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Sat 23 Jul, 2005 09:57 am
July 22, 2005
A Year of Work to Sell Roberts to Conservatives
By DAVID D. KIRKPATRICK
WASHINGTON, July 21
For at least a year before the nomination of Judge John G. Roberts to the Supreme Court, the White House was working behind the scenes to shore up support for him among its social conservative allies, quietly reassuring them that he was a good bet for their side in cases about abortion, same-sex marriage and public support for religion.
When the White House began testing the name of Judge Roberts on a short list of potential nominees, many social conservatives were skeptical. In hearings for confirmation to the United States Court of Appeals for the District of Columbia Circuit, he had called the original abortion rights precedent "the settled law of the land" and said "there is nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
And they were frustrated, as many Democrats were this week, by his not having left a long record of speeches and opinions that laid out his views.
But with a series of personal testimonials about Judge Roberts, his legal work, his Roman Catholic faith, and his wife's public opposition to abortion, two well-connected Christian conservative lawyers - Leonard Leo, chairman of Catholic outreach for the Republican Party, and Jay Sekulow, chief counsel of an evangelical Protestant legal center founded by Pat Robertson - gradually won over most social conservatives to nearly unanimous support, even convincing them that the lack of a paper trail was an asset that made Judge Roberts harder to attack.
Both had been tapped by the White House to build the coalition for judicial confirmation battles.
Mr. Leo said that "there were certainly questions a year or two ago about whether John Roberts fit the president's standards as he set forth in his two campaigns" - a jurist in the mold of Antonin Scalia or Clarence Thomas - "but as we moved closer and closer to the period when a vacancy would occur people became much more educated and more comfortable with his background."
When conservatives expressed doubts, Mr. Leo said, "I would say, 'I know the man.' " Mr. Sekulow agreed, saying, "I have known John Roberts for 17 years. When I talk about John Roberts with the groups, it is not theoretical, it is based on firsthand, direct experience. He and I have argued cases together before the Supreme Court - you can't get more direct than that."
They made their case by recounting the briefs Judge Roberts had filed as lawyer for Republican administrations, including one arguing against the validity of the abortion rights precedent Roe v. Wade and another in support of allowing religious ceremonies at public school events.
Although Judge Roberts said at his confirmation hearings that his work as a legal advocate did not necessarily reflect his own views, Mr. Sekulow said he knew that Judge Roberts's heart was in it. "He doesn't argue just to argue," Mr. Sekulow said.
Mr. Leo said he, too, had known Judge Roberts for nearly 15 years in legal and Catholic circles and at the opera.
Mr. Leo said he told wary social conservatives that even though Judge Roberts had not ruled on abortion or other issues his other opinions showed "a respect for the text and original meaning and a presumption of deference to the political branches of government."
For example, Mr. Leo told allies, Judge Roberts had supported the administration's argument that executive privilege protected Vice President Dick Cheney's meetings about energy policy, and he had dissented against interpreting the Constitution's interstate commerce clause broadly enough to allow the federal endangered species act to protect a certain California toad.
Mr. Leo said such narrow and deferential rulings are "going to comport better" with the restrained role that social conservatives want judges to play on questions about abortion, gay rights or religious displays, which they believed should be left to elected officials rather than the Supreme Court, Mr. Leo said.
Judge Roberts's family life and religious convictions helped sell him to Christian conservatives as well. Both he and his wife, Jane Sullivan Roberts, were observant Catholics, Mr. Leo told other allies. They had joined a church in Bethesda to follow their priest, Msgr. Peter J. Vaghi, who was well known in the Washington area as an advocate of Catholic orthodoxy and opponent of abortion.
"For people like me who are reading the tea leaves, it is another marker that we can breathe easy," said Austin Ruse, president of the Culture of Life Foundation, a conservative Catholic group.
Ms. Roberts, who is also a lawyer, was equally well-connected in conservative circles. She has also been active for several years in Feminists for Life, an anti-abortion group that works largely on college campuses. From 1995 to 1999, she was the group's executive vice president, and she has donated legal services since then, an official of the group said.
Serrin Foster, president of Feminists for Life, declined to characterize Ms. Roberts' views but said the group's goals were "bigger" than ending abortion rights.
"If Roe were over, that's not enough for us," she said adding that the group's ultimate goal was to "make abortion unthinkable" by providing every pregnant woman and mother with adequate support and resources.
Supporters of Judge Roberts bolstered their case with the opinions of two leading legal thinkers in the movement to oppose abortion rights: Prof. Robert George of Princeton University and Prof. Hadley Arkes of Amherst.
Professor Arkes said he, too, had vouched for Judge Roberts with other social conservatives, partly on the strength of a personal acquaintance with him and on a longer acquaintance with his wife.
At a dinner with friends after Judge Roberts's appeals court confirmation, Professor Arkes said, he had suggested that nominees questioned about Roe v. Wade should turn the tables to put the senators on the defensive, asking them whether they understood the implications of the ruling. "He didn't rule it out, but he didn't think the hearings could be turned into that kind of seminar," Professor Arkes said.
He had presumed they both believed the decision should be overturned, Professor Arkes said, because they were with friends who shared that view. But he said Judge Roberts never said so explicitly. "He is a very, very careful guy."
On Wednesday, Professor George joined a conference call for reporters with James C. Dobson, founder of Focus on the Family, to discuss their support for Judge Roberts. They said they knew more about his legal thinking than conservatives had known about Justice David H. Souter, a Republican appointee and a disappointment to them.
"I think that we do know a lot about Judge Roberts, from his life, from his record, from the things he has stood for," Dr. Dobson said.
He continued: "We believe the issues we care about will be handled carefully by this judge."
Robin Toner contributed reporting for this article.
Bush's list of potential supreme court nominees
If you want to see the list of Bush's potentional supreme court nominees, consider the following:
Samuel Alito Jr
Age: 55
Education:
Princeton University, B.A, 1972
Yale Law School, J.D., 1975
Federal Judicial Service:
U. S. Court of Appeals for the Third Circuit
Nominated by George H.W. Bush on February 20, 1990. Confirmed by the Senate on April 27, 1990, and received commission on April 30, 1990.
Professional Career:
U.S. Attorney for the District of New Jersey, 1987-1990
Deputy Assistant U.S. Attorney General, U.S. Department of Justice, 1985-1987
Assistant to the U.S. Solicitor General, U.S. Department of Justice, 1981-1985
Assistant U.S. Attorney, District of New Jersey, 1977-1981
Law Clerk, Hon. Leonard I. Garth, U.S. Court of Appeals, Third Circuit, 1976-1977
Janice Rogers Brown
Age: 56
Education:
Cal State - Sacramento, B.A, 1974
UCLA Law School, J.D., 1977
University of Virginia, LL.M., 2004
Federal Judicial Service:
U. S. Court of Appeals for District of Columbia Circuit
Nominated by George W. Bush in 2003. Confirmed by the
Senate on June 8, 2005 by a vote of 56-43.
Professional Career:
Justice, California Supreme Court, 1996 - 2005
Associate Justice of the Third District Court of Appeal in Sacramento, 1994-1996
Legal Affairs Secretary to Governor Pete Wilson, 1991-1994
Associate, Nielsen, Merksamer, Parrinello, Mueller & Naylor, 1990-1991
Dpty Secretary & General Counsel, Business, Transportation & Housing Agency, 1987-1990
Deputy Attorney General, CA Attorney General's Office, 1979-1987
Edith Brown Clement
Age: 57
Education:
University of Alabama, B.A, 1969
Tulane University, J.D., 1972
Federal Judicial Service:
U. S. Court of Appeals for the Fifth Circuit
Nominated by George W. Bush on September 4, 2001. Confirmed
by the Senate 99-0 on November 13, 2001
Professional Career:
Law Clerk to Hon. H. W. Christenberry U.S. District Court, Eastern District of Louisiana
Jones, Walker, Waechter, Poitevent, Carrere & Denegre Associate & Partner
Miguel Estrada
Age: 44
Education:
Columbia College, B.A, 1983
Harvard Law School, J.D., 1986
Federal Judicial Service:
None
**Nominated in 2000 by President George W. Bush to fill a vacancy on the U.S. Court of Appeals, D.C. Circuit. Estrada
withdrew his nomination on September 4, 2003 after seven failed cloture votes.
Professional Career:
Partner, Gibson, Dunn & Crutcher LLP, 2000-present
Assistant to the Solicitor General, U.S. Department of Justice, 1992-1997
Associate, Wachtell, Lipton, Rosen & Katz, 1987-88, 1989-90, 1992
Assistant U.S. Attorney, U.S. Attorney's Office, Sthrn District of New York, 1990-1992
Clerk, Honorable Anthony M. Kennedy, U.S. Supreme Court, 1988-1989
Clerk, Honorable Amalya L. Kearse, U.S. Court of Appeals for the Second Circuit, 1986-1987
Emilio Garza
Age: 58
Education:
University of Notre Dame, B.A., 1969
University of Notre Dame, M.A., 1970
University of Texas School of Law, J.D., 1976
Federal Judicial Service:
U. S. Court of Appeals for the Fifth Circuit
Nominated by George H.W. Bush on April 11, 1991. Confirmed by the Senate on May 24, 1991, and received commission on May 30, 1991.
U. S. District Court, Western District of Texas
Nominated by Ronald Reagan on February 2, 1988. Confirmed by the Senate on April 19, 1988, and received commission on April 20, 1988.
Professional Career:
Judge, 225th District Court, Bexar County, Texas, 1987-1988
Private practice, San Antonio, Texas, 1976-1987
U.S. Marine Corps Captain, 1970-1973
Alberto Gonzales
Age: 49
Education:
United States Air Force Academy, 1975-1977
Rice University, B.A., 1979
Harvard Law School, 1982
Federal Judicial Service:
None.
Professional Career:
Attorney General of the United States, 2005 - present
White House Counsel to President George W. Bush, 2001-2005
Associate Justice, Texas Supreme Court, 1999-2001
Texas Secretary of State, 1997-1999
General Counsel to Governor George W. Bush, 1995-1996
Partner, Vincent & Elkins, Houston, TX 1982-1994
United States Air Force, 1973-1975
Edith Jones
Age: 56
Education:
Cornell University, B.A., 1971
University of Texas School of Law, J.D., 1974
Federal Judicial Service:
U. S. Court of Appeals for the Fifth Circuit
Nominated by Ronald Reagan on February 27, 1985. Confirmed
by the Senate on April 3, 1985, and received commission on April 4, 1985.
Professional Career:
Private practice, Houston, Texas, 1974-1985
J. Michael Luttig
Age: 51
Education:
Washington & Lee University, B.A., 1976
University of Virginia School of Law, J.D., 1981
Federal Judicial Service:
U. S. Court of Appeals for the Fourth Circuit
Nominated by George H.W. Bush on April 23, 1991. Confirmed by the Senate on July 26, 1991, and received commission on August 2, 1991.
Professional Career:
Counselor to the Attorney General, U.S. Department of Justice, 1990-1991
Assistant Attorney General, U.S. Department of Justice, 1990-1991
Principal Dpty Asst Attorney General, U.S. Department of Justice, 1989-1990
Private practice, Washington, DC, 1985-1989
Special Assistant to the Chief Justice, Supreme Court of United States, 1984-1985
Clerk, Chief Justice Warren Burger, Supreme Court of the United States, 1983-1984
Clerk, Hon. Antonin Scalia, U.S. Court of Appeals, D.C. Circuit, 1982-1983
Assistant Counsel, Office of the President of the United States, 1981-1982
Michael W. McConnell
Age: 50
Education:
Michigan State University, B.A., 1976
University of Chicago Law School, J.D., 1979
Federal Judicial Service:
U. S. Court of Appeals for the Tenth Circuit
Nominated by George W. Bush on September 4, 2001. Confirmed
by the Senate on November 15, 2002, and received commission on November 26, 2002.
Professional Career:
Professor, University of Utah College of Law, 1997-2002
Professor, University of Chicago Law School, 1985-1996
Assistant to the Solicitor General, U.S. Department of Justice, 1983-1985
Assistant General Counsel, Office of Management and Budget, 1981-1983
Clerk, Associate Justice William J. Brennan, Supreme Court of the United States, 1980-1981
Clerk, Hon. J. Skelly Wright, U.S. Court of Appeals for the D.C. Circuit, 1979-1980
John G. Roberts
Age: 50
Education:
Harvard College, A.B., 1976
Harvard Law School, J.D., 1979
Federal Judicial Service:
U. S. Court of Appeals for District of Columbia Circuit
Nominated by George W. Bush on January 7, 2003. Nomination approved by the Judiciary Committee 16-3, confirmed by the full Senate on May 8, 2003 without a roll call vote. Received commission on June 2, 2003.
Professional Career:
Principal Deputy Solicitor General, U.S. Department of Justice, 1989-1993
Private practice, Washington, DC, 1986-1989, 1993-2003
Associate Counsel to the President, White House Counsel's Office, 1982-1986
Special Assistant to the Attorney General, U.S. Department of Justice, 1981-1982
Clerk, Assoc. Justice William Rehnquist, Supreme Court of the United States, 1980-1981
Clerk, Hon. Henry Friendly, U.S. Court of Appeals for the Second Circuit, 1979-1980[/b]
J. Harvie Wilkinson III
Age: 61
Education:
Yale University, B.A., 1967
University of Virginia School of Law, J.D., 1972
Federal Judicial Service:
U. S. Court of Appeals for the Fourth Circuit
Nominated by Ronald Reagan on January 30, 1984, to a seat vacated by John Decker Butzner, Jr.; Confirmed by the Senate on August 9, 1984, and received commission on August 13, 1984. Served as chief judge, 1996-2003.
Professional Career:
Professor, University of Virginia School of Law, 1983
Dpty Asst. U.S. Attorney General, Civil Rights Div, U.S. Department of Justice, 1982-1983
Editorial Page Editor, Norfolk Virginian-Pilot, 1978-1981
Associate Professor, University of Virginia School of Law, 1973-1978
Clerk, Justice Lewis F. Powell, Supreme Court of the United States, 1972-1973
Republican Candidate for U.S. House of Representatives from Virginia, 1970
U.S. Army, 1968-1969
--------------------------------------------------------------------------------
Others Mentioned As Possible Supreme Court Nominees:
Senator John Cornyn (R-TX)
Senator Orrin Hatch (R-UT)
Ted Olson
Priscilla Owen
Larry Thompson
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Bush Current Federal Court of Appeals Nominees
Susan Bieke Neilson
Nominated to: U.S. Court of Appeals, 6th Circuit
Status of nomination: Nominated 11/8/01; Hearing 9/7/04
Judge Terrence William Boyle
Nominated to: Court of Appeals, 4th Circuit
Status of nomination: Nominated 5/9/01; Hearing 3/3/2005
Thomas B. Griffith
Nominated to: U.S. Court of Appeals, D.C. Circuit
Status of nomination: Nominated 5/10/2004; Hearing 11/9/2004;
William Haynes
Nominated to: U.S. Court of Appeals, 4th Circuit
Status of nomination: Nominated 9/29/03; Hearing 11/19/03
Brett Kavanaugh
Nominated to: U.S. Court of Appeals, D.C. Circuit
Status of nomination: Nominated 7/25/03; Hearing 4/27/04
William G. Myers III
Nominated to: U.S. Court of Appeals, 9th Circuit
Status of nomination: Nominated 5/15/2003; Hearing 2/05/2004;
Henry Saad
Nominated to: U.S. Court of Appeals, 6th Circuit
Status of nomination: Voted out 10-9 6/17/04
Confirmed Bush Judges
Carlos Bea
Nominated to: U.S. Court of Appeals, 9th Circuit
Status of nomination: Confirmed 09/30/2003
Judge William Duane Benton
Nominated to: U.S. Court of Appeals, 8th Circuit
Status of nomination: Confirmed 6/24/2004
Voted out of Committee 4/29/2003
Larry Block
Nominated to: Court of Federal Claims
Status of nomination: Confirmed 10/2/2002
Jay S. Bybee
Nominated to: Court of Appeals, Ninth Circuit
Status of nomination: Hearing 2/05/03; Confirmed
Judge Connie Callahan
Nominated to: US Court of Appeals, Ninth Circuit
Status of nomination: Confirmed 05/22/2003
Professor Paul G. Cassell
Nominated to: U.S. District Court for the District of Utah, 10th Circuit
Status of nomination: Confirmed 5/13/2002
Michael Chertoff
Nominated to: U.S Court of Appeals, Third Circuit
Status of nomination: Confirmed 6/9/03
Steven Colloton
Nominated to: U.S. Court of Appeals, 8th Circuit
Status of nomination: Confirmed 09/04/2003
Voted out of Committee on 7/31/03
Justice Deborah Cook
Nominated to: Court of Appeals, 6th Circuit
Status of nomination: Confirmed 05/05/2003
Allyson Duncan
Nominated to: U.S. Court of Appeals, 4th Circuit
Status of nomination: Confirmed 7/17/2003
Mike Fisher
Nominated to: U.S. Court of Appeals, 3rd Circuit
Status of nomination: Confirmed 12/09/2003
Judge Roger Gregory
Nominated to: Court of Appeals, 4th Circuit
Status of nomination: Confirmed 7/20/2001
Richard Allen Griffin
Nominated to: U.S. Court of Appeals, 6th Circuit
Status of nomination: Confirmed
----------------------------------------
Confirmed 95:0 06/09/2005. Voted out of committee 10-9 on 7/20/04; Failed cloture vote, 7/22/04, 54-44; Renominated 2/14/05
Raymond Gruender
Nominated to: U.S. Court of Appeals, 8th Circuit
Status of nomination: Confirmed 5/20/2004
Peter W. Hall
Nominated to: U.S. Court of Appeals , 2nd Circuit
Status of nomination: Confirmed 6/24/2004
James Leon Holmes
Nominated to: Judge, U.S. District Court for the Eastern District of Arkansas
Status of nomination: Confirmed 7/6/2004
Confirmed by a vote of 51-46
Jeffrey Howard
Nominated to: Court of Appeals, 1st Circuit
Status of nomination: Confirmed 4/23/2002
Professor Michael McConnell
Nominated to: Court of Appeals, 10th Circuit
Status of nomination: Confirmed 11/15/2002
David W. McKeague
Nominated to: U.S. Court of Appeals, 6th Circuit
Status of nomination: Confirmed
Confirmed 96:0 06/09/2005. Renominated 2/14/05; Voted out of committee 10-9 on 7/20/04; Failed cloture vote, 7/22/04, 53-44
Michael W. Mosman
Nominated to: U.S. District Court for the District of Oregon
Status of nomination: Confirmed 09/25/2003
Justice Priscilla Owen
Nominated to: U.S. Court of Appeals, 5th Circuit
Status of nomination: Confirmed 5/25/05
Confirmed by 56-43 vote; Renominated 2/14/2005; Voted out of Committee on 4/21/05
There have been four failed cloture votes: May 1, 2003: May 8, 2003; July 28, 2003; November 14, 2003;
Judge Barrington Parker
Nominated to: Court of Appeals, 2nd Circuit
Status of nomination: Confirmed 10/11/2001
Judge Edward C. Prado
Nominated to: U.S. Court of Appeals for the 5th Circuit
Status of nomination: Confirmed 5/1/03
William H. Pryor, Jr.
Nominated to: Court of Appeals, 11th Circuit
Status of nomination: Confirmed
Confirmed 67:32 06/08/2005. Voted out of Committee on 07/23/2003
There have been two failed cloture vote: July 31, 2003 and November 6, 2003
Given a recess appointment to the Eleventh Circuit, 2/20/04
Renominated 2/14/05
Professor William Riley
Nominated to: Court of Appeals, 8th Circuit
Status of nomination: Confirmed 8/2/2001
Janice Rogers Brown
Nominated to: Court of Appeals, D.C. Circuit
Status of nomination: Confirmed
Confirmed 06/09/2005, 56:43. Failed cloture vote 11/14/2003; Renominated 2/14/05; Voted out of Committee on 4/21/05; Pending Senate floor
Judge Dennis Shedd
Nominated to: Court of Appeals, 4th Circuit
Status of nomination: Confirmed 11/19/2002
Judge D. Brooks Smith
Nominated to: Court of Appeals, 3rd Circuit
Status of nomination: Confirmed 7/31/2002
Judge William H. Steele
Nominated to: Federal district court
Status of nomination: Confirmed 3/13/2003
Jeffrey Sutton
Nominated to: Court of Appeals, 6th Circuit
Status of nomination: Confirmed 4/29/2003
Diane Sykes
Nominated to: U.S. Court of Appeals, 7th Circuit
Status of nomination: Confirmed 06/24/2004
Confirmed 06/24/2004
Timothy Tymkovich
Nominated to: Court of Appeals, 10th Circuit
Status of nomination: Confirmed 4/01/2003
Judge Franklin S. Van Antwerpen
Nominated to: U.S. Court of Appeals, 3rd Circuit
Status of nomination: Confirmed 5/20/2004
Judge Richard Wesley
Nominated to: U.S Court of Appeals, 2nd Circuit
Status of nomination: Confirmed 6/11/03
Victor J. Wolski
Nominated to: United States Court of Federal Claims
Status of nomination: Confirmed 7/10/2003
Roberts Listed in Federalist Society '97-98 Directory
washingtonpost.com
Roberts Listed in Federalist Society '97-98 Directory
Court Nominee Said He Has No Memory of Membership
By Charles Lane
Washington Post Staff Writer
Monday, July 25, 2005; A01
Supreme Court nominee John G. Roberts Jr. has repeatedly said that he has no memory of belonging to the Federalist Society, but his name appears in the influential, conservative legal organization's 1997-1998 leadership directory.
Having served only two years on the U.S. Court of Appeals for the D.C. Circuit after a long career as a government and private-sector lawyer, Roberts has not amassed much of a public paper record that would show his judicial philosophy. Working with the Federalist Society would provide some clue of his sympathies. The organization keeps its membership rolls secret, but many key policymakers in the Bush administration are acknowledged current or former members.
Roberts has burnished his legal image carefully. When news organizations have reported his membership in the society, he or others speaking on his behalf have sought corrections. Last week, the White House told news organizations that had reported his membership in the group that he had no memory of belonging. The Washington Post, the Los Angeles Times, USA Today and the Associated Press printed corrections.
Over the weekend, The Post obtained a copy of the Federalist Society Lawyers' Division Leadership Directory, 1997-1998. It lists Roberts, then a partner at the law firm Hogan & Hartson, as a member of the steering committee of the organization's Washington chapter and includes his firm's address and telephone number.
Yesterday, White House spokeswoman Dana Perino said Roberts "has no recollection of being a member of the Federalist Society, or its steering committee." Roberts has acknowledged taking part in some Federalist Society activities, Perino said.
The Federalist Society was founded in 1982 by conservatives who disagreed with what they saw as a leftist tilt in the nation's law schools. The group sponsors legal symposia and similar activities and serves as a network for rising conservative lawyers.
In conservative circles, membership in or association with the society has become a badge of ideological and political reliability. Roberts's membership was routinely reported by news organizations in the context of his work in two GOP administrations and legal assistance to the party during the contested 2000 presidential election in Florida.
But the society's alignment with conservative GOP politics and public policy makes Roberts's relationship with the organization a potentially sensitive point for his confirmation process because many Democrats regard the organization with suspicion.
Yesterday, a liberal organization that has been skeptical of Roberts's nomination said that the White House's description of his relationship with the society showed the need to take a close look at his background.
"As this episode makes clear, the Senate needs to go behind the glowing accounts of Roberts's record to figure out what he really thinks and what he really did," said Nan Aron, president of the Alliance for Justice, a liberal organization that has been critical of the Roberts nomination.
"What matters is whether he hung out with them and not whether he signed the form or wrote the dues check," said David Garrow, a law professor at Emory University. "What's important is the intellectual immersion."
The questions about Roberts's involvement with the society may come down to the meaning of the word "membership."
Roberts is one of 19 steering committee members listed in the directory, which was provided to The Post by Alfred F. Ross, president of the Institute for Democracy Studies in New York, a liberal group that has published reports critical of the society.
Among the others on the list are such prominent conservatives as William Bradford Reynolds, a Justice Department civil rights chief in the Reagan administration; Ethics and Public Policy Center President M. Edward Whelan III; and the late Barbara Olson, who was a Capitol Hill staff member at the time. Her husband, former U.S. solicitor general Theodore B. Olson, is listed as president of the chapter.
Federalist Society Executive Vice President Leonard A. Leo said that either he or another official of the organization recruited Roberts for the committee. Roberts's task was to serve "as a point of contact within the firm to let people know what is going on" with the organization. "It doesn't meet, it doesn't do a whole lot. The only thing we expect of them is to make sure people in the firm know about us," Leo said.
Membership in the sense of paying dues was not required as a condition of inclusion in a listing of the society's leadership, Leo said. He declined to say whether Roberts had ever paid dues, citing a policy of keeping membership information confidential.
Whelan, who has been a member of the Federalist Society but said he had no recollection of his own membership on the steering committee, said the society is tolerant of those who come to its meetings or serve on committees without paying dues.
"John Roberts probably realized pretty quickly he could take part in activities he wanted to" without being current on his dues, Whelan said.
These may seem like fine distinctions, but Roberts has insisted on them. In 2001, after he was nominated by President Bush for the seat he currently holds on the court of appeals, Roberts spoke to Post reporter James V. Grimaldi and asked him to correct an item Grimaldi had written that described Roberts as a member of the Federalist Society. In a subsequent column, Grimaldi wrote that Roberts "is not and never has been a member of the Federalist Society, as previous reported in this column."
Last Wednesday, the day after Bush announced Roberts's nomination, the officials working on the nomination asked the White House press office to call each news organization that had reported Roberts's membership to tell them that he did not recall being a member. Asked yesterday if the White House would have done so knowing about the leadership directory, Perino said "Yes."
Staff writer Michael Powell in New York contributed to this report.
Bush Met With Roberts 1 Day Before Ruling on Gitmo case
Monday, July 25th, 2005
Bush Met With Judge Roberts One Day Before Crucial Ruling on Guantanamo Military Tribunals
Bruce Shapiro, contributing editor for The Nation and a national correspondent for Salon.com. He also teaches journalism at Yale University. His latest article is at The Nation online and is titled "The Stakes in Robert's Nomination"
---------------------------------------------
As the Bush administration refuses to hand over documents written by Supreme Court nominee John Roberts, we talk to Yale University professor Bruce Shapiro about Roberts' crucial ruling on military tribunals for Guantanamo detainees, his views on abortion and much more.
Last week President Bush announced his nomination of Judge John Roberts to replace retiring Justice Sandra Day O" Connor on the U.S Supreme Court. Judge Roberts is a conservative who has served on the US Court of Appeals for the DC Circuit since 2003 and also served in the administrations of George HW Bush and Ronald Reagan. He is a longtime George W Bush supporter who donated $1,000 dollars to his 2000 presidential campaign.
Between 1989 and 1993, Roberts was principal deputy solicitor general, the government's second highest lawyer, under Kenneth Starr. Some Democratic senators have said they want to see all the documents drafted by Roberts when he served in the two previous Republican administrations in order to understand Roberts" views on issues such as abortion, workers' rights, women's rights, civil rights and the environment. Yesterday, the Bush administration said there would not be a blanket release of the documents and that they would instead would look at the requests on a case-by-case basis.
However, Roberts has argued in a number of cases that give clear indication of his stance on some of these issues. He wrote the governments' brief in a 1991 case in which the Supreme Court held that government could prohibit doctors and clinics who receive federal funds from discussing abortion with their patients. In his brief, Roberts wrote: "We continue to believe that Roe v. Wade was wrongly decided and should be overruled." In other cases, Roberts has argued that the Supreme Court should invalidate a federal affirmative action program; that the Constitution permits religious ceremonies at public high school graduations; and that environmental groups lacked the right to sue under the Endangered Species Act.
Roberts was also part of a three-judge panel that handed Bush an important victory the week before Bush announced Roberts nomination to the bench. In fact, the day before the ruling was issued, President Bush interviewed Roberts at the White House. The next day, the court released their ruling that the military tribunals of detainees held at Guantanamo Bay, Cuba, could proceed. The decision also found that Bush could deny terrorism captives prisoner-of-war status as outlined by the Geneva Conventions.
Tuesday WH Briefing: John Roberts and Iran-Contra
By Editors & Publishers Staff
Published: July 26, 2005 5:00 PM ET
NEW YORK
Virtually giving up, at last, on getting Press Secretary Scott McClellan to comment on the Plame/CIA leak affair, reporters at today's White House briefing concentrated on another hot issue, the Democrats' attempt to get the White House to release more of a paper trail on Supreme Court nominee John Roberts.
The White House says it will hand over more than enough documents, while the Democrats want more.
One emerging hot button issue revolves around the holding back of Roberts documents from his days in the Bush I administration as a deputy in the Solicitor General's office, on grounds of client-attorney privilege.
Of particular interest here, for some Democrats, is what advice Roberts might have offered leading up to President George H.W. Bush's pardon of Caspar Weinberger and others in the Iran-Control scandal.
But some feel that that client-attorney privilege argument may not hold, legally, so the White House may also be prepared to deny documents on "national security" grounds. This prompted perhaps the most pointed question of today's briefing (from a "Dana," presumably Dana Milbank of The Washington Post), who asked near the end of the session, "Do you consider Iran-Contra a national security issue?"
"I haven't even thought about that, Dana," McClellan replied, "to tell you the truth."
Here are excerpts from the official transcript related to the Roberts documents:
***
Q Do you plan to make any claims for executive privilege for any of those documents? We know you're -- you have some attorney client privilege concerns.
MR. McCLELLAN: Well, this was something we consulted with Chairman Specter about and Chairman Specter expressed his appreciation for what we are doing. We wanted to make sure that all appropriate information was getting to the Senate, so that they could move about in a timely and fair fashion on Judge Roberts' nomination. I think you need to look back at what you're referring to. There are seven former solicitor generals who have publicly expressed concerns when it comes to information related to attorney-client privilege. They rely on open, candid and thorough assessments or advice from their attorneys during the decision-making process, and you cannot have that if attorneys in the Office of the Solicitor General fear that that information might be disclosed.
Q What's the case law that establishes attorney-client privilege for the work of the Solicitor General's Office?
MR. McCLELLAN: There is ample case law that is available that --
Q Specifically.
MR. McCLELLAN: -- talks about the importance of government attorneys having attorney-client privilege. And I'll be glad to provide you that information. There is ample case law available.
Q Seth Waxman, himself, argued that the attorney-client privilege applies to the White House Counsel's Office, under the Clinton administration--and the courts found that that was not the case.
MR. McCLELLAN: The Solicitor General's Office comes under the Federal Records Act. The White House Counsel's Office comes under the Presidential Records Act. And under the Presidential Records Act, there is a presumption of disclosure. All of us who come here and work at the White House know that what we are doing is going to be disclosed publicly.
Q So that doesn't compromise the integrity of the discussions within the White House Counsel's Office, but it does the Solicitor General's Office?
MR. McCLELLAN: No, I'm saying there are two different acts that govern these issues, and that's why I was pointing back to what the solicitor general said when it came to the decision-making process in their office.
Q Does the solicitor general work for the people or the President?
MR. McCLELLAN: The solicitor general represents the U.S. government in issues. And so they are the attorney for the U.S. government.
Q How many documents fall under this category, and what are they?
MR. McCLELLAN: Fall under what category?
Q The attorney-client privilege. How many are you holding back, and what do they consist of, exactly?
MR. McCLELLAN: First of all, we're providing all appropriate information to the Senate. And I wanted to make that clear. That's why we went ahead and made this decision so that we could expedite that process at the Reagan Library to make that information available --
Q Right, but how many are you holding back?
MR. McCLELLAN: Wait, hang on -- available before they return so that they can get about moving forward on the confirmation process in a timely manner. We think that's important. And much of this information may not have been made available if it had gone through the normal review process.
Q How many are you holding back and what does it consist of?
MR. McCLELLAN: But in terms of the Solicitor General's Office, the White House hasn't seen or reviewed any of those documents. It wouldn't be appropriate for us to do so, for the reasons I just stated.
***
Q Wouldn't his later work be more relevant than thousands of pages of what he did 25 years ago?
MR. McCLELLAN: His work on the court is absolutely something for people to look at, the last two years that he has served on the D.C. Circuit Court of Appeals. And that's why I pointed back to the confirmation hearing process that he had been through previously
.
Q On the solicitor general documents, which you are not going to release, that is non-negotiable, the end of story, as far as the White House is concerned?
MR. McCLELLAN: I think we've made our views known.
***
Q Back to Roberts and the documents. Does the White House maintain that what it's doing now related to the DOJ and the Counsel documents is, in effect, expediting the process? It's not that these documents wouldn't be available to members of Congress in the absence of the White House's assistance?
MR. McCLELLAN: We are expediting the process when you're talking about the Reagan Library documents, absolutely.
Q Democrats are arguing that, in effect, however, those documents were in the process of being made public anyway, and that the documents at the Archives were available, thank you very much, and their argument is that they haven't gotten anything that they couldn't have gotten under themselves, and what they're seeking in the solicitor general's documents, they're being denied.
MR. McCLELLAN: Well, first of all, on the Reagan Library documents, there is a process that they are going through to make those documents available publicly, but it is a process that tends to make months. At a minimum, it takes weeks and weeks and weeks. I think everybody recognizes the importance of moving forward in a timely manner on this confirmation hearing.
And this is documents that we're talking about from 20 years ago . I mean, these documents essentially show a young White House staffer providing his legal analysis to support the President's agenda at the time. That's what these documents are. But we wanted to make sure that they had all the appropriate information they needed. And that's what this is about.
Q Did you waive any attorney-client privilege in the documents that are being released?
MR. McCLELLAN: I'm sorry, the documents that are being released?
Q Correct.
MR. McCLELLAN: Well, the documents in the Archives are all available publicly and the documents -- like I said, the documents at the Reagan Library, I mean, they're covered under the Presidential Records Act, and I think only documents that you're talking about that might not be disclosed would be related to issues of national security concerns or privacy concerns.
Q And you can't waive any attorney-client privilege under the solicitor general's documents -- is that right?
MR. McCLELLAN: Well, again, I expressed the views of the former solicitor generals and why they believe it's important to protect the attorney-client privilege, and members of the Senate have expressed that, as well.
Q But you would have the authority to waive it if you chose to do so?
MR. McCLELLAN: Again, what we're doing is moving forward and making available all appropriate information for the Senate to do their job and do it in an expedited fashion.
Q Can I just ask a quick follow-up on that?
MR. McCLELLAN: Quick.
Q Do you consider Iran-Contra a national security issue?
MR. McCLELLAN: I haven't even thought about that, Dana, to tell you the truth.
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A Supreme Sales Pitch
A Supreme Sales Pitch
There's only one problem with last week's supremely successful rollout of John Roberts as Supreme Court nominee. It was all too smooth. According to White House officials, Roberts impressed President Bush with his modesty, his Midwestern charm and his incremental approach to shifting the nation's legal landscape. One senior Bush aide pointed to Roberts's performance in his interview with the president in the White House residence, saying Bush was especially impressed with his "Midwestern humility." Another aide described Roberts's judicial philosophy as being a "humble" approach to the powers of the judiciary and insisted that Roberts was a mainstream conservative who could avoid Democratic attacks.
So how can anyone square the humble Judge John Roberts with the slash-and-burn administration official also known as John Roberts? According to his Reagan-era papers from the Justice Department, Roberts consistently argued in less-than-humble terms against Ted Olson, who was then assistant attorney general. Roberts's injudicious scrawlings (one accuses Olson of wimpishly kowtowing to liberals) relate to GOP bills in Congress that would have stripped the federal courts of their powers over such hot-button issues as abortion and school busing.
Is Roberts to the right of Olson and an Antonin Scalia-style flamethrower, as his Reagan-era advice suggests? Not in the eyes of the White House. According to Press Secretary Scott McClellan, Roberts's opinions were those of a youthful man. "I think what those files show is a young White House staffer helping to provide legal analysis in support of the president's agenda, of President Reagan's agenda," he told reporters on Wednesday.
That makes it all the more important to reinforce the original sales pitch for Roberts across Washington, even in parts of Congress that have no formal role in his confirmation. Even before Roberts was named as Bush's nominee to succeed Sandra Day O'Connor, the administration had recruited six House Republicans to oversee a pro-nominee campaign among House Republicans. Among those recruited: Rep. Mike Pence, chairman of the Republican Study Committee, a caucus of leading House conservatives, and Rep. Deborah Price, chair of the House Republican Conference. The goal is to create an "echo chamber" of support for Roberts, in hopes of countering the nominee's critics, a senior House Republican official tells NEWSWEEK.
With Congress in recess next month, House Republicans have been instructed to "fan out" on TV and radio and to speak out on Roberts during town-hall meetings with constituents. Among those briefing the congressional GOP on their Supreme Court talking points: Cheney, who met with the House Republican caucus in what was billed as a "theme meeting" on the court and other issues last Thursday night. On Wednesday morning, President Bush made a rare appearance on the Hill to lobby House Republicans on the proposed Central American Free Trade Agreement, but he also told the lawmakers that it was important to maintain GOP unity on other issues, including the court, according to the House GOP aide. Meanwhile, former Republican National Committee chairman Ed Gillespie, who is overseeing the administration's Supreme Court efforts from an office in the West Wing, has been coordinating strategy with House Republicans in person and over conference calls organized by the White House legislative-affairs staff.
For a White House often criticized for its poor congressional relations, the outreach is unusual. "The administration isn't leaving anything to risk," the House aide says.
Assessing the Reaction to the Roberts Nomination
This is a provacative commentary from a blogger---BBBHe's waited patiently for almost five years, and now -- finally -- President Gore, in his second term in office, has his long-desired chance to nominate a Supreme Court justice and so tip the court decisively in his direction. Thanks to the infamous 5-4 Supreme Court decision in 2000 that threw the disputed Florida vote recount to Gore, the Republicans still nurse bitter feelings. Five years later, they have no doubt that Election 2000 -- in which their candidate won the majority popular vote -- was stolen from them by the dreaded and hated "Democrat Court." Gore nonetheless seizes the moment, appears on national television in prime time, and announces his nomination of a sturdy-jawed woman of color, an exceedingly liberal lawyer, a Clinton favorite and former aide to Attorney General Janet Reno, whose name appears on the founding lists of Moveon.org (though she now claims she has no memory of "membership" in the organization). Soon after her nomination, it is reported that, in 2000, when the Florida case was in the balance, she paid her way to Florida and played a behind-the-scenes role on the David Boies legal team, worked in the shadows, and spent half an hour in a "very arcane discussion" with the busy then-candidate Al Gore. The people around Gore at the time now claim not to remember much about her role and are sure that means it was insignificant.
Okay, what would the Republican Party and the right-wing do (and I give you far less than three guesses)? First of all, their media universe would crank up to the decibel of a garbage truck smashing trash. Rush Limbaugh would be denouncing the "feminazi" Gore nominated and railing against her as the chief election-stealer of 2000; Fox would be fair-and-balancing her out the door; right-wing bloggers would be going nuts; right-wing think-tanks would be issuing position papers on the history of the filibuster and how to use it; the National Review would have a "Florida Court: Day of Shame" cover issue; the Republican National Committee would have issued scalding talking points on the question of whether this nomination was, in fact, a court-packing, future-election-stealing, impeachable offense; and in Congress, the Republicans would be demanding immediate investigations, refusing to attend congressional sessions on the nomination unless the Gore administration released the candidate's Clinton-era governmental papers and the full records of her role in the Gore Florida deliberations of 2000. They would, of course, be demanding that the President withdraw his nomination or face an unwinnable filibuster. And that would probably just be for starters.
It is remarkable really. If the Democrats were an actual opposition party, if they were really a party at all, the Roberts nomination would be an open-and-shut case, no need to consider Roberts' record on abortion or anything else. Why, after all, would a party that believed a presidential election had essentially been stolen from it by the Supreme Court in 2000 (and perhaps again in 2004 via voter suppression and other techniques in Ohio) agree even to consider the candidacy of a legal partisan who clearly had an unknown but all-too-real hand in taking the election from them, or do anything but demand the withdrawal of his nomination on the threat of a sustainable filibuster? As the other political party, don't they even care about futures elections? It seems, however, that the Democrats in Congress, after much shuffling and hemming and hawing, will take the sharpened razor handed them by the President and slit their own wrists.
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Tom Engelhardt, who runs the Nation Institute's Tomdispatch.com ("a regular antidote to the mainstream media"), is the co-founder of the American Empire Project and the author of The End of Victory Culture, a history of American triumphalism in the Cold War.
Manners and Morons
Manners and Morons
By Molly Ivins, AlterNet
Posted on July 29, 2005, Printed on July 30, 2005
http://www.alternet.org/story/23784/
Sheesh, all I knew about John Roberts was that everyone says he has lovely manners -- and already I was prepared to be against him. Knee-jerk liberal? No, congratulations to the White House, Sen. John Cornyn, Fred Thompson and everyone else involved in "managing" Roberts' confirmation process. Can't these people do anything without being devious about it?
My first reaction to Roberts was: "Sounds like that's about as good as we can get. Quick, affirm him before they nominate Bork, Bolton or Pinochet." A conservative with good manners and no known nutball decisions or statements on his record? Hey, take him. At least he's not (whew!) a member of the Federalist Society.
No such luck. Cornyn, who I would have sworn is not this stupid, apparently signed off on having the nominee "forget" he was a member of the Federalist Society, and Roberts obliged, which is strange considering his reputation for brilliance and a spectacular memory.
Turns out the guy is listed in the society's 1997-98 "Leadership Directory" as a member of its steering committee in Washington. How many steering committees have you been on that you've forgotten about?
The reason that matters is that the Federalist Society is the alpha-primo ultraconservative legal group in the whole country. Since we have only two years worth of Roberts' decisions on the bench (in itself unheard of for nominations to the Supremes), the information about how this society plans to steer the country can be very revealing of his positions.
So Roberts already looks disingenuous at best, and then the White House up and decides it's entirely too risky to let the public in on his record as a government lawyer and refuses to release documents requested.
Excuuuuuse me, that is public record. Roberts worked for us, he was paid by the taxpayers, this is not a matter of national security. Where does this White House get off pulling this kind of stuff? Right away, it looks like they're trying to cover something up. Lawyer-client privilege? Are they nuts? Everyone's first reaction is, so what's he guilty of?
As Jay Leno notes, this is an important job -- these are the people who pick the president. Of course we're entitled to know what the man's public record is.
So, now all we know about John Roberts is that he has nice manners and is being managed by a bunch of morons -- and he's willing to say what they spin for him. Then we start getting the record. He's defended the often violent Operation Rescue. He went to Florida to advise Jeb Bush during the 2000 election recount. Other Federalists, Timothy Flanigan (who's now in confirmation hearings for deputy attorney general) and Ted Olson (who became solicitor general of the United States) signed onto the brief to convince the Supremes to stop the count in Florida and install Bush. It's all classic, right-wing judicial activism -- the very "activism" they complain bitterly about if it doesn't fit their radical agenda.
Restrict the right of courts to end school segregation, slow down on enforcing laws against discrimination, divest lower courts of jurisdiction over school prayer cases, go easy on Title IX for women and so on. All that was when Roberts was a junior White House lawyer and the records were opened during the Clinton administration. The records from his time as assistant solicitor general during Bush I are what they're trying to keep under wraps.
The Wall Street Journal's editorial page (the People Who Don't Read Their Own Paper) tried to describe the Federalist Society as an anodyne debating society. No, it is not -- it is a radical right organization, which explains why the White House made calls to national media to deny that Roberts was a member.
Jerome Shestack, president of the American Bar Association in 1998, said, "So much of the society's leadership consists of active politicians and others whose slouching toward extremism is self-proclaimed."
The society is funded by millions of dollars from right-wing and libertarian foundations. It attempts to influence legal education and works with right-wing legal advocacy and litigation organizations.
Alfred Ross, of the Institute of Democracy Studies, explains that "through its own 15 practice groups, the society is busy developing new legal theories for every area of American jurisprudence, from civil rights law to national security law, international law, securities regulations law and so on. And if one goes through the publications of their practice groups, one can only gasp not only at the breadth of their agenda, but the extremism of their ideology."
The society has argued for the abolition of the Securities and Exchange Commission, severely limiting the Environmental Protection Agency, and rolling back gender equity laws (Title IX) and voting rights law. Its publications have criticized teaching evolution and attacked the principle of separation of church and state.
According to Ross, they recently launched a state judicial selection project to try to dominate the state, as well as federal, bench. This is all standard, ultra-right-wing claptrap. It's all about control.
If we can't shake loose the actual records on John Roberts, we certainly should pay attention to the group he's most identified with.
Molly Ivins writes about politics, Texas and other bizarre happenings.
View this story online at:
http://www.alternet.org/story/23784/
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