Ted Kennedy (R-MA) wrote what I think is an op-ed in the Washington Post today called Roberts and Alito Misled Us. And he wrote about it again in the Huffington Post. His point is that these two really are strong conservative ideologues, now with lifetime appointments, and more so that we need to reform the confirmation process.
Kennedy points out that Roberts and Alito voted together 91% of the time but leaves out that Roberts voted only 82% of the time with Thomas and 86% of the time with Scalia while Stevens and Souter voted together 83% and Ginsberg and Souter have voted together 86% of the time over the last 10 years.
The point that nominees should have to answer judicial philosophy questions is a good one. I just think it would be better made by someone who wasn't a political ideologue who's been in the Senate for a lifetime. There are ideologues on both sides. Political issues are decided by which side has 51% of elected officials and not by compromise. Roberts does seems to be trying to have narrower decisions that bring more consensus. Kennedy left out that 38% of the cases were decided unanimously which while just a little above the average of last 10 years (36%) it's considerably more than the 30% from last year or the 28% from the year before.
2 comments:
Welcome Back.
I think it was an excellent article by senator Kennedy. I think you focused on his statistics which were only a minor part of his point and missed all of the great examples of actual cases he provided.
PS Please let us know when you are going to be away. after 6 days with no posts and you not responding to e-mail I was starting to get worried.
I actually wasn't away. I hadn't realized it was 6 days without posting. It was a combination of not seeing interesting small things to post and being in the middle of several longer posts. And I haven't figured out this Israel-Lebanon thing.
Note all the numbers come from this summary by the Georgetown Supreme Court Institute [28 page pdf].
I don't think the individual cases cited mean as much. Everyone would agree that Scalia and Thomas are strong conservatives and that O'Conner was a moderate. So Roberts agreed with Scalia 86%, Thomas 82% and O'Connor most of all at 88%. Alito agreed with Thomas 77% of the time and Scalia only 74%. I just think it's a little early to tell.
Also mean we knew they were conservatives and of course Kennedy cherry-picked cases and quotes.
"In Gonzales v. Oregon , a majority of the Supreme Court held that the Justice Department lacked the power to undermine Oregon's Death With Dignity Act. However, Roberts joined a startling dissent by Justice Antonin Scalia, stating that the administration's actions were 'unquestionably permissible' because the federal government can use the Constitution's commerce clause powers 'for the purpose of protecting public morality.'"
Here's that quote with a little more context from Scalia's dissent: "The Court’s decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government’s business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality–for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. ... Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term 'legitimate medical purpose' has any meaning, it surely excludes the prescription of drugs to produce death."
I don't agree with Scalia's position, but I don't think Roberts agreeing with it means he misled the Senate.
League of United Latin American Citizens v. Perry was a very fractured case with 6 different opinions written. Roberts was concurring in part, concurring in the judgment in part, and dissenting in part with Alito. I do have to admit I agree that divvying us up by race is sordid. If you read the decision you'll see Roberts is saying the majority ignored the undisputed findings of fact from the district court that the new district would be Latino controlled. There's a lot of detail in there worth reading and I'm no districting expert, but I do think Kennedy took things out of context.
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