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July 20, 2005

On John Roberts

Theres some pre-auto-defeatism going through the ranks of what passes for the left these days on Bush's choice for O'Connor's seat on the Supreme bench.

And yeah, Roberts may well be confirmed. But that's no reason to roll over. The only reason he's a consensus candidate is because the Democrats have rolled over so often in the past.

I'm not saying there's a chance in hell of blocking his nomination. But this guy is consistently to the right of Bork on unreasonable search and seizure, on privacy, on women's rights and minority rights and citizens' rights and non-Christian people's rights and the rights, in fact, of anyone who doesn't have the good fortune to be a large corporation.

For a good starting place on Roberts' general opinions, see Lauren's burgeoning series of posts, and Bitch, PhD's as well.

With regard to the environment, Roberts is one of the worst possible choices. (I know that's a dangerous thing to say, as he could be hit by a logging truck and we'd get someone even worse as a replacement. But still.) (And some of what follows will be familiar to people who follow me around the Internets, as I've cut and pasted from some comments I've made in other venues. You too can help conserve our nation's dwindling phoneme reserves.)

He's in the pocket of the energy and mining industries, for one thing. A note from the Center for Investigative Reporting:

In April 2000... John Roberts filed an amicus brief on behalf of the National Mining Association in the federal 4th Circuit Court to block a lawsuit filed by West Virginia citizens opposed to the coal industry's destructive "mountaintop removal" practice. Two years later, Roberts was nominated by President Bush and confirmed to the powerful DC Circuit Court of Appeals. In April 2004, as a judge on that court, Roberts ruled against environmentalists who were pushing for more restrictive government regulations over copper smelters--many of whose owners are members of the National Mining Association--that emit toxic lead and arsenic pollutants.

Most troubling to me at this point is his role in eroding the degree to which environmental organizations have standing to sue in court. Standing is the fulcrum of almost all environmental law. Unless one person deliberately pours poison on another or logs privately owned trees without permission, any environmental litigation depends on enviros being granted standing to sue.

This has been the case ever since Sierra Club v. Morton, in which the Sierra Club was granted standing to sue the Forest Service over a Disney resort at Mineral King in the Sierra Nevada. The club argued that it had standing because it existed to defend the Sierra Nevada. The Supreme Court, after slyly coaching the Sierra Club's lawyers, agreed the grant the Club standing if the Club showed that its members used the land in question. My friend Tom Turner wrote a good history of that case for Faultline.

In 1990, Roberts - as a lawyer working for the first George Bush administration - argued against a very similar environmental suit in Lujan v. National Wildlife Federation. In Lujan, the NWF was attempting to challenge the BLM’s “withdrawal” of public lands to lease to mining companies. Roberts argued - and the Supreme Court eventually agreed - that despite the NWF having shown that its members regularly used the land in question for recreation, - the standard the Supreme Court had set in Sierra Club v. Morton - the group had no standing to sue the BLM.

Critical work is being done by environmental lawyers in groups such as Earthjustice and the Center for Biological Diversity, suing government agencies to force them to enforce the law of the land - and suing corporations who decide that ignoring the health of the planet is in their short term interests. John Roberts gives every indication that as an Associate Justice on the Supreme Court, he will do what he can to make that important work much, much harder. This is no "moderate." Roberts is an extremist in the Gale Norton, James Watt mode. His confirmation may be a foregone conclusion, but progressives do themselves a disservice if they decide not to raise their voices.

You can reach your Senators through Via Michael Bérubé, you can read a position paper put out by the Alliance for Justice oppoing Roberts' elevation to the DC Circuit in 2003. The information is still current, for the most part. Read up on Roberts' stated positions on the environment, on Roe v. Wade, on separation of church and state, and then make your opinions known. This is serious.

[later] Oh, and this just in: apparently Roberts is also a snide little asshole. In his opinion in Rancho Viejo v. Norton, which considered whether a developer could be required to remove fencing on his property that restricted migration of the endangered arroyo toad, Roberts referred to the species as "[A] hapless toad that, for reasons of its own, lives its entire life in California."

That's some sobersided jurisprudence.

Jesse at Pandagon has Senator Chuck Schumer's list of questions for Roberts.

Posted by Chris Clarke at July 20, 2005 07:56 AM TrackBack URL for this entry:

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Hopefull, he will move closer to the center, as some conservatives have done, once he is on the bench

Posted by: Blue at July 20, 2005 09:33 AM
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I never did pass for the left.

Posted by: Roxanne at July 20, 2005 11:36 AM
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You're lefter than a lot of leftists I know, Rox.

But these days I think we're all gonna be Left Behind.

Posted by: Chris Clarke at July 20, 2005 11:40 AM
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He's a dick, no doubt about it. But he's a shoe-in. My favorite approach to his nomination is Amanda Panda's in which she says that we should make sure that America knows exactly what the radical Right represents. She talks about women's reproductive rights but bringing his odious environmental positions to the fore would be good too.

Posted by: eRobin at July 20, 2005 04:17 PM
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It's kind of a smörgåsbord with him! So many things to choose from!

Posted by: Chris Clarke at July 20, 2005 05:17 PM
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A couple thoughts here from a lefty lawyer and federal law clerk:

First off, I agree with you that Roberts is going to hurt a lot of important causes, like the environment for starters. I think your assessment of Roberts is fairly accurate overall. And I encourage readers to contact their congressfolks to express their disapproval.

That said, I have to agree with others who say Roberts' confirmation is pretty much a done deal, and from a purely strategic standpoint, the Dems are better off saving their ammunition for the next round.

It's extremely unfortunate, but this is a direct consequence of the fact that Bush won the election and the Republicans control the Senate. Those two facts mean the only choice the Dems have is the filibuster, and opposition to Roberts simply isn't strong enough to justify it at this point...

What to do? I don't know. I don't have any good answers. But I really don't agree with Billmon, the essence of his message being "act more like the Republicans."

I prefer to keep my integrity and decency intact, thank you very much. And if that means I'm not ruthless enough to yank away the reins of power in some deceptive and grossly immoral display of tactics, well then, so be it.

As I see it, nature has her own ways of contending with those arrogant enough to deny her power. I'll put my faith in love and good karma for now. Peace.

Posted by: Mike Anderson at July 20, 2005 05:46 PM
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I'm pretty sure I agree with you across the board, Mike. What I'm saying is that we need to keep the issues on the front burner, to encourage a thorough hearing and an honest vote. I agree that a filibuster wouldn't be worth the cost on this one, unless my prognostication is way off. Which is always a possibility.

But there's nothing wrong with Roberts being confirmed with a 55-45 vote in the Senate, is there? After a bunch of tough questions?

One more point: Chuck Schumer pointed out today on All Things Considered that while Clinton ran Breyer and Ginsburg past Senate Republicans before nominating them, Bush did no such thing. And Breyer and Ginsburg both had far more extensive judicial records then than Roberts does now. Even leaving partisanity out of it for the moment, a critical hearing is something the Democrats ought to insist on as a matter of due diligence.

Posted by: Chris Clarke at July 20, 2005 06:51 PM
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Absolutely Chris, I agree. Tough questioning is imperative at this point. For one, the answers he gives may well constrain him in some non-negligible ways. Even SC justices aren't immune to public opinion, and no justice wants to be known as the man who lied to Congress in his confirmation hearings.

I would particularly like to see Congress question Roberts re the limits of the Executive Branch's power in the war on terror. Roberts joined in the DC Circuit opinion of last week (Hamdan) dealing with tribunals at Gitmo. That opinion granted a huge amount of leeway to Bush, and how these cases are decided now will expand the Executive Branch's future power in ways we cannot know. (See the Balkinization blog for more insight into the importance of the case.)

If the Hamdan case is any indication of how Roberts will behave as a justice, that's highly disturbing, and Congress needs to pin him down in that area. Ironically, should that case come before the Court after Roberts is confirmed, he'll have to recuse himself! But that's only one case.

Posted by: Mike Anderson at July 21, 2005 05:47 AM
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I prefer to keep my integrity and decency intact, thank you very much. And if that means I'm not ruthless enough to yank away the reins of power in some deceptive and grossly immoral display of tactics, well then, so be it.

This is a fairly standard misreading of what Billmon advocates (and what I advocate as well). That "I want to stay above the fray" position looks to the general public like cowardice, no matter how noble it feels. And the Republicans won't not do something in future because liberals and Democrats "take the high road". Nobody on the left that I know of is saying "be Karl Rove". We are saying "play some smashmouth politics". Those things are different.

Just as a thought experiment, how has "taking the high road" and "staying above the fray" really worked for Democrats so far? Has it prevented the Republicans from doing even one thing they would otherwise have done? Is it winning elections? Is it preventing the despoliation of our country and the planet by the extremists who have taken over the Republican party? Has it increased the level of respect that voters feel for Democrats?

Posted by: paperwight at July 23, 2005 09:25 AM
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For anyone who hasn't seen it, this is the Billmon post I was referring to:

He clearly advocates adopting Republican political tactics book and verse.

Now, let me make a couple things clear: I do not advocate doing nothing, or that the Democrats should just continue on with business as usual. You rightly point out that this hasn't worked for the Democrats so far.

But if you ask me, it's possible to be a leader with integrity. The Dems' problem isn't that they aren't ruthless enough; the problem is that they are utterly spineless.

Need I remind you of how many Democrats -- the vast majority of whom knew better -- failed to oppose the invasion of Iraq? You recall, don't you, what a spineless pol Kerry appeared to be when he tried to defend his initial support of the war, while opposing it now? When it became clear that Kerry would win the nomination, Rove was licking his chops on this point, because he knew exactly how wishy washy it made Kerry look (and he was right).

Perhaps if the Democrats had the spine to put up someone who had actually opposed the war, and who could powerfully articulate all the reasons why it was so wrong, they could have won the election.

And that's just one example. There are so many people in this country who are just begging for someone to stand up and tell it like it is, to tell the truth about the Bush Administration. A lot of those people are undeniably progressive in nature, but they have become apathetic, and they don't bother to show up at the ballot box precisely because they find the Dems so flat and uninspiring. And frankly, it's hard to blame them (at least for not being inspired by the Dems -- there's not excuse at all for not voint).

We need a real leader, someone with heart and a voice, who can motivate those people to get off their asses.

There's an old axiom that says "Speak truth to power." The Dems were in power so long they forgot how to do that. Somebody needs to remind them.

Posted by: Mike Anderson at July 23, 2005 04:55 PM
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One comment about the toad thing - Roberts is evidently prone to a very strict interpretation of "the interstate commerce clause" of the constitution. By pointing out that the toad "lives its entire life in California", he was saying that because it is not involved in interstate commerce, the constitution gives the federal government no grounds to intervene in its fate.

Roberts is going to be a disaster not just for the environment, but for federal control and standards on anything that isn't strictly both interstate and commerce.

Posted by: Paul Tomblin at July 23, 2005 05:31 PM
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