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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, August 30, 2005 ::
    The audacity of Jones' reply is truly remarkable, given that the political costs this administration has incurred in promoting the interests of fundamental Christians in general and Bob Jones University in particular. A restrained reply to his petulant paranoia is attached for your review, telling Jones, in essence, to go soak his head.
    -- John Roberts to White House Counsel Fred Fielding, Jan. 4, 1984.

    I might have dropped "go soak his head," but "audacity" and "petulant paranoia" sound about right to me, given the context supplied here by Newsmax, a source not likely to be biased against the author of the letter Roberts was referring to.

    :: David M. Wagner 3:43 PM [+] ::
    And what in the world is a 'moderate' interpretation of a constitutional text? Halfway between what it actually says and what we would like it to say?
    -- Justice Scalia at Chapman University School of Law; courtesy of blogger Alex, USMC, at Law and Ordnance.

    :: David M. Wagner 2:14 PM [+] ::
    :: Thursday, August 25, 2005 ::
    I wish George Stephanopoulos wouldn't make such embarrassing statements.

    :: David M. Wagner 6:38 PM [+] ::
    :: Tuesday, August 23, 2005 ::
    Cody Herche at Legal Redux gives me a kind mention on the issue of Roberts and Romer.

    Having recently published here some dubitando material about Roberts, let me mention this about his involvement in Romer. There's a tendency to react to his five-hour moot-court participation as though it were tantamount to joining, if not writing, the actual opinion that came down in that case. This is an unwarranted leap, since the Court's opinion was broader than necessary. Not that I agree with this, but the Court could have viewed Amendment 2 as a strange new form of class legislation, void under Equal Protection without either heightened scrutiny or a finding of "animus."

    Is there a tape or transcript of that mooting session out there? If there is, and it surfaces, we'll really have something to pick apart. I expect it would show that Roberts did not at any point, directly or indirectly, suggest that counsel adopt as its theory of the case that the voters of Colorado are a bunch of bigots who can't act rationally even when (or who act irrationally especially when) deliberating over a state constitutional amendment. That's what the Court held, but I see no reason to think it's what Roberts coached counsel to say, and much reason to think it would be a very alien line of argument to him.

    :: David M. Wagner 4:27 PM [+] ::
    :: Monday, August 22, 2005 ::
    Captain's Quarters reports: In 1985 Roberts exhibited soundness of the 1977 Additional Protocol to the Geneva Conventions, which would have extended the privileges of combatant status to unlawful combatants. Hat-tip: NRO Bench Memos.

    :: David M. Wagner 1:54 PM [+] ::
    :: Saturday, August 20, 2005 ::
    The August 29 print National Review contains the most tepid endorsement of Roberts consistent with not opposing him:
    ....We hope that his nomination does not preclude future nominations of conservative jurists whose philosophical commitments are more overt.

    But to the extent we can glean his legal philosophy, we like what we see....
    In the same issue, Judge Bork writes:
    My real question for John Roberts is not whether he was an active member of the Federalist Society but why he wasn't.
    Ready for some good news about Roberts as a cultural conservative, and as capable of a Scalian snarky turn of phrase? Powerline reports on his views on Michael Jackson. Commenting from his perch at DOJ on the advisability of President Reagan giving an award to "Michael," Roberts wrote:
    If one wants the youth of America and the world sashaying around in garish sequined costumes, hair dripping with pomade, body shot full of female hormones to prevent voice change, mono-gloved, well, then, I suppose 'Michael,' as he is affectionately known in the trade, is in fact a good example. Quite apart from the problem of appearing to endorse Jackson's androgynous life style, a Presidential award would be perceived as a shallow effort by the President to share in the constant publicity surrounding Jackson.

    :: David M. Wagner 2:23 PM [+] ::
    :: Friday, August 19, 2005 ::
    The August 15 print edition of Human Events has arrived, and its theme appears to be Bad Stuff About Roberts. I blog this because I've been sunny about Roberts so far, and because I am haunted by the memories of the backflips I did when Justices Kennedy and Souter were going through their confirmation hearings. I feel I need to put a little pessimism on the record.

    1. To the Romer moot-courting, add some for Playboy.

    2. Did the Reagan Justice Department ignore Sandra Day O'Connor's pro-abortion voting record as an Arizona legislator? Roberts advised on the spin.

    3. Still feeling good because of all those "conservative" things the nominee has been caught saying over the years? Ann Coulter has done some research and dug up some equally "encouraging" quotes by David Souter when he was AG of NH.

    (Otoh, make what you will out of the grab-bag of old memos supplied by Bloomberg News here.)

    Have a nice weekend. And remember -- for all you know, this post may be part of a plot by Karl Rove to divide and demoralize the Left.

    :: David M. Wagner 3:38 PM [+] ::
    :: Thursday, August 18, 2005 ::
    Sen. Trent Lott has just published a score-settling book. What grabbed me in the CNN write-up about it was this, near the end:
    Later, as a law student at the same school [i.e. the Ole Miss], he remembered the visiting professors from Yale University, brought in to teach constitutional law.

    "Instead of making us more liberal, they helped create a generation of thoughtful, issue-oriented conservatives who grew up to run Mississippi politics," he wrote.
    Yes, Mother Yale gets the job done!

    :: David M. Wagner 9:37 PM [+] ::
    :: Tuesday, August 16, 2005 ::
    Headline in New York Newsday: Nominee Roberts, in '84, called equal pay for women 'radical'

    No he didn't. What he correctly called "radical" was the then-voguish theory of "comparable worth." Unlike "equal pay for equal work," the CW theory admitted that the types of work being compared were not the same, but then held that since they were of "comparable worth" they should be compensated equally. Obviously, the critical questions of which jobs were "comparable" in "worth" to which others would have been answered by a new bureaucracy called into existence by legislation implementing the CW theory.

    CW was laughed off twenty years ago, and not just by John Roberts. Until it became a question of attacking Roberts as a Supreme Court nominee, no one in twenty years has tried again the absurd move of equating "equal pay" with "comparable worth."

    CW did, however, make one valuable contribution to culture. It called forth a headline by Adam Wolfson, in an article in Policy Review: "Shall I Compare Thee to a Plumber's Pay?"

    :: David M. Wagner 5:44 PM [+] ::
    :: Monday, August 15, 2005 ::
    John Shelby Spong, the anti-Biblical polemicist who somehow spent 24 years as Episcopal bishop of Newark, during which time the Episcopal Church in Newark shrank by 40%, says in a recent interview:
    I really resent having the Christian faith being taken over by people who identify with hating gay people and abortion rights. The public face of Christianity is being shaped by Pope Benedict XVI, Pat Robertson and Jerry Falwell."
    Point of personal privilege: my faith has not been shaped by Jerry Falwell!

    :: David M. Wagner 11:51 PM [+] ::
    :: Friday, August 12, 2005 ::
    Well, I guess this spares me the trouble of fisking the NARAL ad.

    Thing is, though, it was no more dishonest than many of the ads, op-eds, and Senate speeches used against Bork. Lots of them followed the same script: focus on a dislikeable person or act on the side the nominee advocated for, or ruled in favor of, and then declaim based on the assumption that the nominee personally embraced that person or act.

    It looks like NARAL has actually been dealt a setback by msm folks who are ordinarily its friends. Of course, it may be a set-up, designed to make later attacks on Roberts (whether by NARAL or anyone else) look honest by comparison.

    Or, this may all really be about the next nominee, not about Roberts. Bob Novak:
    NARAL's approach was not meant to sway the Senate but to pick off nervous Democrats and perhaps a Republican or two, keeping Roberts as close to 60 votes as possible. The president and his closest advisers then would have to ask themselves: If a nominee as squeaky clean as John Roberts cannot do better than this, can we risk nominating another conservative for the next vacancy?...

    Luttig, Jones or Owen going on the court would cement a conservative majority. Any one of them likely would trigger a filibuster, either for chief justice or to replace Scalia, and the "nuclear option" might have to be pulled out of the closet for confirmation. Liberal hopes for Bush missing this golden opportunity could depend on how many Senators vote against Roberts, and that is reason enough to smear him as an abortion bomber.

    :: David M. Wagner 12:31 AM [+] ::
    :: Monday, August 08, 2005 ::
    So, how's the Roberts nomination faring?

    Generally: I think the "lesson learned" from '87 is that you're much more likely to win if you fight back. Somehow I doubt that would be news to Sun Tzu or Clausewitz, but apparently it was to Strom Thurmond, Orrin Hatch, Tom Korologos, and even, dare I say it, Robert Bork and Ronald Reagan.

    Case in point: in '87, National Review did an excellent cover story (by my son's godfather Richard Vigilante) about how great Bork is. This year, it did an equally fine cover story on what a buffoon Chuck Schumer is. See the difference? They're the issue this time.

    OK, let' s round up some reactions to the nomination.

    Ann Coulter reads it as a "stealth nomination." I love Ann and I know that to disagree with her requires activating the invecto-deflecto-shield. But there's at least one huge difference between Roberts and all three of the past GOP nominees who could be considered "stealth" -- O'Connor, Kennedy, and Souter. The difference is Washington experience. Roberts has it; so did Rehnquist, Scalia, and Thomas at the time of their appointments. When you come to a high federal position from Sacramento, Phoenix, or the White Mountains, it gets to you. When you've been there for over twenty years, you've been there and done that.

    Of course it matters what you've been doing during those DC years. In Roberts's case, to judge from his older memos that have been surfacing as part of the Reagan Archives, it appears he engaged in a number of rightwing snarkfests -- just like certain other young convervatives who came to Washington in those heady days, mentioning no further names. Click here and here.

    Then there's folks in a tizzy because Roberts once tossed in five pro-bono hours' worth of moot-court participation on the wrong side in Romer v. Evans. Come on, guys. Doing such a favor for one of your firm's clients is part of life in big Washington firms, especially when you are -- as Roberts is -- a world-class moot-courter.

    Second, and more importantly, this wasn't Lawrence, it was Romer. Ultimately I have no doubt as to the utter wrongness of the Court's opinion striking down Colorado's Amendment 2, nor as to Amendment 2's constitutionality under the 14th Amendment, but all should admit that a state constitutional amendment that places a category of citizens at a political disadvantage in pursuing favorable legislation is kind of a new animal in the constitutional zoo. It merited a close look and maybe a "Huh?" It was not just "gay rights," up or down. There were and are good arguments on the other side.

    Most conservatives are cluing in about this. Tony Perkins of the ever with-it Family Research Council issued this statement.

    Perkins alludes to a controversy about "the motives behind one of the main sources of the LA Times story who is no longer with the law firm and is now with a left-leaning advocacy organization in Washington." The Washington Times reported:
    "The goal of the left here was to try driving a wedge between conservatives and a nominee," said Leonard A. Leo, a conservative lawyer working with the White House to confirm Judge Roberts. "They have failed."
    According to the Times, the source, former Hogan & Hartson attorney Walter A. Smith, said:
    "This is somehow a plot to hurt John?" he asked incredulously. "How does this hurt him?"
    Oh, how cute. Imagine, a Washington lawyer and activist not knowing that a divided and uncertain pro-Roberts coalition would be more vulnerable to the filibuster strategy than a united one, and that in the wake of a rejection on Roberts, Bush would probably have less appetite for a fight rather than more.

    Actually, I can't imagine such a thing at all. But I can imagine the tactic not working, and I think Leonard Leo is right about that.

    :: David M. Wagner 7:55 PM [+] ::

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