Supreme Court: Nomination Process
Supreme Court: Nomination Process
washingtonpost.com
Supreme Court: Nomination Process
Viet Dinh
Former Assistant Attorney General/Professor of Law, Georgetown University
Friday, July 22, 2005; 11:00 AM
President Bush 's new Supreme Court nominee, federal judge John G. Roberts , is now gearing up for confirmation hearings in the U.S. Senate. Roberts has been met by a mild response by Senate Democrats, and if he is confirmed he could be on the bench by October 3. What's the next step in the nomination process? How will Roberts' background help or hurt him before the Senate?
Georgetown University law professor and former Assistant Attorney General Viet Dinh , who was also a clerk for retiring Justice Sandra Day O'Connor , was online Friday, July 22, at 11 a.m. ET to discuss the latest on John Roberts 's nomination to the Supreme Court.
A transcript follows.
____________________
Washington, D.C.: Maybe a year or two ago, I heard you speak at a panel. I recall you expressed an opinion that, when vetting judicial nominees, in your opinion Roe v. Wade was settled law, and the question is not whether the potential judge agreed with that decision but whether s/he could follow that law.
Since that talk, Lawrence v. Texas was decided, reversing Supreme Court jurisprudence from less than 25 years ago.
Two questions:
(1) Given that, unlike district or circuit court judges, Supreme Court justices may overrule Supreme Court precedent, does your position that Supreme Court law is "settled" apply with equal force to Supreme Court nominees, or just to inferior court nominees?
(2) Has your position changed since the Supreme Court overruled Bowers v. Hardwick? That is, can Lawrence be taken as a sign that, since the Supreme Court could reverse itself given the chance, Roe could very well remain a viable issue to raise with nominees for Supreme Court vacancies?
Viet Dinh: A very good question, and my reply a year ago, incidentally, is the same reply that Judge Roberts gave to the senate during his confirmation hearings to the DC circuit.
1. Yes, it does apply. Lower court judges by constitutional design have no choice but to follow Supreme Court precedent. The question whether a Supreme Court precedent is settled, therefore, really turns on the Justices understanding of stare decisis, or the persuasive force of prior precedent. And here I think Judge Roberts and others are correct to say that the questions is settled. It may well be that other developments may prompt the Court to reconsider, but I think as it stands, the question is as settled as any in constitutional law.
2. No. The application of stare decisis to particular cases depends on the facts of the case as well as the vitality of the prior precedent. I do not think the Lawrence changed the doctrine of stare decisis but rather applied in a specific context.
_______________________
Washington, D.C.: Professor Dinh: As a former student of yours at GULC, it's great to be able to "talk" with you again.
It seems that President Bush's nomination of Judge Roberts is a "safe" choice, one that might meet less resistance in the Senate than other choices he might have made. How much of this decision do you think was guided by the likely view in the White House that they'll probably have another SCOTUS appointment to make in the near future when the Chief Justice retires, and that THAT'S the one that will be more in line with the Scalia/Thomas end of political philosophy?
Viet Dinh: Great to talk with you again, and it would be great to see you on our ever changing campus again soon. I think that the choice of Judge Roberts is such an obvious one that this is one of those moments in Washington when what you see is what you get. The President interviewed a number of candidates and chose the one whom he thinks is most qualified and whom he is most comfortable with. This second criteria should not be underestimated. It has been widely reported that President Reagan, after meeting Justice O'Connor, was so charmed that he made up his mind and cancelled other interviews. Justice O'Connor certainly has the personality and intellect to do that, just as Judge Roberts did I think. As to the next nomination, your guess is just as good as mine.
_______________________
Springfield, Va.: Although Judge Roberts is evidently not a member of The Federalist Society, he has spoken to society gatherings. Based on your experience at Justice, how do you explain that so many of the administration's judicial nominees (particularly at the appellate level) are in fact members of the society, have spoken at its conventions, etc.?
Viet Dinh: Many people of all political and jurisprudential stripes have spoken at Federalist Society gatherings, just as I have addressed the American Constitution Society, its more liberal counterparts. The Fed Soc exist in order to foster dialogue and debate, and there is no stigma or substantive implication to being a speaker. Otherwise folks like Walter Dellinger and Nadine Strossen--both of whom speak regularly at Fed Soc events--would be wrongly characterized. The fact that many judges and lawyers have spoken or attended Fed Soc events stems from the simple fact that it is the best game in town for intellectual exchange and, yes, for professional and political networking. Members generally believe in limited government and separation of powers, even though there is no official society policy or philosophy, and it's good to debate and challenge your ideas in a enriching context.
_______________________
Vienna, Va.: Why not have more female justices? This country seems to give lip service to diversity when the highest court in the land will only have one woman left on the bench. I'm a male, and I would be angry if my mother, aunt, sister, or wife get passed up for a job that she is fully capable because she a female.
Viet Dinh: What a great question. As you may know, I clerked for Justice O'Connor, who will go down in history as the first woman justice. But to me, she is just a good, honest judge who works hard to find enduring answers to the hardest questions of our day in the context of concrete cases. She especially bristled when in the 1980's a law professor published an article commenting on "the uniquely feminine" voice and approach of O'Connor. Her rejoinder, and that of Justice Ginsburg, is simply that a wise old woman thinks the same as a wise old man.
That said, I am sure you caught her reaction yesterday to the Roberts nomination: "He is good in every way, except he is not a woman." I do think that we have come to a time when gender certainly should not and hopefully does not matter. The fact that 2 out of the reported 5 finalists were women gives me good confidence in the impartiality of the process. So we will have to wait and see.
_______________________
Rockville, Md.: With Presidents seemingly wanting to leave their imprint on the future, do you see nominees for the Supreme Court being over 65 in the future? Over 60?
Viet Dinh: Folks always focus on age as a shorthand for longevity and impact on the Court. But even as shorthand, it is imperfect, because if longevity is what you are after, it should be expected time served on the court--that is, average life expectancy minus age. Compare that to average term on the court, and I think you find that someone in their early 60's would well be within the average zone. And let's not forget that it's impact that matters, not just longevity. So a very smart and influential justice may have more lasting jurisprudential effect in a short time than a long serving seat warmer.
_______________________
Washington, D.C.: It seems as though the conventional wisdom on Judge Roberts is that he seems conservative, but its impossible to know exactly what he will do once he's on the court. He argued, for example, that the Endangered Species Act should be re-examined as an acceptable exercise of commerce clause power, but he also defended the integrity of Lake Tahoe against development. A similar give and take seems apparent on abortion, and perhaps other issues. No one really seems to know what to make of him, beyond his being smart, capable and friendly.
I wasn't paying as much attention back then, but aren't David Souter and John Paul Stevens smart, capable and friendly? In the run-up to the nomination I know there was a lot of conservative hand-wringing about avoiding another Stevens/Souter. Isn't Roberts an incredibly dangerous choice by Bush? What assurances do you think he may have that Judge Roberts will end up as Rehnquist pt. 2 (as he is often portrayed) instead of Stevens pt. 2?
Viet Dinh: The quickest answer I can give you is that with John Roberts, what you see is what you get. Having known him for a number of years, I still don't know what he thinks about particular political issues, but I know that he has the most stable, unflappable, steady, and measured temperament imaginable. When confronted with concrete facts in a specific case, he will bring to bear his best reason and piercing intellect, and just call it as he sees it. How that will go down in history and how he stacks up with the rest of the Court, I think he would just rather leave to the pundits and historians.
Another fact that reinforces my confidence in his ability is that he has been in government service and has had a long career of confronting difficult issues and so will not be surprised when confronted again with the responsibility of deciding difficult questions.
_______________________
Atlanta, Ga.: I would like to know what kind of question the President could ask the Supreme Court candidate and would get a straight answer, but when the same or similar questions are raised before the Senate the candidate dodge or refuse to answer them? In short, is it possible the President already knows from the interviews he conduct where the candidate stands, specially when it come to some divisive issues, like abortion and affirmative action?
Thanks.
Viet Dinh: I can tell you point blank that during the two years when I was representing the Department of Justice in vetting and confirming judges that never once did I ask a nominee what his/her views are on abortion, the death penalty, affirmative action, or French cooking. Nor did I ever witness any nominee being so asked. That is because the President made clear that there is no litmus test. And the questions and their answers are not very helpful to discern how and how well a particular person thinks. Much better to ask questions like, what is your view of stare decisis; what do you do when you disagree with the policy behind a particular law; etc. These questions are more illuminating and do not ask the nominee to prejudge issues or cases that may come before him/her.
By the way, there is a check in the process, in case you don't believe my description of the vetting process. The senate judiciary committee questionnaire asks of every nominee whether he/she had been questioned during the vetting process about his/her views on controversial topics such as above.
_______________________
Laurel, Md.: Non-lawyer here, tell me if I'm off-base:
O'Connor became the swing vote in large part because she is a woman. She believed in conservative constitutional-constructionist principles; but also that real people would attempt to subvert them.
Conservative court critics have complained about the long list of "how many reindeer make a Christmas display secular" opinions the court has handed own recently. The reason this happens is essentially that O'Connor (rightly) believed that church-state separation issues are one arena in which elected officials will attempt to subvert constitutional requirements to the extent they can get away with it.
Viet Dinh: You are not necessarily off-base, but I think a lot of the pundits are for characterizing Justice as a "I know it when I see it" Justice, especially when it comes to church-state relations. The test she discerned from the cases is that of "a reasonable observer" which is derived from the centuries old standard of the "reasonable man." It is an objective test, and not one dependent on how an individual person or justice views a matter. Some may prefer a more stringent or more lax test, but I think it unfortunate that the pundits sometimes criticize her as rudderless.
One more comment. Justice O'Connor did not set out to be the middle vote, nor does she court that role. I think she finds herself, for a number of historical and jurisprudential reasons, as the median voter and therefore as the most important vote. But it is certainly wrong that she relished the position.
_______________________
Vienna, Va.: Thank you, Professor Dinh, for responding to my question about why not more female justices. As a Vietnamese-American yourself, you have contributed to the diversity of our judicial system. That I must acknowledge.
By the way, as a Vietnamese-American myself, I'm very pleased to see another Vietnamese-American fellow setting great examples for others to follow.
Viet Dinh: Thank you very much. Your comment bucks me up for the times when I am criticized and sometimes vilified for what I do or say. Just hoping to serve the country I love to the best of my ability, however limited that may be. Thanks.
_______________________
Viet Dinh: Toronto, Canada: Many Americans seem concerned that if Justice Roberts does get to be the new member of the SCOTUS that he will undo Roe v. Wade. Some Americans dread that. Others look forward to it. But, for a foreigner, like myself, the decisions of most concern would be decisions around the continued incarceration of the Guantanamo detainees. The proposed "trials" by military commission are so obviously unjust. The standards of evidence used there will, presumably, be just as much of a charade as that used in the determination that Murat Kurnaz was really an "illegal combatant".
The Bush administration is on the record, over and over again, over the necessity of the measures they used against the Guantanamo detainees, the risks they pose, their obvious guilt. But, near as I can see, just as Erik Saar reported, only a couple of dozen detainees match that description. Is it possible that the price of Justice Roberts nomination was that he help cover up this Bush administration vulnerability?
Viet Dinh: A good, if loaded, question. Let's remember that the decision of the DC circuit on the military trials was joined by two other judges. So there is obviously no reward and there is no cover-up, simply because there is no illegality. The important point is this: law and politics do not mix very well. What is politically charged, such as military detentions and Guantanamo, may not be legally wrong. It is often a fault of the political process to think of the law as an extension of politics. But good, honest judges like Judge Roberts should just apply the law regardless whether they agree or disagree with the underlying policy.
_______________________
Arlington, Va.: I read that Roberts's wife is anti-abortion - how might Roberts's own opinion of abortion impact the Court? Thanks.
Viet Dinh: Jane Roberts is a member of Feminists for Life, but I frankly do not know what Judge Roberts thinks about the issue. She is, of course, an accomplished lawyer and an independent thinker (hence Feminist) so I do not think we can or should impute her views to him. As to Judge Roberts' effect on abortion, please see my earlier answer on Roe v. Wade.
_______________________
McLean, Va.: I think an interesting question for Justice-select Roberts would be his attitude not toward Roe v. Wade but his attitude toward Griswold v. Connecticut. After all, THAT case, IIRC was the first recognition/construction of a Constitutional right to privacy. And it is on such a concept that much of the subsequent SC jurisprudence on controversial social issues such as homosexuality, abortion, etc. seems to rest, correct?
Viet Dinh: Great question, and I agree with you that Griswold v. Connecticut is the more relevant precedent on the meaning of substantive due process. But I think the issue there is even more settled than I described the state of law with respect to Roe v. Wade.
_______________________
Cabin John, Md.: Is it true that, up until now, conservative SC justices (Scalia, Thomas, Rehnquist) live in Northern Va., liberal justices live in D.C., and "swing" justices (O'Connor) live in the Md. suburbs? Thus, the fact that Roberts lives in Montgomery County means that we moderates can all rest easy?
Viet Dinh: An interesting geographical observation. And having formerly lived in Chevy Chase, I can say that good folks live there. Perhaps the more telling observation, however, is that in Wednesday's Washington Post, his neighbors said that he is just a regular guy with a very nice lawn that he cut himself (hopefully not in this heat).
_______________________
Anonymous: What was wanted was a 30 year old conservative Latino female with judicial experience but no paper trail. That is the closest they could get.
Is the key to getting on the Supreme Court is to not be one of the brightest, but one who is credentialed but quiet?
Viet Dinh: Am not sure that was the search criteria, but your question is a good one. Given the current political turbulence, I do not think that any one, no matter how spotless or unknown, can expect to get a pass. The outside interest groups are just too strident and sophisticated to let pass a great opportunity to energize their members, get publicity for their parochial causes, and gather donations. So the day of the the Stealth candidates are over, both because of the risk in nominating one and of the lack of advantage in confirming one.
Someone once said to me that every lawyer harbors the secret ambition of being a Supreme Court justice. If that is the case, then it is equally true that no lawyer, no matter what he does or how hard he tries, should expect a shot at being a Justice. So better just to practice your craft, live your life, and buy lottery tickets.
_______________________
Mt. Vernon, Va.: Why is it when Clinton nominated Breyer and Ginsburg, Republicans respected his right to do so, but whenever a Republican President (Nixon, Bush, Reagan) makes a nomination, the Democrats feel compelled to challenge? Can we conclude the GOP has a sense of right and wrong, while the Senate Democrats see everything as situational? Thanks for hosting the chat for us!
Viet Dinh: A good, if again loaded, question. I think the primary indicators of the confirmation process are (1) how strong the outside interest groups are both in generating public protest and in influencing Senator and (2) how disciplined is the caucus of the opposing party. I will leave it at that without further observation, as my luncheon appointment has arrived. Thanks so much for bearing with my immigrant English.
_______________________
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washingtonpost.com
Supreme Court: Nomination Process
Viet Dinh
Former Assistant Attorney General/Professor of Law, Georgetown University
Friday, July 22, 2005; 11:00 AM
President Bush 's new Supreme Court nominee, federal judge John G. Roberts , is now gearing up for confirmation hearings in the U.S. Senate. Roberts has been met by a mild response by Senate Democrats, and if he is confirmed he could be on the bench by October 3. What's the next step in the nomination process? How will Roberts' background help or hurt him before the Senate?
Georgetown University law professor and former Assistant Attorney General Viet Dinh , who was also a clerk for retiring Justice Sandra Day O'Connor , was online Friday, July 22, at 11 a.m. ET to discuss the latest on John Roberts 's nomination to the Supreme Court.
A transcript follows.
____________________
Washington, D.C.: Maybe a year or two ago, I heard you speak at a panel. I recall you expressed an opinion that, when vetting judicial nominees, in your opinion Roe v. Wade was settled law, and the question is not whether the potential judge agreed with that decision but whether s/he could follow that law.
Since that talk, Lawrence v. Texas was decided, reversing Supreme Court jurisprudence from less than 25 years ago.
Two questions:
(1) Given that, unlike district or circuit court judges, Supreme Court justices may overrule Supreme Court precedent, does your position that Supreme Court law is "settled" apply with equal force to Supreme Court nominees, or just to inferior court nominees?
(2) Has your position changed since the Supreme Court overruled Bowers v. Hardwick? That is, can Lawrence be taken as a sign that, since the Supreme Court could reverse itself given the chance, Roe could very well remain a viable issue to raise with nominees for Supreme Court vacancies?
Viet Dinh: A very good question, and my reply a year ago, incidentally, is the same reply that Judge Roberts gave to the senate during his confirmation hearings to the DC circuit.
1. Yes, it does apply. Lower court judges by constitutional design have no choice but to follow Supreme Court precedent. The question whether a Supreme Court precedent is settled, therefore, really turns on the Justices understanding of stare decisis, or the persuasive force of prior precedent. And here I think Judge Roberts and others are correct to say that the questions is settled. It may well be that other developments may prompt the Court to reconsider, but I think as it stands, the question is as settled as any in constitutional law.
2. No. The application of stare decisis to particular cases depends on the facts of the case as well as the vitality of the prior precedent. I do not think the Lawrence changed the doctrine of stare decisis but rather applied in a specific context.
_______________________
Washington, D.C.: Professor Dinh: As a former student of yours at GULC, it's great to be able to "talk" with you again.
It seems that President Bush's nomination of Judge Roberts is a "safe" choice, one that might meet less resistance in the Senate than other choices he might have made. How much of this decision do you think was guided by the likely view in the White House that they'll probably have another SCOTUS appointment to make in the near future when the Chief Justice retires, and that THAT'S the one that will be more in line with the Scalia/Thomas end of political philosophy?
Viet Dinh: Great to talk with you again, and it would be great to see you on our ever changing campus again soon. I think that the choice of Judge Roberts is such an obvious one that this is one of those moments in Washington when what you see is what you get. The President interviewed a number of candidates and chose the one whom he thinks is most qualified and whom he is most comfortable with. This second criteria should not be underestimated. It has been widely reported that President Reagan, after meeting Justice O'Connor, was so charmed that he made up his mind and cancelled other interviews. Justice O'Connor certainly has the personality and intellect to do that, just as Judge Roberts did I think. As to the next nomination, your guess is just as good as mine.
_______________________
Springfield, Va.: Although Judge Roberts is evidently not a member of The Federalist Society, he has spoken to society gatherings. Based on your experience at Justice, how do you explain that so many of the administration's judicial nominees (particularly at the appellate level) are in fact members of the society, have spoken at its conventions, etc.?
Viet Dinh: Many people of all political and jurisprudential stripes have spoken at Federalist Society gatherings, just as I have addressed the American Constitution Society, its more liberal counterparts. The Fed Soc exist in order to foster dialogue and debate, and there is no stigma or substantive implication to being a speaker. Otherwise folks like Walter Dellinger and Nadine Strossen--both of whom speak regularly at Fed Soc events--would be wrongly characterized. The fact that many judges and lawyers have spoken or attended Fed Soc events stems from the simple fact that it is the best game in town for intellectual exchange and, yes, for professional and political networking. Members generally believe in limited government and separation of powers, even though there is no official society policy or philosophy, and it's good to debate and challenge your ideas in a enriching context.
_______________________
Vienna, Va.: Why not have more female justices? This country seems to give lip service to diversity when the highest court in the land will only have one woman left on the bench. I'm a male, and I would be angry if my mother, aunt, sister, or wife get passed up for a job that she is fully capable because she a female.
Viet Dinh: What a great question. As you may know, I clerked for Justice O'Connor, who will go down in history as the first woman justice. But to me, she is just a good, honest judge who works hard to find enduring answers to the hardest questions of our day in the context of concrete cases. She especially bristled when in the 1980's a law professor published an article commenting on "the uniquely feminine" voice and approach of O'Connor. Her rejoinder, and that of Justice Ginsburg, is simply that a wise old woman thinks the same as a wise old man.
That said, I am sure you caught her reaction yesterday to the Roberts nomination: "He is good in every way, except he is not a woman." I do think that we have come to a time when gender certainly should not and hopefully does not matter. The fact that 2 out of the reported 5 finalists were women gives me good confidence in the impartiality of the process. So we will have to wait and see.
_______________________
Rockville, Md.: With Presidents seemingly wanting to leave their imprint on the future, do you see nominees for the Supreme Court being over 65 in the future? Over 60?
Viet Dinh: Folks always focus on age as a shorthand for longevity and impact on the Court. But even as shorthand, it is imperfect, because if longevity is what you are after, it should be expected time served on the court--that is, average life expectancy minus age. Compare that to average term on the court, and I think you find that someone in their early 60's would well be within the average zone. And let's not forget that it's impact that matters, not just longevity. So a very smart and influential justice may have more lasting jurisprudential effect in a short time than a long serving seat warmer.
_______________________
Washington, D.C.: It seems as though the conventional wisdom on Judge Roberts is that he seems conservative, but its impossible to know exactly what he will do once he's on the court. He argued, for example, that the Endangered Species Act should be re-examined as an acceptable exercise of commerce clause power, but he also defended the integrity of Lake Tahoe against development. A similar give and take seems apparent on abortion, and perhaps other issues. No one really seems to know what to make of him, beyond his being smart, capable and friendly.
I wasn't paying as much attention back then, but aren't David Souter and John Paul Stevens smart, capable and friendly? In the run-up to the nomination I know there was a lot of conservative hand-wringing about avoiding another Stevens/Souter. Isn't Roberts an incredibly dangerous choice by Bush? What assurances do you think he may have that Judge Roberts will end up as Rehnquist pt. 2 (as he is often portrayed) instead of Stevens pt. 2?
Viet Dinh: The quickest answer I can give you is that with John Roberts, what you see is what you get. Having known him for a number of years, I still don't know what he thinks about particular political issues, but I know that he has the most stable, unflappable, steady, and measured temperament imaginable. When confronted with concrete facts in a specific case, he will bring to bear his best reason and piercing intellect, and just call it as he sees it. How that will go down in history and how he stacks up with the rest of the Court, I think he would just rather leave to the pundits and historians.
Another fact that reinforces my confidence in his ability is that he has been in government service and has had a long career of confronting difficult issues and so will not be surprised when confronted again with the responsibility of deciding difficult questions.
_______________________
Atlanta, Ga.: I would like to know what kind of question the President could ask the Supreme Court candidate and would get a straight answer, but when the same or similar questions are raised before the Senate the candidate dodge or refuse to answer them? In short, is it possible the President already knows from the interviews he conduct where the candidate stands, specially when it come to some divisive issues, like abortion and affirmative action?
Thanks.
Viet Dinh: I can tell you point blank that during the two years when I was representing the Department of Justice in vetting and confirming judges that never once did I ask a nominee what his/her views are on abortion, the death penalty, affirmative action, or French cooking. Nor did I ever witness any nominee being so asked. That is because the President made clear that there is no litmus test. And the questions and their answers are not very helpful to discern how and how well a particular person thinks. Much better to ask questions like, what is your view of stare decisis; what do you do when you disagree with the policy behind a particular law; etc. These questions are more illuminating and do not ask the nominee to prejudge issues or cases that may come before him/her.
By the way, there is a check in the process, in case you don't believe my description of the vetting process. The senate judiciary committee questionnaire asks of every nominee whether he/she had been questioned during the vetting process about his/her views on controversial topics such as above.
_______________________
Laurel, Md.: Non-lawyer here, tell me if I'm off-base:
O'Connor became the swing vote in large part because she is a woman. She believed in conservative constitutional-constructionist principles; but also that real people would attempt to subvert them.
Conservative court critics have complained about the long list of "how many reindeer make a Christmas display secular" opinions the court has handed own recently. The reason this happens is essentially that O'Connor (rightly) believed that church-state separation issues are one arena in which elected officials will attempt to subvert constitutional requirements to the extent they can get away with it.
Viet Dinh: You are not necessarily off-base, but I think a lot of the pundits are for characterizing Justice as a "I know it when I see it" Justice, especially when it comes to church-state relations. The test she discerned from the cases is that of "a reasonable observer" which is derived from the centuries old standard of the "reasonable man." It is an objective test, and not one dependent on how an individual person or justice views a matter. Some may prefer a more stringent or more lax test, but I think it unfortunate that the pundits sometimes criticize her as rudderless.
One more comment. Justice O'Connor did not set out to be the middle vote, nor does she court that role. I think she finds herself, for a number of historical and jurisprudential reasons, as the median voter and therefore as the most important vote. But it is certainly wrong that she relished the position.
_______________________
Vienna, Va.: Thank you, Professor Dinh, for responding to my question about why not more female justices. As a Vietnamese-American yourself, you have contributed to the diversity of our judicial system. That I must acknowledge.
By the way, as a Vietnamese-American myself, I'm very pleased to see another Vietnamese-American fellow setting great examples for others to follow.
Viet Dinh: Thank you very much. Your comment bucks me up for the times when I am criticized and sometimes vilified for what I do or say. Just hoping to serve the country I love to the best of my ability, however limited that may be. Thanks.
_______________________
Viet Dinh: Toronto, Canada: Many Americans seem concerned that if Justice Roberts does get to be the new member of the SCOTUS that he will undo Roe v. Wade. Some Americans dread that. Others look forward to it. But, for a foreigner, like myself, the decisions of most concern would be decisions around the continued incarceration of the Guantanamo detainees. The proposed "trials" by military commission are so obviously unjust. The standards of evidence used there will, presumably, be just as much of a charade as that used in the determination that Murat Kurnaz was really an "illegal combatant".
The Bush administration is on the record, over and over again, over the necessity of the measures they used against the Guantanamo detainees, the risks they pose, their obvious guilt. But, near as I can see, just as Erik Saar reported, only a couple of dozen detainees match that description. Is it possible that the price of Justice Roberts nomination was that he help cover up this Bush administration vulnerability?
Viet Dinh: A good, if loaded, question. Let's remember that the decision of the DC circuit on the military trials was joined by two other judges. So there is obviously no reward and there is no cover-up, simply because there is no illegality. The important point is this: law and politics do not mix very well. What is politically charged, such as military detentions and Guantanamo, may not be legally wrong. It is often a fault of the political process to think of the law as an extension of politics. But good, honest judges like Judge Roberts should just apply the law regardless whether they agree or disagree with the underlying policy.
_______________________
Arlington, Va.: I read that Roberts's wife is anti-abortion - how might Roberts's own opinion of abortion impact the Court? Thanks.
Viet Dinh: Jane Roberts is a member of Feminists for Life, but I frankly do not know what Judge Roberts thinks about the issue. She is, of course, an accomplished lawyer and an independent thinker (hence Feminist) so I do not think we can or should impute her views to him. As to Judge Roberts' effect on abortion, please see my earlier answer on Roe v. Wade.
_______________________
McLean, Va.: I think an interesting question for Justice-select Roberts would be his attitude not toward Roe v. Wade but his attitude toward Griswold v. Connecticut. After all, THAT case, IIRC was the first recognition/construction of a Constitutional right to privacy. And it is on such a concept that much of the subsequent SC jurisprudence on controversial social issues such as homosexuality, abortion, etc. seems to rest, correct?
Viet Dinh: Great question, and I agree with you that Griswold v. Connecticut is the more relevant precedent on the meaning of substantive due process. But I think the issue there is even more settled than I described the state of law with respect to Roe v. Wade.
_______________________
Cabin John, Md.: Is it true that, up until now, conservative SC justices (Scalia, Thomas, Rehnquist) live in Northern Va., liberal justices live in D.C., and "swing" justices (O'Connor) live in the Md. suburbs? Thus, the fact that Roberts lives in Montgomery County means that we moderates can all rest easy?
Viet Dinh: An interesting geographical observation. And having formerly lived in Chevy Chase, I can say that good folks live there. Perhaps the more telling observation, however, is that in Wednesday's Washington Post, his neighbors said that he is just a regular guy with a very nice lawn that he cut himself (hopefully not in this heat).
_______________________
Anonymous: What was wanted was a 30 year old conservative Latino female with judicial experience but no paper trail. That is the closest they could get.
Is the key to getting on the Supreme Court is to not be one of the brightest, but one who is credentialed but quiet?
Viet Dinh: Am not sure that was the search criteria, but your question is a good one. Given the current political turbulence, I do not think that any one, no matter how spotless or unknown, can expect to get a pass. The outside interest groups are just too strident and sophisticated to let pass a great opportunity to energize their members, get publicity for their parochial causes, and gather donations. So the day of the the Stealth candidates are over, both because of the risk in nominating one and of the lack of advantage in confirming one.
Someone once said to me that every lawyer harbors the secret ambition of being a Supreme Court justice. If that is the case, then it is equally true that no lawyer, no matter what he does or how hard he tries, should expect a shot at being a Justice. So better just to practice your craft, live your life, and buy lottery tickets.
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Mt. Vernon, Va.: Why is it when Clinton nominated Breyer and Ginsburg, Republicans respected his right to do so, but whenever a Republican President (Nixon, Bush, Reagan) makes a nomination, the Democrats feel compelled to challenge? Can we conclude the GOP has a sense of right and wrong, while the Senate Democrats see everything as situational? Thanks for hosting the chat for us!
Viet Dinh: A good, if again loaded, question. I think the primary indicators of the confirmation process are (1) how strong the outside interest groups are both in generating public protest and in influencing Senator and (2) how disciplined is the caucus of the opposing party. I will leave it at that without further observation, as my luncheon appointment has arrived. Thanks so much for bearing with my immigrant English.
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posted by Eastlaw at 8:43 PM
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