The Definitive John G. Roberts Thread

[D. Scarlatti]

First of all, the relevant portion of the Solomon Amendment itself, for reference:

(b) Denial of funds for preventing military recruiting on campus.--No funds described in subsection (d)(2) may be provided by contract or by grant (including a grant of funds to be available for student aid) to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents--

(1) the Secretary of a military department or Secretary of Transportation from gaining entry to campuses, or access to students ... on campuses, for purposes of military recruiting; or
(2) access by military recruiters for purposes of military recruiting to ... information pertaining to students ... enrolled at that institution (or any subelement of that institution).

And here is what the district court called a "typical law school non-discrimination policy":

[The Law School] is committed to a policy against discrimination based upon age, color, handicap or disability, ethnic or national origin, race, religion, religious creed, gender (including discrimination taking the form of sexual harassment), marital, parental or veteran status, or sexual orientation.

Although the federal government (largely driven by the courts over the years) has recognized certain "suspect classifications" in discrimination cases, as enumerated in the policy above, sexual orientation is not one of them. The central claim made by the plaintiffs here is that the Solomon Amendment is unconstitutional because it violates their freedom of speech and other more particularized rights the Supreme Court has read into the First Amendment in recent decades, specifically, academic freedom and expressive association, the latter of which the Court addressed in Dale v. BSA, the Boy Scouts case of several years ago.

When a statute is alleged to be unconstitutional, the courts, depending on the circumstances and the situation of the plaintiffs, apply various levels of judicial "scrutiny." Under what is known as "rational basis scrutiny," the government need only show that the statute is "rationally related to a legitimate government interest." Accordingly, statutes subjected to rational basis scrutiny carry with them a strong presumption of constitutionality, and the government nearly always prevails in such instances.

At the other end of the scale exists "strict scrutiny." Strict scrutiny is employed especially when the statute in question implicates fundamental rights guaranteed to the plaintiff by the Constitution. Under strict scrutiny the government must show that its actions are "narrowly tailored to serve a compelling governmental interest, and must use the least restrictive means of promoting the Government's asserted interest." Strict scrutiny carries with it a strong presumption of unconstitutionality. It's a formidable obstacle to the government, and the government rarely prevails.

In a nutshell, the district court, in finding for the government, applied rational basis scrutiny to the plaintiff's claims, whereas the 3rd Circuit, in the course of overruling the district court and finding for the plaintiffs, applied strict scrutiny. The district court relied heavily on the Constitution's various provisions empowering Congress to raise and maintain military forces, whereas the 3rd Circuit gave far greater weight to the plaintiff's allegations that their fundamental constitutional rights were impaired by the Solomon Amendment.

The thing is, it's not the military's policy against recruiting gay people that's at issue here per se, but rather the Solomon Amendment and its effect on the law schools' anti-discrimination policies, and thereby their right to expressive association. The Court has never recognized sexual orientation as a "suspect classification," as it has with ethnicity, religious affiliation, race, and so on, but perhaps it will address the issue this fall.

Justice Scalia, for example, thinks it's a joke, but given Judge Roberts's involvement with Romer v. Evans, as noted above, it's perhaps a bit more difficult to predict his inclinations on the matter.

[Clutch Munny]

The dissent is actually pretty bizarre, for reasons I'll hopefully get to shortly. In fact the dissenter believes his argument based on the logic textbooks is all that's necessary to find in favor of Rumsfeld et al

Yeah, that's what I was getting at. Not only is it a sophomoric attempt to hold the Law School's reasoning to logico-mathematical axiomatic standards, but it then suddenly does a 180 and argues that the dissenter's reasoning can be based, like an internet degree, on life experience. I.e.,

The subjective idiosyncratic impressions of some law students, some professors, or some anti-war protesters are not the test. What we know as men and women we cannot forget as judges.

Wow. IOW, "The subjective idiosyncratic impressions of some law students, some professors, or some anti-war protesters are not the test. The subjective idiosyncratic impressions of me are the test."

[D. Scarlatti]

Some commentary from the Washington Times that refers to Rumsfeld v. FAIR:

The armed forces should remain under civilian control, but not that of activist judges quoting foreign courts. Congressional power to make policy for the military creates a corollary responsibility to write clear legislation and oversee faithful enforcement. Unresolved confusion invites overreaching Supreme Court decisions that have damaged many American institutions. The Bush administration and Congress must ensure that our military does not become one of them.

Courts, Congress and the military

Also from this piece:

Complicating matters further, some justices have started citing foreign court opinions in cases such as Lawrence v. Texas. In that 2004 ruling, Justice Anthony Kennedy cited foreign court opinions in a controversial decision that overturned previous legal precedent and all state laws banning sodomy.

This pisses me off. Kennedy referred to some foreign jurisdictions in passing for the sole purpose of rebutting some of Justice Stewart's claims in the older sodomy case, Bowers v. Hardwick, which Lawrence rendered obsolete.

Chief Justice Rehnquist, in his majority opinion in Washington v. Glucksberg, an assisted suicide case from several years ago, made reference to ten times as many foreign cases as Kennedy did, which were actually more supportive of the ruling itself than Kennedy's passing references, which really had nothing to do with the holding.

Furthermore, none other than Scalia and Thomas joined Rehnquist in full. Of course these goddamn conservatives never mention that. I hope this is raised during Roberts's nomination hearings and this ridiculous GOP talking point is shown to be nothing more than the lie that it is.

[D. Scarlatti]

Originally Posted by Clutch Munny

IOW, "The subjective idiosyncratic impressions of some law students, some professors, or some anti-war protesters are not the test. The subjective idiosyncratic impressions of me are the test."

Haha. So it would appear!

[D. Scarlatti]

Also for reference, the Supreme Court's oral argument calendar for the coming term:

Monday, 10/3

IBP, INC. V. ALVAREZ
TUM V. BARBER FOODS, INC.
WAGNON V. PRAIRIE BAND POTAWATOMI NATION

Wednesday, 10/5

GONZALES V. OREGON
SCHAFFER V. WEAST

Tuesday, 10/11

BROWN V. SANDERS
LINCOLN PROPERTY CO. V. ROCHE

Wednesday, 10/12

GARCETTI V. CEBALLOS
UNITED STATES V. OLSON

Monday, 10/31

VOLVO TRUCKS NORTH AMERICA V. REEDER-SIMCO GMC, INC.
CENTRAL VA COMM. COLLEGE V. KATZ

Tuesday, 11/1

MARYLAND V. BLAKE
GONZALES V. O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL

Wednesday, 11/2

UNITHERM FOOD SYSTEMS V. SWIFT-ECKRICH
LOCKHART V. UNITED STATES

Monday 11/7

ARBAUGH V. Y & H CORP.
DOLAN V. UNITED STATES POSTAL SERVICE

Tuesday, 11/8

MARTIN V. FRANKLIN CAPITAL CORP.
GEORGIA V. RANDOLPH

Wednesday, 11/9

UNITED STATES V. GEORGIA
GOODMAN V. GEORGIA
EVANS V. CHAVIS

Monday, 11/28

WILL V. HALLOCK
WACHOVIA BANK V. SCHMIDT

Tuesday, 11/29

ILLINOIS TOOL WORKS V. INDEPENDENT INK
BUCKEYE CHECK CASHING V. CARDEGNA

Wednesday 11/30 (Abortion Day)

SCHEIDLER V. NOW
OPERATION RESCUE V. NOW
AYOTTE V. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND

Monday 12/5

WHITMAN V. DEPT. OF TRANSPORTATION
RICE V. COLLINS

Tuesday, 12/6

RUMSFELD V. FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS
DOMINO’S PIZZA V. McDONALD

Wednesday, 12/7

OREGON V. GUZEK
KANSAS V. MARSH

[D. Scarlatti]

Another case from those crazy, whackjob liberals on the 9th Circuit!

The prosecutor's statement that Juror 016 rolled her eyes is critical to this case. If someone rolls her eyes when another speaks to her, the eye-rolling implies disrespect and rejection. The panel opinion concluded, irrationally, that because the trial judge did not see the eye-rolling, the state appellate court was unreasonable in approving the prosecutor's strike. The reason this is irrational is that it does not matter whether the state trial judge noticed the eye-rolling, or even whether there actually was any eye-rolling. All that matters is whether the prosecutor intentionally lied about the eye-rolling to make an excuse for getting an African American woman off the jury. If the prosecutor was really striking Juror 016 because she thought the juror rolled her eyes and not because she was African American, she had a right to strike her, even if she was mistaken about whether the eye-rolling actually occurred. In this case, the trial judge thought the prosecutor was telling the truth, and the state appeals court saw no reason to doubt it. Collins v. Rice, 365 F.3d 667, 671 (9th Cir., 2004) (Bea, J., dissenting to denial of rehearing en banc).

At jury selection, during which prospective jurors are questioned by the attorneys, lawyers for either side can exercise a number of what are called peremptory strikes to excuse jurors without giving a reason. However if opposing counsel suspects the strike was made on, for example, racial grounds, she needs to convince the judge of at least the possibility. At that point the challenging attorney must justify the strike, giving race-neutral reasons, "based on something other than the race of the juror." The judge then rules upon whether the use of the peremptory strike is legitimate.

In other words, a limited number of prospective jurors may be excused on hunches, on what may appear to be the flimsiest of reasons, or completely arbitrarily, so long as it can't be shown there was racial bias.

In this case, Collins was on trial in California for felony possession of cocaine. He was found guilty and, since he had two previous felony convictions for robbery and forcible rape, sentenced under California's three strikes rule to 25 years to life in state prison. During jury selection Collins alleged that the prosecutor improperly excused two prospective jurors on the basis of race. The trial judge denied Collins's motion, and the state courts upheld the trial judge throughout Colllins's appeals. Ultimately Collins got his case into federal court, and a three-judge panel of the 9th Circuit reversed the state courts, over a dissent, finding that the trial judge's original disposition was unreasonable.

At Collins's trial, the prosecutor exercised peremptory strikes with respect to jurors 016 and 019, both African American women. Both strikes were challenged by Collins. The prosecutor's response to Collins's challenge was as follows:

Ms. 016 as well as Ms. 019 were both young and I was concerned with them being too tolerant of this type of case. Also, Ms. 016 made a remark when the judge made a response to her comment "uh-huh," she turned away and rolled her eyes. I don't think you asked her specifically to give a yes or no, but she went "yes," and rolled her eyes and turned away from the court. She and Mr. 006 were both single, no ties.

[Defense Counsel]: Who is 006?

[Prosecutor]: He is the white juror. That was the reason, the justification, for excusing her, rather than her being an African-American. 019, she also had a daughter having a drug problem and she talked about not knowing much about what drug it was, things like that. She was not sufficiently educated in some areas to decide a case like this. But it is beyond any of her experience. Collins v. Rice, 365 F.3d 667, 674 (9th Cir., 2004).

So the prosecutor's claim was that juror 016 was struck on account of her age and her demeanor, the latter as evidenced by the eye rolling. Generally, both grounds are permissible for peremptory strikes. However, on the age question, the 9th Circuit, given the further explanations of the prosecutor, found that the same characteristics existed among the remaining jurors, and ruled that the age justifications given by the prosecutor were overcome by clear and convincing evidence of a racial pretext, evidence that the state courts unreasonably ignored.

Even so, the state courts had ruled that even if the prosecution's reliance on juror 016's age was improper, its demeanor rationale was enough to justify the peremptory strike. But the 9th Circuit didn't buy this either. Because the trial judge didn't actually observe juror 016's eye-rolling, he had to rely on the prosecutor's good faith, so to speak. But, the 9th Circuit said, given the totality of the prosecutor's behavior, and especially the reasons given for striking jurors 016 and 019, the prosecutor failed to establish enough good faith on which the trial judge could have made such a determination:

The prosecutor's objectively unreasonable statements regarding Juror 019's age, and her attempt to use gender as a race-neutral basis for excluding Jurors 016 and 019, combined with her pretextual justifications for dismissing Juror 016 on the basis of her alleged lack of community ties, her marital status, and her purported tolerance, and the fact that nothing in the record corroborated her allegations regarding Juror 016's demeanor, provide "clear and convincing evidence" that the prosecutor did not dismiss Juror 016 on the basis of her demeanor. In light of the evidence in the record, the appellate court's determination that the prosecutor dismissed Juror 016 because of her demeanor was an unreasonable determination of the facts. Because this determination provided the basis for the appellate court's conclusion that the trial court had not clearly erred in accepting the prosecutor's justification as race-neutral, this determination also was objectively unreasonable. Id. at 684.

I'm willing to bet a week's pay that Associate Justice Roberts will at this one.

[D. Scarlatti]

Further to Ayotte v. Planned Parenthood:

In filing a friend-of-the-court brief in the case, the administration weighed in for the first time in an abortion rights case before the Supreme Court. In his filing, Solicitor General Paul D. Clement argued that "there is no need for a general health exception to a parental-notification statute."

White House Backs New Abortion Curb: Brief Filed in N.H. Notification Case

[Clutch Munny]

Absent context, that looks like a remarkably dumb thing to say.

Did the context somehow emsmartify it?

[D. Scarlatti]

Dunno ... can't find the brief yet.

Your turn to summarize, Counsellor!

ETA: Aha, here it is:

The court of appeals likewise erred in extrapolating from this Court’s decision in Stenberg v. Carhart, 530 U.S. 914 (2000), a bright-line requirement that any statute regulating abortion must contain an express health exception: that is, an exception for cases in which an abortion, or a particular type of abortion, is necessary to preserve the health of the mother. Such a reading of Stenberg would be inconsistent with numerous cases in which this Court has upheld parental-notification statutes without demanding that those statutes contain an express health exception. Instead, under Stenberg, an express health exception is necessary only in those contexts in which the absence of such an exception itself represents an undue burden. The absence of a health exception in some laws regulating abortion, such as a recordkeeping statute, would in no way impose an undue burden. Just as there is no need for a health exception to a recordkeeping statute, so too there is no need for a general health exception to a parental-notification statute. In cases involving non-emergency health issues, compliance with the statute’s notification (or judicial-bypass) procedures can occur without imposing any undue burden.

(Personally I think it's a bit of a stretch to refer to a recordkeeping statute as a law regulating abortion. Seems like a tenuous analogy from which to make the argument, at least. For one thing, the recordkeeping occurs after the abortion is performed, if I'm not mistaken. That's no regulation of the abortion procedure itself, very much unlike the N.H. statute, which is more clearly regulatory in nature.)

[D. Scarlatti]

Lurking maddog!

Brief us a case, buddy. I have to go grocery shopping.

[D. Scarlatti]

Further to Gonzalez v. Oregon, the assisted suicide case, one of the senators from that state had this to say, after meeting with Roberts:

Roberts told Wyden that he would look closely at the legislative history of federal laws and would be careful not to strip states of powers they traditionally have held -- such as regulating the practice of medicine, Wyden said.

"You don't get the impression from how he answered that he'd let somebody stretch a sweeping statute like the Controlled Substances Act," Wyden said.

Wyden confident Roberts would shield suicide law

[D. Scarlatti]

More on Senator Wyden's meeting with John G. Roberts, this time on the subject of Terri Schiavo, and from the NYT:

The senator, Ron Wyden of Oregon, said that Judge Roberts, while not addressing the Schiavo case specifically, made clear he was displeased with Congress's effort to force the federal judiciary to overturn a court order withdrawing her feeding tube.

"I asked whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy," Mr. Wyden said in a telephone interview after the hourlong meeting. "His answer was, 'I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court and prescribe particular remedies in particular cases, Congress has overstepped its bounds.'"

Nominee Is Pressed on End-of-Life Care

Emphasis mine.

The White House is not amused, and has formally requested a correction from the NYT:

In fact, notes taken by a White House aide at the meeting reflect that Judge Roberts said he had not studied the Schiavo case and could not comment on either the case itself or Congress's actions related to it.

Dear Mr. Taubman ...

Perhaps the NYT report spun this into a Schiavo story, with its lead paragraph, but it's pretty clear to what Senator Wyden was referring when he posed the question to Judge Roberts. Where the White House gets off taking the newspaper to task for simply reporting what the senator said is anyone's guess.

[D. Scarlatti]

The following case, and its current position before the United States Supreme Court, is illustrative of just how far some companies will go to turn a dollar. I'll spare the gentle reader (and myself) the hideously convoluted procedural history of this case, and instead attempt to get to the heart of the matter immediately.

When apprised of the facts, I can almost certainly guarantee that 99.99% of the membership here will find for the original plaintiffs, and do anything with the existing law to make it conform to the desired result. But unless you're Thurgood Marshall, Supreme Court Justices aren't supposed to do that, which is one of the reasons they actually have to consider the arguments of the meat packing company.

The meat packing company in question, IBP, is "the world's largest producer of fresh beef, pork, and related products." Its 1999 sales figures amounted to more than 19 billion dollars. More specifically, the case concerns IBP's activities at its plant in Pasco, WA, a "kill and processing plant" at which it slaughters and "disassembles" beef carcasses.

Without going into greater detail, much of the work is hard, bloody (literally), and dangerous, and depending on one's individual job description, from "knife user" to "gutter" employee, a considerable amount of protective safety apparel is required by workers in the thick of things. In many instances this equipment is not limited to the requisite hardhat, earplugs and gloves, which take a few seconds to put on, but rather requires the tricking out in something more akin to full rubber suits and medieval chain mail.

It is the "donning and doffing" of these required get-ups that's at issue here, in particular IBP's ongoing stubborn refusal to compensate its employees for the time spent dressing and undressing on either side of their shifts, which, although not seconds in duration, doesn't add up to more than a few minutes a day.

As mentioned, the procedural history involving both state and federal courts, state and federal law, the endless motions back and forth, and even, at one point, a 20-day trial, is far too complex and stultifying to address here. It's worth pointing out, however, that in the early 1970s, the former proprietor of the Pasco plant allowed 30 minutes per week for donning and doffing safety apparel, and IBP has been squeezing the poor sods ever since.

The long and short of it at this point, at least for the Supreme Court's determination, is whether the IBP employees have a right to compensation for the time spent donning and doffing the apparel, which is slightly different from the way the 9th Circuit - whose decision IBP is appealing - framed the issue, which was whether IBP "should be required to compensate its employees for the time it takes to change into required specialized protective clothing and safety gear."

The 9th Circuit held that it was required to do so, in part by looking to what the Supreme Court had previously defined as what passes for "work" in this country. Federal labor law requires that that all employers must pay their employees for "hours worked," as opposed to "preliminary and postliminary" activities, only some of which, also according to Supreme Court precedent, employers are required to compensate.

In determining whether preliminary or postliminary activities are compensable, the courts look to whether activities "performed either before or after the regular work shift ... are an integral and indispensable part of the principal activities." The 9th Circuit, in upholding the lower courts but on slightly different grounds, found that, in this instance, the donning and doffing of formidable safety apparel was in fact integral and indispensable.

How much of a difference in compensable time does this make, you may ask, in terms of both IBP and its employees? About eight minutes a day, according to exhaustive testimony presented to the lower courts.

IBP appeals - or appalls, depending on your perspective.

[D. Scarlatti]

I should mention that Tum v. Barber Foods, which was consolidated for oral argument together with IBP, Inc. v. Alvarez, concerns a practically identical issue (and outcome, on the part of the 1st Circuit), except at a chicken plant in Maine, rather than a cow plant in Washington.

Barber Foods' business is also not as violent as IBP's, since it only transforms boneless chicken breasts into "stuffed entrees, chicken fingers, and nuggets."

I also had a look at the government's brief filed in support of the employees at the IBP plant, which fairly eviscerates all of IBP's legal positions, to the point of making them appear frivolous.

Speaking of chickens.

[D. Scarlatti]

Just about everybody is up in arms over NARAL's John G. Roberts "attack ad":

According to Factcheck.org, a nonpartisan project of the Annenberg Public Policy Center at the University of Pennsylvania that monitors political advertisements and speeches for accuracy, "the ad is false" and "uses the classic tactic of guilt by association." The imagery is "especially misleading" in linking the 1998 clinic bombing to the brief Mr. Roberts signed seven years earlier, Factcheck said in an analysis it posted on its Web site, www.factcheck.org, under the heading: "Naral Falsely Accuses Supreme Court Nominee Roberts."

TV Ad Attacking Court Nominee Provokes Furor

You can view the ad there as well. It is (un)fairly incendiary.

[D. Scarlatti]

For Conservative Christians, Game Plan on the Nominee

"We are going to be vigilant to make sure that there is not this religious litmus test imposed," said Tony Perkins, the president of the Family Research Council, an evangelical Protestant group that is the principal organizer of the telecast, which will take place at 7 p.m. Sunday from a megachurch in Nashville.

"'Are you a Catholic? Do you really believe what the Catholic church teaches?' These kinds of things shouldn't be part of the discussion," Mr. Perkins said.

He's probably right. Justice Scalia never should have made it part of the discussion.

These people are such hypocrites. All I can say is they better get their "Justice Sundays" out of the way before football season starts. In other news, Packers 10, Chargers 7.

[D. Scarlatti]

Prominent conservatives tell HUMAN EVENTS they are troubled by the revelation that Supreme Court nominee John Roberts worked on behalf of Playboy Entertainment Group--the second time in one week information has come to light that Roberts helped a liberal cause. [. . .]

In the Playboy case, Roberts helped prepare Playboy’s lead counsel, Robert Corn-Revere, who worked with him at Hogan & Hartson, for his oral argument before the Supreme Court in 1999, Corn-Revere told HUMAN EVENTS yesterday. Roberts also attended a meeting that same year at the U.S. solicitor general’s office on behalf of Playboy.

Conservatives Alarmed at Pneumatic Breasts and Airbrushed Pubic Hair

[D. Scarlatti]

More stupidity, killing, and recreational drug buys gone awry from sunny California, courtesy of the 9th Circuit Court of Appeals.

Dramatis personae:

Boender, a coke dealer
Allen, his late girlfriend
Maxwell, disenfranchised cocaine customer
Thompson, Maxwell's aunt
Sanders, former enforcer, current CA death row inmate
Cebreros, Sanders' co-conspirator

Maxwell and Thompson, a couple of Bakersfield cokeheads, were pissed at Boender, since Boender had cut Maxwell off because she owed him money, and Thompson thought Boender had burned her. So Maxwell decided to lay a little trap for Boender. She'd invite him to bring a pile of coke over to her place, then Sanders (who was a stranger to Boender) would break in, beat the crap out of Boender and steal his coke, and tie Maxwell up to make it look like a home invasion. Then Thompson would appear and "rescue" Maxwell and Boender, Boender presumably being none the wiser he'd been set up.

So Boender and Allen show up at Maxwell's place and shortly thereafter Sanders comes along and attacks Boender with a pool cue. But Boender was able to overpower Sanders and escape with his girlfriend and his bag of coke.

Maxwell, concerned Boender was on to her scheme, and Sanders, worried Boender would identify him to the police, decided to carry the plot to Boender. Enlisting Cebreros for additional muscle, they decided to go to Boender's own home, beat the crap out of him again, and steal his cocaine, for sure this time.

Several days after the first incident, Sanders and Cebreros turn up at Boender's place, where he and Allen are preparing dinner after drinking some wine and smoking a little weed. This time Boender's resistance was overcome, and both he and Allen were tied up with electrical cord and gagged, while Sanders and Cebreros rummaged through their home looking for drugs.

Later that evening Boender's roommates returned home and found the barely conscious Boender, his skull fractured, and Allen dead in the bedroom with a fractured skull and brain lacerations caused by a heavy, blunt object.

Sanders and Cebreros were tried together, but the first trial ended in a hung jury. There was no direct evidence to establish whether either man killed Allen. The state's star witness was Maxwell, who received immunity from prosecution in exchange for her testimony. She implicated Sanders in the original plot.

On retrial, both Sanders and Cebraros were convicted of first degree murder, among other charges. The state only sought the death penalty against Sanders.

Since the United States Supreme Court allowed for reinstatement of the death penalty in 1976, it has imposed numerous procedural safeguards in order to conform with the Eighth Amendment's ban on cruel and unusual punishment. One of these safeguards requires that capital trials be divided into two phases: the guilt phase, and the penalty phase. In some states, including California, the penalty phase includes presentation to the jury of both mitigating and aggravating factors, which the jury uses to determine whether the death penalty is appropriate under the law.

Another U.S. Supreme Court requirement is that the sentence be "individualized." The main concern in the present case is that Sanders's sentence was not individualized, since, on appeal, the California Supreme Court held two of the aggravating factors used to determine Sanders's eligibility for the DP to be invalid, but nonetheless upheld the sentence.

In Sanders's penalty phase, the jury found four aggravating factors, in that the murder was: 1) committed during a robbery; 2) committed during a burglary; 3) committed to prevent Allen from testifying; and 4) heinous, atrocious, and cruel.

to be continued … too complicated for my weary brain.

[viscousmemories]

Looking forward to the next installment.

Originally Posted by D. Scarlatti

You can view the ad there as well. It is (un)fairly incendiary.

Yeah, dirty pool.

I'm just now catching up on this thread but these are some great posts. So what's the deal with his nomination anyway, I lost track. Is he in like Flynn now?

[viscousmemories]

Okay, since you're probably in bed I answered my own question. Seems like the nomination hearings don't start until early September, and according to this article there's a big ole' deputy solicitor general for GHWB shaped piece of the puzzle missing.

[viscousmemories]

This just in: Salon says NARAL pulled the ad.

Abortion Rights Group Withdraws Roberts Ad

- - - - - - - - - - - -

By JESSE J. HOLLAND Associated Press Writer

August 12,2005 | WASHINGTON -- An abortion rights group is withdrawing a heavily criticized television ad that linked John Roberts to violent anti-abortion activists, saying its attempt to illuminate the Supreme Court nominee's record has been "misconstrued."

After protests by conservatives, NARAL Pro-Choice America said Thursday night it would pull the ad that began running this week.

"We regret that many people have misconstrued our recent advertisement about Mr. Roberts' record," NARAL President Nancy Keenan said.

[D. Scarlatti]

Thanks vm. One of the reasons I'm trying to post the cases here is because the Senators that will be questioning Roberts next month will (or should) want to know how he's going to rule once he gets on the Court. That's more important than whether his wife is a pro-life activist or whatever. Once the hearings start, whoever is paying attention may want to refer back to these cases to follow what some of the questioning is getting at.

A clever Senator will review the issues in these cases and attempt to frame questions that might shed some light on Roberts's disposition toward them, in terms of his broader judicial attitudes. For example, the assisted suicide case, Gonzalez v. Oregon, presents an issue of federalism in the tension between the states' traditional power to regulate health and the federal government's desire, in this case, to interfere with that power through federal law, which it wants interpreted broadly here.

On principle, conservatives should defer to the state power, but now we've got this current crop of conservatives and their "culture of life," which they took to ridiculous lengths during the Terri Schiavo fiasco. On the other hand, there are the death penalty cases, which, as usual, have to do with labyrinthine procedural niceties the defendants claim have been violated for one reason or another.

So you've got conservatives on the one hand doing everything they can to keep terminally ill cancer patients alive while hastening the deaths of criminals whose constitutional rights may have been violated by state courts. And the means to both ends is the manipulation of statutes and prior Court decisions.

Of course Roberts will be at least as familiar with these cases as any member of the Senate Judiciary Committee and he'll do everything he can to avoid answering questions that touch on the issues he'll be addressing as a member of the Supreme Court.

Originally Posted by viscousmemories

[A]ccording to this article there's a big ole' deputy solicitor general for GHWB shaped piece of the puzzle missing.

That's one way of putting it, but the Democrats are never going to get everything they're asking for. There's no way in hell the GOP is going to allow another hearing à la Robert Bork, who had an extensive paper trail and some pretty radical views of the Constitution, over which he failed to convince the Judiciary Committee that he'd experienced a "nomination conversion."

The Thomas hearings had some similar moments, where the nominee was caught with his pants down, so to speak. Thomas had given some talks to conservative groups during which he referenced some quasi-academic papers having to do with natural law and other such nonsense. Rather than seek to defend himself, or claim that he'd since changed his views, he adopted the rather embarrassing tactic of asserting that he'd never even read, or understood, the views he'd found so compelling during his lectures.

On the other hand conservatives dread another David Souter, which is why these stories of Roberts's professional assistance to a few "liberal causes" are generating some concern among the further righties.

But on the whole, as far as I can tell at the moment, Roberts is in like Flynn, as you say.

[viscousmemories]

Originally Posted by D. Scarlatti

Rather than seek to defend himself, or claim that he'd since changed his views, he adopted the rather embarrassing tactic of asserting that he'd never even read, or understood, the views he'd found so compelling during his lectures.

Aha! I remember reading about that when it happened, and (not unlike Thomas) not really understanding the issue.

[D. Scarlatti]

I have no idea whether or not it's online, but I'll refer you to an article by Ronald Dworkin from the New York Review of Books of November 7, 1991, entitled "Justice for Clarence Thomas."

It's also collected here, along with essays on Bork and radical feminist attitudes toward pornography:

Witness Supreme Court nominees like Robert Bork and Clarence Thomas, who claimed either the seemingly neutral "original intent" reading (in Bork's case) or no constitutional philosophy at all (in Thomas's). - Publisher's Weekly

[D. Scarlatti]

Rejected Supreme Court nominee Robert H. Bork warned that the high court has defined homosexuality as "a constitutional right . . . and once homosexuality is defined as a constitutional right, there is nothing the states can do about it, nothing the people can do about it."

House Majority Leader Tom DeLay (R-Tex.) said "activist courts" are imposing "state-sanctioned same-sex marriage" and "partial-birth abortion" and are "ridding the public square of any mention of our nation's religious heritage" in what amounts to "judicial supremacy, judicial autocracy."

[Zell] Miller criticized the [C]ourt because it "removed prayer from our public schools . . . legalized the barbaric killing of unborn babies, and it is ready to discard like an outdated hula hoop the universal institution of marriage between a man and a woman."

Conservatives Rally at Festival of Hyperbole

I'm not sure if any of the google spiders that are captivated by this thread have ever read Bork's Slouching Towards Gomorrah, but it contains one of the all-time gems of unintentional comedy. Bork finds himself ensconced in a New York hotel room, and does a little channel surfing to while away the time. He's appalled by the smut he finds on the cable stations, which he describes in some rather familiar detail, and also in the overall context of the First Amendment. Strangely, he's unable to tear himself away from the porn.

At another point he derides "rap groups" like Nine Inch Nails. It's funny, but kind of sad too.