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Hillary Clinton to Vote "No" on John Roberts:
From Senator Clinton's press release:
  I have an obligation to my constituents to make sure that I cast my vote for Chief Justice of the United States for someone I am convinced will be steadfast in protecting fundamental women's rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches. After the Judiciary Hearings, I believe the record on these matters has been left unclear. That uncertainly means as a matter of conscience, I cannot vote to confirm despite Judge Roberts's long history of public service.
  . . . [B]ecause I think [Roberts] is far more likely to vote the views he expressed in his legal writings, I cannot give my consent to his confirmation and will, therefore, vote against his confirmation. My desire to maintain the already fragile Supreme Court majority for civil rights, voting rights and women's rights outweigh the respect I have for Judge Roberts's intellect, character, and legal skills.
  Am I right in reading this as an indication that Senator Clinton will vote against all Republican Supreme Court nominees? After all, the confirmation hearings for David Souter did not establish the convincing case that Senator Clinton seems to be demanding. For that matter, neither did the hearings for John Paul Stevens. Or Sandra Day O'Connor. Or Anthony Kennedy. Or Harry Blackmun. I assume that this means Senator Clinton would have voted against all of them, as well? Or is there a special rule for the Chief slot or fragile majorities?
Mr. P:
Still not sure what's wrong with that, but it would appear so.
9.23.2005 1:23am
Steve:
It might be a bit offensive to the Republicans to suggest that no Republican nominee will protect women's rights, civil rights, privacy rights, or the separation of powers. But I guess if that is the Republican platform, yeah, she's saying she'll vote against all of them.
9.23.2005 1:42am
Vladimir:
Orin,
In neither Stevens nor Souter case had the nominee had previously expressed strong far-right views that Roberts expressed during his tenure at Reagan and Bush Sr's administrations. I will not get into a never ending argument as to whether these views were his own or not, but at least there's a strong likelihood that Roberts indeed still has these views. Given that, Senator Clinton is entirely right to vote her conscience and reject him.
While I am not positive, I think that Democrats would have gladly approved of Stevens, Souter, or even Kennedy-like nominee; i.e, a nominee who would not have had a record of opposing values which are dear to Senator Clinton and to many others in this country.
Of course, Roberts will still be confirmed as Democrats really lost this battle in 2002 and 2004. They should start winning elections to reverse rightward tilt of the Court.
9.23.2005 1:53am
Justice Fuller:
Vladimir,

But if you take Clinton at her word -- namely, that she needs to be "convinced" that the nominee will be "steadfast" in his support for the views she thinks are important -- she would have voted against Stevens and Souter, right?
9.23.2005 1:59am
Vladimir:
Justice,
To be convinced, sometimes is enough to simply take a person at his word. If he has a record of being an impartial judge (like Souter) or even a moderate Republican (Stevens), it's quite possible for her to be convinced that they would not turn back the clock (at least, in her understanding) on values and rights which are important to her.
9.23.2005 2:02am
Justice Fuller:
Vladimir,

I think you are mixing up what we know of nominees now with what we knew of them at the time of their nomination. Here is a view of what was said about Stevens and Souter back when they were nominated:

http://soapbox.townhall.com/story/2005/9/15/101910/210
9.23.2005 2:14am
Vladimir:
Justice,
I think it is you who is mixing up the views of NARAL and NOW with the views (and votes) of the Senate democrats. If I am not mistaken, Stevens, Kennedy, Souter, and even Scalia were confirmed almost unanimously, despite their unclear record. As long as the nominee is in the mainstream (and sometimes even when he's not (i.e. Scalia)), a safe bet is that he'll be overwhelmingly confirmed despite opposition from the groups like NOW or Naral.
9.23.2005 2:20am
Rick Ballard (mail):
A very principled stand. One should expect nothing less from Senator Clinton, unfounded tales about cattle trading futures, Craig Livingston and FBI files, Travelgate, Whitewater, illegal meetings to plan a revamping of health care, White House sleepover sales, pardon sales, and general sleaziness notwithstanding.

I wonder if she advised Schumer on how to have staffers violate privacy laws wrt credit reports? Surely Chuck didn't think it up himself.

It was a throwaway vote as a sop to the base. You would think she had done enough for NARAL and the feminists just by standing by her man.
9.23.2005 2:34am
Eric Rosenberg:
She is going to vote against him because he would move the court in the opposite direction of "civil rights, voting rights and women's rights?" Yet she still respects his character and intellect? What the hell?
9.23.2005 3:58am
Phil (mail):
Is this even news? Viet Dinh and Michael Chertoff were confirmed to their DOJ (i.e. political appointee jobs) 96-1 and 95-1 respectively. Senator Clinton was the "1" in both votes. Why anyone thought she would vote for Roberts is beyond me, unless one believes that nonsense about how she has grown and moved forward.
9.23.2005 4:01am
Robert Schwartz (mail):
Doesn't want to alienate the base, which has gotten to be intensely ideological. Won't make it easier on her to win in '08.
9.23.2005 4:01am
Splunge (mail):
As a recovering Democrat, I have to say one of the more annoying side-effects of the current utter domination of the national political scene by the Republican Party is that actions by leading Democrats have become essentially entirely symbolic, devoid of any real consequences. Consequently those same leaders have largely degenerated into children, little better than blowdried news-anchors, fond of the empty gesture and high-dudgeon-mode tirade, losing completely any ability to make realistic and principled decisions. Harry Truman's shade must be weeping for what has been lost.

What a terrible shame. Somewhere out there are smart, capable, disciplined young Democrats who could provide a valuable counterpoint to the Republican party line, who could keep the national debate vigorous. But I expect they are prevented from rising to positions of leadership because of the clutter of insufferably boring and uninspired deadwood at the top -- e.g. the regrettable Senator Clinton -- which deadwood remains sadly unpruned by the fact that hysterical decisions are never punished by what would be their logical sequelae if they were other than merely symbolic.

Feh.
9.23.2005 4:29am
Rhadamanthus (mail):
At the risk of being attacked as a British idiot with no understanding of the legal system, if every Senator took Senator Clintons perspective, would that not lead to a court of moderates? By this I mean 9 men and women of the centre who discuss the best was to procrastinate and compromise? I have in mind a rumoured joke that the then Justice Rehnquist made at Conference one day- he passed a note to Justice Stewart with the grave stones of Justice Blackmun and Chief Justice Burger on- the former had "I hope the decision can be written narrowly" and the latter "I'll pass my vote for now".

While such a court may lead to harmony on the courT would it not deprive the judiciary of the brilliant polarising jobs that Justice Scalia does now and that Chief Justice Warren and Justice Douglas did in past generations?

While, for example, 9 (to cite one example) Justice Kennedys would probably have handed down Brown v Board of Education, I would be surprised if a middle of the road court would have followed it up with the required venom that was used in the Arkansas decision.

My convoluted point is this, isn't a court with 5/6 polarised judges (on both sides) and 3/4 moderate judges better than the 9 moderate judges that Senator Clinton seems to advocate?
9.23.2005 8:53am
Medis:
I suspect this is all part of the Democrats' grand strategy with respect to the next nominee. The idea is to make the Roberts decision seem like a close call, with Democrats coming down on both sides, all while they try to promote a certain standard of evaluation. The idea is: (1) to send a message to Bush that nominees like Roberts will be confirmable, but anyone more X [fill in your own favorite word--I like "Borkish"] will face serious opposition; and (2) to set up the argument with the American people that if Bush nominates anyone more X [Borkish] than Roberts, then he is intentionally trying to install the Taliban in America (or something like that).

To make that strategy work, you need to have "big name" Democrats coming down on both sides of the Roberts nomination, and I guess Clinton drew one of the "no" straws.
9.23.2005 8:54am
-anon-:
If Hillary runs for president in '08, she can say "I'm the one with the spine."

Makes her look "independent" and "strong" to her base.

To me, it makes her look like a slimmer, younger, hasn't-yet-killed-anyone version of Ted Kennedy
9.23.2005 8:56am
Scott Wood (mail):
Did Justices Breyer and Ginsburg's hearings actually reveal enough to honestly answer those questions? I don't know, but given the nature of those hearings, I would have guessed not.
9.23.2005 9:33am
erp (mail):
Hillary knows better. A senator's task is to confirm the president's nominees unless they are unfit. Obviously Roberts isn't unfit and neither will any of the other nominees Bush will send to them.

The worst part of the posturing among senators is that they send the message that they either don't know their duties or don't care about them. I can't really decide which I think the worse scenario.
9.23.2005 9:58am
Medis:
Scott,

Not that I feel a need to defend Clinton and Co, but at least in RBG's case, her views on most of the relevant issues were well-established outside of the hearings. Roberts is distinct in the sense that he has very little in the way of a paper-trail on his actual views (as opposed to with respect to the views of those he has represented as an attorney).

It is indeed a bit of a structural problem: if you believe nominees should not be too outspoken at the hearings because related cases may come before them, then by the time they are nominees it is too late to get much in the way of useful information about their views. And if for some reason a President were actually to prefer nominees without an extensive paper trail (I'm shocked, shocked, to find out there is gambling going on in here), then you could be left with no available sources of useful information.
9.23.2005 10:04am
Aultimer:
Very well put -anon-. The evangelical right has proven through 3 presidential elections that "turning out the base" is a superior strategy to "move to the center", so Clinton may not care how unappealing she is outside the base.

It's just sad that neither party cares to win by prevailing in an argument over whose political philosophy is best for the country as a whole.
9.23.2005 10:06am
Medis:
Erp,

From where are you getting that definition of the Senate's role in this process? I would note that the Constitution just says the President needs the Senate's "advice and consent" ... that seems to leave it up to the Senators' discretion what criteria they will apply when deciding whether or not to provide their consent. Of course, there is a historical practice of Senators being more deferential than that, but that is not a Constitutional requirement, and Presidents also periodically change their historical practices when they see fit.
9.23.2005 10:07am
Aultimer:

erp

Hillary knows better. A senator's task is to confirm the president's nominees unless they are unfit.


Cite?
9.23.2005 10:08am
Nalph Reas (mail):
This isn't some grand strategy. Never assume consipracy when stupidity will suffice. And Dems never cease to amaze with their focus on the short term. In this case, they are angling for short term campaign support from rabid liberal interest groups while giving up the judiciary in the long term.

It's fairly clear that the trend over the last 15 years has been for Democrats to politicize Supreme Court nominations on behalf of morons like Ralph Neas. 30 years ago, nominations went 99-0 or the like, today, you can barely count on a handful of Dems to vote for a nominee. I always found the willingness of Democrats to do this to be nothing short of amazing, because if things continued down the path they were going down, and there were straight political votes for every judicial slot, Republicans would feel very little need for consensus. The result is that Democrats will have helped bring about VERY conservative courts for the next 20-25 years (until today's nominees start to retire).

So be it. If your enemy is intent on committing suicide, DON'T STOP HIM.
9.23.2005 10:27am
NaG (mail):
The hearings were for show. They always are. I have a problem with a senator today imposing an ideological litmus test on nominees when prior Democrats gave clear assent to Justice Scalia and prior Republicans gave clear assent to Justice Ginsburg. If the Democrats want to push ideology that way, then they are merely encouraging the Republicans to nominate much more hardcore judges than Roberts. After all, if even Roberts can't get full assent, why bother looking for a "consensus candidate?" Might as well ask Republican senators to vote in lockstep on the next nominee, no matter what, and go with Janice Rogers Brown or something.
9.23.2005 11:04am
Vladimir:
Nalph,
What are you talking about? If Republican presidents are appointing VERY radical (conservative is a wrong word, imho), justices (i.e., bork, scalia, thomas, arguably roberts), and Democrats don't stand up, what would prevent the Court from becoming very radical. It is only Democrats' opposition that resulted in a relatively conservative Court. If Democrats don't oppose extreme candidates, Republican presidents would surely appoint the most radical judges they can find.
9.23.2005 11:08am
Vladimir:
Nag,
Ginsburg and Breyer were moderate nominees, whose names were proposed by none other than Orin Hatch, Republican Senator from Utah. It is unfortunate that the process of selecting judges is politicized, but it is primarily because Bush is intent on sharply bending the courts to the right. If anything, Democrats have been too complicit, in my opinion, confirming 97% of his nominees.
9.23.2005 11:11am
AKB:
You all miss the point. Hillary - Spousal Beneficiary, White Woman, Previleged, Liberal (who considers women who believe in life as wrong women) - is playing against other 08 contenders. Now all who will run in 08 will vote against Roberts: Biden, Kerry, Durbin, Feinstein, Obama, etc. If the Her Majesty, Spousal Beneficiary, voted for Roberts, she is a DOA (in primaries).

Q. E. D.

AKB
9.23.2005 11:30am
mkl:
From the perspective of simply trying to win elections going forward, it makes sense for the Democrats to vote against the SC nominees as a bloc. With the R majority Roberts and the next nominee can be confirmed on a party line vote. So the D need to look at their alternatives:

1. Vote for or against Roberts on his substantial merit, yielding a highly split D vote and a large majority to confirm. D message to voters: we kind of don't like this, but he's really ok and there's nothing to be done about it.

2. Filibuster. Unless the nominee is so bad as to be actually opposed by an electorially dispositive chunk of the populace (which is certainly not the case with Roberts) this looks extremist, obstructionist and harmful to the functioning of government, which is a real loser.

3. Vote against confirmation as a bloc. This does not stop confirmation, but sends a pretty clear message: this is not the guy we want, and if there were a few more D's in the Senate (or one in the White House) you would be getting a different nominee.

This is not to take a view against Roberts or in favor of the D's (I'm neither), but to point out the best way for them to play this in case voters might in fact be on their side.
9.23.2005 11:37am
Henry Woodbury (mail):
What's so bad about right leaning courts exactly?

When Clinton mentions woman's rights, I guess she's talking about abortion.

When Clinton mentions civil rights, I guess she's talking about affirmative action.

When Clinton mentions privacy rights, I guess she's talking about abortion again.

When Clinton mentions the appropriate separation of powers among the three branches, I think what she means is that congress should have unlimited power. Except on abortion, of course. Perhaps she wants to be Lord Protector.
9.23.2005 11:42am
Medis:
AKB,

Isn't Feingold a potential '08 contender?

Nalph,

Whether it is intentional or not, the Democrats seemed to have lucked into the most favorable possible position. As many commentators have pointed out, both consensus support for Roberts and consensus opposition to Roberts would have given the President a reason to nominate someone more conservative next time. In the former case, he could reason that he still had more room to work with before significant opposition appeared. In the latter case, he could reason that it simply didn't matter who he nominated, so he might as well go more conservative.

So, the only thing the Democrats could do that would not give the President such a reason is to split their vote. And that is what the Democrats are doing.

Of course, maybe they are too dumb to have reasoned this way ... but maybe after 5 years, they are starting to learn how to actually play opposition politics. And incidentally, I believe Leahy is specifically denying this theory, which suggests to me a greater likelihood that it is true.
9.23.2005 11:57am
Lab:
The past is a foreign country.
They do things differently over there.
9.23.2005 12:10pm
rico:
mkl, option 1 may be bad for the party as a whole, but it is an essential strategy for moderate Dems running for reelection in red states. This is a case of individual Senators voting their personal good instead of the good of the party.

And who can blame them? The blocks of party-line Dem voters - Blacks, Labor, College Professors - are growing smaller and weaker in relation to the country as a whole, so if a Dem Senator doesn't want to switch parties, and represents a moderate state, they are pretty much forced into this strategy.
9.23.2005 12:20pm
Anderson (mail) (www):
What a weird discussion.

Clinton says she thinks Roberts' memos accurately express his own legal beliefs.

She may or may not be right to think so, but since she does think so, she's being quite sensible to vote against him.

Or am I to understand that all Republican jurists are dismissive of civil rights, etc., and thus she would vote against any Republican? Are there supposedly no Republicans who care about preserving the gains of the 1960s?
9.23.2005 12:24pm
Bruce Hayden (mail) (www):
Hillary's problem right now is that Al Gore appears to be running in '08, and has better credentials with the rabid left than she does. For a long time, it looked like she could pretend to be centrist and appease the rabid left with a wink and a nod. But that recent online poll where she got beaten badly (without Gore involved) looks like a wake up call for her. No nomination without appeasing the militants.

None of the other potential Democratic nominees really have any choice in the matter either. It is just that she thought that she did. The hand writing has been on the wall for the rest of them since Dr. Dean forced almost the entire slate of Democratic hopefuls to oppose the war in Iraq by running so well a year and a half ago.
9.23.2005 12:40pm
Goober (mail):
Just according to the quote as presented, it only refers to (a) nominees for Chief, and (b) nominees in situations where many issues will be 5-4, the pro-Roe majority is slim, etc.
9.23.2005 12:44pm
WHerndon (mail):
Based on the things you write, Vladimir, I would probably characterize you as a 'leftwing extremist.' We could throw around terms all day -- yours are "very radical" and "extreme" -- but that only defines our own political identities. We've had this discussion here before. Terms like 'mainstream' are infinitely malleable. What you consider mainstream I may consider extreme, and vice versa.

To mind mind, the question is what does one do when two parties are separated by such a wide gulf in views. Does the minority ever owe some deference the majority any more? I thought so when Ginsburg was nominated, but if the Democrats are going to change the rules, so be it. Two can play at that game.

Medis, we shall see about the Democratic strategy, if there is in fact such a thing (I dont believe so). I would be surprised if Roberts got more than 10 Democratic votes (out of 45). We'll see if the press broadly characterizes the vote as "along party lines."

I would also argue that Roberts's views and paper trail are rather long and most everybody knows what his philosophy is. I zeroed in on Roberts as my top choice as O'Connor's replacement one month BEFORE the president nominated him.

What do I expect? I expect him to be conservative, but in an incremental, cautious way. Nor will he rely exclusively on conservative theories of originalism or textualism. He'll give quite a bit of deference to congressional legislation, but he's not going to allow Congress to extend the Commerce clause any further. He's not going to find a lot of new rights, either. If society wants them, he'll leave to to legislators to enact them, be it on gay marriage or other contentious social issues, but not at the expense of the conservative view of what "equal protection of the law" entails. I dont expect him to roll back Roe, but I could seem some more erosion.

I think Democrats know this. I doubt those that vote against him do not know this. They are saying that they don't know what his views are, but theydo. What they are really voting against is the (correct, in my view) suspicion that he will rule as I suggest. Which, by the way, wont make some conservaties happy ...
9.23.2005 12:54pm
Medis:
WH,

Your description of Roberts sounds plausible to me, although I think for me that mostly comes out of his testimony (my personal objection to Clinton, in fact, would be that I think if Roberts was not trying to be cute or misleading in the hearings, then we did get a pretty good idea of how he will approach various issues). The problem with his paper trail is that while it is voluminous, it mostly comes from things he wrote while working on behalf of others. That makes it hard to know what he personally believes, and in fact he specifically argued for this conclusion in his hearing testimony. What one really wants is court opinions, articles, speeches, and so forth, where the nominee is speaking purely about what he or she believes is the correct view of the issue in question.

Incidentally, I'm not sure what counts to the press as being "along party lines". But personally, I'd normally assume that means more than that most voters on one side were in one party, and most voters on the other side were in the other party. Instead, I would have thought meant virtually everyone in one party voted one way, and vice-versa.

So, for example, I would not say that the committee vote was "along party lines", because 3 of the 8 Democrats did not vote with the other 5. Similarly, if 10 Democrats vote for Roberts in the Senate, that would again not be "along party lines" to me. And, of course, these are not exactly idle distinctions: just a few Democrats voting for a nominee eliminates the possibility of a filibuster--and conversely, just a few Republicans voting against a nominee could kill it. So, votes that are not "along party lines" as I have defined it have real consequences.
9.23.2005 1:23pm
Steve:
The Democrats, as always, are a chaotic muddle. It's almost comical to see people speculate that they are all over the map on this vote as part of some master plan.
9.23.2005 1:33pm
Koba (mail):
Vladimir,

If you think Roberts was an extreme radical, how do you feel about Janice Rogers Brown? Because playing politics with Supreme Court nominations just made her the next nominee.

BOOOOOOOOOOSSSSSSSSHHHHHHHHHHH!!!!!
9.23.2005 1:37pm
Vladimir:
Koba,
Actually, I think Brown is not as bad as Roberts because she's more libertarian, and therefore, may have higher regard for privacy rights (and no, i don't mean abortion) and civil liberties. She'll never be nominated for the Supreme Court because she's not too pro-executive power for this White House.
And I said before that Democrats should start winning elections to move the Court in the direction they want it to move. Senate's role is pretty limited.
9.23.2005 1:41pm
Thorley Winston (mail) (www):
If Hillary runs for president in '08, she can say "I'm the one with the spine."


The problem with this though is by voting to filibuster previous judicial nominees while voting against Judge Roberts, should Senator Clinton someday become President Clinton, she has just given Senate Republicans more than sufficient reason to make sure that she is never allowed to appoint anyone to the Supreme Court.
9.23.2005 1:42pm
Thorley Winston (mail) (www):
If you think Roberts was an extreme radical, how do you feel about Janice Rogers Brown? Because playing politics with Supreme Court nominations just made her the next nominee.


I could see supporting a nomination for Judge Brown to the Supreme Court although I think that someone like Judge Luttig (who I believe holds similar views on federalism and has greater judicial experience) would probably be a stronger nominee.

Then again, why not both ;)
9.23.2005 1:45pm
Medis:
Steve,

Like I said, it could just be dumb luck that they ended up doing the one thing that does not give Bush a clear reason to appoint someone more conservative. Still, this is not exactly subtle or complicated, so perhaps even a Democrat could grasp the concept.

Koba,

If the Democrats had all voted against Roberts, you might have a point. But isn't the obvious implication of this split vote (intended or not) that if Bush appoints another Roberts, he gets an easy win, but if he appoints someone like Brown, he doesn't?
9.23.2005 1:56pm
Thorley Winston (mail) (www):
Right now the talley amongst Senate Democrats on the Roberts nomination is 12 declared "yes," 12 declared "no," and 20 without a declared vote.

You can find the breakdown here
9.23.2005 2:01pm
Vladimir:
Luttig has no chance of being confirmed, in my opinion. Democrats will filibuster him, and will be perfectly justified in doing so. He's a career politician who served in Reagan's White House and was known for his very conservative views. He's one of the most conservative jurists in the nation's most conservative circuit court.
He was the author of that opinion that sought to eliminate Miranda rights and was reversed 7-2 by the Supreme Court. He never ruled in favor of the defendant in death penalty habeas corpus proceedings (Prolly because of the personal traged, but still).
His appalling decision that the Executive can arrest and indefinetely held US citizens on suspicion of being an enemy combatant (Hamdi) was reversed by the Supreme Court.
In other words, he would be the most extreme judge Bush could nominate....Then, Bush may well do so.
9.23.2005 2:04pm
Thorley Winston (mail) (www):
Actually if Senate Democrats try to filibuster a Supreme Court nominee, two of the GOP signatories to "the Deal" (Warner and Graham) have already indicated that they would consider it to be a breach of the Deal and thereby free them to vote for the Byrd option.

Of course since the seven Democrat signatories have already breached the express terms of the Deal by not all voting for cloture on Judge Brown, the Republican signatories don't need to find a second reason to declare the Democrats in violation of their agreement.

Either way, if Democrats try to filibuster a Supreme Court nominee -- whether Luttig or someone else -- they can probably kiss goodbye any chance of being able to use it on any lower court nominees.
9.23.2005 2:13pm
Jeffrey King (mail) (www):
Hypothetically, if Senator Clinton is elected president, would she want her standard applied to her nominee? Hillary has worked against her own interests here. But, she is likely depending on the fact that the Senate's Republicans have historically been more principled in their advise and consent role: voting on the qualifications of a judge, not the political consequence of proper application of the law and Constitution.
9.23.2005 2:39pm
Medis:
Vladimir,

I'm pretty sure Karen Williams wrote the opinion in that Miranda case (Dickerson). I've recently read that opinion and it is hardly a fire-breather (it just argues that Miranda was not a constitutional case, and thus could be modified by Congress, which Congress certainly tried to do).

Jeffrey,

The GOP would have to come up with a politically-viable list of accusations they could bring against potential Clinton nominees. Maybe suggesting a judge would find a constitutional right to gay marriage would work, or arguing they would weaken homeowner's rights, but I am not sure what else would play well.
9.23.2005 2:58pm
Vladimir:
Medis,
You are right, Williams was the author of that opinion.
It's still remarkable that they (conservatives on the court) sought to render Miranda meaningless after 30 years, so it is "fire-breathing" in this sense.
The 4th Circuit is conservatives' equivalent of the 9th; so often you can predict the outcome of the case by knowing which judges will be on the panel.
9.23.2005 3:17pm
Medis:
Vladimir,

I think the problem in analyzing Dickerson is that Scalia's dissent (joined by Thomas) does in fact want to overturn Miranda. In the Court of Appeals, however, the issue was whether CONGRESS could overturn Miranda by legislation. Moreover, there was no question that Congress had tried to do so, but the issue had not been litigated because the DOJ had a policy against bringing arguments under the relevant statute.

I do think Williams may have overstepped a bit when reaching out to decide an issue that the DOJ did not want to present. Moreover, the Supreme Court did hold that she erred by holding that Miranda was not a constitutional case (while noting that language in some of their decisions supported that conclusion). But the result in the Court of Appeals was not a reconsideration of Miranda ala Scalia, but simply the application of a pretty clear Act of Congress.
9.23.2005 3:59pm
Attila (Pillage Idiot) (mail) (www):
Follow-up to Phil's point:

Is this even news? Viet Dinh and Michael Chertoff were confirmed to their DOJ (i.e. political appointee jobs) 96-1 and 95-1 respectively. Senator Clinton was the "1" in both votes. Why anyone thought she would vote for Roberts is beyond me, unless one believes that nonsense about how she has grown and moved forward.

Viet Dinh and Michael Chertoff had worked on the Senate's Whitewater investigation. Roberts was Deputy SG when Ken Starr was SG, and Starr went on to ... oh, you know.
9.23.2005 5:20pm
Oleg (mail):
Vladimir,

The Dems would certainly wish to filibuster Luttig, but (contingent upon a display of something resembling a spine by the Rs - always a dubious proposition) would find it almost impossible to do so.

Luttig is one of the most widely respected federal judges, embraced by conservatives, to be sure, but frequently praised for his brilliance by liberal law professors and exceptionally well regarded by SCOTUS members (more than 90% of his cleks have gone up to clerk for the Justices, including Breyer and Ginsburg - surely an endorsement of the kind of training the get in his chambers). In his academic accomplishments and professional career (SCOTUS Clerkship, OLC, etc.,) he is most like Roberts of the "short list" candidates. Also like Roberts (and contrary to erroneous assertions by the MSM) he has not publicly said or written word 1 about Roe. He has spoken most extensively on judicial restraint. Further, it is unlikely that his written record in gov't service establishes positions to the right of Roberts while working for Reagan (which I enthusiascally embrace by the way). True, he is considered to be more of a "movement conservative" than Roberts and somewhat less ecumenical in his aassociations. Overall, however, it is inconceivable that Warner (his homestate Senator) and Graham would not support him or sanction a filibuster of such an extraordinarily qualified nominee (this would not necessarilly be the case with more outspoken Judges such as JRB, Jones or Pryor). The Dems might want to filibuster but in the context of a high profile fight it would be almost impossible for most Red State dems to go along.

(In respect of extremism: It is very difficult to identify anything ever said or written by Luttig as anywhere like as outlandishly extreme as numerous positions taken by Ginsburg. Although you obviously are of the extreme left I would never presumue to ascribe such views to anyone who did not voulntarily embrace them. Still those on the left somehow tend to assume that anyone who disagrees with them is "extreme" and fail to place views in their apparent place on the ideological spectrum. I may find some of the views expressed by JRB eminantely sensible, but that does not mean that those views are in the judicial or political mainstream. One might disagree with Luttig's opinion in Hamdi [thoughtful conservatives have expressed reservations)but one would be hard pressed to characterize it as extreme, especially in light of the consurrence by two Clinton appointees).
9.23.2005 6:42pm
Banklawyer (mail):
Imagine the GOP using Hilary's rule, with a Democratic president and a Republican Senate majority: A moderate, very well qualified nominee will be rejected as such a person would favor judicial activism under the rubric of "expansion of freedom." Clinton's supporters would find such a vote as offensive. Which is why Hilary's concept is a hypocritical effort to justify short-term politics at the expense of the integrity of the Court and deference to a duly elected president.
9.23.2005 7:13pm
Thorley Winston (mail) (www):
Four more Senators have announced their votes with one more for (Nelson-FL) and three more against (Bayh-IN, Dayton-MN, and Stabenow-MI) bringing the totals to 69 for confirmation, 15 against, and 16 undeclared as of yet.
9.23.2005 7:25pm
Lab:
Imagine the GOP using Hilary's rule, with a Democratic president and a Republican Senate majority: A moderate, very well qualified nominee will be rejected as such a person would favor judicial activism under the rubric of "expansion of freedom." .

And you think Specter would reject such a nominee ?

Chafee ? Collins ? Snowe ?
9.23.2005 8:24pm
Rick Ballard (mail):
Thorley Winston,

It's becoming clear that all the Democratic Sentaors who gaze into the mirror each morning and murmur "Good morning, Mr/s. President" will vote against while all the Democratic Senators facing election in '06 in red states seem to think Roberts qualified to receive their vote. How amazing.
9.23.2005 9:11pm
Curtis Crawford (mail) (www):
Roberts' high level of intelligence, knowledge and love of the law, and his clarity and reasonableness as a legal thinker, would be invaluable additions to the Court. Nevertheless, all the Democrats on the Judiciary Committee complained, justifiably, that his views were unclear. This was partly because he resisted stands on abortion, privacy and civil rights that they regard as politically enlightened. But it may also be partly because they sensed a charade. He insisted that they view him as a lover of the law without political predilections or biases, yet he had willingly and enthusiastically participated in presidential administrations with strong policy goals.

The Democratic senators didn't believe his claim that the views he expressed in memoranda were always those of his "client," and never his own. He may be rarely able to reason with and learn from people of opposing views, but he cannot be the totally politically impartial person he claimed. Hence, the intensity of the question, What is he hiding? And, Is his claim of pure impartiality a cynical attempt to deceive us, or even worse, a self-deception?

His opening speech employed the striking metaphor of the judge as umpire, simply calling balls and strikes. But the Court is more like an umpire with the prior duty in many cases to decide the size of the strike zone.
9.23.2005 11:55pm
Thorley Winston (mail) (www):
He insisted that they view him as a lover of the law without political predilections or biases, yet he had willingly and enthusiastically participated in presidential administrations with strong policy goals.


And they in turn expected him to breach attorney-client privilege and/or work product in order to provide them with "essential documents."

BTW: what would be an example of a presidential administration without strong policy goals or is the new standard to disqualify anyone who worked for the executive branch or just those who worked under a Republican administration?
9.24.2005 1:10am