The Volokh Conspiracy

Will Roberts look to legislative history? I think so, for two main reasons.

First, when discussing an implied right of action case, he said that although he found a right of action to be lacking, the analytical question was whether Congress "intended" to a law to provide a private remedy. This approach differs from Scalia's, who would only find a private right of action if the statute clearly provides one. Second, Roberts said that legislative findings are important and helpful (context: discussion of abrogation cases).

Do y'all think Roberts will look to legislative history? (Please ignore the question whether he should, since that has been discussed in numerous other fora, and we all know the arguments pro and con.)

Not sure what my name is doing there in comment #2.

::Noted his respect for Scalia, saying that if Scalia changes his mind on a legal issue, it must be a very difficult area of law to navigate.

::Seems to be more of a formalist than most people probably give him credit for.

::Give him credit for navigating Griswold with care. He said he agrees with the conclusion, but not necessarily with the legal reasoning involved in reaching that conclusion. He even added that he supports marital privacy. However, he has indicated that he would support legal decisions he did not agree with. Thus, Roberts handled this question with great skill, so much so that the questioner was satisfied with his response and moved on.

I am more interested in your opinions of the Kennedy Roberts exchange. I think it was a total waste as Kennedy made his intentions clear before the testimony.

Also, what do you make of Kennedy not doing as he promised and not questioning Roberts handling of Katrina?

Does inane irrelevant pandering include Senator Sessions asking Roberts such difficult questions as "explain how our courts work"? He's having Roberts explain that an appellate judge reviews the law, but does not engage in fact-finding. I'm glad Sen. Sessions cleared up that the lawyers write briefs when they file an appeal.

Surprise - Roberts also thinks most amicus briefs are a waste of time. He called them "so-called" friend of the court briefs and somewhat comicly noted: "Some of them are even helpful."

I'd love Roberts to say "Roe v. Wade is already dead. Planned Parenthood v. Casey is the leading case on abortion."

When has an amicus brief served any purpose except for (1) the catalyst for a press release or (2) something to up the case credits of attorneys?

If you want a laugh, and wish there were a book called "Dave Barry's Guide to the Confirmation Hearings," take a look at Tom Goldstein's superb blog posts describing the start of Senator Biden's "questions."

Again, if Robert's doesn't follow a judicial philosophy, as Scalia/Thomas do, then Bush has either lied to the electorate about who he would nominate and/or Bush should immediately yank Robert's nomination. If he isn't _some_ type of originalist ala Scalia &Thomas, he isn't the promised goods.

Is it me or did Feingold just learn a lesson about playing with the big boys before he was ready?

I was half-expecting Feingold to resort to "pretty please" after his question was refused for the tenth time.

Yes, Bush lied, and for once I'm thrilled about it. This guy is no Souter, but he's no Thomas/Scalia either...that is, if he's telling the truth today.

So now Roberts is lying? It's either Roberts or Bush at this point....somebody is lying.

So now Roberts is lying?

He's not telling the whole truth, let's put it that way.
I find it difficult to believe that Roberts simply decided over the last eight weeks that every controversial thing he's ever written was wrong.

It's either Roberts or Bush at this point....somebody is lying.

I'm sorry?

My comment meant that either Roberts is lying or Bush lied.

And yes, I agree we're not getting the "whole truth." But his answers certainly make it seem not-so-likely he'll turn out like Thomas.

stillers_fan,

He did, I think- a Lindgren post?

Yup.

Sounds like Cornyn just cited VC's post regarding the three umpires.

Cornyn still has a long way to go in my book to make up for his comment that he "understood" why people would shoot judges for being so damn activist.

I think he endorsed Justice Jackson's analysis of Presidential war powers in Youngstown Sheet &Tube v. Sawyer. He wouldn't say whether it permitted Congress to stop a war that the President wished to continue, but he did say that it applied to most of the Presidential power issues to come up in the War on Terror and in the Iraq war.

That's interesting, because Justice Jackson's approach in Youngstown is certainly much more skeptical of Presidential power-- especially in the face of Congressional action-- than the Bush Administration's positions have been. For instance, a court following Justice Jackson's approach would be very unlikely to find that the President has the power to order someone tortured in violation of a Congressional statute and a Congressionally-ratified treaty, and that is the position that the Bush Administration took in the infamous "torture memo".

I think a lot of people have assumed that Roberts is going to be pretty deferential to the President's exercise of the commander-in-chief power based on his participation in the Hamdan case and the memos he wrote while in the executive branch. I am not so sure anymore-- the true conservative fetishists of executive power, the John Yoos and Clarence Thomases and Ruth Wedgewoods of the world, tend to think the Youngstown case was wrongly decided or should be narrowly construed.

" Bush said he would appoint strict constructionists, not Thomas-clones. Roberts, in my opinion, fits that description."

We are left to guess, since he claims he doesn't have a philosophy. Bush did lie. He said his favorite justices were Scalia and Thomas, and he'd appoint judges like them. Nobody expects a clone, but someone who rejects judicial philosophy as an academic vice is far from a Scalia or a Thomas.

We are left to guess, since he claims he doesn't have a philosophy.

"Claims" would be the key word there. And I fail to understand the fixation on the idea that Bush must have lied simply because Roberts didn't go Rambo on the committee.

Favorite moment of the day: the "illegal amigos" exchange.

Substantive due process....I wonder why Roberts would support such a broad notion. Too much discretion.

I agree that many amici are a waste of dead trees -- like many party briefs, for that matter! -- but it's important to note the ones that matter.

Obviously, the US SG briefs matter as "just amici," often more than the party briefs, depending on the party.

Next, State govt amici matter, both in the USSC, and maybe more so when a State files in its own Supreme Court, perhaps on a matter of State law in case in which the private parties' interests don't coincide with the State view. (Here, the State is more like the US SG is in the US SC). The USSC has asked about State amici at argument, and has cited them in decisions.

Next, certain institutional-player briefs do matter in certain cases. Probably the best recent example was the amicus in Bollinger, re U Mich affirmative action, by the retired military officers. Carter Phillips at Sidley wrote it, and the Court asked about it at argument, calling it Carter's brief.

Of course, even these players may sometimes waste a tree. And of course, the shrill interest-group amici, esp. in the cases with dozens of briefs, are silly, but that should not take away from the ones I've listed above.

And yes, I've written may. Some mattered, and some likely didn't. But the booklets look pretty.

Bush did lie. He said his favorite justices were Scalia and Thomas, and he'd appoint judges like them. Nobody expects a clone, but someone who rejects judicial philosophy as an academic vice is far from a Scalia or a Thomas.

I mentioned this a couple of days ago. You and I (at least) evidently misunderstood Bush on this one. Scalia and Thomas are originalists, textualists, and conservatives - at the best of times, in that order. With the Roberts nomination, and Roberts is unquestionably a conservative jurist, it seems to me that what Bush meant was, "I will appoint conservative justices, period". Bush looks at Scalia and Thomas and what does he see - originalists? D'you think Bush knows as much about the constitution as, say, Jeff Sessions? I think Bush looks at Scalia and Thomas and sees nothing other than what liberals see - two conservative justices. And nothing more.

Justice Scalia was one of the key figures when I was trying to work out my views on law and the constitution, and for me, the constitution comes before party line, but let's face it: the Bush administration and its supporters never saw a means they didn't like to an end they wanted, and it suddently seems depressingly clear that many of those who lionize Scalia know even less about his jurisprudence than those on the other side who demonize him.

I am far from impressed with Roberts so far. At best, he is another Rehnquist. At worst, he's another Kennedy.

Glum in Indiana.

"Even if Bush meant to appoint a Scalia/Thomas clone, as a political matter, such an appointee would likely be unconfirmable if it ever became publically known, and I really don't think that Judge Roberts could have kept that under wraps."

Bull. Absent a filibuster, a Scalia or Thomas like conservative would easily meet the 50 vote minimum. This isn't 1987 with Robert Bork going against a Democratic Senate.

I want to like Roberts. A lot of what he's written suggests he's a pretty solid conservative. But I don't want to have to guess. Why should Conservatives have to play Russian Roulette AGAIN (O'Connor, Souter, Kennedy)? Bush missed a golden opportunity in not appointing Scalia to CJ, where he could shred the Schumers and Bidens before the American people, and vindicate originalism.

Instead we get a guy pathetically running from his links to the Federalist Society, and refusing to identify himself with any judicial philosophy whatsoever. Forgive me if I don't have a "man crush" like Orin Kerr.

Even if Bush meant to appoint a Scalia/Thomas clone, as a political matter, such an appointee would likely be unconfirmable

You realize, of course, that Justice Scalia was confirmed by a 98-0 vote, right? The missing two were Barry Goldwater and Jake Garn, so let's call it unanimous. You realize that every Democratic member of the Senate voted for Justice Scalia, including Senator Kennedy, including Senator Leahy, and including Senator Biden?

If Scalia - and I find it doubtfull that we will see anything even approaching his like again - can be confirmed unanimously, why not any other originalist?

Superb comment by Stuart Buck:

Lots of people who aren't part of Bush's "base" in any meaningful sense voted for Bush precisely because they wanted him to pick Supreme Court Justices who would vote to overturn Roe.

A lot of Catholics, for instance. There were about 32 million Catholics who voted in 2004, and a majority voted for Bush...[W]hy did Bush improve his popularity among Catholic voters? Many of them were uncomfortable with the Iraq War, suspicious of Bush's tax and/or environmental policies, and, if anything, would historically have been part of John Kerry's "base." Why did they go for Bush[?]

...One reason: Bush’s promise to appoint Justices in the model of Thomas and Scalia, compared to Kerry’s promise to do the opposite. If Bush doesn’t make good on that promise, it won’t be just his “base” that is upset. He will also drive away any voters who were traditionally Democrats but who voted for Bush mainly because of his philosophy on judicial nominees.

I really just don't get why he won't answer questions on specific cases. Morrison, for example, has been decided. He sees the same exact record that the Court saw. He can judge it just like the Court -- if he wants, he can even read the oral argument transcript. So if he's got all the same info, what's wrong with saying how he would have voted?

Because it pre-judges future cases? But does that mean that all 9 justices in morrison were prejudging future cases? If they make their opinion known, why can't he? It makes no sense to me. Sure, they did it as part of a case-by-case, judicial decisionmaking process. But he has access to all of the same materials that they did. So why can't he just tell us how he would have voted? It's complete and total bulls**t that he won't.

And it's no answer to say that previous nominees did the same thing -- that just means that EVERYBODY is full of s**t.