Saturday, September 10, 2005

5 Questions

The Time Op-Ed section has 5 contributors today each giving five questions they would ask of Judge Roberts. . . .some of the academics were just having fun and the conservatives were lobbing up softballs. Clinton's man, below, just went for the jugular. Roberts wouldn't be able to really answer many of these.

Carols in the Court

1. Some senators have suggested that you should follow the example set by Ruth Bader Ginsburg as to what sort of questions she answered at her confirmation hearings. Here's what she said at that time regarding a woman's right to choose: "It's a decision she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human." Was she right to make such a specific and clear statement regarding a woman's right to choose, and do you agree with the substance of her statement?

2. One of your roles as chief justice would be to comment on what matters should be in the jurisdiction of the federal courts. In a radio interview in 1999, you criticized the Violence Against Women Act - a federal law that put hate crimes against women on a par with hate crimes against racial minorities. You questioned the need for a national law, saying that "conditions are different in different states, and state laws can be more relevant" because they are "more attuned to the different situations in New York as opposed to Minnesota." Why should a misogynistic attack be regarded differently in one state or another?

3. Over the past 50 years, 20 different men and women have been appointed to the Supreme Court. Recognizing that political labels are of limited value, and generalizations are generalizations, I wonder if you can identify one of these 20 jurists - just one - who you think has a view of constitutional rights that is "to the right" of your view, as that label is commonly used by legal commentators?

4. In a memo you wrote in 1981, you criticized affirmative action "preferences" based on race, calling them "objectionable." If preferences given to those born into families that have suffered past discrimination are objectionable, what is your view of preferences given to those born into the families of privilege - namely, the preferences that many universities give to the families of their alumni?

5. Chief Justice William Rehnquist held an annual Christmas celebration in the Great Hall of the Supreme Court, complete with avowedly religious carols, despite periodic objections from some of his colleagues and non-Christian law clerks. As chief justice, will you continue with this practice, and do you find it at odds with the spirit of the court's edicts regarding church and state?

Ron Klain directed judicial selection for the Clinton administration from 1993 to 1994 and was chief counsel of the Senate Judiciary Committee during the Clarence Thomas and David Souter confirmation hearings.


Blogger Vergasy said...

My guess is that Roberts will say his policy preferences (on women's rights, the wisdom of VAWA, etc) are beside the point: what matters is what the Constitution says and/or what the Framers intended.

9:31 AM  
Blogger Prof. Schwarzenegger said...

1.) Justice's Gindsburg's statement reflects her personal and political philosophy and I respect that decision. I too think that the decision is one that a woman must make, free of state influence.

Unlike Ms. Gindsburg, however, I believe that it is not a decision a woman must make on her own. Rather, at a minimum the father, but those people in her support group, should all be involved in the monumental decision.

As for whether she should have answered the question, I don't believe she compromised the judiciary and I see no problems with the statement.

2.) I agree, an attack on a woman, or a man or a child for that matter, should not necessarily be treated differently from state to state. A crime, no matter how heinous or no matter the motivation, should be condemned and handled by the authorities.

But the fact of the matter, it is. That is not to say that it is any different than any other crime, however. New York defines murder differently than California. Minnesota defines manslaughter different than Washington. Insanity in Michigan is not insanity in the Federal system.

Does this mean that the system is somehow sexist, racist, or showing some other form of discrimination. Of course not. States control, and have always controlled, certain aspects of their own criminal laws. We should respect that. I stand behind my statement that Minnesotans are best attenuated to addressing the seriousness of violence against women, just as New Yorkers are best equipped to address it in New York.

Furthermore, I feel that this was the original intent of both the framers of Constitution and the drafters and ratifiers of the 14th Amendment. Nothing in the history of the court or the constituion demanded that Federal authority or expertise replace the power provided to the states.

3.) Well, that's not an easy question, especially because the spectrum changes with time. Nor are all justices on one set position. For example, take Justice Black, who struck down every single freedom of speech law, unless they affected war protestors. Now, in once sense, I'm more "conservative" than him, but in another sense I'm more "liberal" than him, at least in the way those terms are used.

So, can I say that I'm more liberal or conservative than other justices? I'm not sure than I can. Nor do I think it matters all that much. My job is to judge the cases that come before me on the basis of the law that sits before me. It is not to impose my beliefs upon that law or to use that political belief to filter the law into a color of my choosing.

4.) Well, I think you are trying to compare apples to oranges. Affirmative Action is based on a stereotype imputed to certain races that they cannot compete on the same level as the majority race. The institutes assume that because of past problems the minority cannot compete on a level playing field with majority students.

Families of alumni, however, push another belief. Universities believe that students of family members may do better or will foster a renewed dedication to the university. Nor is that belief, unlike the belief of differences in the races, based in untruths or overzealous advocates of a particuar system. Rather, it is a tested an proven system. I dare anyone on this court to show a fair and unbiased study that shows a difference between the races. We are at too late of a day to believe that such differences can exist.

Additionally, it should be noted that this court has always been more suspect of discrepencies in treatment based on race, an understandable action indeed. We have not taken that position with preferences based on other notions. To say that the two are equal is to elevate the problem of the later and to ignore the severity of the former.

5.) "Congress shall make no law." That is the statement, and a statement that has become widely twisted and misused, that has become the mythical "Separation of Church and State" provision of the Constitution.

Without chronicaling the history of the process we have moved from a system that prevented Congress, and later the states and localities through the 14th Amendment, from imposing religion onto people to one that may only allow an atheist view.

The problem, of course, is that atheism is no less of a religious choice than Christianity. But we have chosen one out for elimination.

Look at your own question. Would you have a problem if I had a "Winter Party" with food and singing? Of course not. But if I choose to call it a "Chrismas Party" and choose to sing songs with other lyrics, I suddenly have violated the constitution? Well, to turn the question on its own head, how is that anything but discriminatory against religion.

But to answer your question, yes, I do intend to continue the tradition. I know that as a young clerk, I personally found it to be a very enjoyable event. But the event will not only be for Christians. It will also be for my jewish friends. It will be fore my Buhdist friends. It will also be for my atheist friends. In fact, Senator, I personally invite you to join us. I hope they would be willing to extend the same honor should they hold an event, no matter what the occassion.

Should those non-Christian attendees choose not to partake in the singing, or choose to do so in a secular manner, I will also respect that choice. It is not my roll, nor the roll of the government, to impose a religious choice, whether that choice be for religion or the absence thereof.

1:53 PM  
Blogger Prof. Schwarzenegger said...

Biden just asked question #2 (VAWA). Roberts basically said that he was talking about ferderalism and not commenting on individual legislation. Roberts went on to say that he didn't believe in any discrimination against women and that because of his daughter and sisters that he is concerned about the problem.

Point is, they asked and the Commerce Clause aspect was sufficiently dodged. They then went to 14th Amendment levels of scrutiny.

I also think my answer was better, but I'm biased.

11:39 AM  

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