Attorney Ed Weil of the California Attorney-General's office must've gotten a wee tired of all the fol-de-rol attending the latest effort to (re)-shape the U.S. Supreme Court in the image of the president's party, so he did what you might expect a lawyer to do. He took pen, or keyboard, to hand, and shot off the following to the S.F. Chronicle.
I'm thinking that maybe he'd like to see the conservative nominee, John Roberts, no relation to Julia so far as I know, be a bit more liberal if he's confirmed.
I'm expecting Roberts to act as a combination of moderate to conservative in a conservative direction, and am willing to take bets on that. Who knows, he may strike a blow for liberty some day, the way Justice Anthony M. Kennedy has in Lawrence.
Conservatives like liberty, especially for themselves.
It's when they extend it to the disfavored classes that conservatives shine. This is not something that happens every day, so when it does, it's remarkable.
When you launch a ship, you never know what seas it will sail and storms weather. The best you can hope for is a sound hull, sturdy crew, and wise captain.
Or, to switch the metaphor, the president as baseball team manager, waves to the bullpen for the new young phe-nom to come onto the field, as Sandy-babe is leaving the mound after pitching a tremendous game for a lot of innings. Roberts takes a few warm-up pitches before the Senate, and then starts dealing.
'Attababy, Roberts, right here, baby...
On another note, the Conlawprofs were discussing the significance of a nominee's membership in an organization such as the Federalist Society, which drew this response from DEB:
It's pretty foolish to ask about membership in the Federalist Society because from personal experience, I can tell you that members range from moderate conservatives (more moderate than, say, O'Connor or Kennedy) to Christian rightists to anarchist individualists.
Judicial philosophy ranges from Borkean anti-judicial review views to Randy Barnettian presumption of liberty.
In short, membership in the Federalist Society tells you nothing about a nominee except that he or she is not "on the left", which one presumes would be true about any Bush Supreme Court nominee.
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U.S. SUPREME COURT NOMINEE JOHN G. ROBERTS JR.
Rules to rule by
- Ed Weil
Monday, July 25, 2005
Here's a seven-point credo I'd really like to hear from John G. Roberts Jr., President Bush's nominee for the U.S. Supreme Court. The points are not about whether he is an "activist," or "in the mainstream," or whether he "sided with" anyone in particular. But these things are critical, on a more nonpartisan basis, for those of us practicing law in the trenches and for the general public trying to make sense of Supreme Court decisions. They apply to nominees by any president of any party.
No. 1: If judges and lawyers have disagreed about the meaning of a provision of the law for a hundred years, I won't claim that I have now divined its "plain meaning."
(The plain meaning of the law is the daily bread-and-butter of lawyers advising clients and lower court decisions. But if you could decide the case based on the plain meaning of the law, it probably wouldn't be in the Supreme Court in the first place. Give us a principled reason why the ambiguity should be resolved a particular way.)
No. 2: When I have a conference with my fellow justices, I'll debate the issues.
(Recent descriptions of the conference process suggest that there's no real debate, just each justice stating his or her views. There are nine of you for a reason, and it's to create a collegial body in which you all benefit from exchanging your views, even arguing. We know you all need to get along, but airing disagreements civilly comes with the territory. Sniping at each other in footnotes is a poor substitute.)
No. 3: I won't take gifts, travel, or honoraria from parties and associations with cases before the court.
(If a municipal court judge or a member of a local zoning commission wouldn't be allowed to do it, you shouldn't do it either.)
No. 4: Televising the Supreme Court's proceedings isn't a big thing either way.
(Some courts televise, some don't. If you don't, it's all public anyway. If you do, you'll get used to it.)
No. 5: I'll quote international authority if I think it's persuasive, but I don't have to do anything just because another country does it that way.
(People, legislatures and courts all over the world have valuable thoughts and writings that you might find persuasive. If you think someone else said it well, by all means refer to it, in order to give them credit for their fine work. But you don't have to do it just because someone said so, not even a little bit.)
No. 6: If I think an existing precedent is so clearly wrong that I just can't apply it objectively, I'll just say so and dissent.
(Don't dream up artificial distinctions or unreasonable narrowing provisions and claim that the current case is different from the precedent. Try to apply existing precedent fairly, but if you can't, just admit you don't agree with the precedent. That's a luxury you have on the Supreme Court.)
No. 7: The Framers of our Constitution knew they couldn't think of everything, so they deliberately adopted some very general principles that could be applied to a lot of situations.
(This is similar to No. 1, but recognizes that some of the language of the Constitution is deliberately vague. The Framers didn't have a specific intent as to every problem that arises. They were smarter than that. I agree with Phyllis Schlafly's recent statement that judges should call balls and strikes, but if the Framers had written the rules of baseball, a strike would be defined as "a reasonable pitch." The Framers made interpreting some parts of the constitution a tough job, but they did it on purpose.)
Ed Weil is a deputy attorney general for the state of California. These opinions are his alone.
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URL: http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/07/25/EDG4PDMIGL1.DTL
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