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RUSH: All right, to the confirmation hearings of John Roberts — and again, folks, it’s crucial, while you watch the media reveling in the president’s poll numbers and awaiting breathlessly (panting) his speech tonight from Jackson Square in New Orleans, the fact is that his nominee to the Supreme Court is running rings around the best and brightest the left has to offer today and this is reshaping the judiciary, the Supreme Court, and this is the branch of government the left is most concerned about. I know they’re covering the Roberts hearings but there’s nothing they can do about it. This guy is too smart even for the best and brightest in the media. Let’s give you an example from Senator Dick “Turban” today.

I think there have been two, between yesterday and today… The Democrats I think — who are, by the way, meeting in private this afternoon with their special interest groups. The Democrats have put on a different face from one day to the next. They started out being confrontational and argumentative and that didn’t get them anywhere and I think that was to appease the special interest groups that do all the donating on the left. Today, it was more toward, “You’re not telling us who you are. You’re really holding back on us. You know, you really haven’t been forthcoming at all. You’re getting away with a lot. You’re getting away with murder here, judge. I mean, you’re not telling us a thing.”

They’re trying to set up the notion that this guy is too slick. So Turban says, “I said at the outset that I thought one of the real measures as to whether or not you should be on a court goes back to a point Senator Simon had made: ‘Would you restrict freedom in America or would you expand it?'” Now, you people on the left — well, everybody — I want you to listen to this question; I want you to listen to this answer, because this is the best education on what the role of a judge and the court is that you will ever hear, outside of from me, because here’s Durbin saying, “Would you restrict freedom in America or would you expand it? When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you were trying from my point of view to expand freedom. That to me is a positive thing. That’s my personal philosophy and point of view. But then, when you say if the state would have walked in the door first to restrict freedoms, I would have taken them as a client, too, I wonder, where are you?

Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? It is important enough for you to say in some instances, ‘I won’t use my skills as a lawyer because I don’t believe that that’s a cause consistent with my values and beliefs.’ That’s what I’m asking.” So he’s asking, “Will you punt? Will you punt on your view of the law and stand up for the downtrodden and the minorities in this country who don’t have a chance because the way this country is put together? Will you put aside what you think the law says, and give those people a break?” And here’s the answer.

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,” and 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: Slam-dunk! Senator Turban, take him out in his coffin. He has just been nailed shut. In this little 44-second answer, Judge Roberts just destroyed the whole concept of the left’s view of justice. He just — in 44 seconds, folks, he just — destroyed the left wing’s view of justice, which is, “The law is irrelevant. Make new law if you have to, to help the little guy. Whether the law favors the little guy or not, the little guy deserves it; the big guy deserves to get screwed simply because he is the big guy. He deserves to get screwed because the way America is structured, it isn’t fair.

We have haves and have-nots, and there’s no advance for the have-nots to ever become anything other than have-nots,” and of course this is not the way America is structured at all. We have the have-nots who become multimillionaires all over the place. People move in and out of different income groups constantly many times during the course of their lives. The view of America by the self-loathing left is one of inherent unfairness.

Somehow the haves, the big guys, got it by luck, or they were appointed, or they somehow had advantages that the rest of us don’t, and once we’re not in that group we are forever shut out — and so the purpose, as far as the left is concerned, is to balance this, by screwing the people who are unfairly the big guys. Because America is basically at its heart unjust, the way it’s structured. This is what they believe, and so their view of the court has been: “If the law doesn’t favor the little guy, rewrite the law from the bench. If the law doesn’t favor the little guy, then rewrite it from the court. If the law doesn’t favor the little guy and you can’t find a way in American law to favor the little guy, go look at foreign law.

Whatever you have to do to build up the little guy because that’s the only way to make it fair,” and Judge Roberts just in 44 seconds said, “Un-uh. I take an oath to defend, uphold and protect the Constitution, and if the Constitution says the big guy wins, the big guy wins.” I want you to listen to this answer again, folks. It’s audio sound bite #2, Mike. In 44 seconds he has just obliterated the entire world view of justice held by the left.

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,” and 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.


Read the Articles…
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.

Mr. Olson, solicitor general in the Bush administration from June 2001 through July 2004, is a lawyer in Washington.

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