Covering the Front and Back Pages of the Newspaper
July 20, 2005
LAW: It's Roberts
I don't have that much to say, just yet, about John Roberts, but a few random early observations:
*Any pick like this involves balancing the nominee's merits in the job (philosophy, brains, skills, experience) with his/her political assets that will help with confirmation. Roberts is, like past Bush appointees such as Dick Cheney and Don Rumsfeld, clearly more of a merits pick. He lacks many of the credentials of other short-list candidates: not a woman like Edith Jones or Edith Brown Clement or Mary Ann Glendon, not a published academic like Michael McConnell or Glendon, not a Latino like Emilio Garza or Alberto Gonzales, not a military veteran like Garza, not from a politically useful state like Clement, not a politician like John Cornyn, not a long-time judge like Michael Luttig, Garza, Jones or Clement, not a former trial-court judge like Garza or Cornyn or Clement, not a famously gifted writer like Luttig or McConnell.
Still, Roberts can't be accused of lacking experience - his many cases briefed and argued before the Supreme Court is perhaps the best credential you can bring to the job. And as for the political benefits, the two main ones are that Roberts is apparently well-known and well-liked within DC and that he was recently confirmed with bipartisan support. (A benefit on the merits of the nomination is his relative youth, at age 50). You could tell watching Bush that he thinks he has the votes already.
*Some conservatives may fear another Souter from a guy with a relatively light paper trail. But rememeber: Souter was a recluse from New Hampshire, not well known to the people who vetted him for the job. Roberts, like his former boss William Rehnquist (whose resume and temperment he resembles greatly) and like Clarence Thomas, is a long-time DC insider (he's been in Washington for 25 years), so his views and leanings are likely well-known, if not widely published.
*Personally, I particularly like the fact that his wife, Jane Sullivan Roberts, is a 1976 graduate of my alma mater, Holy Cross (both Roberts and his wife are Catholic, a fact some Catholic groups expect to be held against him), and is active with alumni groups (she sits on the school's Board of Trustees, along with Clarence Thomas, class of '71). According to her bio she practices space and technology law. She has also been active with Feminists For Life, an anti-abortion group. I would be lying if I said I didn't think that would influence Roberts' thinking on abortion (more here and here).
*Flipping around the dial last night (yes, the "dial" is an anachronism), the unhappiest guy looked to be aspiring CBS anchor John Roberts, who had a definite look of "like I haven't had enough trouble getting people to remember who I am."
MORE: I see from the Wall Street Journal that Roberts joined last week's DC Circuit opinion in Hamdan v. Rumsfeld, authored by Judge Randolph, which handed the Administration a major victory regarding the legal status of detainees at Guantanamo. Hamdan, involving a detainee who admits he was Osama bin Laden's personal driver for five years and who was captured on the battlefield in Afghanistan in November 2001, held that:
1. Under a 1942 Supreme Court decision, federal courts do have the power to hear habeas corpus appeals brought by detainees at Guantanamo who have been tried by military courts (Opinion, at 6-7);
2. The President did not violate separation of powers by establishing military tribunals for detainees (Op. at 7-9);
3. The Geneva Convention, as an international treaty, does not create individual rights enforceable by lawsuits in federal court (Op. at 10-13);
4. Hamdan was not covered by the Geneva Convention because he was neither a lawful combatant on behalf of a sovereign state that signed the Geneva Conventions, nor a combatant in a civil war (Op. at 13-16). The court specifically deferred to President Bush's determination that the nation is at war with Al Qaeda, not just with the Taliban government of Afghanistan (Op. at 15-16).
5. Hamdan's challenge to the military court's procedures were not challenges to its jurisdiction and thus would anyway not be properly brought under the Geneva Conventions (Op. at 16-17).
6. Military commissions for detainees were not required to be conducted under the Uniform Code of Military Justice procedures used for courts-martial (Op. at 17-18).
7. Military commissions for detainees complied with the terms of Army Regulation 190-8 (Op. at 18-19).
This actually raises an interesting side question, albeit one that may have a simple answer: whether Roberts would have to be recused from reviewing his own decision below. I believe Supreme Court Justices in the past have not recused themselves from such decisions - I think there may have been some cases that Justice Stevens was involved in on appeal from Seventh Circuit panels he had sat on, for example. But I could be wrong; I'll have to look into it.