Roberts renominated for Chief Justice

[publius42]

Thanks for that discouraging report, Antipitas

 

[Al Norris]

One last couple of thoughts, then I'm done with this.

Roberts will be confirmed, probably next week some time.

I now believe Roberts will be on the order of another Kennedy. Mostly. Definitely he is a moderate and not a conservative on the order of Scalia or Thomas.... I hope I'm wrong, though, time will tell.

 

[IZinterrogator]

The very next person to question Roberts was Senator Russ Feingold (D-WI), who put forth the whole 2A argument. Collective or individual. In answering, it was obvious that Roberts is not versed at all on the 2A - pro or con. He is pretty much indifferent to this amendment.

At least an indifferent person can make a decision. If he was anti-, it would be hard for him to say he was wrong and side with us.

 

[Wildalaska]

Definitely he is a moderate and not a conservative on the order of Scalia or Thomas

Nothing wrong with being moderate, most of this great nation is

WildtimewilltellAlaska

 

[Al Norris]

IZ, perhaps you're right, if so, that's the bright side.

Wild, yes, but a moderate who appears to hold Stare Decisis on the same order as Scalia.

Oh, I did catch one great quip today. I was watching C-Span3, Fox and Court TV (didn't want to miss anything). Nancy Grace (Court TV:Closing Arguments) was telling the audience the significance of some of the cases that were constantly being referenced by the Senators and Roberts. When it came to Marbury v Madison, she said, "You know. That's the case where Marshall decided that the Supreme Court was the Court that decides what the Constitution means. I mean, that's where the Court Crowned itself... Crowned itself King of America!"

I about rolled out of my chair!

 

[MicroBalrog]

Nothing wrong with being moderate

That's your opinion. I happen to politely disagree.

And Antipitas, unless I'm mistaken, isn't Stare Decisis a good-sounding name for "Let's see what we got away with last time and push it just a little bit..."?

 

[Al Norris]

Naw... It's more like, "Let's make sure we put a mote around the walls we just built!"

 

[Rich Lucibella]

Anti-
I suspect you're a rather bashful Intellectual and Legal Analyst.

Don't worry about boring the rest of the crowd....I, among many others, missed Roberts' response on the 2nd. Feel free to expound....please.
Rich

 

[publius42]

Wild, yes, but a moderate who appears to hold Stare Decisis on the same order as Scalia.

Meaning that in an extreme situation, he just might reverse a precedent. OK, how extreme? I thought that when we were arguing whether a homegrown cannabis plant or machine gun for personal consumption is interstate commerce, Scalia might have seen that this line of precedents has gotten out of hand. What a disappointment.

Has anyone asked Roberts about Kelo?

 

[Al Norris]

Rich wrote:
Anti-
I suspect you're a rather bashful Intellectual and Legal Analyst.

Thank you...I think... You'll pardon me while I go and reload for a bit. My SU-16 needs to be fired and I have only a couple of hundred .44 loaded.

Publius42 wrote:
Has anyone asked Roberts about Kelo?

Yes. The first day, Feinstein asked. Yesterday both Brownbeck and Kohl asked.

The essence of the answer was that Roberts agreed with the majority. He said a lot of things about the States being the better protectors of the peoples rights than the Federal Government. When asked directly about the meaning of the words in the 5th, Roberts once again obfuscated the answer.

I had to do some work after Schumer (I'll get to him in a moment), so I didn't get to hear any of the rest - the 20minute questions, of which I think there were 6. And I'm not listening to any of it now. For all practical purposes, Roberts is in. Of that I'm sure.

Schumer (D-NY). Can that man rant! And eloquently. He went on and on for his whole time about how Roberts wouldn't and didn't answer anything of substance. He went on about how Roberts could amass so much time in D.C. and not leave so much as a bread crumb for anyone. He ranted and raved and badgered. Meanwhile, Roberts sat there with this pleasent little smile on his face, which made Schumer even madder.

I have to grudgingly admire any man who can sit and smile through such a tirade. I suspect that if it had been Kennedy, he would have died of a stroke then and there!

Roberts is a master. He outdid his performance on his nomination to the DC Circuit.

What I think infuriates the left, is that Roberts can't be nailed down. He's a loose end that won't be tucked in neatly. Yet they have no real reason not to confirm his nomination. In the end, we will all have to wait and see a few of his opinions on this next session of the SCOTUS.

 

[Telperion]

As a followup to Antipitas, here is an excerpt of the dialogue between Sen. Feingold and Judge Roberts on the 2nd amendment.

FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.

You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.

The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.

FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.

In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.

The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.

So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?

ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.

The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.

The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.

In other words, it's only the right of a militia to possess arms and not an individual right.

Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.

FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?

ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, "I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts." So I do think that issue is one that's likely to come before the court.

Now it appears that Roberts has read and analyzed Miller, but his hesitation regarding Emerson and Silveira indicates he hasn't been following the issue closely. Is he indifferent to the 2nd amendment, or has he not regarded it with much professional interest? I don't think the transcript provides the answer, so time will tell.

 

[publius42]

The essence of the answer was that Roberts agreed with the majority.

More discouraging news. Sounds like he would uphold Raich and Kelo. I have no use for a SCOTUS Justice who would uphold even one of those (Mr. Scalia). I'm even less interested in one who would uphold both of them.

 

[publius42]

He seems to know next to nothing about Silveira vs Lockyer. Just going from my fuzzy memory, I remembered the name of the case, and the fact that they did file a cert petition, and the fact that cert was denied, and the fact that all of this happened quite a while ago. It was old news when Raich was pending last January.

I'd say he's indifferent to the issue personally, and hasn't taken any professional interest in it either. There's little case law to go on, so he won't be much guided by precedent. No real way of telling how he might decide a second amendment case. He might just do something wacky like read the amendment itself, maybe throw in Federalist number 29 for good measure.

 

[Baba Louie]

I'd say he's indifferent to the issue personally...

In fact he may be. But then again, he may be carefully wording his response such that he not be pinned down to either/or prior to the fact that some case in the future might be placed in front of SCOTUS should the 9th CC's collective position come toe to toe against the 5th CC's individual RKBA.

A wise man who would perchance be placed in a position of judgement should not commit totally to either position at this time.

 

[Rich Lucibella]

I disagree that Roberts is "indifferent" to the Second, and simply cannot believe that a Constitutional Scholar of his acumen has never really looked at the history of the Second. Nor could this have been a question he didn't prep for before the Hearings.

I read this into his comments:
1) Miller never really answered the question; they sidestepped by focusing on the individual weapon. (Which, by the way, if they HAD applied their own logic to shotguns, which were in heavy use by the military, they'd have come to the exact opposite conclusion as what was decided.)

2) He believes it's time for SCOTUS to resolve the conflicting decisions of the Circuits. He's almost invited the case....and, in fact, provided a seminal example of a case in which Stare Decisis fails to clearly guide.

No, Roberts isn't ignorant of the subject. He's extremely cagey....he's encouraged the issue be brought before the Court and has provided no inkling as to his position. One can only hope.
Rich

 

[Al Norris]

We could hope that was true, Rich.

Fact is, I hadn't even considered point #2.

 

[Wildalaska]

And read comment number 1 again...Miller is ALWAYS cited by the "antis" as being the case that supports their position that there is no individual right to bear arms (ya dont beleive me, research the constitional issues that have arisen over section 265 of the NY Penal Code, ie the Sullivan law) and is usually relied upon by Judges who uphold those laws (thats not to say the the Sullivan Law is in fact unconstituional)...

Old Roberts just blew that one out of the water...he is saying...like so many "pro gunners" have been saying...that Miller means...

Nothing....

Thats right...it means...nothing.

Prediction

The Supreme Court will eventually rule that the 2nd applies to the states, and that laws affecting gun ownership will be subject to "strict scrutiny". Under than analyis, most gun control laws will stand, such as the Brady Bill, etc. Bans will not. Manner of carrying? Who knows.

What someoen needs to do is challenge a ban NOW. perhaps one of the NYC members here can do it, Needow did his own.

WildenoughlawfortodayimgonnameasuremyreloadsAlaska

 

[publius42]

2) He believes it's time for SCOTUS to resolve the conflicting decisions of the Circuits.

I'd like to believe that, Rich. But his testimony suggests otherwise to me.

What possible reason could he have for pretending to forget the name of the case? I mean, how many of us here have forgotten that name already? If the issue is important to you, you remember the name.

But much more importantly, he claimed that he did not know the cert status of Silviera vs Lockyer. OK, somebody less lazy than I am, please go use the handy search feature on the board here and find one of the dozen or so thread that appeared when cert was denied, and tell me when that happened.

I know it was quite a while back. If he is so interested in the conflict between the circuits, as he should be, how is it that he has not checked up on the cert status of one of the most important second amendment cases in recent memory? Indeed, the very case which created the conflict between the circuits? I don't buy it, and I don't see any reason he would lie to the Senate, and say he doesn't know the cert status of an important case, when he knows it quite well.

He's not interested. I don't like it, but I don't see any reason to disbelieve it. Give me some. Why would he not know? Or, if he knows, why would he lie?

 

[publius42]

Does anyone have a transcript of what, exactly, Roberts has said about Kelo?

 

[publius42]

Nevermind, I found it.

Roberts on Kelo:

KOHL: Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.

We discussed this when you were in my office, and you told me that you were, quote, "surprised," by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?

ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.

And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.

When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.

Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.

The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.

I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.

What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.

But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.

The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.

And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.

Sure, they won't reach the limit, much less beyond it. Nothing in history to predict that kind of outcome.