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JGR is Heading to One First Street:
Congratulations to John G. Roberts, Jr., who was just confimed to the position of Chief Justice of the United States by a Senate vote of 78-22.
Medis:
So if my math is right, and if Jeffords voted for Roberts (as I believe he stated he would), that means exactly half of the 44 Democrats voted for him.

I still think they drew straws.
9.29.2005 12:46pm
Chris Lansdown (mail) (www):
So, since 78% of people's representatives in the senate voted in favor of Roberts, does that mean that Roberts isn't a right-wing extremist and is instead mainstream, and those who voted against him are left-wing extremists?

(My point, which probably isn't clear, is that I think that terms such as FOO-wing-extremist are neither meaningfully descriptive nor useful.)
9.29.2005 12:52pm
Medis:
Chris,

I think it means he is roughly within one standard deviation of the middle.
9.29.2005 12:58pm
Kip (mail):
Anybody starting a pool on how long (in hours) it will be before the next Justice is nominated by the President? I'd guess it will come on Monday (100 hours,) but it would make for a fun weekend if Bush announced it today or tomorrow.
9.29.2005 1:08pm
SimonD (www):
And the seventh angel poured his bowl into the air, and a voice cried out from heaven, saying: "It is done."
9.29.2005 1:19pm
cpugrud:
I'll throw my dart in the pool for Friday Afternoon. OTOH, I seem to recall Bush using a national address (evening pre-emption) for the Robert's announcement.

Is there any reason Bush would not use a nationally televised address for the next announcement? I'm not politically savvy enough to calculate if Friday night or Monday night, or Thursday night for that matter, would better serve the next announcement.
9.29.2005 1:21pm
SimonD (www):
So, since 78% of people's representatives in the senate voted in favor of Roberts
That statement is rather misleading. 78% of the Senate does not represent 78% of the people, which is precisely why the GOP's posturing over majoritarianism vis-a-vis the nuclear option is faintly preposterous.

(again, I note I'm a Repulican, so this isn't born of partisanship, but rather, frustration at the party of late).

One thing I'd say is that I don't much care for the nominee being "in the mainstream". As George Carlin noted, the reason the mainstream is referred to as a stream is because it's very shallow. Is original intent "mainstream"? I don't much care that it isn't.
9.29.2005 1:22pm
Dresden Slammer:
Surely Bush wouldn't preemt Monday Night Football. So I'm going with tonight or tomorrow night.
9.29.2005 1:24pm
Steve P. (mail):
Packers at the Panthers? I won't immediately call my Senator and demand they block the nomination... but I would if the Steelers were playing.
9.29.2005 1:38pm
Nobody (mail):
Announcing it on a friday night would be a sure-fire way to announce a nomination without anyone noticing. He'll only do that if he's announcing a real wack-job.
9.29.2005 1:51pm
wt (mail) (www):

He'll only do that if he's announcing a real wack-job.


Cross your fingers!
9.29.2005 1:53pm
Bob Flynn (mail):
Total no-brainer.

Was Roberts qualified? Yes
Did he have suitable character? Yes
Did he have sufficient "stature" to serve on the highest court in the land? Yes

We learn a lot about the 22 knuckleheads who voted against him -- partisan hacks the lot of 'em.
9.29.2005 1:53pm
Claude Dancer (mail):
I can understand the "Nay" votes of Biden, Boxer, Corzine, Feinstein, Clinton, Harkin, Lautenberg, Kennedy, Kerry, and Schumer. The hard leftists have no problem voting against a perfectly appropriate nominee.

What I can't understand are the "Nay" votes of Evan Bayh, Barack Obama, and Debbie Stabenow. Bayh's vote is particularly weird, given his introduction of Roberts at the committee hearings. Maybe he has no choice but to appease the left if he's running for president in 2008. But I would have expected more from Barack Obama. He should know better than to vote against someone so qualified and such a mainstream conversative. Stabenow's vote seems weird. I guess she figures she'll have to run to the left in Michigan when she's up for reelection next year.
9.29.2005 1:54pm
SimonD (www):
In terms of when the next nomination is made, my thinking is that it will be when no Senator can take to the floor to talk about the nomination, as Teddy did when Bork was nominated. The manner of the Roberts nomination - which produced an uncoordinated and largely incoherent opposition response, largely as a function of the fact they were spread out across the entire continental US at the time - was genius, and I expect that they will try to do the same thing again. Which likely means, as soon as the Democrats leave Washington. If they could time it so they're all on planes, that'd be great.
9.29.2005 1:59pm
WB:
I agree with Claude Dancer on this one... I suppose they believe that they have a right to more information than they got.

On Bob Flynn's comment, I would say that being a "partisan hack" is part of the job description when one works in the legislative branch.
9.29.2005 1:59pm
SimonD (www):
We learn a lot about the 22 knuckleheads who voted against him -- partisan hacks the lot of 'em.
There are perfectly valid reasons to oppose Roberts. I opposed him because he isn't an originalist and because he shows little potential to turn into one; 22 Democrats voted against him because they couldn't read the constitution and 22 voted for him because they didn't want to look mindlessly contrary. But I'm increasingly pursuaded by Tushnet's view that a Judge's judicial philosophy is an extremely relevant question for the Senate to examine, and any Judge, IMO, who endorses substantive due process, as Judge Roberts did several times during his hearings, should be rejected. And that goes whether they will find constitutional rights that don't exist that Republicans like or whether they will find constitutional rights that don't exist that Democrats like.
9.29.2005 2:02pm
ChrisS (mail):
I opposed him because he isn't an originalist and because he shows little potential to turn into one

Why don't we wait until he actually starts writing opinions before we define his judicial philosophy? He couldn't possibly have gone before that committee and trumpeted the "I'm an originalist" line. He's being as discreet as possible now; we ought to wait until he's on the court before we determine his views.
9.29.2005 2:09pm
Thorley Winston (mail) (www):
On Bob Flynn's comment, I would say that being a "partisan hack" is part of the job description when one works in the legislative branch.


I disagree with that assessment actually. I had predicted originally that Roberts would get between 65 and 75 votes total and I always figured that Dodd, Levin, and Lieberman (despite being Blue State Democrats) would be three of the votes for him.

There are still senior statesmen in the two parties who know how to play hardball when they have to, but can balance it with bipartisan comity when needed.
9.29.2005 2:09pm
Mark H.:
Yes, that sounds good SimonD. A little after 7PM on Friday night would fit that bill and bypass the network evening newscasts as well. That'll give the MSM a full weekend to contruct their opposition to whomever it is and it'll be Monday before their audience (such as it is) hears it.

Who though? Well, I don't recall Roberts being on anyone's radar, so I'd bet it's a more obscure name once again.
9.29.2005 2:14pm
Thorley Winston (mail) (www):
But I would have expected more from Barack Obama. He should know better than to vote against someone so qualified and such a mainstream conversative.


I didn't find Obama's vote to be that surprising. He always struck me as someone who won a rather easy victory in a deep Blue State against a fringe candidate who ran after the endorsed candidate imploded. Obama specifically rejected the endorsement of the DLC which I took as an indication that despite the hype about him being "mainstream" or "reasonable" he's a pretty hard left kind of guy.
9.29.2005 2:18pm
SimonD (www):
Why don't we wait until he actually starts writing opinions before we define his judicial philosophy?
Because by the time that happens, he is in the job for life.

Believe me, if I turn out to be wrong about Roberts - if he really does turn out to be a cross between Scalia and Thomas, if the bleatings of the anti-Roberts left turn out to have any truth in them - then I will never have been so delighted to be wrong about something in my life. But it seems to me that we were promised a Scalia, we were given a Kennedy, and Democrats and Republicans in the Senate alike mistook him for a lone ranger-era Rehnquist. Again, maybe I'm wrong. I hope I'm wrong. But by the time we find out what Roberts really thinks, he will be on the bench for life.
9.29.2005 2:20pm
SimonD (www):
That'll give the MSM a full weekend to contruct their opposition to whomever it is and it'll be Monday before their audience (such as it is) hears it.
Isn't this a bit of an odd statement? The implication of "their audience, such as it is" would be that their audience is relatively small. But if their audience is relatively small, surely, by definition, they aren't mainstream? What is the definition of "mainstream" other than in the middle of the public?
9.29.2005 2:23pm
Paul S:
I am puzzled by complaints of partisan hackery. Nobody supposes that the President has an obligation to select the "best qualified" potential justice regardless of political background. The President rejects loads of "well qualified" candidates because their politics are somewhat different from his own, and everyone takes that for granted. So why does anyone suppose that the Senate is not entitled to reject a "well qualified" potential justice because of his political views? The Senate is participating in the selection process, and is entitled to be motivated by all the same factors that drive the nomination itself. Rightly or wrongly, politics counts. I take it "partisan hack" is just an opprobrious epithet for a politician with whose views one happens to disagree.
9.29.2005 2:39pm
Justin (mail):
"There are perfectly valid reasons to oppose Roberts. I opposed him because he isn't an originalist and because he shows little potential to turn into one; 22 Democrats voted against him because they couldn't read the constitution."

Ah, so the biggest problem facing America is the literacy rates of United States Senators? Interesting. I wonder if the 48% of the United States voting population that voted for Kerry also knows how to read? And the median voter is supposed to be significantly more educated than the median nonvoter, too. God, we're a dumb country. [end sarcasm].
9.29.2005 2:41pm
SimonD (www):
Justin-
when I say they can't read the constitution, what I mean is that they don't comprehend the role of the judiciary in our system of government. Since it's pretty obvious what that role is from reading the text, it strikes me as being unlikely that this is a comprehension problem, which leads the only possibilities as being that have read the text, and are deliberately trying to subvert the constitutional role of the judiciary, or that they just can't read the constitution. Given that I prefer to ascribe benevolent motivations wherever possible, I am left with the latter conclusion.
9.29.2005 2:46pm
SimonD (www):
Incidentally, I'm increasingly inclined to say that the biggest problem facing America today might actually be the 17th amendment, which increasingly seems to be a failed experiment akin to directly electing Judges.
9.29.2005 2:47pm
ChrisS (mail):
But by the time we find out what Roberts really thinks, he will be on the bench for life.

But that's more a criticism of the system than it is of Roberts. The same would be true for any nominee. I wonder how the '86 version of Scalia or the '91 version of Thomas would have looked under such close scrutiny. I just think we should wait before we write the guy off. Sure, it'll be too late to do anything about it, but that's going to be the case regardless.
9.29.2005 2:56pm
Lab:
So when will we start getting an idea about his real positions on Griswold and Roe/Casey ?
9.29.2005 3:10pm
Justin (mail):
"Justin-
when I say they can't read the constitution, what I mean is that they don't comprehend the role of the judiciary in our system of government. Since it's pretty obvious what that role is from reading the text, it strikes me as being unlikely that this is a comprehension problem, which leads the only possibilities as being that have read the text, and are deliberately trying to subvert the constitutional role of the judiciary, or that they just can't read the constitution. Given that I prefer to ascribe benevolent motivations wherever possible, I am left with the latter conclusion."

No, I get you. You're calling them dumber than you. You consider them more liberal because they just "don't get" something that's so obvious to you. I'm just enjoying the irony.
9.29.2005 3:14pm
Justin (mail):
Simon, what makes you think voters will be wiser at selecting their state legislatures than they are at selecting their Senators. Have you met most state legislators?
9.29.2005 3:15pm
cpugrud:
Personally I consider it more of a sad statement of our times when an eloquent, prudent, and obviously reasonable candidate only gets 78 votes. Consider the double standard implied in contrasting Roberts and Ginsburg, confirmed with 97? votes, despite being a proudly partisan liberal activist.

Maybe I just miss the day when I was young and naive enough to believe that there was any dignity left in politics.
9.29.2005 3:24pm
SimonD (www):
The more power that is drained out of the state legislatures, the less attention people will pay to getting good ones. Pour the lion's share of the power back into the states from the Federal government and the relative importance of the state governments will rise, and hence, the more scrutiny of their membership by the electorate. It was an interesting experiment, but if this is the best that Delaware, Massachusetts, Pennsylvania and so on can do with direct elections, I think it's time to let the legislature have a go. So my proposal is a 28th amendment that says:
§1
The 17th Article of Amendment is hereby repealed.

§2
Cl. 1 No person shall be a member of the United States Congress for more than twelve consecutive years in any fourteen years.

Cl. 2 Any person who would, if elected, during the course of their term violate §2 Cl.1, shall be ineligble for election.

§3
Cl. 1 The United States Senate shall consist of two Senators from each State.

Cl. 2 Each Senator shall be elected by a joint ballot of the legislature of the State which they will represent.

Cl. 3. For vacancies arising as a foreseeable consequence of the expiry of a term, the legislature will convene no later than six months before the opening of the Congress in which the seat shall be vacant, to fill the vacancy.

Cl. 3. No Senate seat will go vacant for longer than six months. If the state legislature cannot be called into session, or if they cannot agree upon a candidate within six months of an unforeseeable vacancy arising, the Governor of the State shall appoint a person, whose commission shall expire on confirmation of their successor by the State Legislature.

Cl. 5 No person will be elected to represent a state in which they have not resided for at least five years, nor who has not attained an age of 35 years.
9.29.2005 3:34pm
Justin (mail):
The more power that is drained out of the state legislatures, the less attention people will pay to getting good ones.

restated:

The more power you give state legislatures, the more attention people will pay to getting good ones.

::giggle::

PS Does anyone have gerrymandering statistics for state legislatures. In New York, they're worse than Congress. In DC (where I now live), the question is, err, moot.
9.29.2005 3:37pm
SimonD (www):
You consider them more liberal because they just "don't get" something that's so obvious to you.
You can be far more liberal than me without violating the constitution. What you can't do is pretend that using the courts to advance such an agenda is compatible with an oath to support and defend the constitution.

I have no problem with the notion of debating whether abortion should or should not be legal in a state legislature. But the legal argument about whether abortion is unconstitutional is absurd - it isn't, it never was. There are perfectly sensible, intelligent rational liberal reasons to be pro choice, with which I respectfully disagree. But to pretend that the constitution demands the debate be resolved through the courts - or that the court is a vehicle for social change - is absurd. Since that is the positiono taken by today's minority, we are left with the questions about motive presented in my previous posts.
9.29.2005 3:39pm
Justin (mail):
You can be far more liberal than me without violating the constitution. What you can't do is pretend that using the courts to advance such an agenda is compatible with an oath to support and defend the constitution.

I have no problem with the notion of debating whether abortion should or should not be legal in a state legislature. But the legal argument about whether abortion is unconstitutional is absurd - it isn't, it never was. There are perfectly sensible, intelligent rational liberal reasons to be pro choice, with which I respectfully disagree. But to pretend that the constitution demands the debate be resolved through the courts - or that the court is a vehicle for social change - is absurd. Since that is the positiono taken by today's minority, we are left with the questions about motive presented in my previous posts."

::sigh::. You keep proving my point. Incidentally, what do you think about Kelo? Against that, oh? Some might call you willfully blind to the text and meaning of the takings clause. Not me, though. You're more brilliant than at least 8 former supreme court justices, not to mention Kermit Roosevelt, Jack Balkin, Michael Dorf, and a ton of other law professors and other lawyers who finished at the top of their classes at the best schools in the country, all without ever ONCE reading the text of the constitution.
9.29.2005 4:03pm
David Berke:
SimonD,

Is it really "absurd"? Is it truly so lacking in any sense as to be patently illogical and fly in the face of any potential interpretation of the Constitution which has some basis in reality? That is a pretty strong statement, given the 9th Amendment. Which, even if you completely disagree as to whether it DOES mean what it says, or whether it SHOULD apply to the states, there is certainly an argument to be made that it does, and should, and would apply to something like Abortion. I will not reference the farcical notion of substantive due process.

Or is it just that you think it is the "wrong" interpretation? I would understand that position.
9.29.2005 4:13pm
SimonD (www):
They have their view on Kelo and the takings clause. That at least has some scope for debate, and I think is a very much distinct issue from the question of the function of the judiciary WITHIN the system. But to be sure, I disagree with anyone who thinks Kelo was correctly decided, for the reasons offered in Justice Thomas' dissent.
9.29.2005 4:13pm
SimonD (www):
David,
I recognize that there are some pretty strong arguments made that the ninth amendment creates unenumerated yet justiciable priveleges &immunities. J.R. Droddy and Randy Barnett have both made interesting and compelling cases for this idea. But I do not buy into either theory, and one thing that's particularly interesting about Droddy's essay is that he applies his "ninth amendment as haven of rights" theory to Griswold and Roe, and finds that even within his rubric, Roe was wrongly decided.

While I recognize, respectfully, the arguments that the ninth amendment protects unenumerated rights, I disagree, and I think the argument that it protects abortion is so wrong, so unfounded in any legitimating authority, that it does qualify as absurd.
9.29.2005 4:20pm
Unnamed Co-Conspirator:
SimonD, when you say "correctly decided," what are you referring to? The result -- which allows New London's use of its power of eminent domain to stand? Or the holding that the purpose of the taking by New London is one which is within the meaning of "public use"? If you mean the former, well, then Kelo was correctly decided, because the 5th amendment takings clause applies to the national government, not the states. Or are you a very recent convert to the substantive due process hocus pocus? The Court never should have reached the second question.
9.29.2005 4:30pm
SimonD (www):
restated:

The more power you give state legislatures, the more attention people will pay to getting good ones.
Uh...Well, yes. That's the point. People pay more attention to those matters which they feel have a great impact on their lives, and less to those matters which they feel have LESS impact on their lives. The relentless march towards centralization and homogenization, the erosion of the states, has made state government seem less important than federal government. Reverse that trend, and people will pay more attention.

Of course, some people will continue not to vote in any elections, and I feel confident that we can ignore those people just as ably if they are not voting in state elections as if they are not voting in federal elections.
9.29.2005 4:31pm
SimonD (www):
UCC-
What I mean is, I would have found that the taking was, per se, not for public use, and therefore a violation of Kelo's priveleges and immunities as a U.S. citizen. Specifically, the fifth amendemnt's guarantee that a citizen may not have their land taken by government without compensation and that if it is taken, it must be for public use not simply to be given to another private entity as was the case in Kelo.

Saying that another private owner of the land will (may!) generate more tax revenues is not a public use - the money accrued from said taxation may well be put to a public use, but the taking itself is not a public use. Such a tenuous standard of abstracted-but-quasi-connected public use would essentially void the public use subclause, by leaving it without intelligble content, because virtually ANYTHING could then be deemed public use. What would the standard exclude?

I flat-out reject substantive due process, and I read the Balkin article that I think you're referencing. I didn't agree with it. ;)
9.29.2005 4:40pm
Mark H.:

The implication of "their audience, such as it is" would be that their audience is relatively small.


I'm sorry, I could have been clearer and more complete; you'd have had to have been a mind-reader to determine the following expansion on the thought:

Their audience is still fairly large; I meant the "such as it is" in relation to the likely small percentage of that audience that relies solely on the MSM for breaking news at the old prescribed times -- their captive audience. Thus, a Friday night timing of the announcement precludes the MSM from getting the first bite at the apple of casting the demeanor of the nominee -- except to a relatively small number of people 3 days later.


But if their audience is relatively small, surely, by definition, they aren't mainstream? What is the definition of "mainstream" other than in the middle of the public?

That some subset of the population and their audience, still chooses to rely only on the MSM broadcast media for news, I don't think is reflective of any particular ideology over another on the part of that audience.
9.29.2005 4:43pm
WB:
Ever play the game of "read the last 5 comments and then guess what the topic of the post was?"
9.29.2005 5:29pm
Nobody (mail):
SimonD, if we're going to amend the constitution, we should try to make our amendment conform to standard English grammar.
9.29.2005 6:28pm
Robert West (mail) (www):
Claude - I wouldn't say that Feinstein has "no problem voting against a perfectly appropriate nominee"; I'd say that she defines "perfectly appropriate" differently than you do. She's made it very clear, for many years now, that she does not consider a nominee appropriate who she is not certain will support the precedent in Roe. While I suspect from his answers that he will do so, I understand how, given her previous sentiments, she considers his position to be unclear and cannot bring herself to support him.

I suspect that her position is in line with that of the majority of the voters in her state; it is certainly in line with the position of the majority of voters in her partisan primary.
9.29.2005 8:41pm
Robert West (mail) (www):
SimonD - I doubt very much, as a political matter, that you could consistently obtain the votes of fifty-one senators to reject every judge who endorses substantive due process.
9.29.2005 8:41pm
SimonD (www):
Robert,
I agree that it's very unlikely, particularly as the Federal judiciary becomes more and more conservative, and conservatives discover that actually, judicial fiat is kinda neat when its on their side rather than arrayed against them. See the kerfuffle over Ex rel Schaivo - it's fairly clear that conservatives are fairweather friends to the original understanding, and, uh, "fairweather enemies" of judicial activism.

By contrast, as liberal justices and liberal members of Congress become more and more an endangered species, I suspect they will be more and more inclined to demand a return to the original understanding, and to castigate judicial activism. Such a reversal of the magnetic poles has happened before, and I see no reason why it might not again.

In any instance, I think it a worthwhile enterprise, even if an exceedingly difficult one.
9.29.2005 9:19pm
Puberty (mail):
"We learn a lot about the 22 knuckleheads who voted against him -- partisan hacks the lot of 'em."

If you want 100% agreement, move to Iran. You'd fit in there or in Sadaam's Iraq, or in Hitler's Germany. Why not run the adjective all together: "partisan knucklehead hacks." How refreshing &enlightening it is to hear ad hominems from the partisan out-of-touch extreme right-wing knucklehead hacks on this blog.
9.30.2005 12:46am
SimonD (www):
If you want 100% agreement, move to Iran. You'd fit in there or in Sadaam's Iraq, or in Hitler's Germany.


I disagreed with him too, but pray tell - are you familiar with Godwin's Law?
9.30.2005 1:10am
Puberty (mail):
SimonD:

Well thank you for introducing me to Godwin's Law. I try to avoid hyperbole except when I get really ticked off. But, Hilter did demand complete conformity and obedience from all the members of the Reichstag, or else. So, if the shoe fits ...
9.30.2005 1:27am
David Berke:
SimonD:

I'm going to have to agree with Puberty....that I'm glad you introduced me to Godwin's Law, that is too funny. (And sadly, true.)
9.30.2005 2:55am
Adam (mail) (www):
I just want to know when Republicans moved from demanding up-or-down votes on every nominee to just demanding "up" votes.
9.30.2005 9:16am