us up
by race."

The same Roberts who wished the federal government would leave Texas
alone was unconcerned by federal intrusion into Oregon's approach to
the issue of assisted suicide. In Gonzales v. Oregon , a majority of
the Supreme Court held that the Justice Department lacked the power
to undermine Oregon's Death With Dignity Act. However, Roberts joined
a startling dissent by Justice Antonin Scalia, stating that the
administration's actions were "unquestionably permissible" because
the federal government can use the Constitution's commerce clause
powers "for the purpose of protecting public morality."

It is difficult to believe that a neutral judicial philosophy
explains Roberts's very different views in these two cases. He
memorably claimed during the confirmation process that he wanted only
to be a diligent umpire, calling balls and strikes without regard to
what team was at bat. But it turns out that our new umpires have a
keen interest in who wins and who loses.

One clear loser is the environment. In Rapanos v. United States , the
court was asked to interpret the definition of wetlands under the
Clean Water Act. Four justices deferred to the Army Corps of
Engineers' expertise in implementing the statute. But Roberts and
Alito joined an opinion that describes wetlands as "transitory
puddles" and criticizes their colleagues for "giving that agency more
deference than reason permits." For Roberts and Alito, protecting the
environment -- unlike "protecting public morality" -- is clearly not
a top priority.

Perhaps the biggest winner is the president himself. During Alito's
hearing, I asked him about a 1985 job application in which he stated
that he believed "very strongly in the supremacy of the elected
branches of government." He backpedaled, claiming: "I certainly
didn't mean that literally at the time, and I wouldn't say that
today."

But he is willing to say it now. In the very recent case of Hamdan v.
Rumsfeld , Alito signed on to a dissent by Justice Clarence Thomas
that asserts a judicial "duty to accept the Executive's judgment in
matters of military operations and foreign affairs" as grounds for
allowing the administration to use military commissions of its own
design to try detainees at Guantanamo Bay, Cuba.

This is part of a pattern. When he was in the Reagan Justice
Department, Alito wrote in support of signing statements, through
which the president has claimed to limit the scope of measures passed
by Congress -- including the ban on torture. When questioned about
the legal status of such statements, he said it was an open issue
that still needed to be "explored and resolved" by the court. But
Alito joined a Scalia dissent in the Hamdan case that endorsed the
use of signing statements without providing any analysis or legal
support.

Similarly, Alito had a pattern of ruling against individuals in
Fourth Amendment cases -- including a case involving the strip-search
of a 10-year-old girl. When questioned, he insisted that one of the
judiciary's most important roles "is to stand up and defend the
rights of people when they are violated." But Alito cast the deciding
vote in Hudson v. Michigan , in which the court decided -- contrary
to almost a century of precedent -- that evidence gathered during an
unconstitutional search of a suspect's home could be used to convict
him.

In the term that begins in October, the court will decide major cases
on abortion, affirmative action and the Clean Air Act. Roberts and
Alito may well cast the deciding votes. If their first term is any
indication, their agenda will be exactly what many of us feared --
and nothing like the judicial modesty they promised during their
hearings.

At a time when great legal issues are being decided by the slimmest
of margins, we cannot afford to learn nominees' views only after they
have obtained lifetime tenure on our highest court. Instead, the
Judiciary Committee, the Senate and the American Bar Association need
to work together to return to an honest confirmation process. I
support reform despite my belief that the next justice will be
nominated by a Democratic president and be sent to a Democratic
Senate for confirmation.

The discussion should start with a few truths. First, any qualified
nominee to the Supreme Court will have spent many years thinking
about legal issues. We should require that nominees share that
thinking with the Judiciary Committee, and not pretend that such
candor is tantamount to prejudging specific cases. In particular, the
Senate should have the same access to the nominee's writings as the
administration. Second, the Judiciary Committee will need to
reorganize the way it asks questions. An in-depth inquiry will
require something more than short rounds of questions that pass from
senator to senator. Third, we need to remember what this process is
all about. It is good to hear that a nominee has a loving family,
faithful friends and a sense of humor. It is important to know that
nominees possess the intellect, life experience and discipline that
make a good judge. But it is essential that we learn enough of their
legal views to be certain that they will make good on the simple
promise etched in marble outside the Supreme Court: "Equal Justice
Under Law."

http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/AR2006
072801489.html

Roberts and Alito Misled Us...


Awww.

Reveling in gulibility again, are we. Are you ever in step with the
events of the day? Maybe you spend too much time embracing the victim
role, but no doubt somebody somewhere led you in that direction as
well, and so whaddaya gonna do, right.

Poor, poor you.