Another Surprise

by hilzoy

I have not written anything about the nomination of John Roberts to the Supreme Court, mostly because I didn't have anything interesting to say about it. When the nomination was first announced, I was pleasantly surprised. As I read further, I was a bit dismayed by some of the things he said, and especially what seemed to me to be a somewhat dismissive attitude towards the interests of women and minorities. But, fundamentally, I thought that while under any other President I can think of, I would have to think hard about his nomination and might well oppose it, under this President I had to hope he was confirmed, since virtually anyone else Bush is likely to nominate would be worse. The fact that seems genuinely to care about the law weighs a lot with me, and I felt no confidence whatsoever that if he were defeated, Bush would nominate someone else who shared that concern.

Or, in short: he was better than I had feared, and about as good as I could have hoped for, but that isn't saying all that much.

But this is better than I had expected:

"Judge John G. Roberts Jr. testified today, as he was pressed for his views on legalized abortion, that there is nothing in his Catholic faith that would prevent him from adhering to settled law on the bitterly divisive issue. (...)

Mr. Specter, who supports the right to abortion, had been expected to question the nominee aggressively on the issue, and he did. And while Judge Roberts did not wholeheartedly embrace the 1973 Roe v. Wade decision or the 1992 Planned Parenthood v. Casey decision, he did signal that he would at least have to think long and hard before moving to upset them. He cited the principle of "stare decisis," a Latin term meaning to stand by the thing decided, in stating that the Roe ruling was "settled as a precedent of the court."

"So as of '92, you have a reaffirmation of the central holding in Roe," Judge Roberts recalled as Mr. Specter began the questioning. "That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles."

The nominee gave cautious answers, citing the difficulty of giving specific answers to hypothetical questions. But as a general principle, he said, he believes in "the importance of settled expectations," that ordinary citizens as well as lawyers should be able to rely on the predictability and stability of settled law.

But not always. Although overturning precedent can be "a jolt to the legal system," he said, it is sometimes right and necessary. He cited the landmark Brown v. Board of Education ruling of 1954, which outlawed public school segregation and in so doing overturned the Plessy v. Ferguson decision of the 19th Century that had upheld "separate but equal" facilities. (...)

Mr. Specter questioned the nominee about a memorandum he wrote in 1981, while a lawyer in the Reagan administration, in which he referred to the "so-called right to privacy."

The senator wanted to know if the wording indicated that Judge Roberts was lukewarm to the concept of a right to privacy, or if in fact he believed that privacy was a right embodied in the Constitution.

"Senator, I do," the judge replied. He said that right was spelled out in the First and Fourth Amendments, protecting free speech and freedom from unreasonable searches, as well as the lesser-known Third Amendment, protecting homeowners against having soldiers quartered in their homes against their will. (...)

As for whether a president could "authorize" unlawful torture, Judge Roberts said, "I believe that no one is above the law." "

*** Update:
WaPo"

"Roberts was asked about his statement in a 2003 Senate hearing, when he was seeking confirmation as a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit and said he regarded Roe v. Wade as "the settled law of the land."

"Well beyond that, it is settled as a precedent of the court entitled to respect under the principle of stare decisis ," Roberts said. (...)

Roberts said he agrees that "the right to privacy is protected under the Constitution in various ways." He said it was "fair" to say he does not hold the view today that was reflected in a 1981 memo, when he was a young lawyer in the Reagan administration and skeptically referred to a "so-called" right to privacy."

Footnote below the fold, for Sebastian (and anyone else)

I'm not emphasizing the right to privacy just because of its connection to abortion. I have no idea what Roberts sees as the connection between the two (I mean, the nature of that connection, not whether there is one, which Roe ensures there is), and the news stories don't make that clear. Abortion matters to me, but the recognition of some limits to what the government might up and do of the sort it sets -- whether based on the ninth amendment or on something else -- matters more. Could the government decide to assign spouses to us? Assign each of us our own government minder? Require everyone to have kids? The fact that these are unlikely to actually pass any imaginable Congress isn't enough for me; I want there to be a Constitutional reason why they are ruled out. If I didn't believe that one existed in the Ninth Amendment, I'd work to pass one. Since I do, it matters to me that Roberts recognizes it.

Comments

[Gromit]

You just love that he brought up the Third Amendment, don't you, hilzoy?

[Jeremy Osner]

"Lesser-known third amendment"?

[hilzoy]

Gromit: you have found me out. (Still trying to create a political grouping known as 'third amendment liberals'...)

[hilzoy]

Jeremy: it is lesser-known. No one but lawyers and some of us Bill of Rights junkies even know it exists.

There was a poll a few months back on some blog or other that asked: if you could cut two amendments out of the Bill of Rights, what would they be? I always assumed that the 'two' was because the poor old Third Amendment would be everyone's top pick.

[Jeremy Osner]

I mean I guess she probably is lesser-known than her big sisters I II and IV, still the phrasing seems a little weird -- it's not a popularity contest folks!

[Jeremy Osner]

Reckon we could just trash the whole document amendments and all as long as we can hang on to IX.

[Katherine]

I would still guess he will vote to overturn Roe.

Overall, I'm pretty satisfied so far and pleasantly surprised on a few points. (Substantive due process, a straightforward endorsement of intermediate scrutiny for gender discrimination, a healthy skepticism about originalism.) But I'm most concerned with the executive power stuff, by far, and Leahy's questions weren't as precise as they should have been. Hopefully Feingold and Durbin will do better.

[Jeremy Osner]

Oh and XXI, wouldn't want to lose that...

[Ugh]

Could the government decide to assign spouses to us? Assign each of us our own government minder? Require everyone to have kids? The fact that these are unlikely to actually pass any imaginable Congress isn't enough for me; I want there to be a Constitutional reason why they are ruled out.

This is where I part company with a lot of people. While I too don't want the government deciding these things for me, I don't think the constitution prevents all horrible things. If you're sufficiently worried that some of these things might come to pass, then as you say we should get an amendment making sure that they don't.

As for the ninth amendment, while I would like to see it given a more expansive interpretation, it's hard to do so because what is retained depends on what was given away, and so you are essentially where you would be if there was no ninth amendment.

[Anderson]

Sigh. I understand the anxious need to parse Roberts' remarks, but the fact is that Clarence Thomas lied like a rug during his hearings, and that didn't exactly entitle Congress to impeach him, or sue him for breach of contract.

Anything Roberts says is written on water.

(And fwiw, *if* you accept the premise that a fetus is a human being of some sort or other, then you've got as strong an argument against stare decisis as I can imagine. Does Roberts accept that premise? Is it open to being demonstrated by "new facts"?)

[DaveL]

I'll join the Third Amendment Coalition. Generations in my dad's family were unusually long, and to the end of her life my grandmother was quite outraged about the British soldiers who had been quartered in her great-great-grandmother's home (I think I have that right) and who had not only killed her goose for a meal but wasted the feathers by plucking the goose next to the fireplace and tossing the feathers into the fire.

[Slartibartfast]

"Lesser-known third amendment"?

Why do you think they're in that order? The Third is only there to keep the Second and Fourth from denting each other, after all.

Ok, that was just silly. But I've got nothing on this topic, really.

[Anderson]

Now if only the Third Amendment had prevented the Yankees from burning the house.

Can't sleep in it, but you can burn it? What kind of amendment is that? Isn't there a penumbral "no burning" right that we can infer?

[votermom]

I watched Roberts yesterday, and while he sounded good, I am concerned about his body language. His eyes were too wide, his face too earnest; in short, he does not look like someone being honest. I hope I'm wrong, but I'm far from optimistic about him.
Besides, he's only been a judge for two years -- is it a pattern to appoint people with little or no prior experience to very important posts?

[kenB]

in short, he does not look like someone being honest.

You know, studies have shown that people generally aren't very good at telling when a stranger is lying. There was one where on average the subjects were 90% sure that they were right about their judgment, but they had only a 50% accuracy score (i.e. no better than chance).

[DaveL]

There's nothing wrong with Roberts' experience. Being an appellate lawyer is perfectly good preparation for being a judge, so the relevant prior experience includes not only his time on the bench but most of his legal career.

[Ugh]

Besides, he's only been a judge for two years -- is it a pattern to appoint people with little or no prior experience to very important posts?

Earl Warren, I believe, had no prior experience as a judge. Thurgood Marshall had little, if any, prior experience as a judge, IIRC. Experience for being a judge can be obtained in many ways other than being a judge, lawyers act in many ways as judges even if they don't sit on a bench in a black robe.

[trilobite]

votermom, oddly enough it's not too uncommon for Chief Justice, which is for no good reason seen as more of a political post than the rest and does in fact require someone with administrative skills. Earl Warren was a former Governor of California, Taft was President, and Salmon Chase was Lincoln's Secretary of Treasury, IIRC.

It's also worth remembering that until the last 50 years or so, judicial experience was not considered a sine qua non for a Justice. White was an ex-Congressman, I think, and there have been a lot of former executive-branch people on the Court. Roberts's Justice Department experience probably won't add as much as, say, O'Connor's experience as a state senator, but it's good for the Court to have some people who haven't spent their whole lives in the judiciary.

In this case, tho, the reason is probably much the same as the reason Bush I appointed Thomas after only a year and a half on the bench: he wanted one of his own personal appointees to the federal courts to be on the Court, and the field was limited. Like Bush I, he may very well have had this in mind when he appointed the guy to the bench the first time.

Which makes me really wonder what he has in mind for Janice Rogers Brown.

[trilobite]

Seems to me Roberts is answering rather cagily. Thus, he believes in a right to privacy -- as spelled out in the First & Fourth Amendments. Does this mean extending no further than those Amendments? My guess would be yes. But who knows? I understand not asking directly about abortion, but they could reasonably ask about a replay of the birth-control case, Goldberg (IIRC). That would get at the question of what he means by right to privacy.

[Anderson]

Does this mean extending no further than those Amendments? My guess would be yes.

My take also, Trilobite. The gullibility & stupidity of Senators is truly remarkable; a Fox News reporter could ask better follow-ups.

[Ugh]

Off Topic -

I wonder if Katherine saw the front page story on John Yoo in the wall street journal. Katherine?

[Ugh]

It was yesterday's Journal, BTW.

[Katherine]

Yeah I saw it. I don't really care about his marriage, he remains my arch-nemesis.

I heart Russ Feingold, but he's not getting any damn answers. (what on earth was he on about with rendition?) I would not vote to confirm him without more to go on than being able to cite the Steel Seizure case. Yes, yes, you took Con Law, congratulations. Youngstown is not especially helpful in resolving the issue.

Why can't he comment on existing cases, anyway? By that logic every Supreme Court justice is too biased since they WROTE opinions in those cases.

I don't care what Ginsburg did. At this time, with two vacancies and the possibility of the third, in these historical circumstances, with this administration's claims to executive power, with the absence of Congressional oversight, I would not vote to confirm someone who won't give anything even resembling a straight answer on Hamdi.

[Ugh]

Why can't he comment on existing cases, anyway? By that logic every Supreme Court justice is too biased since they WROTE opinions in those cases.

I think the problem is that he's under oath and giving an opinion on how he would decide a particular case might constrain him from changing his mind later, in a way that current Supreme Court Justices who write opinions are not.

For example, suppose he is asked "Was Roe v. Wade wrongly decided?" and he says "Yes." Then later a case appears before the Court where he has to decide whether or not to uphold Roe. Suppose he decides that, in retrospect, Roe was correctly decided after all. What kind of position does that put him in when writing (or joining) an opinion? Should he footnote his testimony explaining the change in his view (as a preemptive strike against perjury charges)?

It's an extra factor that might constrain his thinking, or the extent that he could be persuaded, that otherwise wouldn't be there.

As for Yoo, I believe that he suffers from getting drunk on his own logic and not considering the real world consequences of his actions or reasoning. I think his thoughts are just, "that's the way it is" or "that's the way I think it is," and full stop. Anything beyond the legal question does not matter. I guess it is a sort of blindness.

As I mentioned on a previous thread here, I had him as a professor for two classes in law school.

[Anderson]

Fwiw, Trilobite & I may be too skeptical. Goldstein at SCOTUSBlog:

9:52 - Specter asks about Roberts' reference in a memo to the "so-called right to privacy." Roberts - I do believe that the right to privacy is protected in various ways; the 4th A; the 1st A; 3d A; and in addition the Court has over a series of decisions going back 80 years has recognized that it is a component of the liberty protected by the Due Process Clause, not merely procedurally but also as a substantive matter as well.

That sounds not sso trickssy, Preciouss.

[kenB]

(as a preemptive strike against perjury charges)?

Can you be charged with perjury for a claim about your actions in the future? Statements about the future are inherently non-factual.

[Katherine]

Don't buy it. You could make the appropriate caveats, and categorically refuse to say how you would vote in future cases.

I would not vote to confirm someone who utterly refused to give anything resembling a straight answer on executive power. If all I had to go on was the Hamdan opinion and an acknowledgement that Youngstown existed, I would vote no. Perhaps Feingold didn't ask as carefully as he could have, and someone else will be able to, but if that's as much as they're going to get, I would vote against him. I wouldn't filibuster, but I would vote no, and it wouldn't be a hard decision.

[carsick]

I know others have been put on the court with less bench experience but I don't know of any being nominated for Chief Justice with less.
Not that that's a reason to oppose, I just can't think of any.

[Edward]

David Brooks in on PBS saying that if the Dems on the committee don't vote for Roberts that proves they would have voted against anyone that Bush nominated.

Is that to suggest that Bush would have only offered a devoutly Christian nominee?

[carsick]

Some are saying Ginsberg wasn't asked some of the hard questions expected to be asked of Roberts but she had a long and clear bench record that made some questions moot.

[Sebastian Holsclaw]

"David Brooks in on PBS saying that if the Dems on the committee don't vote for Roberts that proves they would have voted against anyone that Bush nominated.

Is that to suggest that Bush would have only offered a devoutly Christian nominee?"

No it would suggest that they think even moderates are too radically right-wing for the judiciary. Which is what I have suspected since Pickering.

[Ugh]

carsick -

Earl Warren was nominated to the Chief Justice position, I believe, without any prior judicial experience.

Katherine:

Don't buy it. You could make the appropriate caveats, and categorically refuse to say how you would vote in future cases.

But what then would they say that had any meaning?

[Jonas Cord]

Is that to suggest that Bush would have only offered a devoutly Christian nominee?

Are you suggesting Democrats won't or shouldn't confirm devoutly Christian nominees? I don't get it, Edward.

[Anderson]

I mean this in a friendly way, Edward, but how seriously is David Brooks ever to be taken? Hack, hacker, hackest.

I suppose he's useful as a talking-points reference.

(Oh, & kenB's right, there's no way in hell you could charge a judge with perjury on that basis; he could always say "ah, but at that time I hadn't heard Justice Thomas's persuasive argument for executing doctors who perform abortions.")

[trilobite]

Anderson:

That's a relief. I was looking for a fuller transcript, I'll check out ScotusBlog. Thanks.

[Katherine]

Graham's really can be quite the demagogue, eh? Yuck. He's completely mischaracterizing a lot of Ginsburg's positions. Roberts has the grace to look like he's not enjoying it.

[Anderson]

Sebastian, my friend, are you seriously presenting Roberts as a MODERATE???

Moderate what??

[Katherine]

Sebastian, he could come out and say he would overturn Roe and I would not vote against him for it. This executive power stuff is really worrying, and there are a few Senators who really do care a lot about it. If Feingold votes no that's going to be why.

[Ugh]

I love this from SCOTUSBlog:

6:09 - I went downstairs to watch the proceedings. 90% of the press seats are empty. 50% of the public seats are empty. The Senators other than Specter and Leahy who have asked questions are gone.

Glad to see everyone, from both sides of the aisle, is taking the advice and consent role seriously.

[Anderson]

It's interesting, perhaps significant, that Operation Rescue isn't upset:

Troy Newman, president of Operation Rescue, said anti-abortion activists weren't surprised by Roberts' comments but would watch him closely.

"We're concerned about these statements, but the proof will come when it's time for him to rule on these cases as a justice," Newman said.

Whereas the pro-choice folks are much less sanguine, sincerely or for fundraising purposes, who can say.

[Francis]

SH: "No it would suggest that they think even moderates are too radically right-wing for the judiciary."

TWEET! Thought foul.

Other reasons for democrats on the judiciary committee to vote against Roberts:

1. They disagree with SH's conclusion that Roberts is a moderate.

2. They have an unrelated reason to cast a Nay vote: signalling democratic belief that Bush is weak, ensuring the necessary record to take back to their voters, signalling to the president the kind of nominee acceptable for the O'Connor slot, etc.

[Edward]

Are you suggesting Democrats won't or shouldn't confirm devoutly Christian nominees? I don't get it, Edward.

hmmm...I didn't think I was, but let me back up here.

Brooks says "Dems wouldn't support any Bush nominee if they won't support Roberts."

That implies that Roberts' only possibly failing in the Dem's eyes is that he's Bush's choice.

They can't expect a liberal from Bush, but they could expect a more secular conservative, someone to ease the fears of those of us who know we're the targets of the religious right's venom.

I get that it's unfair to assume because he's a devout Catholic that he'll be influenced by Church doctrine (I just watched him say he wouldn't), but with as little information available about him as there is on rulings, this looms large as a warning sign he'll vote against gay rights, women's choice, privacy rights, etc.

In other words, take a blank canvas and paint a big red triangle on it. Then add a few small blue dots here and there. The Red triangle becomes the best way to describe the painting quickly to people. It becomes what you expect the artist wanted you to focus on.

Bush can't offer up an otherwise mostly blank canvas with a big red triangle on it and then complain that the Dems are focused on that red triangle...if he wanted them to focus on the blue dots, he should have offered a painting with only blue dots or smaller red triangles that are overshadowed by the blue dots.

Therefore it's silly for Brooks to suggest that a painting without a big red dot (or a SCOTUS nominee who's record was more informational) would be as likely to be rejected as Roberts.

[Charles Bird]

Seems like we've been debating Roberts for months. The bottom line to me is that he has an intellect that is worthy of the Supreme Court and that he would not close his mind when social issues come before him on the bench. Judging the political climate, he'll get confirmed without a problem. The bigger issue is coming up, Bush's next selection.

[Edward]

tend to agree with Charles

I'm a bit confused why none of the Dems are voting for Roberts, seems more likely to make their vote against a more objectionable choice seem simply partisan.

[Gary Farber]

"Besides, he's only been a judge for two years -- is it a pattern to appoint people with little or no prior experience to very important posts?"

To SCOTUS, yes.

"Can't sleep in it, but you can burn it? What kind of amendment is that? Isn't there a penumbral 'no burning' right that we can infer?"

Not sure which events you're referring to. If it's, say, MOVE, you have an argument agains the Philidelphia government. If it's General Sherman, well, you can't claim rights in a Constitution of a foreign country you no longer belong to, can you?

[Katherine]

Anderson, the Third Amendment specifically says "in time of peace". 10 demerits.

Why are you assuming that none of them will vote for him, Eddie?

If Bush nominates the next person before the vote on Roberts, he'll get confirmed by a much wider margin. Senators are afraid of signalling that there are no consequences for refusing to release documents and that they're generally pushovers with another nomination pending.

[Katherine]

(it says wartime quartering must be in "a manner prescribed by law" but that's not the same thing as a blanket ban.)

[Edward]

Why are you assuming that none of them will vote for him, Eddie?

That's what the pundits on PBS were saying the word on the Hill was.

[Edward]

furthermore, that was the context for Brook's statment.

[Jackmormon]

Katherine, have you seen Marty Lederman's analysis of Roberts's take on the C-o-C clause?

I've got to say: this Roberts guy is sharp. Oh, he's a conservative, no doubt about that, but he's smart smart smart.

[Katherine]

I did.

That doesn't bother me as much, actually. There's a strong Constitutional argument that once a war starts, the way Congress stops it is the appropriations power; that it can't order troops out. I think Roberts is correct that most administrations would make this argument.

I may be misunderstanding, because I trust Lederman's instincts and expertise on these issues somewhat more than my own.

[Jackmormon]

Ok, just pointing it out, hoping to understand this better. We'll see what shakes out once the analysts unstick their eyeballs from C-SPAN.

[Phil]

As a complete layman, it would seem to me that inherent in the power to declare war is the power to end it; and that Presidential defiance of a Congressional declaration of an end to hostilities would be ground for impeachment. This is why I am not a lawyer.

[Jackmormon]

Did you guys catch Sen. Cornyn's reference to the Volokh Conspiracy? EV gives himself props here.

[Sebastian Holsclaw]

"I'm a bit confused why none of the Dems are voting for Roberts, seems more likely to make their vote against a more objectionable choice seem simply partisan."

I don't know for sure that no Democrats will vote for Roberts, but if they don't why would you say "seems more likely to make their vote against a more objectionable choice seem simply partisan"? Why wait for the more objectionable choice? It would tend to make their vote on Roberts look simply partisan. And it isn't unthinkable that it might be more than 'look simply partisan'. It might simply be partisan.

[liberal japonicus]

Did you guys catch Sen. Cornyn's reference to the Volokh Conspiracy?

This reminds me of an anecdote that, when told in this context, is rather distrubing. A umpire covers runner stealing second. The runner slides in as the ball comes in, and the umpire, running in screams 'you're out' while at the same time, throwing back both arms, which looks to all the crowd as if the runner were safe, so he straightens up and says, 'ok you were safe'. The shortstop says 'what the hell do you mean, you said he was out?!' The umpire looks at the shortstop and says "Well, you know that, and I know that, but everyone in the crowd thinks he's safe, so that's what he is'

[Nell]

I would just as soon that the Democratic Senators be partisan.

If they don't have the votes to deny confirmation to Roberts or Gonzales (or whoever is behind door #2), then I'd prefer that they use their questions to lay out an alternative to the right-Republican philosophy of government.

This charade is boring the hell out of most non-lawyers, even people who are usually political junkies.

[DaveL]

You say "boring the hell out of most non-lawyers" as if that were a bad thing. ;-)

[liberal japonicus]

Here's an interesting bone to pick with Roberts (as well as getting y'all's opinion on this)
I posted a note earlier asking just who's in charge down in New Orleans. Yesterday we heard that CNN had won its brief court battle for reporting access in New Orleans.

Today we see this report that reporters are again getting orders not to take photos or write stories.

But one of my right-leaning friends points out that a closer reading of the piece may be in order and, perhaps a more serious issue at stake.

The article contains this passage (emphasis added) ...

The 82nd Airborne soldier told reporters the Army had a policy that requires media to be 300 meters -- more than three football fields in length -- away from the scene of body recoveries in New Orleans. If reporters wrote stories or took pictures of body recoveries, they would be reported and face consequences, he said, including a loss of access for up-close coverage of certain military operations.
This is a description rather than a direct quote. And the specifics of just what was said matter. But if the account is accurate, the contention seems to be that an US Army policy -- presumably intended for warzones -- trumps the decision of a US federal court on American soil. And I don't think you've got to be much of a wild-eyed civil libertarian to find that a tad problematic.

There are good reasons why we place such copious restrictions on the use of combat troops on American soil -- not because there's something wrong with the Army but because the training for war-fighting and policing civilians and/or disaster relief are quite different and the two don't easily mix.
link

While I have a certain amount of sympathy for presumable military position on this (having cameramen getting in the way while carrying out their duties), I do note that this is the clean up, and there are any number of questions about the rights of the residents and those who refuse to leave.

[Ugh]

liberal japonicus -

I read that on Marshall's site earlier. The less insidious interpretation is that:

(a) the Army has a policy for reporter access to recovering dead bodies in general
(b) the soldier never heard of CNN's suit
(c) therefore never heard that CNN won it's suit; and
(d) therefore continues to enforce the Army policy, absent contrary instructions.

The idea that "US Army policy -- presumably intended for warzones -- trumps the decision of a US federal court on American soil" likely never even entered into the head of this soldier.

Marshall does good work most of the time, but here he is putting the worst possible face on things.

[liberal japonicus]

Thanks Ugh, that's a good point, though Marshall does note that a 'right leaning' friend pointed this out to him, so it is possible that Marshall is merely relaying te concerns of a conservative. IANAL, so a lot of the hearings go over my head, but I would be interested to know (especially in light of Katherine's point here) Robert's views on the range of problems that could emerge from New Orleans. I know, candidates aren't supposed to talk about issues that they may have to rule on, but I remain curious, nonetheless.

[CharleyCarp]

I just caught a snippet -- it was back to school night, and a busy work day. What I caught was Shumer acting shocked, shocked that Judge Roberts wouldn't offer an opinion on Wickard. Me, I thought it was prudent: I mean if Judge Roberts plans to hold (or conceives of holding) that Congress lacks the power to make possession of marijuana a crime, it's hardly surprising that he doesn't want to tell anyone now.

Caught snippets on Casey in taxicabs. I can't see the Base liking this, but then maybe they're expecting him to be dishonest. I think more of the guy than that, though.

I wouldn't vote for him, either. Not because I'm a partisan -- I'd vote for Souter, for example. But because I wouldn't vote for even a reasonable conservative (and that's what I think JGR is), and if the residents of my state sent me to the Senate it would be because that's what they expected of me. (Which is only the least of the reasons there is no danger of them ever doing so).

I'm going to go dark for a while now. I'm going to Helena early in the am, and then to Babb Montana for a bit, beyond the reach of any grid. After that, Guantanamo, where as one of the many ways the Navy 'accomodates' us, we have a dial-up with so few ports, that one is very unlikely to get on before 11 pm -- late if one wants to catch the 7:30 ferry across the Bay.

I'm hoping he'll be asked about the Hamdan case, and the canons issue (as noted in today's http://www.latimes.com/news/opinion/commentary/la-oe-lubet13sep13,0,1515736.story?coll=la-news-comment-opinions>LA Times, among other places). I have a motion pending before him on that subject -- filed the reply brief today -- so I wouldn't expect him to talk about it, but then again, I guess every nominee gets to make up his/her own way of dealing with questions.

[CharleyCarp]

Judging the political climate, he'll get confirmed without a problem.

I agree completely.

[CharleyCarp]

Lest that be taken as simple whining, let me add that if the Navy allowed me to use the PUBLIC library, which is available to anyone else, I wouldn't have the internet access issues that I'll have.

[John Thullen]

Question from a total layman:

When a nominee states under oath that he has no agenda, given, well everything ... what part of perjury before Congress has not been violated?

Not that he has an agenda, and not that he's not a very credible nominee who will make a wonderful Supreme Court justice .. but I just want everyone to know that nothing I've said or written over the past 30 years has anything to do with my actual positions.

I've been posing.

[hilzoy]

CharleyCarp: have fun in Montana, and, well, hmm, I guess fun's out, but: fight the good fight in Gitmo.

[John Thullen]

nothing and anything maybe should be everything and nothing.

Plus, there have been confederate infantry garrisoned in my house since the Gingrich revolution. My wife let them him.

Sorry, I'd forgotten about the 3rd Amendment.

[Jackmormon]

Tell us as much as you can, Charley!

[Katherine]

There's nothing instrinsically wrong with being partisan. If I were a Democrat right now I'd be figuring: he's getting confirmed, but the way I vote might send a signal that influences the next nomination. Therefore, if I draw a line in the sand here about secrecy, I do what I can to keep pressure on the administration to disclose documents for the next judge. If enough of us draw a line in the sand here about executive power issues and vote no, the President will worry that if he appointed someone like Gonzales or even Luttig, we might filibuster.

There's not a damn thing wrong with this kind of strategizing. If the President doesn't like it he can be more forthcoming with reasonable document requests and go ahead and nominate O'Connor's replacement before the Roberts vote. Until he does--no one's talking about a filibuster barring shocking revelations. It's not wrong to use your vote to maximize your chance of affecting policy.

And the executive power stuff matters. A lot. Even I was too complacent about it before the Padilla opinion last week.

Now, if we're talking about, "we'll vote against anyone who won't promise to uphold Roe", that's a different thing. But I doubt that's what's going on. The real serious liberals on the committee, Feingold, Leahy, Durbin, were focusing their attention elsewhere. (Durbin did an excellent job getting the closest thing to useful answers.)

The answers he gave were largely reassuring, but so many questions were not answered....if there weren't another vacancy pending I might feel differently, but as it is, I'd vote no at the moment. Subject to change if we get anywhere on the executive power/war on terror questions.

Good luck, Charley.

[bob mcmanus]

Tradesports: 98.7 confirmed
83 70 votes

I might take some form of that second bet, I think he gets 75.

Numbers via Bainbridge

[hrc]

Roberts as a replacement for Rehnquist is pretty much an even trade far as I can tell. The gloves come off on the new replacment for O'Connor, I'm guessing.

[votermom]

Fine, fine. I hope I won't be saying I told you so five years down the road.
And it's not the Catholic part I'm worried about, it's that business is so happy to have him.
This guys is worth over 5 million. By the way, what charities has he given to for the last five years? Just curious where his heart is.

[Paul]

David Brooks in on PBS saying that if the Dems on the committee don't vote for Roberts that proves they would have voted against anyone that Bush nominated.

Which is a silly remark even from David Brooks; it could just as easily prove that Bush would never nominate anyone the Democrats could vote for.

And just because it's making the rounds:

Q: What's President Bush's opinion on Roe v. Wade?

A: He doesn't have one. He doesn't care how people get out of New Orleans.

[Anderson]

If it's General Sherman, well, you can't claim rights in a Constitution of a foreign country you no longer belong to, can you?

Ah, but Lincoln insisted that the Confederacy didn't really exist, that its states remained in the U.S. but were in the grip of an insurrection.

Katherine's point is strong, but define "peace." If it's the state of non-war, then there was no war, since again there was no enemy state. And no declaration of war, for that matter.

Reparations! I demand reparations!

[Gary Farber]

If it's General Sherman, well, you can't claim rights in a Constitution of a foreign country you no longer belong to, can you?

Ah, but Lincoln insisted that the Confederacy didn't really exist, that its states remained in the U.S. but were in the grip of an insurrection.

And any citizen who is/was acting treasonously towards the United States by maintaining they have a right to rebel against the government is/should-have-been free to acknowledge and submit to the rightful authority of the United States, and then, once past their trial for treason, if they were/are found innocent, they'd have standing to sue the U.S. for a violation of the 3rd Amendment; but you can't simultaneously ask for the jurisdiction of the U.S. government and reject it.

Further, the Constitution recognizes "Insurrection" in Section 8, Clause 15.

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Also:

Clause 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

And:

Section. 3.

Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

So:

If it's the state of non-war, then there was no war, since again there was no enemy state. And no declaration of war, for that matter.

So, certain States were both committing Insurrection, as well as War, so the above statement fails.

[Anderson]

Again, Lincoln's position was that the States weren't doing these bad things; it was insurgent elements within the states. IIRC he recognized some legislatures-in-exile, implausibly representative tho they were.

Whether Lincoln's version was fact-based (nope) or legally sound (???) is another matter, but it does make the 3d's application more complex.

Also n.b. that the definition of treason cuts against Gary's initial argument, that you can't rebel & then sue in federal court. I wasn't thinking of Robert E. Lee's house. Southern civilians not implicated in "adhering to their enemies, giving them aid and comfort" were not guilty of treason.

(Sometime when I have more leisure I will have to get on Westlaw & see if any suits ever were brought under the 3d for Civil War incidents. Just because it's a dumb idea, god knows, is not enough to keep some plaintiff from bringing suit.)

[Katherine]

His jurisprudential explanations are great. I agree with most of them. He is NOT a Scalia-style originalist. He is either extremely naive or disingenuous about the degree to which a judge's moral views plays no role at all. But a lot of judges do that.

That said, he is dodging everything so thoroughly that with at least one more vacancy and possibly two more coming up, I would be extremely wary of setting the precedent that this was enough disclosure. He is saying nothing of any use about any relevant issue.

[Sebastian Holsclaw]

"He is saying nothing of any use about any relevant issue."

Other than Bork, that is exactly what you should expect from judicial hearings. Judges are notoriously uninterested in being pinned down, and Senators are notoriously bad at pinning them down (probably because they are too interested in their own grandstanding to bother with actually engaging in a battle of wits with a lawyer smarter than themselves.

[Sebastian Holsclaw]

And I am notoriously bad at using the close bracket. )

[Katherine]

But then I'm left with his paper trail, above all Hamdan, which I keep re-reading. Every time I do it sounds worse. The court went far beyond what it had to say to overturn the district court.

I would vote no. I'm surer and surer of it.

[Katherine]

All right, if he can answer about Kelo he could've damn well answered at that same level about Bush v. Gore. There is no principled basis upon which he is answering some questions and refusing to answer others.

They need to start asking him DESCRIPTIVE questions about the majority holdings in the key cases.

[Katherine]

I also do not like one little bit that he seems to be more forthcoming in private meetings with Senators and especially the administration than he is in public hearings.

[Sebastian Holsclaw]

Now please realize that I have only read the decision itself, not the supporting briefs. So it is entirely possible that you see this from a completely different direction if you have read all the briefs.

I'm not entirely sure what you find overwhelmingly objectionable (I'm not sure what you believe is so out of line as to require non-confirmation).

The Congressional authorization issue doesn't look that big. Congress has been outsourcing its authority to executive agencies in both formal rule-making and other more informal ways (including the military) since the 1930s. Maybe that whole history is inappropriate, but it isn't judicially out-of-bounds (especially if you support things like the EPA). And in many separation of powers issues involving Congress and the Executive, the judiciary doesn't get involved unless one party formally asserts the question (and often not even then). Since Congress is taking no action to question the right of the executive to set up military tribunals of non-citizens affiliated with Al Qaeda, captured in a war-zone without identifying insignia, I don't see how there is a separate individual right to challenge it on a seperation of powers issue. (Or rather, like all things legal you can challenge it, but you shouldn't always win). Is there a majority-ratified Congressional amicus brief questioning the issue?

This paragraph may not be necessary to the holding, but I think it is entirely accurate:

One problem for Hamdan is that he does not fit the Article 4 definition of a “prisoner of war” entitled to the protection of the Convention. He does not purport to be a member of a group who displayed “a fixed distinctive sign recognizable at a distance” and who conducted “their operations in accordance with the laws and customs of war.” See 1949 Convention, arts. 4A(2)(b), (c) & (d).

Which leads to "who decides"?

Hamdan claims that AR 190-8 entitles him to have a
“competent tribunal” determine his status. But we believe the
military commission is such a tribunal. The regulations specify
that such a “competent tribunal” shall be composed of three
commissioned officers, one of whom must be field-grade. AR
190-8 § 1.6(c). A field-grade officer is an officer above the rank
of captain and below the rank of brigadier general -- a major, a
lieutenant colonel, or a colonel. The President’s order requires
military commissions to be composed of between three and
seven commissioned officers. 32 C.F.R. § 9.4(a)(2), (3). The
commission before which Hamdan is to be tried consists of three
colonels. Brief for Appellants at 7. We therefore see no reason
why Hamdan could not assert his claim to prisoner of war status
before the military commission at the time of his trial and
thereby receive the judgment of a “competent tribunal” within
the meaning of Army Regulation 190-8.

This is entirely correct as far as I can see.

I suspect that beginning at the second paragraph of page 14 and continuing through page 15, is more than is necessary for the holding, and might represent theoretically unnessary (though unfortunately very typical) appellate findings of fact.

Do you think that Eisentrager is wrong and there really is a judicially enforceable private remedy located in the Geneva Conventions?

This by the way does highlight a problem I always have with treaties--they usually have crap for enforcement mechanisms. The main enforcement mechanism of shredding the Geneva Conventions is that the other side is allowed to not treat you under them. And I know of no one willing to argue that Al Qaeda (which Hamdan admits he was affiliated with) tries even remotely to follow the Conventions. (Please note I am not speaking of the Conventions treatment of civilians). But in terms of determining who is a civilian, a military tribunal is a competent authority to make that decision whether it is called 'tribunal' or 'commission'. Substance, not form (or in this case, name).

[Gary Farber]

IJWTS that it would be nice if my local PBS channels -- I get three, one of which duplicates another -- were running the hearings, rather than children's programing and the rest of the norm, for the benefit of those of us who can't afford cable. Why is it we have PBS, again?

[Gary Farber]

Wait, I take it back. It's only one of the three, and it wasn't running yesterday or Monday, but KBDI-12 is on with them now.

I have to say that while I hardly want to go back to the days of Schecter Poultry Corp. v The United States or Hammer v. Dagenhart, I'm not convinced that the Commerce Clause is a catch-all to allow the Federal government to regulate anything. But I have no formal legal training in this or any other issue, to be sure.

[Ugh]

Katherine -

Don't know if you are watching the hearings but according to SCOTUSBlog "Roberts - "As a general matter," the President cannot decide not to follow a treaty."

Guess that's not much but hopefully helps.

[Katherine]

Here's the decision for those interested.

1. Congress doesn't sue collectively. They have no more standing than anyone else to sue on separation of powers grounds. They have LESS standing than someone who is imprisoned as a result of a violation of separation of powers.

I see the impulse to think that it's on Congress to enforce this, I bugged my foreign affairs law professor about it, but that's not what the courts have ruled. Raines v. Byrd I think is this case...It's just not.

And you go further than arguing that Congress has a special status, you say that individuals have no right to sue at all. Do you realize what a sweeping argument you're making here? You're arguing that only other governmental entities, and not individuals, should be able to sue on issues of whether the federal government, or a branch of it, has the Constitutional authority to act. This would logically apply every bit as much to federalism cases as separation of powers cases. I would think this idea would alarm conservatives even more than liberals.

2. There is always something more Congress could do, up until the point where they either impeach the President or cut of all funding for the war. The fact that they have not explicitly forbidden something is not the same thing as authorizing it. The "burden of inertia" as one of my law professors called it is just hugely, hugely important. The Supreme Court does allow Congress to delegate a lot to agencies, but they do not automatically defer to agencies' interpretations of a statute without squaring it with a statute, on the grounds that Congress could have and didn't pass a statute overruling the agency action.

3. On Geneva: I say, as a general approach, that "with implied power comes implied responsibility." If Congress' vaguely worded use of force authorization implies an authority to try those who violate the laws of war, it also implies an obligation to follow the laws of war in those trials--especially when those laws have explicitly been made "the law of the land" by 2/3 ratification of the Senate. (If you want to be picky, it is implied in the authorization of "appropriate" force). This is especially true because of the Charming Betsy Canon, which is a canon of construction saying that U.S. laws should be read in a way that's compatible with the law of nations.

For a good example of how to do this see Justice Souter's excellent and too-overlooked opinion in Hamdi.

Note that I am very, very worried about the Convention Against Torture here instead of Geneva.

4. As far as the content of what Geneva requires, as precedent it's less important than the rest of the opinion. But it's also disturbing.

The part about Hamdan not being a POW is probably correct, though there's still the requirement that his non-POW status be determined by a competent tribunal.

What disturbs me is the determination that the Convention does not apply to the conflict with al Qaida at all. The Court ignores this language in Convention III and IV: "The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

Afghanistan is a high contracting party. The United States was involved in a war in, and a partial occupation of its territory.

Further, it seems to me that Al Qaeda members, even if not protected as Al Qaeda members, may still be protected as nationals of Afghanistan. Convention IV says that "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are."

No one is a national of Al Qaeda. Nationals of Afghanistan are nationals of Afghanistan even if they are also members of Al Qaida.
Convention IV makes it quite clear that even "spies and saboteurs" can be "protected persons" for its purposes.

Trying to slice off the war against Al Qaeda and make it its own law free zone is not a defensible reading of Geneva. This is not the same question as whether they are prisoners of war.

5. Most of the opinion isn't absurd. But it does go as far as you could reasonably go to uphold executive power, and in a few cases it goes further than that. And it is the only thing, the only thing at all, that tells me anything about Roberts' views on the President's power in the War on Terror. It's entirely possible that there is a line he won't let Bush cross, but there is no way of knowing where it is or if it really exists.

6. I'm not arguing that Hamdan is absurd so much as I'm arguing that it is dangerous.

As always, I'm thinking of the Convention Against Torture as well as Geneva.

With this administration, making these legal claims about unlimited power inside and outside the United States, against non-citizens and citizens alike, with its views on the legality of torture and its known condonation of torture,with its belief that everything is legal until a judge explicitly orders it to stop and the Supreme Court affirms his order, with Congress completely unwilling to do anything about any of this, with the courts our only real line of defense--Roberts views on executive power, based on the only source available to me, are dangerous.

[Katherine]

Ugh--that it's illegal for a President not to follow it doesn't necessarily imply that a Court will order him to stop. It may be that the President is acting illegally but the Court doesn't have the authority to stop him. So that doesn't tell us much.

[Ugh]

that it's illegal for a President not to follow it doesn't necessarily imply that a Court will order him to stop. It may be that the President is acting illegally but the Court doesn't have the authority to stop him. So that doesn't tell us much.

Like I said, it's not much but at least something.

[Sebastian Holsclaw]

"The part about Hamdan not being a POW is probably correct, though there's still the requirement that his non-POW status be determined by a competent tribunal."

But doesn't the opinion deal with that and explicitly rule that commission is a tribunal?

What disturbs me is the determination that the Convention does not apply to the conflict with al Qaida at all. The Court ignores this language in Convention III and IV: "The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

Maybe I'm misreading things, but I think you are confusing two issues. Al Qaeda is not a high contracting party. But even if it were, it isn't following practically any of the laws of war. The remedy for this under the Geneva Conventions is that they don't get the special protections of the Geneva Conventions. (Remember that the Geneva Conventions were designed not as a baseline, but as mutually reinforcing incentives to follow the rules by getting treated under the rules when you follow them). You can set the threshold pretty much as low as you want in terms of following the Conventions and you will still find that Al Qaeda isn't following them. (In other words while I would not argue that single instances of violations are enough, Al Qaeda's whole philosophy of strategy and tactics centers around methods which are violations. As such I can think of no reasonable standard of adherence which would find them to be adhering to the Conventions.)

A huge part of the governing philosophy of the Geneva Conventions is geared around minimizing the inevitable harm that comes to civilians in war. Almost everything Al Qaeda does is in direct conflict with that notion.

But back to the opinion. I saw the discussion as a completeness issue often used by appellate judges. They try to protect their opinions with three or four layers of explanation. In this case it is
A)Al Qaeda not a contracting party
B)If it were treated as one it would be treated as a contracting party in serious breach of the Conventions
C)Hamdan is not a civilian requiring those separate Conventions.
D)He was brought before a tribunal anyway, which is what the Conventions would require even if Al Qaeda were a contracting party and even if it were not in breach.
E)He has no private right of enforcement.

And Hell, as a factual matter he is an admitted affiliate with Al Qaeda.

"Trying to slice off the war against Al Qaeda and make it its own law free zone is not a defensible reading of Geneva. This is not the same question as whether they are prisoners of war."

I can't agree with your line of reasoning here. It isn't a law-free zone. The conventions themselves say what you have to do in order to be protected by them. Bascially in order to find Hamdan protected you have to believe he was a non-combatant--which is not what his commission trial found. You want to treat him under Convention IV (civilians). He is being treated as an unlawful combatant under Convention III. A lawful combatant under Convention III operates with all the protections of a Geneva Convention protected prisoner of war (normally I would say prisoner of war but too many people use that to mean "Geneva Convention treated" for that to be clear). Do you argue that people slip back and forth between Convention III and Convention IV all the time? If sleeping Convention IV, if travelling to bomb Convention IV, if actually shooting Convention III, if gun by the bedside Convention IV? If in uniform Convention III? If taking a shower, Convention IV? If that is the modern interpretation of the Conventions, I'm darn sure that wasn't how it worked in the 1950s and 1960s.

"with Congress completely unwilling to do anything about any of this...."

I think this is a big key. In separation of powers issues I am very loathe to believe that the judiciary is in a better position to vindicate Congress' rights than Congress.

Raines says almost the opposite of what you are using it for:

Judicial Abstract

In a 7-to-2 decision, which avoided the question of the Act's constitutionality, the Court held that the individual congressmen lacked proper Article III standing to maintain their suit. The Court explained that the congressmen failed to show how the allegedly unconstitutional Act resulted in their personal injury, since it applied to the entire institution of Congress. Moreover, the congressmen based their claim on a loss of political power rather then a demonstration of how the Act violated one of their particularized legally protected interests. The Court concluded that, having failed to meet both of these standing requirements, the congressmen did not present the Court with a case-or-controversy over which it had jurisdiction.

This says that individual Congressman don't have the standing to sue for personal injury when the institution has the claim. Now maybe there is something that says Congress can't sue to vindicate its own rights as an institution, but this isn't it.

RE: Convention Against Torture, there aren't multiple classes of people with different rules applying to them, so I don't see the Hamdan case as being very enlightening on views of Executive power and torture.

[rilkefan]

No "under God" in schools. This should be fun.

[Barry]

Sebastian:

"No it would suggest that they think even moderates are too radically right-wing for the judiciary. Which is what I have suspected since Pickering. "

What's Bush running for a confirmation rate? A tad under 100%? Must be rough.

[Sebastian Holsclaw]

U.S. District Judge Lawrence Karlton must be a tricksey Republican, because nothing could be worse for a serious reflection on Supreme Court nominations than a stupid pledge of allegiance fight.

"What's Bush running for a confirmation rate? A tad under 100%? Must be rough."

Republicans have a majority in the Senate. We were talking about Democrats and the appearance of partisan voting.

[Katherine]

The Court does not merely hold that Hamdan is not a POW, which is right, or that he is not a protected person, which if he is a citizen of Afghanistan is wrong--spies and saboteurs Sebastian, spies and saboteurs, but that the Conventions do not apply at all. That is a separate issue from all the debates about how they apply, and you've not addressed my arguments on that point.

I'm concerned about the CAT because like Geneva it is a non-self executing treaty. It has been executed by Congress in two statutes, one of which is a criminal law which it is at the administration's discretion to prosecute under (the torture statute), and the other of which provides a limited means for judicial review (FARRA). If Judge Roberts don't think treaties are legally relevant at all as far as implied limits on implied powers, if he doesn't believe in the Charming Betsy canon, the CAT is in danger too.

Further, a judge willing to find nonexistent loophole in the Geneva Conventions for the President will be willing to find nonexistent loopholes in the Torture Convention for the President. You don't think the Bush administration has an argument about why the torture convention doesn't bind it in the war on terror? Why on earth would the CAT be different from any other law? Here are some arguments: the prohibition on transferring suspects to torture does not apply extraterritorrially. The prohibition on cruel, inhuman and degrading treatment does not apply extraterritorially.

As far as Raines, here's the key sentence:

"Moreover, the congressmen based their claim on a loss of political power rather then a demonstration of how the Act violated one of their particularized legally protected interests."

And when could one ever say that "Congress", as Congress, was suing? Are you saying that to vindicate a violation of separation of powers you need every Congressman to join a suit? A majority? A veto-override majority? A filibuster proof majority? What if it's changed hands?

Even if you think that is right, even if you can't see the blatantly obvious potential for that to kill separation of powers, it is quite clearly NOT what the Supreme Court thinks. It is completely clear, based on the current case law, that an individual can sue on separation of powers or enumerated powers grounds as long as he jumps through the same jurisdictional and procedural hoops one must jump through in every court case.

The line item veto was eventually struck down by the Court not because the entire Congress sued, but because the City of New York sued. Here's the case. It was a 6-3 decision, but zero of the justices made the argument that only Congress may ever sue on separation of powers grounds. Zero. Nor did the court in Hamdan actually make the argument you are making.

The writ of habeas corpus allows prisoners to challenge the legality of their imprisonment. If the President imprisoned an individual with an act that exceeded the powers that a statute or the Constitution granted him, that individual's imprisonment is illegal. For one thing if POTUS didn't act pursuant to any power he legally has, he has deprived that individual of liberty without due process of law. What do you think habeas is for? Maybe it doesn't give a right for an individual to sue under Geneva, but arguing that it doesn't give it to sue under the Constitution?

I don't know what you mean when you say that "Congress is in a better position to vindicate"...than the judiciary. Congress depends on the judiciary to tell the President when he is violating a Congressional statute. It is simply impossible for Congress to write statutes in the war on terror so watertight that this administration won't disregard them. They have argued, and never backed away from the view, that it is unconstitutional for Congress to put any limits at all on what the President can order the military to do, including ordering him not to torture people, and therefore the President can order torture despite these statutes. It would be up to the Courts to tell the President that this was wrong and order him to stop. Of course, they evade court orders too, but they are less likely to evade them than statutes.

Do you think the courts don't have the power to order the President to follow a statute or act outside his constitutional powers, that they should somehow step back and let the President and Congress fight it out in some unspecified way? You realize that the President controls the whole law enforcement apparatus? What is Congress supposed to do that does not rely in some way on the courts? Do you agree with John Yoo that if the President exceeds his commander in chief authority "the constitutional remedy is impeachment"? If not, Congress needs the Courts to be able to enforce separation of powers claims. If so, you are arguing for no limits at all on executive power.

[Katherine]

(I have to go now. This has the look of one of our patented "what on earth is s/he talking about, has he even read the statutes or what I actually posted" law conversations that go absolutely nowhere so probably that's just as well.)

[Sebastian Holsclaw]

"Maybe it doesn't give a right for an individual to sue under Geneva, but arguing that it doesn't give it to sue under the Constitution?"

But unless I'm wrong (which is always possible) the opinion specifically says that he doesn't have a right to sue under Geneva Conventions. Isn't that the complaint? The issues are distinct and dealt with in different sections. Maybe I'm the one accidentally pushing the two issues together, but it sounds like you are treating them as related legal issues when they aren't. The opinion is a bit muddled about whether or not he had a right to sue, but it found against him on a clear Supreme Court precedent.

As for the separation of powers issue, the court found that Congress had indirectly authorized actions like the commissions. They don't use my argument, they say that Congress did enough to authorize it. Do you disagree? Do you think that the authorization of force in Afghanistan does not allow the Executive to set up a system of dealing with people captured? Seems a bit odd.

"Do you think the courts don't have the power to order the President to follow a statute or act outside his constitutional powers, that they should somehow step back and let the President and Congress fight it out in some unspecified way? You realize that the President controls the whole law enforcement apparatus? "

Are you positing a situation where Congress wants to act? Because that isn't the situation. Congress almost certainly does not disagree. In clear cases of course the courts should act. But what does that have to do with this case. Congress delegated to the Executive branch all sorts of nominally legislative decision-making ability--just like they do with the EPA or OSHA. You make it sound like the setting up of commissions is clearly outside that authority. I don't see it. It seems to me clearly inside that given authority. The Court thinks so too when it cites: "Congress’s
joint resolution authorizing the use of force; 10 U.S.C. § 821;
and 10 U.S.C. § 836." He raised the separation of powers issue and lost on the merits. Do you really think that Congress did not authorize military commissions? Are the court's citations not sufficient in your opinion?

I admit I don't get it--you make it sound as if the opinion doesn't make legal sense, but it also sounds like you don't like the outcome independent of the legal sense. I'm very sympathetic to that problem but if you are criticizing Roberts on his understanding of the law (and I think you are) I don't get it.

[Sebastian Holsclaw]

"Do you agree with John Yoo that if the President exceeds his commander in chief authority "the constitutional remedy is impeachment"? If not, Congress needs the Courts to be able to enforce separation of powers claims. If so, you are arguing for no limits at all on executive power."

I'm not. But I am saying that in a case like this, where authorization seems to have been delegated I don't understand what the problem is unless you also are willing to entertain challenges to other delegations on general grounds (like the EPA or OSHA). I suspect you aren't willing to entertain such challenges. All sorts of executive rulemaking happens under a much more generalized mandate from Congress. The idea that the Executive can't set up military commissions for limited purposes related to a war authorization is a little bit weird, especially when Congress doesn't seem to have the least worry about it. I don't see a statute that the executive seems to have transgressed. The argument stems entirely from "The
argument is that Article I, § 8, of the Constitution gives
Congress the power “to constitute Tribunals inferior to the
supreme Court,”" The Constitution also give power the Congress to pass laws and Congress has delegated huge portions of that power into executive rule-making. Delegation happens. Maybe it is unwise. (I might be willing to argue that it would be better to hold Congress accountable to voting for things instead of letting it go through rule-making, I'm not sure). But it is absolutely a common feature of modern government.

[Gary Farber]

Is it just me, or did Senator Coburn just argue, in essence, that lands where the Bible didn't figure in the foundations of their law, such as, you know, Hammurabi, China, India, Asia, Africa, and the like, are lawless, or that their laws are worthless? His entire point was "where do our laws come from?" and his answer seemed to, although not made fully explicit, indicate that he thought the only answers were either "God" or "the Bible" or "the Ten Commandments." Did I not listen closely enough? (Quite possible, with 7 windows open, in my typical Attention Deficit style.)

[Anderson]

His entire point was "where do our laws come from?"

A Senator should know that the answer is "lobbyists!"

I mean, come on, how many of the laws he sponsors come about because the Senator & his staff are pagin' through Leviticus, lookin' for statutes?

[Jackmormon]

You're right, Gary: Coburn's line of argument was to suggest that US Law came from British Law came from natural law came from God's law. It was all political, all silly, and Roberts remained sensibly coy throughout.

I think it was Coburn--the Republican questioners do tend to blur together--who listed the only commandments which could possibly accord with US law and then commented, approximately: "who could say that these laws are irrelevant to our modern jurisprudence?" I'm one literalist agnostic who sees approving the ten commandments by the state as opening the gates to approving the whole Mosaic code--except, of course, that we're an undeclared Christian nation. Very dangerous territory, here.