Roberts renominated for Chief Justice

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Relevent to where I think many here would like to see the Court go, one of my favorite Law Profs, Randy Barnett, had the following commentary published in yesterdays WSJ.

Wall Street Journal (link may only be active for the next 6 days)
William Rehnquist

By RANDY E. BARNETT
September 6, 2005; Page A28

Last December, during my oral argument in the medical marijuana case of Gonzales v. Raich, the center chair normally occupied by Chief Justice William Rehnquist was empty. Without the towering, and sometimes glowering, visage of the Chief, with his no-nonsense demeanor and questioning, there was a palpable void in the courtroom that day. Now, with his passing, there is a void in the Supreme Court itself. Today we mourn the death of William Rehnquist. One day soon we may mourn the death of his legacy — the jurisprudence of the Rehnquist Court.

Even before becoming chief justice, often in lonely dissents, it was William Rehnquist who was most personally responsible for what is now called "the New Federalism" — the revival of the ideas that judiciary should protect the role of the states within the federal system and enforce the textual limits on the powers of Congress. Establishing the New Federalism took enormous effort and leadership by Rehnquist over many years. Now that legacy is in jeopardy.

At the founding, and for some 150 years thereafter, the limits on congressional power provided by the Constitution of 1789 — as modified by the Fourteenth Amendment — were enforced by the Supreme Court. According to the textual plan, Congress is, with few exceptions, confined to the express powers enumerated in Article One of the Constitution. While these express powers were understood as flexible, they were nonetheless limited. When the federal government was limited to its enumerated powers, the states were left to the exercise of their police powers, subject to the limitations imposed upon them after the Civil War by the Fourteenth Amendment.

The Founders' plan was more or less intact until the 1930s, when President Roosevelt and the New Deal Congress enacted a massive expansion of federal power. By the 1940s, the textual scheme of limited federal powers was effectively swept away by a Supreme Court dominated by appointees of President Roosevelt. In a series of landmark decisions, such as Wickard v. Filburn in 1942, the New Deal Court replaced the Constitution's textual scheme of limited federal power with a policy of judicial deference to any claim by Congress to regulate anything and everything with even a remote connection with the national economy.

By the early 1990s, even the requirement of a remote connection was giving way, as Congress began to regulate subjects that could only be described as "interstate commerce" by Lewis Carroll's Humpty Dumpty, who asserted (in a rather scornful tone) that: "When I use a word, it means just what I choose it to mean — neither more nor less." With no judiciary to provide a constitutional compass, Congress passed laws reaching activities such as possessing a gun near a school without even trying to show how the regulated activity had any conceivable connection with "commerce . . . among the several states."
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Click on the above link to read the whole thing.
 
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I would like to see Judge Janice Rogers Brown nominated because of her mindset. As far as political capitol, screw it. Bush doesn't face a reelection. Pick good, smart jurists and fight for them. Kennedy, Shumer, Leahey and company will come off like the idiots they are.
 
I believe - looking at comments by Antipitas and others whom I respect - that's she's too much of an originalist to get anywhere.
 
Agreed, but she's also highly qualified and, being a Black female, the opposition is gonna be real hard pressed to put her thru the meat grinder without having to face the exact accusations they generally level in such cases.

Still, DC seems to honor few limits on personal attacks these days.

Gonna be real interesting to see how it plays out.
Rich
 
Perhaps we need to change the title of this thread to something like: The Judicial Nominations (Thread)... or some such.

This would possibly help to keep everything about this in one thread. (we are already talking about spillover ideas, here) Good idea? Yea? Nay?
 
Anti: You did a fine job in your post. Anybody who's lived on the planet Earth and keeps up with current political winds pretty much understands why neither Scalia nor Thomas would be confirmed. It'd be filibuster time, as the Dems would consider they're previous "agreement" violated, as they, of course, wouldn't consider either Scalia or Thomas as "reasonable" appointments.

I'm betting that Zell Miller would have a hard time being confirmed. Agreed? ;)
 
Agreed Zekewolf.

I guess that most of the reason that I write such long posts is that in the 5 years I've been doing gun boards, there are so many people that haven't given much thought to not only our other rights but basic political thinking. For many, it is really new territory to venture beyond guns and RKBA.

Add to this, that many of our new (and younger) members have never been exposed to this stuff. With few exceptions, they don't teach this stuff in schools anymore.

Publius, if I could make a living just writing... I'd retire! :D
 
Antipas: I really do owe you an apology, and your last post about newbies, etc., really hits the mark with me. I just read in another thread (the "Hillary" thread) that Hillary "probably would win the primary." Guess I'm old enough not to be shocked by anything, but how could somebody be that out-of-touch with the political process? I guess Leno's "Jaywalking" should have been a wake-up call for me! :D
 
Thank you Zekewolf, but really, no apology was needed. I understood what you were getting at. In my day job, as a grocery store manager, I work with kids all the time, so I'm acutely aware of the (educational) differences between this old codger and the younsgters I train.
 
By now, most of you should be aware that yesterday the hearings for the Roberts nomination confirmations began in earnest.

Were there any surprises? In a word, maybe. But only small ones.

First consider Roberts opening comments:
Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open to the considered views of their colleagues on the bench...

I have no agenda but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability.

And I'll remember that it's my job to call balls and strikes and not pitch or bat.
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Sen. Arlen Spector wasted no time in bringing up Roe v Wade. Roberts deftly non-answered all his questions. Where does he stand? We are left not really knowing.

The one interesting tidbit was when Spector asked Roberts about his pro bono work, specifically his work on gay rights. He asked Roberts whether or not, when working on this case, Roberts had any serious moral qualms. Roberts answered no, he had no serious moral concerns over that work.

Then Sen. Kennedy came up. He harranged Roberts, by asking long involved questions and when Roberts attempted to answer, Kennedy interrupted Roberts at every turn.

So much so, that Spector interrupted and chastised Kennedy. Several times. Forcing Kennedy "to be quiet and let Roberts answer."

The only other interesting thing Roberts said, was when Sen. Feinstein came up and questioned Roberts on Stare Decisis and the Commerce Clause. On the one hand, Roberts insisted that precedent was not to be overturned, except in extreme circumstances. While on the other hand, she got an admittance from him that that he believed there were limits on congressional lawmaking.

Roberts refused to answer any questions that came up, if the question involved questions that were making their way to the Supreme Court. As well, he refused to answer any questions on matters that were making their way to the D.C. Circuit, on the grounds that if he were not confirmed, he would not allow the Senate to pigeonhole him on such matters.

When asked about civil rights and their place in war time or other civil unrest, Roberts flat stated that neither the Constitution nor the BoR were suspended because of war or other catastrophes, but that there may become necessary certain curtailments, only for so long as the emergency lasted.

All in all, my impressions are that Roberts will be confirmed. There will be at least one more session (today) of questions, before the Senate votes on confirmation. As I didn't see any real gathering of sides, I believe he will be confirmed... Barring any major revelations that may come up in todays session.
 
Sen. Feinstein came up and questioned Roberts on Stare Decisis and the Commerce Clause. On the one hand, Roberts insisted that precedent was not to be overturned, except in extreme circumstances. While on the other hand, she got an admittance from him that that he believed there were limits on congressional lawmaking.
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Very strict limits! They have to say that something affects interstate commerce before they can exercise power over it! Since they are so unwilling to say that something affects interstate commerce, they have power over almost nothing! ;)
 
Oh hell!

I was gonna wait till the end of the session, but this is just too important to wait. Feinstein is up and her first question was about Lopez, where the gun free zone around schools was struck down. In explaining in clear terms, Roberts just clarified to Feinstein how to reword and submit the bill that would meet the terms the Court objected to.

Basically, Roberts said that if the Legislature could craft a law, any law, that would meet the Commerce Clause, he would give it a pass. To me, this means that Roberts is not a believer in the 2A... Not if he would allow Congress to craft any law so to show it met the Commerce Clause.
 
Update: The very next person to question Roberts was Senator Russ Feingold (D-WI), who put forth the whole 2A argument. Collective or individual. In answering, it was obvious that Roberts is not versed at all on the 2A - pro or con. He is pretty much indifferent to this amendment.

This was what I've been waiting for. It is not the answer I wanted nor expected, nor I suspect anyone else that visits here. This combined with his answer to Feinstein, paint a picture of a Judge who will not give the 2A the authority we all know it has.

A comment was just made by Senator Graham (R-SC) that his next question was not going to be on the 2nd or 3rd amendment; to which the audience snickered as did Roberts.
 
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