RUSH: Here’s John in St. Louis. Hello, sir, nice to have you with us.
CALLER: Hey, great to be with you. Mega dittos from St. Louis, Missouri.
RUSH: Thank you, sir.
CALLER: Got a question. I’m reading something off the web here from the Family Research Council that says after the Senate gets done questioning John Roberts, testimony begins from panels of outside supporters of the nominee and opponents like Planned Parenthood. I thought this was advice and consent of the Senate, not of outside interest groups.
RUSH: Well, this is common, though. This has been going on for the for as long as I’ve been watching these things. I don’t know when this bringing in the ABA, American Bar Association, and the special interest groups started, but it’s been going on as long as I’ve been observing, and it’s pretty much common practice. Now, it’s not going to go on very long. The ABA which is traditionally on the side of Democrats, gives this guy its highest rating, and the Planned Parenthood, I’ll tell you what, as far as I’m concerned let them come in there, John, because these groups, if they’re the architects of this pitiful performance of the Democrats, it will be obvious to everybody. Let them come in and use their hate, let them come in and use their lies, let them come in and try to portray this guy, you know, we’re a nation of pictures, and you can say this guy hates blacks, you can say he hates women, you can say he hates civil rights but there has not been one shred of evidence put forth. All it is, is allegations. That’s all the left generally has, allegations, seriousness of the charge. We have some more audio sound bites here, and just to show you how deep that they’re reaching, in this next question — this is from this morning — Senator Dianne Feinstein actually tried to link John Roberts to the Contras. Here’s the question.
RUSH: (Laughing.) Can I rephrase the question for you? “How much money did you send to the Contras in violation of an act of Congress?” Here we go, folks. This is a question that you just laugh at. Here’s Roberts’ answer to it.
ROBERTS: I’m not familiar with the memorandum. If it was withheld, it was probably withheld from me as well, and I don’t recall any involvement.
DIFI: Okay–
ROBERTS: So I don’t recall any —
DIFI: Okay–
ROBERTS: I do know that there was an issue —
DIFI: Fair enough.
ROBERTS: the issue —
RUSH: Stop the tape. I think she’s just read a question given to her by some group and she realizes how silly and stupid the question is, and she wants him to stop. “Okay, okay, okay!” That’s her in the background. “Okay, okay.” She doesn’t want this embarrassment to continue anymore, but he keeps going.
ROBERTS: — memorandum that I know have been released by private fund-raising activities and I do know that I gave advice in order to make sure that they didn’t engage in lobbying activities in order to be consistent with the Boland amendment. I’ve seen those, but beyond that I’m not recalling anything.
RUSH: So that’s what she didn’t want him to say. What involvement did you have with the Contras? “I advised them that they got to obey the Boland amendment. That’s what I advised, but I haven’t seen the memo either, senator.” Here’s a perfect example of his answers all week. He just decimates the next question here and doesn’t really say anything in his answer but he just decimates the question. Senator Feinstein says, “Let me ask you a general question, then. If an executive exercises power in direct violation of an act of Congress, is such an act unconstitutional?”
ROBERTS: Well, the answer depends, senator, and this is where you get back to the Youngstown analysis, where Justice Jackson said there are three categories. You can act with Congress’ support, being unclear what Congress’ position is, and he recognized a third category where you can act, the executive may act in the face of a congressional prohibition, and there are certain areas where the executive does have authority to the exclusion of Congress, you know, without stating a legal view, for example, one that law professors regularly talk about is the pardon power. In other words, that’s given expressly to the president under the Constitution, and restrictions, if Congress were to pass a restriction on the pardon power, does the president nonetheless have the authority to act under the Constitution, that’s a difficult question. But it may be that the president’s authority would trump Congress’ authority. So I can’t answer a question in the abstract without knowing exactly what the record is and what the situation is.
RUSH: So what you have here in this case is just a question of utter imbecility. It’s a simplistic question because to the Democrats, everything is adversarial. “So if an executive exercises power in direct violation of an act of Congress, is such an act unconstitutional?” And they’re hoping and praying, “Absolutely it is.” “Well then…” and I’m sure there’s a talking point follow up. But she never got there because without knowing particulars, it’s not that easy to say. So it’s just been fun to watch. It’s been an education to watch this, and it has been very illuminating and heartening to me because the illumination has been more and more on just who the left is and just what their tactics are and just how they lack substance. They’re empty. One more. One more sound bite, and this is simply a little bit of the closing remarks from Senator Chuck Schumer. Schumer starts out praising Roberts’ intellects and then lists one of his cons, and you will hear Schumer say that Roberts lacks compassion because he used the word amigo in the 1980s.
RUSH: So this prompted “Vice President” Lindsey Graham to say, “You know, I don’t like this direction at all. We’re supposed to examine these nominees’ hearts? Let me tell you a story. We’re all lawyers up here, and I’ve been a lawyer, and I’ve had to defend some really mean people, some people that were not very nice. I had to defend a client on a military base once, and this man was so despised and so hated that nobody on the base would eat with me, but I had to defend him. I had to, because it was my job. You going to tell me I did not have a heart because I chose to defend this guy? We can’t measure anybody’s heart. We can’t. How are we going to do this?” But, see, when you go back to what Schumer says here. In fact, I want to play cut two, because this is a great way to answer another question he got from Senator Durbin.
Here Schumer says, “You know, a good number of us, at least on both sides of the aisle, really mean the ability to truly empathize with those who are less fortunate, and who often need the protections of government and the assistance of the law to have any chance at all. He’s saying here, “You going to be sensitive to these illegal amigos that you talked about in the eighties? Are you going to be sensitive to the downtrodden and the disadvantaged and are you going to use the law to help prop these people up?” Now, Roberts had already answered that earlier this morning, and here it is again for you.
ROBERTS: I had someone ask me in this process, I don’t remember who it was, but somebody asked me, “You know, are you going to be on the side of the little guy.” Now, you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution. That’s the oath. The oath that a judge takes is not that I’ll look out for particular interests; I’ll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States, and that’s what I would do.
RUSH: Now, here’s the proper way to interpret this. Liberals think you are an activist if you are going to vote to uphold the Constitution. They consider the Constitution to be out of the mainstream, essentially. The Constitution is conservative. The originalist view of the Constitution, meaning find the original intent, that doesn’t serve liberals. You can only use the courts to prop up the downtrodden if the ignore the Constitution. Everybody is equal before the law, theoretically. Everybody is equal before the law, but not with liberals. With liberals, the disadvantaged get five or six bonus points simply because they’re disadvantaged, and here’s Roberts saying, “Hey, if the law says the big guy wins, the big guy is going to win with me,” and I tell you that would send ice to these liberals’ hearts. That’s like freeze drying them.
BREAK TRANSCRIPT
RUSH: You know these hearings, now that Roberts’ testimony is over, he’s finished, here you have Schumer raising questions about Roberts’ heart, and when you get right down to it, folks, these hearings are not about whether John Roberts has a heart or not. It really is more about whether or not the Democrats have any brains. I mean, that’s the correct way to analyze this, but of course the media lost in the news cycle of the moment, will not be able to see any of this. They’re still stuck on, “How many votes is he going to get? Well, let’s see, which Democrats are going to vote for him?” They have no ability to look outside the cycle and see what all this means down the road. They’re just stuck — and that’s them daily, they’re stuck in the moment of the day. It has no context; it has no meaning, other than, “How will this hurt President Bush?” That is their sole focus, the sole bit of analysis. “Is this going to hurt President Bush? Will this destroy President Bush?”
Well, Schumer doesn’t have any qualifications to analyze anybody’s heart, but he has qualifications to ask questions because he’s elected and he’s on the committee, and that’s all it takes. What qualifications does Kennedy have to talk to anybody about women’s rights? Honestly. Seriously. Under what other system would Ted Kennedy be allowed to have moral superiority over anybody else on women’s rights? Well, his life doesn’t give him that. His election in Massachusetts and being on this committee is all he needs.
END TRANSCRIPT
Headline: Now Right Demanding Dem Memos
Source: The Hill
By: Alexander Bolton
Date: September 15, 2005
Conservative strategists are drafting a letter to Democratic members of the Senate Judiciary Committee demanding the release of hundreds of internal memos detailing contacts between the lawmakers and liberal interest groups opposing John Roberts’s nomination to the Supreme Court.
By planning to press Democrats on the sensitive subject, conservatives seem to be pulling a page from the Democrats’ own political playbook. In the weeks leading up to the confirmation hearings, Senate Democrats have repeatedly called on the White House to give them memos Roberts penned while he was deputy solicitor general in President George H.W. Bush’s administration.
Sen. Patrick Leahy (D-Vt.), the ranking member on the Judiciary Committee, raised the issue again yesterday by releasing a letter dated Sept. 9 from William Moschella, the assistant attorney general. In the letter, Moschella declined to disclose legal memos from Roberts’s tenure in the Office of the Solicitor General.
“It is regrettable that the Bush administration persists in keeping this information from the Senate,” Leahy said. “These documents, from the period of Judge Roberts’s most substantive work experience in the executive branch, would help illuminate his views and earlier decisions on a wide range of key issues that are of vital importance to the American people and to the Senate.”
In their letter, conservatives quote Leahy’s argument that the Senate should have access to the withheld documents. In the letter, they assert that the public is equally entitled to know what is motivating and directing Senate Democratic scrutiny of Roberts, according to a verbal summary given to The Hill.
“Given your demand that the Justice Department hand over John Roberts’s work documents during his time as deputy solicitor general, you should have no reservations about approving the release of the full complement of documents that make up all of the Memogate papers,” conservatives wrote in a draft of the letter, which will be circulated for signatures starting today. About 30 conservative leaders or more are expected to sign it.
A spokeswoman for the Democrats on the Senate Judiciary Committee declined to comment without first seeing a copy of the letter.
Specifically, conservatives want access to what they estimate may be as many as 4,000 Democratic memos that are in Senate Sergeant at Arms William Pickle’s possession. Last year, Pickle seized Senate Judiciary Committee computers during an investigation. Democrats on the committee called for the probe after internal memos written by aides to Sens. Edward Kennedy (D-Mass.) and Dick Durbin (D-Ill.) were made available to the press without Kennedy’s or Durbin’s consent.
The publicized memos detailed contacts between leading liberal members on the committee and groups that lobbied them on President Bush’s judicial nominees.
In their letter to Democrats, conservatives plan to argue that the memos are not protected by attorney-client privilege, giving them a stronger claim to the documents, they assert, than the Democrats have to the solicitor general’s documents. Roberts’s defenders have argued that a solicitor general’s relationship to a president is akin to an attorney-client relationship and deserves special privilege.
Mark Levin, president of the Landmark Legal Foundation, a conservative public-interest-litigation firm, said that he was familiar with the letter and plans to circulate it.
“I fully support it,” he said. “I’ve always thought that the Congress and the Senate Judiciary Committee in particular gets away with a hypocritical standard. They demand that the executive branch produce everything, and yet on the other hand they refuse to make anything public.”
Kay Daly, president of Coalition for a Fair Judiciary, a conservative group defending Roberts, said she was aware of the letter.
“There are some 4,000 memos locked away in the sergeant at arms’ office that the public has a right to know about,” she said.
Daly said that the since the taxpayers’ fund the salaries of lawmakers and their aides they have a right to know about their work.
Conservatives said their case is bolstered by a memo sent by the Senate archivist to all Judiciary Committee staff members instructing them to preserve all documents and e-mails related to Roberts’s confirmation proceedings, including correspondence with outside groups. Conservatives cite the archivist’s message to support their claim that the internal memos held by the sergeant at arms should be made part of the public domain.
Jeff Lord, who served as associate political director in the Reagan administration from 1985 to 1988 and is working with Progress for America, a pro-Roberts advocacy group, has called for the Democratic memos to be made public during recent trips to Washington state and North Dakota. He traveled to those states to promote a new book he has written about the contentious 2002 Senate confirmation battle over Judge Brooks Smith’s appointment to the 3rd U.S. Circuit Court of Appeals.
Lord called the memos “some of the most revealing things I’ve ever seen while in government,” adding that the evidence of coordination between Democratic senators and third-party groups in the memos made public was “eye-opening.”
One of the publicized memos, by a former aide to Kennedy and dated April 2002, reported that Elaine Jones of the NAACP Legal Defense Fund had asked Democrats to postpone the nomination of Judge Julia Gibbons to the 6th Circuit court until a key case on affirmative action had been decided. Conservatives consider it one of the most damning of the publicized batch.
The memo was downloaded from the Judiciary Committee server and made public in 2003.
Headline: Judiciary Panel Peppers Nominee with Pet Issues
Source: Washington Times
Date: September 15, 2005
By: Charles Hurt
With federal Judge John G. Roberts Jr.’s confirmation appearing more likely, members of the Senate Judiciary Committee have resorted to using the hearings to lobby the nominee about their own favorite issues.
Senators have pressed their views on the prospective chief justice about televising Supreme Court proceedings, the right to die and abortion, among other issues.
“Are you against cameras in the courtroom like [Chief] Justice [William H.] Rehnquist was?” Sen. Charles E. Grassley, Iowa Republican and longtime advocate of televising Supreme Court proceedings, asked bluntly.
Judge Roberts — sensing the prickly territory — made a lighthearted reference to former Sen. Fred Thompson, the Tennessee Republican and television star who has been ushering him through the confirmation process.
“Well, you know, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of,” he responded, before adding that he does not have a “set view” on the matter, but would listen to colleagues if confirmed.
After establishing that the opposite of being alive is being dead, Sen. Tom Coburn, Oklahoma Republican, went on to impress upon Judge Roberts his own view of abortion.
“I won’t press you on this issue,” Mr. Coburn said. “But for the listeners of this hearing, if in fact life is the presence of a heartbeat and brain wave, it’s important for everybody in the country to know that at 16 days post-conception, a heartbeat is present. At 41 days, right now we can assure ourselves, that brain activity and brain waves are present.”
Committee Chairman Arlen Specter, Pennsylvania Republican, took issue with the “denigrating comments” Supreme Court justices make about Congress. In particular, he was galled by one decision that ruled a law of Congress unconstitutional for its “method of reasoning.”
“Do we have your commitment that you won’t characterize your method of reasoning as superior to ours?” Mr. Specter asked in a tone that wasn’t terribly inquisitive.
“I don’t think it’s appropriate,” Judge Roberts responded.
For good measure, Mr. Specter added: “I take umbrage at what the court has said, and so do my colleagues. There isn’t a method of reasoning which changes when you move across the green from the Senate columns to the Supreme Court columns.”
But not all such exchanges were so friendly.
Sen. Joseph R. Biden Jr., Delaware Democrat, took the opportunity to lecture Judge Roberts about his own views of whether Congress has any say in whether feeding tubes are removed to allow a patient to die.
“My family faced — I’m sure many people in this audience’s families faced a difficult decision — of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive,” he explained. “It’s of great moment to the American public.”
Judge Roberts, as he had many times before, said it would be improper for him to discuss a matter pending before the Supreme Court.
Headline: Leahy Follows Orders
Subheadline: Ralph Neas says, “Jump.” He asks, “How high?”
Source: Wall Street Journal
Date: Saturday, August 20, 2005
It’s too bad there’s now a firewall in place on the computer system used by the Senate Judiciary Committee’s Democratic staff. We’d love to take a peek at the internal memos reacting to Tuesday’s Washington Post story headlined “Roberts Unlikely to Face Big Fight; Many Democrats See Battle as Futile.”
If the staff memos that were leaked on President Bush’s appeals-court nominees in 2003 are any guide, Democrats once again are taking dictation from liberal interest groups–this time on how to oppose Supreme Court nominee John Roberts. We expect Tuesday’s e-chatter went along the lines of: “Ralph Neas called . . .” and “Nan Aron wants . . .” In case you doubt us, we refer you to Wednesday’s follow-up story in the Post, headlined “Democrats Feel Heat From Left on Roberts; Groups Say Fight Should Be Stronger.”
It’s no news flash that organizations like the Alliance for Justice, People for the American Way and MoveOn.org are influencing Democrats’ attack on Judge Roberts. But the rapidity with which Senators Pat Leahy and Ted Kennedy jumped this week to follow the groups’ orders is nonetheless remarkable, and politically revealing.
Within hours of publication of the first Post story, Mr. Leahy hit the barricades with a statement calling Judge Roberts “an eager and aggressive advocate” of policies “deeply tinged with the ideology of the far right wing of his party.” During the Reagan years, the Senator added, the nominee held views “that were among the most radical being offered by a cadre intent on reversing decades of policies on civil rights, voting rights, women’s rights, privacy, and access to justice.” At least he didn’t call Judge Roberts a member of the Taliban.
As for Senator Kennedy, he sent a letter to colleagues claiming the Reagan documents show that Judge Roberts “was on or beyond the outer fringe of that extreme group eager to take our law and society back in time on a wide range of issues of individual rights and liberties.”
It’s a sign of liberal frustration with the Roberts nomination that they are having to resort to the Gipper’s legacy to beat the judge. We remember Republicans who were still running against the New Deal in the 1960s, too, but not very successfully. If Democrats want to turn the Roberts confirmation into a referendum on the Reagan Presidency, the Bush White House will be delighted.
The Post also quoted Ms. Aron, president of the Alliance for Justice, as threatening Democrats with political retribution if they don’t oppose Judge Roberts. She specifically mentioned the defeat of former Illinois Senator Alan Dixon, who lost a Democratic primary in 1992 after he voted for Clarence Thomas. Never mind that there were plenty of other reasons for Mr. Dixon’s defeat, including anti-incumbent sentiment that recession year.
In any case, Democratic Senators up for re-election next year from the “red states” that elected Mr. Bush no doubt recall the more recent defeat of Tom Daschle and the five Democrats who failed to win open Senate seats in 2000 thanks in part to the judges issue. We also wonder how much Senators Robert Byrd (West Virginia), Kent Conrad (North Dakota), Ben Nelson (Nebraska) or Bill Nelson (Florida) appreciate being bullied by these liberals.
As more information emerges on Judge Roberts, it’s clear that he fits solidly in the judicial mainstream. Even a unanimous panel of the liberal American Bar Association gave the Supreme Court nominee its highest rating–well-qualified. And so the left is resorting to threats and made-up accusations, such as last week’s ad by Naral Pro-Choice America. Mr. Neas of People for the American Way says a number of liberal organizations will soon come out in formal opposition to Judge Roberts. We’ll be watching to see how many Senate Democrats follow him off the cliff.
Headline: John Roberts Deserves a Dignified Process
Subhead: An unseemly spectacle demeans us all.
Date: Monday, September 12, 2005
By: Theodore Olson
Our nation is in the process of replacing two of its most distinguished jurists and over 57 years of accumulated wisdom on its highest court. Sandra Day O’Connor provided keen instincts, common sense and poise since her appointment in 1981. William H. Rehnquist gave the Court 33 years of penetrating intelligence and integrity, 19 of them as chief justice. It would be refreshing if the confirmation of their successors could be conducted with the same class that characterized these two careers. Don’t bet on it.
A political Gresham’s law has debased Senate confirmation proceedings so that they now tend to combine the worst features of reality TV, professional wrestling and celebrity criminal trials. And the more lofty the judicial position, the more the process has sunk into an unseemly and demeaning spectacle. The pathway to service on our most prestigious courts has come to resemble a theater of the absurd, during which prospective judges are probed, humiliated, scolded and scorned. Those who somehow make it through the excruciating process may be forgiven for being embittered by the experience.
Despite the politically charged controversies over the direction and role of the courts in our society, the public has generally maintained an almost reverential respect for our judiciary, and continues to regard judges as decent, fair and remarkably free of corruption. Why, then, must the process by which their appointments are confirmed be so raw and blatantly partisan?
I concede a certain bias. For nearly 25 years, I have known and practiced law with and against John Roberts. I cannot imagine a more gracious, thoughtful and warm individual–or a more highly qualified person to occupy a seat on the Supreme Court. There is simply no legitimate or rational basis for the carefully orchestrated, heavily bankrolled, hyperbolic and often plain nasty attacks being launched against him.
Sadly, Judge Roberts is only experiencing the ritual aspects of the contemporary judicial confirmation process: invasions of his privacy; distortions of his record, including attacks on the most trivial or casual (and long-forgotten) utterances; and apocalyptic predictions concerning the imagined consequences of his confirmation. These tactics have worked in the past, so there is no price to be paid for using them. We therefore seem destined endlessly to relive them.
Two additional strategies will be deployed in the Roberts hearings. His Senatorial inquisitors will pose questions designed to pin down how he might rule on a particular issue (abortion, for example). They, along with various interest groups, will also complain that the White House has failed to produce confidential materials he may have authored as an administration lawyer. Both tactics are win-win for his opponents: The nominee will either submit, only to be hammered for positions he has taken, usually wrenched completely out of context–or he will resist, opening himself to accusations of being evasive, arrogant or a stonewaller.
This sort of gamesmanship is not worthy of the Senate or the judiciary. Aside from those who benefit financially from the fundraising opportunities presented by a confirmation battle, and those who are titillated by the opportunity to witness–or participate in–a public flogging, most of our citizens don’t like what they are seeing. The solution, if one exists, is for the public to cry foul whenever a senator seeks to pollute a dignified confirmation proceeding with cheap rhetorical theatrics and demagoguery.
As many of Judge Roberts’ predecessors have explained, including, most recently, Justice Ruth Bader Ginsburg, it is ill-advised for a candidate for judicial office to express a formulated position on even the most fundamental questions that might later come before the Court. It may be expedient for a nominee to express support for Brown v. Board of Education or Marbury v. Madison or to reject the Dred Scott decision. Nearly everyone would nod approvingly, at least in the abstract. But where do such answers lead, and where does the pandering end? The simple fact is that there is no principled line to draw once a nominee starts down that seductive slope.
The most appropriate response to these questions is for the nominee to promise an open mind in every case, receptivity to the arguments of counsel, the views of colleagues and due respect for the written text, history, precedent, context and factual setting of a particular matter. And he should promise to render future decisions free from preconceived or pre-expressed opinions as to how a case should be decided. We expect no less from a judge; and that is the only response we should expect to hear during confirmation proceedings. Anything else bargains away future judicial independence.
As to the memoranda John Roberts wrote as deputy solicitor general, they are sensitive, deliberative analyses of cases pending at the time, inseparable from memoranda written by career Justice Department personnel. They candidly evaluate the positions taken or urged by government lawyers, comment on judicial decisions, and evaluate the strengths of the government’s case. They are developed with the expectation that they will remain confidential. In Judge Roberts’ case, they may even contain assessments of the justices with whom he may soon be serving. Failure to protect the integrity of these materials will not only damage the public interest in top-flight government lawyering, but will forever inhibit future officials from frank internal assessments of litigation strategy.
Solicitors-General for Presidents Kennedy, Johnson, Nixon, Ford, Reagan, Clinton and both Bushes have firmly emphasized the vital importance of protecting the confidentiality of these records. No partisan impulse motivated the uniform public expression of that position, and there is no justification for breaking with that tradition. The price for doing so will be paid by every future president–and the nation.
The Senate confirmation process should be conducted with the same dignity, restraint and professionalism that we expect from judges. Before the commencement of the impeachment trial of President Clinton, over which he was to preside, Chief Justice Rehnquist gathered members of Congress before him. He had only two words of advice: “Be fair.” That simple yet wise admonition should dictate the tone of the Senate’s confirmation of his successor.