Christians need to contact their Senators
and tell them not to confirm this man as the next Chief
Justice of the Supreme Court.
We must send a message that this nominee is not acceptable because of
the following. His own words and lack of words. History.
God's Word.
Let us explore our situation first. Many Christian leaders who
dealt with politics were quite willing to endorse George W. Bush for
president and not a more worthy Christian candidate (Phillips, Peroutka,
and others) for the overriding purpose of putting the right people in
the courts. We all see the courts spinning out of control.
Of course, with a Republican president and a Republican majority in
the senate because of
Christian folks' hard work. Further, the majority of the country
is in agreement,
we should see a strong nominee. After all, that was the most
important reason given as a need to compromise and accept Bush as the
president.
Despite the Christian's refusal to believe the reasoning used on this
web site, by some others, and given in the scriptures, we now find ourselves
in a predictable dilemma. The only answer is to refuse to accept
President Bush's nominee, even at this late date.
Everyone agrees Judge Roberts is quite intelligent. He seems to
be extremely nice, a decent guy and a family man. By all accounts,
he loves the law. He is 50 years old and theoretically he could
occupy the Chief Justice position for 30 years.
On the other hand, he is a 'Washington insider'. He worked in
the Reagan White House and was actively complicit in the nomination of
Sandra Day O'Connor to the Supreme Court, one of the worst decisions of
Reagan's presidency. He clerked for Justice William Rehnquist.
Again, he could occupy the Chief Justice position for 30 years!
What do people say about him? The Christian 'leaders' have
jumped off the deep end. They "trust" the president and they
"trust" people like Jay Sekulow and Pat Robertson. Is this the
discernment that scriptures speak of?
Early on, Ann Coulter wrote a telling article, "Fool me Eight
Times; Shame on Me", reflecting the court's filling with mainly
Republican presidents who have betrayed the electorate. She
concludes:
"Bush said "Trust me," and Republicans trust him. It shouldn't be
difficult for conservatives to convince themselves that Roberts is
our man. They've had practice convincing themselves of the same
thing with Warren, Brennan, Blackmun, Stevens, O'Connor, Kennedy and
Souter."
Joseph Farah of Worldnetdaily wrote a more recent critical article,
"I was
wrong about Roberts". He says:
"Up
until now, I've been comparing Roberts to Sandra Day O'Connor,
Anthony Kennedy and David Souter. I've got news for you. He's
worse..."
"This
is what conservatives got for all their hard work on behalf of
George W. Bush – a betrayal. Conservatives were told they had
nowhere else to go in the presidential election if they cared about
the U.S. Supreme Court.
And
what did they get? Not Souter. Not Kennedy. But Breyer."
Charles Krauthammer wrote a most insightful articlein the Washington
Post, September 16, 2005 "Roe
v Roberts".
In this article he says:
"In 2000 Al Gore declared that he would not nominate a justice
who did not support Roe. Dianne Feinstein says today that if
she determines that Roberts opposes Roe , she will be compelled to
vote against him. For Democrats, abortion is an open litmus test.
Circumspect and clever Roberts has been. No one really knows. But
I predict two things: (a) Chief Justice Roberts will vote to uphold
Roe v. Wade , and (b) his replacing his former boss, Chief
Justice William Rehnquist, will move the court only mildly, but most
assuredly, to the left -- as measured by the only available
yardstick, the percentage of concurrences with the opinions of those
conservative touchstones, Scalia and Thomas."
So, according to well-respected, conservative columnists, we cannot
expect Roberts to reverse the courts' broken state and of course,
Roe
v Wade. Thirty more years of this decision? How many
million babies will die because of this?
What about President Bush? Does he know something we don't?
If we knew the answer, we might not like it. Remember, he
ballyhooed the likes of Scalia and Thomas when he was campaigning as the
type candidates he will be looking for if he got the opportunity to
nominate a person(s) to the Supreme Court. He claimed only to
consider a "strict constructionist". It seems we have one to the
LEFT of Rehnquist!
An error often made is the reasoning that just because politicians
'on the other side' are for something, then it must be bad.
Similarly, we hear that if they are against something it must be good.
This broken reasoning permeates the rhetoric in political speech.
For once, let us make that error. Senator Charles Schumer
(D-NY) and Senator Dianne Feinstein (D-CA) who are on the Senate
Judiciary Committee, both like Roberts! They are trying to find a
way to vote for Roberts without irritating their pro-abortion base.
Take these examples:
| September 15, 2005 Final day of hearing,
conclusive comments. FEINSTEIN: Thank you very much, Mr.
Chairman.
I want to just say one thing. I don't really know what
I'm going to do with respect to voting for you or voting
against you.
FEINSTEIN: I had one impression of you when we had our
hour in private. And to a great extent, I think I came out
of that meeting with a different sense of you.
And, of course, the impression that I have today is of
this very cautious, very precise man, young, obviously with
staying power. I mean, you've gone through this in a
remarkable way. I'm convinced you will be there, God
willing, for 40 years...
_________________________________________________
SCHUMER: Second on the pro side is that
you seem to be a lawyer above all.
You've devoted your entire life to the law and it's clear
that you love it.
SCHUMER: Most people in that
position tend not to be ideologues. They'll follow
the law wherever it takes them regardless of the
consequences, and you have repeatedly professed that to be
true for you. But given that you spent most of your legal
life representing others and your limited tenure on the
court of appeals didn't allow you to rule on very many
non-technical cases, there's not a long enough track record
to prove that point.
SCHUMER: The third, and perhaps the
most important, at least to me, is your judicial philosophy
and modesty and stability. Such a theory respects precedent,
the Congress and other judges' opinions. Modest jurists tend
not to be ideologues. And many of us on this side of
the aisle would like the court to maintain -- and in cases
related to the commerce clause like Morrison increase -- its
modesty...
SCHUMER: Will you be a very conservative judge who
will impede congressional prerogatives but does not use the
bench to remake society, like Justice Rehnquist?
SCHUMER: Or will you use your enormous talents to use the
court to turn back a near-century of progress and create the
majority that justices Scalia and
Thomas could not achieve?...
ROBERTS: The basic question, Senator Feinstein,
Senator Schumer, what kind of a justice would I be? ...And,
Senator Schumer, I don't think you can read those opinions
and say that these are the opinions of an ideologue.
ROBERTS: You may think they're not enough. You may
think you need more of a sample. That's your judgment. But I
think if you've looked at what I've done since I took the
judicial oath, that should convince you that
I'm not an ideologue.
ROBERTS: And you and I agree
that that's not the sort of person we want on the Supreme
Court.
|
What about Roberts himself during the questioning?
As predicted, Roberts carefully navigated his answers through the
treacherous waters of questions meant to get at what he will do with
abortion. Of all the things affecting our nation, this is the one
most important to the Democratic senators.
Roberts repeatedly responded that it was better he did not answer
these type questions in the tradition of prior nominee responses during
these hearings as they also chose not to answer. The idea that if
confirmed, cases of that type may come before them and that if they
respond in the hearings, not knowing all the facts of the cases to come,
they would possibly be violating their answers in the hearings.
Give me a break.
Just who said that was an appropriate stance for any judicial
nominee? They would have ample opportunity to explain in either a
ruling or a dissent of the possible future case just how they came to
their decision that may be at odds with part of their testimony.
This idea is merely a convenient hole to hide in. This
enlightens us to the untouchable position of a court justice. They
are above questioning, even before appointed. They have no such
constitutional position. The founders would never have stood for
this garbage. Anyone who plays that game is unworthy of
confirmation.
For example, suppose during questioning a senator asked the nominee
how he happened to felt about a specific ruling that was regarding a
murder. Instead of hiding behind the cloak of independence,
Roberts, who likely will have a case of this sort at some time in the
next 30 years, would thoughtfully answer the question. In fact, he
did when he discussed other cases of his own choosing.
How can a 50 year old man not be up front about his personal beliefs
and hide behind the Rubicon of his 'job' as a practicing lawyer.
His deeply held personal beliefs do not get in the way of how he does
his job. Taking this reasoning a bit further, this was the same
way Nazi concentration camp soldiers justified their abhorrent actions.
It was just their "job".
If his personal beliefs will have nothing to do with his performance
of his job as he says, then why would he hide them from view since they
should have nothing to do with confirmation?
Excuse me, just what are personal beliefs for if they don't make a
difference in how you run your life? Do you really think God
Almighty appreciates this distinction? Hardly. He expects us
to be the 'salt and light' that cannot be hidden. Faith without
works is dead. Christians have given all of ourselves to Him.
Which one of the great men in the Bible were blessed when they dismissed
their faith?
If Roberts is who he portrays himself to be, a moderate,
non-ideologue whose personal beliefs have no bearing on doing his job,
we lose. If we should find that he is an ideologue (considers
abortion murder) and his personal beliefs really matter, he is a liar
and we lose our witness to non-Christians as this is not how God would
expect us to act. Either way, we lose.
On day 2 of the hearings, Senator Specter was quizzing Roberts
specifically about the principle of
stare decisis (the importance of
prior decisions in precedence setting for subsequent decisions).
This is central to the idea that Roe v Wade, upheld with many
later decisions, will continue to be considered law. In the
following answer, Judge Roberts, once again in his own words, made it
clear that he finds it very important not to overthrow previous
decisions.
|
ROBERTS: Yes, Mr. Chairman, I would. I
would point out that the principle goes back
even farther than Cardozo and Frankfurter.
Hamilton, in Federalist No. 78, said that,
To avoid an arbitrary discretion in the
judges, they need to be bound down by rules
and precedents. So, even that far back, the
founders appreciated the role of precedent
in promoting evenhandedness, predictability,
stability, adherence of integrity in the
judicial process...
ROBERTS: Well, Senator, the importance of settled
expectations in the application of stare decisis
is a very important consideration. That was
emphasized in the Casey opinion, but also in other
opinions outside that area of the law. The principles
of stare decisis look at a number of factors. Settled
expectations is one of them, as you mentioned.
ROBERTS: Whether or not particular precedents have
proven to be unworkable is another consideration on the
other side -- whether the doctrinal bases of a decision
had been eroded by subsequent developments. For example,
if you have a case in which there are three precedents
that lead and support that result and in
the intervening period two of them have been overruled,
that may be a basis for reconsidering the prior
precedent.
SPECTER: But there's no doctrinal basis erosion in
Roe, is there?
ROBERTS: Well, I feel the need to stay away from a
discussion of particular cases. I'm happy to discuss
the principles of stare decisis. And the court has
developed a series of precedents on precedent, if
you will. They have a number of cases talking about how
this principle should be applied. And as you
emphasized, in Casey, they focused on settled
expectations. They also looked at the workability
and the erosion of precedents. The erosion of
precedents, I think, figured more prominently in the
courts discussion in the Lawrence case, for example.
But it is one of the factors that is looked at on the
other side of the balance.
ROBERTS: Well, in the particular case of Roe,
obviously you have the Casey decision in 1992, '93...
SPECTER: '92.
ROBERTS: '92 -- in which they went through
the various factors on stare decisis and
reaffirmed the central holding in Roe, while
revisiting the trimester framework and substituting
the undue burden analysis with strict scrutiny.
So, as of '92, you had reaffirmation of the central
holding in Roe. 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.
|
In the rest of the hearings, this sort of discussion was replayed
over and over. Roberts, according to his colleagues, "loves the
law". Roberts will decide each case according to "the law" and not
allowing his 'personal beliefs' interfere with his decisions. "The
law", as he puts it, includes stare decisis and even though there is
absolutely no true law (passed by the legislature and signed by the
president) regarding legalizing abortion, Roberts considers Roe v
Wade the "settled law of the land".
| September 13, 2005 in discussion with Senator Feinstein:
ROBERTS: Well, I don't know what you mean by absolute
separation of church and state.
For example, recently in the Ten Commandments case, the
court upheld a monument on the Texas Capitol grounds that
had the Ten Commandments in it. They struck down the posting
of the Ten Commandments in a Kentucky courthouse.
Is it correct to call the monument on the Texas Capitol
grounds with the Ten Commandments, is that an absolute
separation or is that an accommodation of a particular
monument along with others that five of the justices found
was consistent with the First Amendment?
So I don't know what that means when you say absolute
separation. I do know this: that my
faith and my religious beliefs do not play a role in
judging. When it comes to judging, I look to the law books
and always have. I don't look to the Bible or any other
religious source. |
Roberts told the truth under oath. He has
already said that he has no "overarching judicial philosophy" in his
Circuit Court hearings. This is no "strict constructionist" as
he will weigh cases in his mind, ever mindful of precedence. We need
someone who will return us to previous days before
judges made the law. Not Roberts.
SPECTER: I'm not going to ask you whether you're going to
vote to overrule Roe or sustain it. But we're talking here
about the jurisprudence of the court and their reasoning.
Let me come to another key phase of Casey, where the joint
opinion says a, quote, Terrible price would be paid for
overruling Roe. It would seriously weaken the court's
capacity to exercise the judicial power and to function as
the Supreme Court of a nation dedicated to the rule of law.
Now, this moves away from the specific holding and goes to a
much broader jurisprudential point, really raising the issue
of whether there would be a recognition of the court's
authority.
And in a similar line, the court said this, that to overrule
Roe would be, quote, a surrender to political pressure. And
added, quote, to overrule under fire would subvert the
court's legitimacy, close quote.
So in these statements on Casey, you're really going beyond
the holding; you're going to the legitimacy and authority of
the court.
Do you agree with that?
ROBERTS: Well, I do think the considerations about the
court's legitimacy are critically important. In other cases,
my thinking of Payne v. Tennessee, for example, the court
has focused on extensive disagreement as a grounds in favor
of reconsideration. In Casey, the court looked at the
disagreement as a factor in favor of reaffirming the
decision. So it's a factor that is played different ways in
different precedents of the court. I do think that it is a
jolt to the legal system when you overrule a precedent.
Precedent plays an important role in promoting stability and
evenhandedness. It is not enough -- and the court has
emphasized this on several occasions -- it is not enough
that you may think the prior decision was wrongly decided.
That really doesn't answer the question, it just poses the
question. And you do look at these other factors, like
settled expectations, like the legitimacy of the court, like
whether a particular precedent is workable or not, whether a
precedent has been eroded by subsequent developments. All of
those factors go into the determination of whether to
revisit a precedent under the principles of stare decisis.
SPECTER: A jolt to the legal system, a movement against
stability, one of the Roberts doctrines.
ROBERTS: If a overruling of a prior precedent is a jolt to
the legal system, it is inconsistent with principles of
stability...
SPECTER: Go ahead.
ROBERTS: I was just going to say, the principles of stare
decisis when that's a price that has
to be paid. |
A "price to be paid"? He just said that we have to live
with abortions because we honor stare decisis and we shouldn't upset the apple cart.
What about Robert's record? Why aren't we hearing from the
Christian 'leaders' that he helped lawyers in his firm prepare for the
Romer v Evans case that homosexuals carried to the Supreme Court
that overthrew Amendment 2 of Colorado's State Constitution,
forbidding the extension of official protections to those who suffer
discrimination due to their sexual orientation. Why aren't they
complaining that he spent hours helping the case of
Playboy Enterprises
in the
Supreme Court. Playboy’s case challenged the Telecommunications
Act of 1996 allowing for pornographic channels to maintain poor
scrambling.
Roberts could have refused. Instead of following his personal
beliefs theoretically a Christian, he chose to 'love the law', a lesser
god.
We must "trust" President Bush and the Christian 'leaders'.
No.
Candidate George W. Bush told us he would give us another decent
Scalia or Thomas. Instead, he avoided an ideologue, as Senator
Schumer implied. After this, Senators Schumer and Feinstein are
trying to vote for Roberts and at the same time not irritate their
pro-abortion base. It is just much to do about nothing.
President Bush has betrayed us in a major, terrible way.
Full transcripts of the hearing (Washington Post):
day 1
day 2
day 3
day 4
The Senate should vote against Mr. Roberts. They should force
Mr. Bush to name other nominees who will reform the broken courts.
It isn't enough to have a nice fellow who favors status quo when we need
justices who will actively reel in the judiciary from their current
unconstitutional role. We need ideologues such as Scalia, Thomas,
Bork, and better yet, Roy Moore. We have the majority now, the
Republicans have no excuse. It would be a real battle but one
worth engaging.
Christians, we blew it again. Thirty more years of elective
abortion. We have again offended God
Himself when this was to be a great victory. Roberts is an example
of our fallen state.
Judgment is increasing since that is what we deserve and what we
need, when will we learn?
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