Gabe Rottman,
Legislative Counsel,
ACLU Washington Legislative Office
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September 13, 2005

The coverage of yesterday’s Roberts confirmation hearing is daunting in sheer quantity of paper, but here are some of the most relevant civil liberties-related stories.

(Just as an aside, I’ve been mulling over what is to me the most remarkable thing about these otherwise milquetoast hearings: Given Judge Roberts’s age, we might not see another hearing for chief justice for 30 or 40 years. I’ll be pushing 70.)

Adam Liptak at the NY Times has this run-down of why Democrats continue to push for documents produced by Judge Roberts during his first year at the Bush I solicitor general’s office:

The documents, said Senator Patrick J. Leahy, the senior Democrat on the Judiciary Committee, could help illuminate the nominee’s views in three areas: civil rights, privacy and access to justice. While the first two areas have garnered attention from interest groups and the news organizations, the third category – access to justice – has received relatively little scrutiny.

Most of these cases did not concern issues of great public moment, but a theme runs through them. They involved people who claimed to have suffered serious and sometimes terrible harms, including sexual abuse and torture. In response, briefs signed by Judge Roberts often accepted, at least for argument’s sake, the truth of what was alleged but opposed the lawsuits under various legal doctrines that can limit plaintiffs’ access to the federal courts.

Analyzed one way, his arguments reflect a cramped view of the role of the courts, exalting technicalities over justice. Viewed another way, they represent exacting fidelity to the law and a keen awareness of the limited power of the federal courts to right every wrong.

Stuart Taylor Jr. at the subscription-based National Journal had a comprehensive piece on the concern (or hope in some quarters) that Judge Roberts may prove to be exceedingly deferential to the president and executive branch on any question burdened with the patina of “national security.”

Judge Roberts has said that Jackson is one of the justices he most admires. Perhaps some senator will ask Roberts next week whether he shares the passion expressed in Jackson’s concurrence in the 1952 Youngstown case: “No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.”

Charles Lane at the Washington Post reports on the first independent statistical analysis (PDF), by political science Professor Kenneth L. Manning at U. Mass-Dartmouth, of Judge Roberts’s votes on the D.C. Circuit:

[Professor Manning] found that, where such an identifiable ideological dimension did exist, Roberts made a conservative decision 67.1 percent of the time, or about 30 percent more frequently than the average federal appeals court judge.