NationStates Jolt Archive

Poll Note: After Strongly Disagree should read: "He definitely should not have to state his position."

NOTE2: This is NOT intended to be a debate over the Roberts's nomination or over what his view on Roe v. Wade may be.

In the legal field and political arena, it has long been a matter of debate about to what degree a nominee should answer questions about specific issues. On one end, some think the justice shouldn't have to answer questions about ideology at all. On the other, some think the Senate has a right to know how a nominee might vote on critical issues. It can be a complicated issue.

According to a recent AP-Ipsos poll (http://www.washingtonpost.com/wp-dyn/content/article/2005/07/21/AR2005072100793.html), "[j]ust over half of all Americans - and a solid majority of women - want to know John Roberts' position on abortion before the Senate votes on whether to elevate him to the Supreme Court."

Arguably anyone that has argued abortion cases, has severed on a US Court of Appeal, and wants to be on the Supreme Court must have some opinion on the issue of Roe. (If not -- or if like Thomas they claim they have never thought about it -- perhaps they aren't really qualified to be a Justice.) Why doesn't the country and the Senate have the right to know those thoughts?

On the other hand, one can make a good argument that a potential Justice shouldn't pre-judge cases and shouldn't answer hypotheticals. It has certainly been the trend for nominees to avoid or refuse to answer such questions in recent decades.

(Note: People and parties position on this issue has varied over time. It isn't really a left-wing or right-wing issue -- although the discussion here may be shaped by the Roberts's nomination context.)

I'm curious as to others thoughts.

This is NOT intended to be a debate over the Roberts's nomination or over what his view on Roe v. Wade may be.

In the legal field and political arena, it has long been a matter of debate about to what degree a nominee should answer questions about specific issues. On one end, some think the justice shouldn't have to answer questions about ideology at all. On the other, some think the Senate has a right to know how a nominee might vote on critical issues. It can be a complicated issue.

According to a recent AP-Ipsos poll (http://www.washingtonpost.com/wp-dyn/content/article/2005/07/21/AR2005072100793.html), "[j]ust over half of all Americans - and a solid majority of women - want to know John Roberts' position on abortion before the Senate votes on whether to elevate him to the Supreme Court."

Arguably anyone that has argued abortion cases, has severed on a US Court of Appeal, and wants to be on the Supreme Court must have some opinion on the issue of Roe. (If not -- or if like Thomas they claim they have never thought about it -- perhaps they aren't really qualified to be a Justice.) Why doesn't the country and the Senate have the right to know those thoughts?

On the other hand, one can make a good argument that a potential Justice shouldn't pre-judge cases and shouldn't answer hypotheticals. It has certainly been the trend for nominees to avoid or refuse to answer such questions in recent decades.

(Note: People and parties position on this issue has varied over time. It isn't really a left-wing or right-wing issue -- although the discussion here may be shaped by the Roberts's nomination context.)

I'm curious as to others thoughts.
I do think that the country has the right to know the thoughts of potential justices, but I also think that since justices do not decide cases solely on hypothetical situations, they should not have to answer hypotheticals. Of course, in a perfect world, the justices would do their jobs and interpret the constitution instead of deciding how their ideology fits into the case. This is not a perfect world, however, and so I think before the ideological questions are asked, the track record of opinions and rulings should be tested to determine whether or not the candidate likes to throw in his own views on the matter.

Hi cat.

I think that it's appropriate to ask court nominees their opinions about past cases. however, i think it's inappropriate to ask about theoretical future cases because there are just too many unforseeable factors involved. so, for example, it would be appropriate to ask Judge Roberts his thoughts on decisions like Roe v. Wade or Planned Parenthood v. Casey, it would be inappropriate to ask whether he would vote to overturn those decisions in a future case because it would be entirely dependent on the specific facts to the future case which could alter the opinion rendered. I would also go so far as to say that it is appropriate to ask a nominee whether (s)he would have decided with the majority or dissent of past court decisions.

It may seem like splitting hairs to some, but in the ivory tower of legal theory, property, freedom, and lives can hang in the balance of a hair split.

He shouldn't have to. Much as we may not like him, all he is entitled to do is look good and impress Congress so they'll accept him.

YAY! I'm the only one who voted so far!

YAY! I'm the only one who voted so far!
Yeah, you know, except for three other people. ;)

I think you made a typo in your poll. you twice ask if he definitely should have to testify, but don't ask if she definitely not have to testify.


Also, I chose "other" because I think the better question is whether it is or is not appropriate for him to testify on Roe v. Wade. The question is kind of asking whether we personally want to force him, not whether he should have to answer if asked.

The question of abortion is certainly very important and topical in the United States. Why should the Senate 'buy a pig in a poke'? I think the Senate may ask Mr Roberts’s opinion on Roe, for example how he would have decided Roe v Wade if had served on the Supreme Court in 1973.

BTW, is this question allowed at a Senate hearing?

P.S. I am not an American and certainly not a legal scholar, but I've been concerned with abortion in another way, as a doctor.

I am just glad to know that there is only one issue that the Supreme Court Deals with. What a relief.

I am just glad to know that there is only one issue that the Supreme Court Deals with. What a relief.
word

I bet you didn't know it was that easy, did you?

I think its a complicated issue. I may have voted wrongly. I voted for strongly disagree, but not thinking about it. I suppose that his opinion on the case of Roe v Wade is a legitimate question, but I still think he shouldn't have to answer. My reasoning is that no one actually wants to know, for instance, how he would have decided the case if he were there. They want to know what he will do about abortion, which is an improper question. Someone can disagree with the reasoning of Roe v Wade, such as, I am told, Justice Ginsberg does, and yet still support abortion rights. So, if he is asked, "Do you think that Roe v Wade was properly decided based on the constitution?" it should be answered. If someone asks him if he would overrule it if it came to the bench, he shouldn't.

I am just glad to know that there is only one issue that the Supreme Court Deals with. What a relief.

well put.

I think its a complicated issue. I may have voted wrongly. I voted for strongly disagree, but not thinking about it. I suppose that his opinion on the case of Roe v Wade is a legitimate question, but I still think he shouldn't have to answer. My reasoning is that no one actually wants to know, for instance, how he would have decided the case if he were there. They want to know what he will do about abortion, which is an improper question. Someone can disagree with the reasoning of Roe v Wade, such as, I am told, Justice Ginsberg does, and yet still support abortion rights. So, if he is asked, "Do you think that Roe v Wade was properly decided based on the constitution?" it should be answered. If someone asks him if he would overrule it if it came to the bench, he shouldn't.

which is also why the nominees should be allowed to explain any answers they provide.

absolutely not! .... If he does state his opinion, and a case rises pertaining to that exact issue, the entire preceeding is tainted as the general public will see any decision made a direct result of his personal opinion (whether or not this is actually the case), as opposed to him judging based on the merits of the case.

Not only this, but the judical institution of the supreme court is suppose to be above politics. Any nominee should be chosen based on merits not on their soical/political views. Because in in the end, it is their merits which enables them to read and interpret the constitution, as oppose to allowing their personal opinions dictate social doctrine and effectivly legislate rather then interpret law!

I think its a complicated issue. I may have voted wrongly. I voted for strongly disagree, but not thinking about it. I suppose that his opinion on the case of Roe v Wade is a legitimate question, but I still think he shouldn't have to answer. My reasoning is that no one actually wants to know, for instance, how he would have decided the case if he were there. They want to know what he will do about abortion, which is an improper question. Someone can disagree with the reasoning of Roe v Wade, such as, I am told, Justice Ginsberg does, and yet still support abortion rights. So, if he is asked, "Do you think that Roe v Wade was properly decided based on the constitution?" it should be answered. If someone asks him if he would overrule it if it came to the bench, he shouldn't.
You have a very good point. I think that hypotheticals should be left alone or dealt with only once or twice.

I am neutral because if by position you mean his personal beliefs, I would say none of the Senates business, but if you mean by position his previous record to date or any publications he has been involved in than, yes.

Many have made judgements in keeping with the law even if they themselves disagreed with it personally. I imagine many a juror has upheld the "reasonable doubt" clause despite their feelings of almost certain guilt of the one standing before them. In short one's judicial stance is not always their personal belief.

It would be premature to judge someone on what you think they might do. To assume either way on this issue has proven many a fool in the past. Many thought O'Connor was a right wing crusader when she went before the Senate. She ended up being a moderate swing vote.

Hi cat.

I think that it's appropriate to ask court nominees their opinions about past cases. however, i think it's inappropriate to ask about theoretical future cases because there are just too many unforseeable factors involved. so, for example, it would be appropriate to ask Judge Roberts his thoughts on decisions like Roe v. Wade or Planned Parenthood v. Casey, it would be inappropriate to ask whether he would vote to overturn those decisions in a future case because it would be entirely dependent on the specific facts to the future case which could alter the opinion rendered. I would also go so far as to say that it is appropriate to ask a nominee whether (s)he would have decided with the majority or dissent of past court decisions.

It may seem like splitting hairs to some, but in the ivory tower of legal theory, property, freedom, and lives can hang in the balance of a hair split.

Well said.

On this point, we are in complete agreement. I think you have put your finger on where the line is appropriately drawn.

The question of abortion is certainly very important and topical in the United States. Why should the Senate 'buy a pig in a poke'? I think the Senate may ask Mr Roberts’s opinion on Roe, for example how he would have decided Roe v Wade if had served on the Supreme Court in 1973.

BTW, is this question allowed at a Senate hearing?

P.S. I am not an American and certainly not a legal scholar, but I've been concerned with abortion in another way, as a doctor.

Agreed. I think it is a fair question.

The question can be asked.

Whether it should be asked and whether it should be answered are the subject of debate.

Most nominees are unlikely to answer directly. Whether the Senate should insist is also subject to debate (but also unlikely).

I am just glad to know that there is only one issue that the Supreme Court Deals with. What a relief.

Meh.

It is one of the most divisive issue and has been a focus for decades.

Regardless, the principle applies to dozens of issues.

But, if you aren't just being snarky, feel free to create a thread that discusses / asks a poll question regarding them all and I'll ask this thread to be closed. :rolleyes:

It only seems practical that he should state his opinion on the issue. The American people have a right to know what government officials, even appointed ones, plan to do in office. It isn’t asking whether or not he agrees with abortion, its asking if he agrees with the ruling on a particular case. Big difference.

Meh.

It is one of the most divisive issue and has been a focus for decades.

Regardless, the principle applies to dozens of issues.

But, if you aren't just being snarky, feel free to create a thread that discusses / asks a poll question regarding them all and I'll ask this thread to be closed. :rolleyes:

I guess I am being snarky, but every discussion of this appointee has mentioned Roe v. Wade. I don't think I have read about any other issues he has dealt with in the past. It is not just this one poll, but the coverage overall. It just seems people are forgetting the big picture.

There may not even be a court challenge to come up that deals with Roe v. Wade. The Supreme Court cannot simply overturn a ruling; they have to have a case brought before them that woud require a new ruling.

My apologies if you thought I was out of line.

The Senate has a right to ask, and the nominee has a right to refuse to prejudge the case.
Consider that if Roe-v-Wade were applied exactly as written, many of its 'supporters' would be scandalized. Most of the Modern Abortion Debate is focused on issues other than the act itself.
Arguments about things like Parental Notification (IIRC a Fourth Amendment issue), Late vs Early term restrictions (which if RvW were followed, late-termers would be vulnerable to legislation), etc. are peripheral issues that need to be addressed separately when or if they come before the court (In my own opinion, others may differ.)

so... should we even have this kind of "Litmus test"? Whether or not we should, fact is, we do. It's much like the Gun-Rights issue in that. While the Court has consistently over time upheld the Collective Right view (much the way that the court previously upheld Slave-Owner's rights), it only takes one ruling to overturn it and change the precedent.

similarly, on Abortion, Roe-v-Wade has been in force (at least, partially) since 1973, about 32 years. A change of ruling on a similar case can overturn it by simple majority-so the Senate, before confirmation, might feel a bit justified in asking a potential justice what his or her view is...this does not mean they are entitled to an answer, however.

The primary question that should be asked and answerd IMO is whether he believes that the constitution gaurentees a right to privacy. If he believes there is a constitutional right to privacy (like O'Connor and Souter), he would likely rule in favor or a womans right to choose what she does to her own body, allowing consenting adults of to make their own decisions on who they will love, live with, marry, and/or have sex with, allow adults to read and view any material they want in the privacy of their own homes, allow the sale of birth control, etc, etc, etc. If he believes there is no constitutional right to privacy (like Scalia and Thomas) he will likely rule against civil liberties cases.

This one simple question will answer many questions. And if he waffles on the answer, rest asured that is view is the latter.

The Senate has a right to ask, and the nominee has a right to refuse to prejudge the case.
Consider that if Roe-v-Wade were applied exactly as written, many of its 'supporters' would be scandalized. Most of the Modern Abortion Debate is focused on issues other than the act itself.
Arguments about things like Parental Notification (IIRC a Fourth Amendment issue), Late vs Early term restrictions (which if RvW were followed, late-termers would be vulnerable to legislation), etc. are peripheral issues that need to be addressed separately when or if they come before the court (In my own opinion, others may differ.)

so... should we even have this kind of "Litmus test"? Whether or not we should, fact is, we do. It's much like the Gun-Rights issue in that. While the Court has consistently over time upheld the Collective Right view (much the way that the court previously upheld Slave-Owner's rights), it only takes one ruling to overturn it and change the precedent.

similarly, on Abortion, Roe-v-Wade has been in force (at least, partially) since 1973, about 32 years. A change of ruling on a similar case can overturn it by simple majority-so the Senate, before confirmation, might feel a bit justified in asking a potential justice what his or her view is...this does not mean they are entitled to an answer, however.

I largely agree, although I am not sure why the Senate cannot withhold confirmation unless they have answers to such questions.

Your statements on Roe confuse me. The Roe schema have been slightly altered, but are essentially the law of the land. Under Roe, post-viability abortions could be banned except when necessary to preserve the life or health of the mother. That is still the law under more recent decisions. Almost every state has a broad ban on late-term abortions. Only a handful provide for exceptions broader than the life or health of the mother.

lol, did anyone even notice this on the poll?

"Strongly disagree. He definitely should have to state his position."
"Stongly agree. He should definitely have to state his position."
:confused: :confused: :confused:

I voted definitely should not have to.

It's very hard to deal in hypotheticals and "What if...?" type questions can become never ending. They are utterly pointless in the first place since the situation hasn't actually happened and probably never will.

As soon as he becomes Supreme Court Justice he can pretty much do what he wants regardless of what he says at his hearing.

lol, did anyone even notice this on the poll?

"Strongly disagree. He definitely should have to state his position."
"Stongly agree. He should definitely have to state his position."
:confused: :confused: :confused:

Yes. I made an error on strongly disagree. I noted this at the top of my first post. :( :eek: :(

I'll see if a Mod will fix it.

I just want to say, for the first and last time, that I find it sick and appalling that people go through such exercised verbiage and rhetorical mendacity to keep baby killing legal.

It's about my right to privacy, bluh, bluh.
No one cares if you have a yeast infection dumb ass. Try to keep your knees together more often so you won't have to commit murder.

And another thing, abortionists say, with bitten lip and crocodile tear filled eyes, that they just want to keep it safe, legal and rare. Guess what, if rarity was the goal (yeah right), we tried that and it didn't work. Make it dangerous & illegal and that will make it a lot more rare.

I'm not as interested in what his personal opinions about social issues are as I am in his ability to set aside his personal opinion when the law/constitution dictates that he rule in a manner that conflicts with his personal opinion. I don't believe it would be proper to ask him "Do you agree with the holding in Roe v. Wade?" or "What is your opinion on a constitutionally protected right of privacy?" Rather, I would ask "Speaking as a legal scholar/judge, what, if any criticisms do you have of the reasoning and analysis of Justice Blackmun in his opinion in the case of Roe v. Wade?" or "From the stand point of a legal analysis, what, if any, criticism do you have of the various cases, such as Roe v. Wade or Griswold v. Connecticut, that have found that there is a Constitutionally protected right of privacy?"

Questions like that should be perfectly proper and will reveal what his thought processes are likely to be on future cases that invoke Roe and it's ilk without requiring him to state how he would rule on some hypothetical future case or stating his personal opinion. Rather, my questions would expose the approach he would take in analyzing and possibly applying or rejecting Roe, etc. As he discusses how he thinks about and analyzes a past case he will reveal enough of what his personal opinion might be that a guage of how he might rule in the future on certain issues due to the inescapable influence of personal opinion, despite a conscious attempt not to let it be an influence, can be discerned.

i think he probably shouldnt have to say.

its not binding. if he equivocates its not like they can nail him with it and kick him off the court. every person who will be nominated by bush will probably be in favor of getting rid of abortion rights. we can only hope that a smart moral man like this guy wont rush to throw the country into political chaos.

there is no point in asking.

"Should Roberts have to state his position on Roe v. Wade?"

I thought he had already done this ... repeatedly. :rolleyes:

"Should Roberts have to state his position on Roe v. Wade?"

I thought he had already done this ... repeatedly. :rolleyes:

Then you are mistaken or being disingenuous.

Please point to where Roberts has said whether he would vote to overturn Roe, how he would have voted if he had been on the Roe Court, or anything vaguely similar to stating what his position as a Supreme Court Justice would be.

Then you are mistaken or being disingenuous.

Please point to where Roberts has said whether he would vote to overturn Roe, how he would have voted if he had been on the Roe Court, or anything vaguely similar to stating what his position as a Supreme Court Justice would be.
This is about as close as it gets without him unequivocally saying, "I will never, under any circumstances attempt to overturn or otherwise modify Roe v. Wade," which is what you apparently expect him to say. If any nominee for the SCOTUS said something like that, his brethren would probably reject him out of hand.

Here's the thread: http://forums2.jolt.co.uk/showthread.php?t=433320

This is about as close as it gets without him unequivocally saying, "I will never, under any circumstances attempt to overturn or otherwise modify Roe v. Wade," which is what you apparently expect him to say. If any nominee for the SCOTUS said something like that, his brethren would probably reject him out of hand.

Here's the thread: http://forums2.jolt.co.uk/showthread.php?t=433320

What is?

Provide a freakin' quote.

Every quote I have seen simply said that, as a Court of Appeals judge, he would follow Supreme Court precedent. That is meaningless.

So far as I have been able to discern from my readings, he has never publicly stated his personal opinion on R v W. He has stated on behalf of a client that he felt it was wrongfully decided and as an appeals court judge stated he would follow it since it was precedent. However, no one can say, based on his public statements and writings anyway, that he is personally "fer or agin' it"

I've asked it in another thread, but this seems more appropriate.

Why is abortion a make-or-break issue? Where did that come from? Why not civil rights or the environment? Or even the dwindling protections of due process?

Sure it's emotional, but does that, in itself, make the issue more important than anything else?

So far as I have been able to discern from my readings, he has never publicly stated his personal opinion on R v W. He has stated on behalf of a client that he felt it was wrongfully decided and as an appeals court judge stated he would follow it since it was precedent. However, no one can say, based on his public statements and writings anyway, that he is personally "fer or agin' it"

Exactically!

And we have only inferences as to what he would do on the Court regarding abortion rights.

I look at it this way--it's beneficial to both sides to see where he stands on the issue. Bush said he was going to appoint justices in the vein of Scalia and Thomas. The right-wing has a right to know whether or not Bush is giving them what he promised.

I've asked it in another thread, but this seems more appropriate.

Why is abortion a make-or-break issue? Where did that come from? Why not civil rights or the environment? Or even the dwindling protections of due process?

Sure it's emotional, but does that, in itself, make the issue more important than anything else?

GRRR.

This thread merely uses Roe as an example.

Regardless, I wouldn't one-issue litmus test on that issue alone. But it is a critical issue. And it may be indicative of other issues.

Do I really need to explain why Roe is an important issue to many Americans on both sides of the issue?

I've asked it in another thread, but this seems more appropriate.

Why is abortion a make-or-break issue? Where did that come from? Why not civil rights or the environment? Or even the dwindling protections of due process?

Sure it's emotional, but does that, in itself, make the issue more important than anything else?
Yes. Freedom is kind of wealth. I want more freedom. It makes me richer. Roe v. Wade isn't for the Senate, or the would be Justice Supreme, it's so the American public can understand, and participate in the debate. It's about the freedom to be secure in one's person, effects and medical decisions.

Clearly, he should answer the questions. If he didn't have to answer questions, the President would be able to appoint him without the approval of the senate. He's responsible to answer to every State to the best of his ability. If he doesn't want to, why should ANY state have any confidence in him?

What I would like to see would be an ecclectic mix of landmark Supreme Court opinion critiques (Roe v Wade, Brown v Board of Education) other landmark/contraversial legislation and other lower court decisions (Title IX, Scopes v The State, Sonny Bono Act) Ideally, with a smattering of random civics, sociological, and philosophical questions. Ideally, I'd want a group of senators to get together to carefully construct a battery of such questions, providing all the necessary reference material to Roberts in advance (not that he would need them). The smattering of random questions would be used to try and provoke an unguarded (and then perhaps inconsistant) response. But that's me.

I've asked it in another thread, but this seems more appropriate.

Why is abortion a make-or-break issue? Where did that come from? Why not civil rights or the environment? Or even the dwindling protections of due process?

Sure it's emotional, but does that, in itself, make the issue more important than anything else?
Yes, it would be more appropriate in one of the multiple threads specifically about his view on abortion

Yes. Freedom is kind of wealth. I want more freedom. It makes me richer. Roe v. Wade isn't for the Senate, or the would be Justice Supreme, it's so the American public can understand, and participate in the debate. It's about the freedom to be secure in one's person, effects and medical decisions.

Clearly, he should answer the questions. If he didn't have to answer questions, the President would be able to appoint him without the approval of the senate. He's responsible to answer to every State to the best of his ability. If he doesn't want to, why should ANY state have any confidence in him?

What I would like to see would be an ecclectic mix of landmark Supreme Court opinion critiques (Roe v Wade, Brown v Board of Education) other landmark/contraversial legislation and other lower court decisions (Title IX, Scopes v The State, Sonny Bono Act) Ideally, with a smattering of random civics, sociological, and philosophical questions. Ideally, I'd want a group of senators to get together to carefully construct a battery of such questions, providing all the necessary reference material to Roberts in advance (not that he would need them). The smattering of random questions would be used to try and provoke an unguarded (and then perhaps inconsistant) response. But that's me.


Well said.

And another thing, abortionists say, with bitten lip and crocodile tear filled eyes, that they just want to keep it safe, legal and rare. Guess what, if rarity was the goal (yeah right), we tried that and it didn't work. Make it dangerous & illegal and that will make it a lot more rare.

I'm not sure I would agree that making something "dangerous and illegal" would it make it "a lot more rare". Drug use, prostitution, and so forth indicate that prohibition and the percumbent risks do not always discourage a behaviour.

Back to the topic, it would bother me if the Senate examined only his answer to the question, and did not consider closely his reasoning. Strangely, I think his position is, in a sense, less important than the insight and constitutional basis involved in arriving there. Someone earlier mentioned asking about his view on privacy, and I think that kind of question, (and comparable ones in the area of property rights, distinction of federal and state powers, etc) would give the Senate the best information with which to confirm or deny.

"The real reason that many nominees try to avoid disclosing their views on controversial issues is to avoid losing votes. "

Five Questions For Roberts (http://nationaljournal.com/judges/articles/taylor072005.htm) :

Both liberals and conservatives understandably want to know John G. Roberts Jr.'s view of Roe v. Wade. But his record does not really answer that question: He co-authored a 1990 Supreme Court brief noting the first Bush Administration's previously stated position that Roe v. Wade was wrong and should be overruled -- but as a lawyer representing a client, he was not necessarily stating his personal views. In his January 2003 Senate confirmation hearing for his current job, he testified that he would treat Roe v. Wade as a binding precedent -- but lower court judges are always bound by Supreme Court precedents. The justices sometimes overrule them.

Roberts may well seek to avoid discussing Roe in his coming Senate Judiciary Committee testimony on the ground that to do so would prejudge cases likely to come before the court. But a strong argument can be made that -- while this concern warrants refusing to say whether he would vote to overturn Roe -- a nominee is ethically free to disclose his current view of whether it was right or wrong. The real reason that many nominees try to avoid disclosing their views on such controversial issues is to avoid losing votes.

Here is one possible line of follow-up questioning if Roberts tries to duck the Roe question:

1. Past nominees, including Robert Bork, Ruth Bader Ginsburg and Stephen Breyer, have disclosed their views of Roe in their confirmation testimony (and in some cases beforehand). Were they guilty of prejudging cases? What makes you different?

2. President Bush has long suggested that his model justices are Antonin Scalia and Clarence Thomas. Both have assailed Roe as an indefensible decision and voted to overrule it. The president presumably chose you because he has good reason to believe that your views resemble the stated views of Scalia and Thomas on this, the most controversial of issues. So we can logically assume that you agree with Scalia and Thomas on Roe, can we not?

3. Would you not agree that the Senate is entitled know everything about your views that the president knows?

4. So please tell us everything that you said to the president or any member of his administration, and that any of them said to you, touching on abortion or Roe v. Wade.

5. In addition, because the White House has ties to many of your friends and acquaintances outside the administration, please tell us everything that you can recall ever having said, to any other person outside your family, touching on abortion or Roe v. Wade.

I think this is on topic; if its not, my bad.

1. Is it fair to say that the presidential appointment and senate confirmation are a "checks and balances" kind of thing on the somewhat concentrated power of the Supreme Court (I say concentrated because the power is invested in a smaller number of people than the legislative body, and for a longer time period than the office of President)?

2. If so, does the Senate as a representative body owe it to the people to determine what practical effects a confirmation might have? Certainly no one issue should be controlling here, but isn't it up to the balancing branch (in this case the Senate?) to decide what weight each issue should have in the broader formula? Of course, the idea of a single point litmus test has serious problems, but aren't there some questions that a judge should have no problem addressing?

I think of it as a spectrum. A judge shouldn't have to answer "Such and such case is working its way up the appelate ladder now. How will you vote?", but at the other end of the spectrum, couldn't we ask "Would you support herding muslims/gays/atheists/filmmakers into camps and re-educating them?"
as something they should be able to emphatically answer (hopefully "No.")

So, on this spectrum, can't we ask "What are the most relevant constitutional elements that come in to play in the deliberation of abortion and other medical issues, and do you feel they have been applied correctly by the court in the past?"

It is immoral to question nominees regarding their positions on hot button issues. But due to political realities, it happens.
You'll have some Senators saying "I would never ask those kinds of questions." But then they go and ask the very questions they said they would not. It is impossible that any judicial nominee, especially for the Supreme Court, will be able to avoid such questions. They have always been asked in the past and they will be asked again in the future.
I believe we will see that this is indeed the case with Roberts. Though, if they affirmed him for the DC court, then I would take it they would already have his answer from his previous appearance before them.

I don't think that he should have to state his opinion on any hypothetical case. On the other hand, I would like to think that it is within the power of the Senate to question him in any way they want. So I guess I am neutral on this.

It is immoral to question nominees regarding their positions on hot button issues.

Please explain this unusual statement.

I believe we will see that this is indeed the case with Roberts. Though, if they affirmed him for the DC court, then I would take it they would already have his answer from his previous appearance before them.
One would hope that as an appellate court judge that he WOULD follow precedent set by a HIGHER court. Being on said higher corut opens a new can of worms

Please explain this unusual statement.
Because such questioning brings with it the continual threat that candidates may be approved based not on their judicial wisdom but on their partisan ideology in the hopes that they would overturn previous cases, that the approving Senator's disagree with ideologically.
It's one thing to express your opinion or even request one's opinion on hot button issues on a forum like this or even in a newspaper or during a political campaign, but when you get on the Supreme Court, or indeed, any court in the US, you go from mere ideological expression of views, to decrees that have a major impact on real people for better or worse.
You can say in political circles that you oppose abortion, but if you are going to be on the US Supreme Court, where your decision will impact the life of real people. Such decisions require greater deliberation than happen in politics.
While one decision may be the morally right one, it may cause greater moral harm.
I would hope, that someone, well versed in the law, as you are, can see what I am saying. That basing your judicial decisions purely on political ideology, would set a most dangerous precedent that would ultimately jeopardize the future of our freedoms and rights, and indeed the future of our constitutional republic.
For example, while I believe abortion is evil and should be banned, I also realize that banning all abortions would lead to a much worse evil. Hence, abortion is a necessary evil that must tolerated in some cases to avoid the greater evil. Though I can only hope that people reading my post on that example can understand what I am meaning by it, because most people don't and I've been personnally attacked by activists on both sides, politically in the past for holding that view.

Ihatevacations']One would hope that as an appellate court judge that he WOULD follow precedent set by a HIGHER court. Being on said higher corut opens a new can of worms
I would tend to agree on this. The place of the appellate courts is to abide by the precedents set in place by the higher courts.
That is why we should not lightly appoint people to the higher courts just because we like their views, or they are politically popular with conservatives or liberals.
As stated earlier, using such a litmus test would threaten the future of our constitutional republic. I can only hope that the Senate would put aside the partisanship, and engage in politically neutral deliberations on the matter. Though, this looks less and less likely. :(

I am just glad to know that there is only one issue that the Supreme Court Deals with. What a relief.


ROTFL! Hilarious! But seriously, that brings up an important point. Why should people judge civil rights and ideology based on a procedure that even makes some leftists like myself squeamish? The issue over medical marijuana or gay unions is a better judge.

ROTFL! Hilarious! But seriously, that brings up an important point. Why should people judge civil rights and ideology based on a procedure that even makes some leftists like myself squeamish? The issue over medical marijuana or gay unions is a better judge.

As explained, Roe v. Wade was merely selected as an example -- although a rather pertinent one -- regarding questioning of nominees

The questions shouldn't be about a nominee's personal political or moral views. The questions should be about the nominee's judicial views and philosophy.

As such, Roe v. Wade is a critical judicial issue. The issue isn't the procedure -- it is the fundamental rights wrapped up in the right to choice.

Same-gender marriage has yet to be ruled on by the Court, so that doesn't form the basis for a legitimate question.

Medical marijuana is a more complicated Constitutional question than you may think.

In my opinion, without doubt he should have to state his opinion on Roe vs. Wade. In fact if he has any designs on trying in his tenure to over-turn it, he should be tossed to the curb.

(Of course that was not a legal opinion) :D

Because such questioning brings with it the continual threat that candidates may be approved based not on their judicial wisdom but on their partisan ideology in the hopes that they would overturn previous cases, that the approving Senator's disagree with ideologically.
It's one thing to express your opinion or even request one's opinion on hot button issues on a forum like this or even in a newspaper or during a political campaign, but when you get on the Supreme Court, or indeed, any court in the US, you go from mere ideological expression of views, to decrees that have a major impact on real people for better or worse.
You can say in political circles that you oppose abortion, but if you are going to be on the US Supreme Court, where your decision will impact the life of real people. Such decisions require greater deliberation than happen in politics.
While one decision may be the morally right one, it may cause greater moral harm.
I would hope, that someone, well versed in the law, as you are, can see what I am saying. That basing your judicial decisions purely on political ideology, would set a most dangerous precedent that would ultimately jeopardize the future of our freedoms and rights, and indeed the future of our constitutional republic.
For example, while I believe abortion is evil and should be banned, I also realize that banning all abortions would lead to a much worse evil. Hence, abortion is a necessary evil that must tolerated in some cases to avoid the greater evil. Though I can only hope that people reading my post on that example can understand what I am meaning by it, because most people don't and I've been personnally attacked by activists on both sides, politically in the past for holding that view.

Meh.

You miss the point.

1. We aren't talking about grilling nominees regarding their personal moral views. We are talking about asking them about their judicial philosophy and judicial judgment. The later should be rather obviously relevant.

2. Although I think the best questions are sophisticated inquiries as to what a nominee has thought as a judge or would think as a judge, it is rather absurd to assume -- without probing -- that a nominee (or Justice) simply keeps his political views in a lockbox while deciding cases. Apparently it is simply a coincidence that -- throughout history and on the current Court -- Justices have tended to make decisions that are consistent with their political ideology.

Political ideology is not so easily distinquished from judicial ideology. The notion that they are wholly separate is naive. The notion that they ought to be wholly separate is debatable.

3. You'll have to explain how one guages the "judicial wisdom" of a nominee without asking his/her opinion about judicial questions. Particularly when a nominee has little or no record as a judge.

"The real reason that many nominees try to avoid disclosing their views on controversial issues is to avoid losing votes. "

Five Questions For Roberts (http://nationaljournal.com/judges/articles/taylor072005.htm) :

Both liberals and conservatives understandably want to know John G. Roberts Jr.'s view of Roe v. Wade. But his record does not really answer that question: He co-authored a 1990 Supreme Court brief noting the first Bush Administration's previously stated position that Roe v. Wade was wrong and should be overruled -- but as a lawyer representing a client, he was not necessarily stating his personal views. In his January 2003 Senate confirmation hearing for his current job, he testified that he would treat Roe v. Wade as a binding precedent -- but lower court judges are always bound by Supreme Court precedents. The justices sometimes overrule them.

Roberts may well seek to avoid discussing Roe in his coming Senate Judiciary Committee testimony on the ground that to do so would prejudge cases likely to come before the court. But a strong argument can be made that -- while this concern warrants refusing to say whether he would vote to overturn Roe -- a nominee is ethically free to disclose his current view of whether it was right or wrong. The real reason that many nominees try to avoid disclosing their views on such controversial issues is to avoid losing votes.

Here is one possible line of follow-up questioning if Roberts tries to duck the Roe question:

1. Past nominees, including Robert Bork, Ruth Bader Ginsburg and Stephen Breyer, have disclosed their views of Roe in their confirmation testimony (and in some cases beforehand). Were they guilty of prejudging cases? What makes you different?

2. President Bush has long suggested that his model justices are Antonin Scalia and Clarence Thomas. Both have assailed Roe as an indefensible decision and voted to overrule it. The president presumably chose you because he has good reason to believe that your views resemble the stated views of Scalia and Thomas on this, the most controversial of issues. So we can logically assume that you agree with Scalia and Thomas on Roe, can we not?

3. Would you not agree that the Senate is entitled know everything about your views that the president knows?

4. So please tell us everything that you said to the president or any member of his administration, and that any of them said to you, touching on abortion or Roe v. Wade.

5. In addition, because the White House has ties to many of your friends and acquaintances outside the administration, please tell us everything that you can recall ever having said, to any other person outside your family, touching on abortion or Roe v. Wade.

Here’s how I might answer, were I Roberts:

1. No, they weren’t guilty of prejudging cases. I have not said that they were guilty of prejudicing their cases. I am not different. And you have not yet asked me my opinion of the Roe v. Wade opinion.

or, if you had asked and he wanted to evade the question AND he said that it would prejudice the case (which would probably be a non-critical, but unwise statement),

I have the utmost respect for those individuals, both personally and professionally. For their reasons, they saw fit to state their opinion on Roe v. Wade. That was their interpretation of what was appropriate under their circumstances. However, sitting before you today, I believe that the benefit of the information you’ve asked is outweighed by the damage it would do to the maintenance of our impartial justice system, and I respectfully decline to answer.

2. President Bush has never suggested that he would select a Supreme Court justice based on their opinion of Roe v. Wade. In fact, he HAS suggested that he would never select a Supreme Court justice based on their opinion of that case. I am not Antonin Scalia and I am not Clarence Thomas. When introducing me to the country, President Bush explained his reasons for nominating me. In doing so, he did not speak of Justices Scalia or Thomas, nor did he did mention Roe v. Wade. Nonetheless, this question is about what President Bush thinks, not about my ability to competently and faithfully serve on the Surpeme Court.

3. I would agree that the Senate is entitled to know everything that President Bush knows about my ability to competently and faithfully serve on the Supreme Court.

4. (well, because #4 presumes that Judge Roberts would have been backed into this particular corner, I feel that my answer to #s 1 through 3, especially #3 preclude your question #4.)

5. My personal opinions on abortion are not relevant to my ability, willingness, or competency to faithfully interpret the Constitution of the United States.

Cat-Tribe

CLICK (http://forums.jolt.co.uk/showpost.php?p=9298838&postcount=4)

Hahaha. :D

Am I the only one who realizes that if he states his opinion publicly, he'd have to recuse himself from the matter when it is brought up?

Am I the only one who realizes that this is why alot of people want him to state it?

Am I the only one who realizes that if he states his opinion publicly, he'd have to recuse himself from the matter when it is brought up?

Am I the only one who realizes that this is why alot of people want him to state it?Sorry, but that's not at all the case. First of all, no one can force a Supreme Court Justice to recuse him or herself from a case, even if the conflict is right out there in the open. Scalia is a prime example of that. Secondly, any question on this issue would be necessarily general and vague while any case he heard would be specific. There's no problem with asking Roberts where he stands, and in fact, I think it's a good idea for all involved for him to answer, especially for the right-wing. This guy doesn't have a long track record or a paper trail, and they don't want to get another Souter on the bench, right?

As for me, I'd love it if he turned out to be another Souter, but I'm not holding my breath.

I would like to note there is a difference between opposing the decision made in Roe v Wade and wanting it definately overturned, Roberts has made clear in the past his position is that of the latter, so if he makes the corut he should recuse himself from such cases that would give him the oppurtunity

I am willing to bet dollars to doughnuts that George Bush has a very clear understanding what Roberts thoughts are on the "hot button" issues?

If that is the case, then I think it would only be fair for those in the position of validating his appointment, to also be aware? This is a lifetime appointment, so the stakes for civil rights is high.

Ihatevacations']I would like to note there is a difference between opposing the decision made in Roe v Wade and wanting it definately overturned, Roberts has made clear in the past his position is that of the latter, so if he makes the corut he should recuse himself from such cases that would give him the oppurtunity
Well, his personal view on Roe is a bit unclear, seeing as his writing and advocacy on the issue has always been in the service of a client. He may well be the second coming of Clarence Thomas--I don't know, and I'm not going to speculate this early in the game. But having an opinion on the reasoning of a prior Supreme Court decision is no reason to disqualify someone from sitting on that Court.

Let me say it again--thinking that Roe was decided wrongly is not, in and of itself, a reason to disqualify someone from sitting on the Supreme Court. I wouldn't support someone with that point of view, but it's not enough--by itself--to keep them from the bench. But because it's such an important issue for much of America--and recent polls suggest that as many as 65% of Americans want Roe not to be overturned--I think it's important to know where this judge stands on the topic, for me, because the whole issue of right to privacy is at stake. It's not abortion--it's privacy.

If I recall, he has stated, it not overly relevant briefs, that Roe was wrongly decided AND should be overturned