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By nominating John G. Roberts to the Supreme Court, George W. Bush has made a mockery of the very standards he professes to embrace in his judicial appointments. Roberts has a clear record of rejecting strict construction (as well as original intent and following established precedent) when it gets in the way of reaching the results he is after, according to a 2003 report that cites his own words to contradict the image of what Bush says he is giving the American people.  

Just one day after completely reversing his position on firing anyone involved in exposing a covert CIA Agent, Bush has once again revealed that his so-called "principles" are a mere sham intended to sound good on the evening news, with no relationship at all to reality.

A report on Roberts by the Alliance For Justice, prepared in response to his 2003 nomination to the U.S. Court of Appeals for the D.C. Circuit contains clear examples showing that, in the Alliance's words, "Roberts' non-literal interpretation of the [takings] clause seems to fly in the face of President Bush's pledge to nominate judges who would strictly interpret the law, not make it."

On page 12 of its report, the Alliance for Justice writes:
Published Writing and Public Statements
As a law student, Roberts authored two law review articles arguing for the courts to interpret clauses of the Constitution in ways that would weaken key worker, consumer, and environmental protections.39 Interestingly, he advanced interpretations of both the Takings and Contracts Clauses that went against long-standing precedent and explicitly rejected "plain language," or literal interpretation of the Constitution's language.
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In the first article, Roberts offered his view of the Takings Clause, which requires that the government give "just compensation" for takings of "private property." Roberts claimed that courts trying to ascertain its meaning, "have not been significantly aided by the words of the clause, which are incapable of being given simple, clear-cut meaning... Indeed, the very phrase `just compensation' suggests that the language of the clause must be informed by changing norms of justice."40 After rejecting on various grounds several interpretations of the clause traditionally used by courts - i.e. physical intrusion onto an owner's property as anachronistic in a largely non-agrarian society, "noxious use" as too value-laden, and Justice Holmes' 1922 "diminution of value" test as too vague, Roberts argued for a "constrained" model based on a utility-based test proposed by Professor Frank Michelman. Under that model, parties made unwhole or "insecure" by regulation should be compensated accordingly.
This is, of course, a reliance on the same sort of "evolving understanding," "living Constitution" and "changing social values" philosophy commonly associated with judicial liberalism--suitably twisted for very illiberal ends, of course.  But the underlying basis of reasoning could not be farther from what "conservatives" like Thomas, Scalia, and Bush--who cites them as his models--publicly profess to embrace.  
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Roberts is arguing to overturn not just 200 years of American jurisprudence, but centuries of English Common Law before it.  It is a breathtakingly bold act of judicial activism, throwing out every major tenent of conservative jurisprudence--it ignores precedent, original intent, and plain language.  
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There may indeed be times when this is morally and legally necessary, of course. Brown v. Board of Education swept away centurie of racial subjugation, and is justly seen as one of the greatest Supreme Court decisions of all time.  
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But the men who wrote and joined in that decision did not pretend to be mere machines following the unambiguous dictates of law, holding their own views in restraint. They fully acknowledged, even agonized, over the moral responsibilities they had to discharge, some of which were in contradiction with one another.  They acknowledged that they were judges not automatons.  
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The Bush pretense is that he will appoint automatons, who will somehow interpret the law, without "tainting" it with their own judgement. Not only is this a practical impossibility, it is a standard that his own nominee openly flouts--without the honesty, integrity and guts to simply stand up and be counted for what he is clearly doing.
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The Alliance continues (still on p. 12):
In his second article, Roberts took on the Contract Clause, which provides that, "No state shall... pass any... law impairing the obligation of contracts." Roberts argued that this clause should be interpreted to protect corporations from legislation that might increase their obligations to their workers, such as pension protection, and not, as Justice Brennan had asserted, to protect individuals from decisions by states that nullified rights by reneging on contracts.41 Roberts criticized Justice Brennan's plain language interpretation of the Contract Clause, arguing instead that, "Constitutional protections, however, should not depend merely on a strict construction that may allow `technicalities of form to dictate consequences of substance.'"42 Here, as in his Takings Clause article, Roberts seems unafraid to reject a "strict construction" approach to constitutional interpretation to reach results that favor corporations and wealthy property owners. In both articles, Roberts' non-literal interpretation of the clause seems to fly in the face of President Bush's pledge to nominate judges who would strictly interpret the law, not make it.
While there are many reasons to oppose Roberts, we need to maintain a focus on this very key point--which is not simply an attack on Roberts, but a well-founded attack on Bush himself, and his pattern of bald-faced duplicity of lying to the American people about the most fundamental issues of public policy.
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The bolded portions of the above passage are a key point that we need to pound home again, and again, and again. Not in a way that  implies that Bush's standard is right. We need to present it as showing, quite clearly, that Bush's so-called "standard" is a sham, which he only embraces because Karl Rove tells him that it sounds good to the American people.  Just like telling them that Saddam Hussein has nuclear weapons.

Originally posted to Paul Rosenberg on Tue Jul 19, 2005 at 08:52 PM PDT.

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Comment Preferences

  •  Tip Jar (none)
    Alms for the poor. We are all poorer tonight.
  •  Gosh (none)
    If you think that's bad, you should see the crap I wrote as a law student.
  •  I Didn't Realize Bush Had Nominated You! n/t (none)
  •  "The more they talked of their honor (none)
    the faster we counted our spoons."

    Bush's pledges, pretexts, pieties, marches, and melodrama are losing their Rovian camouflage, and the land-thief and graftmonger within is becoming obvious.However, Roberts is no Kerik,  and so will draw out less of the used-car salesman in Bush.

    Strict constructionism has become a euphemism for liberal, as the conservatives are the activists, so the fact that Bush has baited and switched will be shrugged off by conservatives. They share his hypocrisy. Conservatives leaders want an activist court. Only liberals are to be confined by law, not judges who do the right thing.

    There is a risk that your line of truth-telling will remind the right that they are in this lie together, a feeling that can be used to authorize broader hypocrisies in the face of the common internal enemy.

    Highlighting Bush's dishonesty is right, but we need starker objections for conservatives, a way to show that the absence of strict constructionism is not the counterfeit they thought they were getting, but a fraud on them, too.

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