So I’ve been following the Roberts debate, as has the majority of the blogosphere with interest. I had to laugh when I came across an interview of Rick Santorum conducted by CNN Anchor Aaron Brown in which Santorum hotly contests the notion that Roberts should be obligated to answer any questions on Roe v. Wade. He invokes fairness as the reasoning:
BROWN: I saw a poll the other day that said 60 percent of the country wanted to know how Judge Roberts felt about Roe v Wade. It’s a settled case. Do you think the country’s entitled to know whether he believes that that case was decided correctly?
SANTORUM: You know my feeling is, you have to look at the standard of what’s been applied in the past. And what judges in the past have been forced to answer is, you know, how they felt about, you know, sort of the black letter law, if you will. Not really looking at, how would you rule in cases…
BROWN: I’m not asking how you’d rule. This is a settled case. Roe v Wade is a settled case, it is settled. Is this a fair question, do you agree that that case was settled correctly? Is that a fair question to ask him?
SANTORUM: Well, let me put it this way. That question was asked of Judge Ginsberg, it was asked of Judge Breyer and neither of them answered the question.
BROWN: So the answer is no you don’t think the country is entitled…
SANTORUM: Well I think, what’s good for the goose is good for the gander. I mean, it’s remarkable that we have an ACLU lawyer, not just someone who — I mean, an ACLU lawyer who gets a pass on their ideology for the United States Senate and we have a lawyer who is really a lawyer’s lawyer, he’s been all over the place, is clearly not someone with an agenda and all of a sudden they have to answer litmus test kinds of questions. Is that fair? I would say it’s not fair.
BROWN: All I want to know is if — it’s really a simple question.
SANTORUM: I’m giving you the answer. The answer is no. If it wasn’t answered in the past, it shouldn’t be answered in the future.
Well, to an extent this seemed reasonable – why after all should we hold SCOTUS nominee’s to different standards with regards to questioning when it comes to divisive issues. But then I came across several posts of outrage, that indicated Ginsburg and Breyer had both answered the question in a way that allowed for some transparency (especially in the case of Ginsburg). I had to do some digging, but I found two interesting things – first of all, it seems that the Federalist Society is championing their amnesiac brother, Roberts. They have published an attack based breakdown of the Ginsburg hearing, coupling it with talking/arguing points that the conservatives might be able to use in order to shield Roberts from answering any questions put to him, as well as omitting the answers she gave that might prove detrimental should he answer them with the same candor she did .
Thankfully I was able to find the testimony that the Federalist Society omitted on her responses during her senate hearings to the issue of abortion at Issues2000.org:
Senator Hank Brown asked Ginsburg about equal rights for men and women on the question of abortion.
Ginsburg: I will rest my answer on the Casey decision, which says in the end it’s her body, her life, and men – to that extent – are not similarly situated. They don’t bear the child.
Brown then asked her to explain further about whether the rights of men and women are not equal in this case.
Ginsburg: I said on the equality side of it, that it is essential to a woman’s equality with man that she be the decision-maker, that her choice be controlling. If you impose restraints, you are disadvantaging her because of her sex.. The state controlling a woman would mean denying her full autonomy and full equality.
Breyer was vague and called it ‘settled law’, which implied at least that he personally had no desire for it to be revisited. Quite honestly, I’d have liked more transparency, but then again Breyer didn’t have the same questionable background issues regarding this particular issue of ‘settled law’ that Roberts does.
Ultimately it showed me that this in fact was considered not only a valid line of questioning, but also worthy of weight with regards to the Senatorial hearings, and their conclusions of particular nominee’s. With regards to the other answers Ginsburg refused to entertain or answered in a general manner, the responses also included detailed explanations of why her answers were thus.
In some questions regarding Antitrust issues, she indicated non-expertise having only 12 of such cases under her belt, but then offered further explanation on a particular case to give an example of her beliefs. This hardly constitutes an example of her attempting to stymie the process of fact finding.
Consistently she attempted to be specific to give ideas of her general ideology without addressing cases that as she stated were slated on the current or potential dockets.
While conservatives are attempting to paint a similar picture, what seems stunningly evident to me is that her answers were not so much evasions, like Roberts, but instead attempts to answer with transparency while respecting the integrity of the system. That’s my interpretation, at any rate.
The Christian radio stations around here (and I’m sure, everywhere) are repeating exactly those talking points, over and over again. I was listening to their radio broadcasts today while out in BFE, Kansas, in the state truck, which lacks a CD or tape player. It’s almost like they pass out Republican playbooks to guys like Dobson, etc, because they all sound just the same, word for word.
Thats why I am Christian and do not listen to Christian radio. You are a better person than I am. Blessings.
What kept striking me about the interview was how tied to a notion that seems more than anything else like a big game of ‘Gotcha’. I read the interview, and then the Federalist ‘talking points’ .pdf and kept boggling at how the notion of hiding beliefs seemed to be an accepted goal to these people.
Reading through the Ginsburg hearings, I felt it was pretty clear that she wasn’t being defiantly evasive, but instead was trying to be as forthright as she could without compromising any potential cases, or answering something she couldn’t honestly answer at a general level.
What went on then, and what seems to be going on now is very different.
Heh, I listen partly for fodder for my blog, and partly because there are parts of Kansas where your choices of radio station are: Christian, Country, and Christian Country.
Actually, Ginsburg answered questions regarding Casey, a well-written, well founded, opinion that was based on years of precedent. She did not and would not answer questions on Roe, which was made up law by a conservative justice.
Nevertheless, a justice should be chosen for his or her ability to not inject their ideology that does not involve issues of Constitutional law in general and not their individual beliefs on certain cases.
Focusing on this one bad case is just plain stupid. What if the answer were “I don’t believe Roe was correctly decided, but I am whole-heartedly behind the decision made in Casey.” I am sure all the lemmings who follow the rhetoric in the American population would hang him by his toenails for being against something they have no idea about.
I think everyone should give the guy a break. He is well qualified for the position and has been able to argue both sides of numerous issues regardless of his ideology. That is what makes a great justice and a great attorney. Maybe the purpose of his nomination is to make all those opposed to “Breyer II” look like idiots. If that is the case, it is certainly working.
A mentor of mine once said the best Judge has been a Defense Attorney and a Prosecutor. If you are not able to argue what you vehemently oppose then you are just an activist and not someone who should sit on the bench.
The right to privacy is the issue I have been chipping my teeth on. Roberts says there is no right to privacy in the constitution. Griswald(Imay be spelling that wrong) he says, was decided wrong. Griswald says the state cannot prevent married people from the use of contraception. A little thought will bring to mind an enormous number of little things we take for granted based on an assumtion of the right to privacy.
Jstevenson, you’re playing the semantic word game with the conservatives, and I for one don’t appreciate it. As I was the one that found the quotes, and it included the reference to Casey in it, I think it’s pretty well clear that the argument being made is one that addresses the transparency of whether he has ideologies that would preclude him from respecting the bodily autonomy and reproductive rights of women.
Clearly it’s not a big deal to you, but for me, it is. Somewhere in the dodges and ducks that represents the conservative bid for Roberts as the new SCOTUS, you were able to find peace with the nomination. For me and many others, that is not the case, and the chorus of ‘just let it go’ from people unwilling to respect our caution and skepticism is patronizing at very best.
Kim, I did not intend to patronize. Of course respect of your person is one of the guiding principles in our Bill of Rights. I respect caution and view everything that President Bush does with trepidation, however, there is so much rhetoric. There were so many people poised for a fight that perhaps a fight is being made where there is none. Remember, Justice Breyer, one of the moderate left Justices was nominated by President Reagan. In deciding on a Justice for our highest court it is best to have someone who is not an activist, but someone who is actually a Jurist. The people that I know who are familiar with him (one a Berkeley liberal – free love – lawyer) think he is a solid attorney and is a suprisingly fine appointment. Has anyone noticed that there are no screaming skulls (even Barbara Boxer is quiet). That is very telling of this person.
I am not saying don’t be concerned about Casey; I am saying don’t scream ugly words at the pretty yellow daisies — they are harmless and it makes one look pretty stupid.
Fair enough, though I believe I’ve been exceptionally fair and clear about what I’m screaming about. The man has a lot of questions surrounding him that merit a lot of caution. His refusal to even try his hand at transparency shows a lack of integrity and a willingness to play games with something I consider very, very serious – that being the bill of rights.
In a game of ‘trust me’, I sure as heck wouldn’t pick him as my partner.
Breyer wasn’t nominated by Reagan. He was nominated to the Supreme Court by Clinton. He was nominated to the Court of Appeals by Carter. I’m not sure who you were referring to – Kennedy perhaps?
Here is a list of current supreme court justices (including O’Connor) and who nominated them:
Souter – Bush the elder
Ginsburg – Clinton
Thomas – Bush the elder
Breyer – Clinton
Kennedy – Reagan
O’Connor – Reagan
Rehnquist – Nixon(associate), Reagan(chief)
Stevens – Ford
Scalia – Reagan
Comments from the Cannons of Judicial Ethics section 5:
Section 5A(3)(d) prohibits a candidate for judicial office from making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court.
Thanks Jake. I really screwed the pooch on that one. It was Souter/Bush, Sr. with whom I was referring.
Do we really need four Catholics and eight men on the Supreme Court?
http://debfrisch.com/archives/000283.html