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Tuesday, September 13, 2005
 
The Roberts Hearings

I'll be posting my thoughts and reactions to the Roberts hearings as I read the transcripts. Right now I'm in the intial stages of said hearings where Arlen Specter (R-PA(?)) is questions Judge Roberts on state decisis and precendent. Senator Specter is particularly interested in whether Judge Roberts agrees with the following claim:
SPECTER: With respect to going back again to the import of Roe and the passage of time, Supreme Court Chief Justice Rehnquist changed his views on Miranda. In the 1974 case, Michigan v. Tucker, which I'm sure you're familiar with, he did not apply Miranda -- without going into the technical reason there. But the issue came back to the court in U.S. v. Dickerson in the year 2000. And the chief justice decided that Miranda should be upheld, and he used this language: that it became, quote, so embedded in routine police practice to the point where the warnings have become a part of our national culture, close quote. Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade?

ROBERTS: Well, I think those are some of the considerations the court applied in Casey when it applied stare decisis to Roe. And those were certainly the considerations that the chief justice focused on in Dickerson. I doubt that his views of the underlying correctness of Miranda had changed, but it was a different question in Dickerson. It wasn't whether Miranda was right; it was whether Miranda should be overruled at this stage. And the chief applied and addressed that separate question, distinct from any of his views on whether Miranda was correct or not when decided. And that's the approach the court follows under principles of stare decisis.

SPECTER: Well, that's the analogy I'm looking for in Roe v. Wade. Might disagree with it at the time it was decided, but then his language is very powerful when he talks about it becoming, quote, embedded in routine police practices to the point where the warnings have become a part of our national culture. And the question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?
Roberts really decided not the answer the question with the following dodge: "Well, I think that gets to the application of the principles in a particular case. And based on my review of the prior transcripts of every nominee sitting on the court today, that's where they've generally declined to answer: when it gets to the application of legal principles to particular cases." Thanks, John, for that little gem. Everyone before has obfuscated and equivocated, so why don't you?

That dodge is followed by another classic Roberts line a few moments later:
SPECTER: Let me move to two more points before my time is about to expire in two minutes and 35 seconds. There's a continuing debate on whether the Constitution is a living thing. And as you see Chief Justice Rehnquist shift his views on Miranda, it suggests that he would agree with Justice John Marshall Harlan's dissent in Poe, where he discusses the constitutional concept of liberty and says, quote, The traditions from which it developed, that tradition is a living thing. Would you agree with that?

ROBERTS: I agree that the tradition of liberty is a living thing, yes.
The question was about the Constitution being living, but thank you for narrowing your response.

Senator Patrick Leahy (D-VT?) amazingly asks Roberts some very tough questions and just grills Roberts.
LEAHY: In his book, All the Laws But One, Chief Justice Rehnquist, the late chief justice, concluded with this sentence, The laws will not be silent in time of war but they'll speak with a somewhat different voice.

He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous
decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race. Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history.

Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will. We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11. I just want to make sure you're not going to be a Korematsu justice, so I have a couple of questions.
Wow.