*Edit - apparently C-Span has a streaming version. Scroll down to the middle of the page to the "American Constitution Society Panel on the John Roberts nomination"
American Constitution Society and Georgetown University presented a Panel on the Roberts Nomination. C-Span apparently carried it live, so perhaps you saw me blawgging in the second row, dead center. Some of my fellow Section 3 blawggers were in attendance, so it will be interesting to hear their takes on the event. The following are my ROUGH notes – my apologies if I misquote anyone or have missed the gist of an argument or posiiton. It is also not an exhaustive transcript - I dropped a few responses. It was fun to do though.
The panel consisted of Profs. Tushnet, Barnett, Heinzerling, and was moderated by Prof. Seidman. Section 3 classmate Luke van Houwelingen introduced Prof. Seidman.
I took some notes on the initial comments made by each panel member, plus some of the Q+A session:
Initial Comments
Prof. Heinzerling:
Regulatory Issues. Lots of time spent on hot Constitutional issues, like death penalty, but they don’t make up the bulk of the supreme court’s work and don’t affect most people in their daily lives. USC – how to interp stats and regs. Issues shape modern government and society.
Four main areas:
1 Constitutional issues which affect regulatory statutes, e.g., commerce clause authority – how much authority is there to regulate, say, the endangerment of species?
2 How will nominee go about interpreting statutes?
3 How will nominee approach rulings of administrative agencies?
4 Procedural issues – who has standing to sue or challenge agency rule?
Roberts in these areas:
1) Constitutional issues which affect regulatory statutes.
There is a large amount of discussion over Roberts 1st decision, which was only 4 paragraphs long in which he stated that he thinks that the whole court should look at the issue before them. Nothing dramatic there.
Two points can be drawn from this:
A.) In his 1st opinion, he felt comfortable writing a dissent. Could be an active justice.
B.) His take on commerce clause might be more restrictive than current interpretation.
2) How will nominee go about interpreting statutes?
Different approaches to interpreting statutes currently in the court. Textualism (Scalia) v. using legislative history (Breyer) to figure out the human purpose behind the statue.
Roberts seems to be a plain language guy with a sophisticated understanding of using cannons of construction. Plain language school often equated with conservative philosophy – but worker protection statues often are friendly to the public due to their broad language.
3 How will nominee approach rulings of administrative agencies?
Small record. Seems to indicate deference to agency. Political valence unknown? Probably won’t second guess agency decisions, regardless of the agencies valence.
4 Procedural issues – who has standing to sue or challenge agency rule?
Prof. H. is worried. Citizen suits (private attorney general concept) are very important in defining shape of regulatory state. Standing limited by two cases – Roberts wrote brief in 1st case, was in solicitor generals office in 2nd. Also wrote a law review article on the second case in which he said standing issue is a limit on judicial power and supported the court’s narrowing of standing. He views this as judicial restraint. In second case, huge number of federal statues narrowed. Seems backwards. Prof. H. is worried that Roberts might think that if the govt. is not acting, i.e., failing to regulate, we don’t have to worry all that much.
Prof. Barnett:
What kind of justice will judge Roberts make? Roberts is very well credentialed and accomplished jurist, a premier supreme court litigators. Beyond this he sees Judicial Philosophy (How does a judge go about deciding a case? What is the proper role of judge?) as being as important as “credentials” (intelligence, ability). Agrees with Sen. Schumer that Judicial Philosophy is part of qualification that person brings to the court.
Barnett would not examine result so much as approach. Hard to say what kind of justice Roberts would make. In appellate nomination said he wasn’t sure that a judge should have a comprehensive judicial philosophy. Yet, even everyone has a JP, even if it is unarticulated.
Off the cuff, projection – based on non-inside information. Very well credentialed.
Consummate A+ Harvard law student – something of a type: must be smart; must work very hard; also must know what the professor wants to hear. Ferreting out the right response while leveling just the right amount of criticism to give on exams.
What does his career represent? – an extension of the same skill set. Sol. Generalship – get into the head of the justices while giving the view of your client (govt.). Your own view does not matter. Private practice – same deal. Adds up to a person who does not necessarily have their own strong set of opinions. Now he’s 50yrs old, no speeches articles, etc. on judicial philosophy. May have done this deliberately (in type).
If this is all, then the natural judicial philosophy of this person might be deference to opinions of others. Which others? Congress, executive branch, agencies within executive branch, precedent, states? Who he will defer to will tell the tale.
He spent a lot of time in the executive branch.
Prof. Tushnet
Has an academic interest in politics of confirmation process.
At this point, no reason for a democrat to vote to confirm Roberts.
Two elements to his presentation on this.
One: Dems should disagree as to what is know of Roberts constitutional philosophy.
We do know he was a conservative young lawyer given to snarky comments – “so called” right of privacy, “perceived” grievances of women. Could be seen as a careerist move, sucking up to employers, but this could go beyond that and indicate private character. This would be the other aspect of consummate A+ student – the public face v. the private face – or “how does he behave inside the law review offices.” He’s espoused generally conservative positions that can be assembled into a constitutional vision that democrats should disagree with.
He’ll be smoother today in his form of expression: “the right of privacy the supreme court recognized” without calling it a constitutional right, and so forth.
The burdern of persuasion should be on Roberts – has he changed his mind on issues.
Two: all senators should have a reason to vote to confirm a nomination – regardless of fact that he’s been nominated by the President or is a good lawyer.
Are there reasons for voting to confirm a nominee that you disagree with?
1 – Deference to the president’s choice of a qualified nominee not outside of the mainstream.
Response – Senators are equal participants in the judicial selection process. Senators are entitled to and should make the same judgments out of the same range of considerations as the President did.
Senator can simply say, “I disagree with his constitutional vision.”
2- Concern that Roberts will be vengeful if accepted despite a partisan dogfight.
Response – Irrelevant, but says a lot of true view of Roberts, if worried about petty retaliation.
3 – Done as well as we could – next one might be worse argument.
Response – voting for Roberts gives president no message to temper his next choice for candidate.
4 – Turnabout is fair play argument: what will happen when there is a Democratic president? What will Republicans do?
Response: No enforceable bargain here – next time around there is no guarantee that the congress will be the same. Perhaps it will force a tempered Democratic Presidential nominee. But so what?
Q+A session
Prof. Seidman’s Lead Question: Many Republicans in Senate uncomfortable over Breyer and Ginsberg – don’t democrats have a duty of comity to do same thing for a mainstream candidate?
Is there any other candidate in the country that would be more appealing than Roberts? Should they avoid a Constitutional train wreck?
Prof. Tushnet: if all 44 Dems and 1 Ind. voted against Roberts, he will still sail through. (Tushnet) is Not arguing for filibuster, and is not convinced a norm of acquiesce has been established.
Prof. Barnett: Roberts could be the best conservative republican justice the Dems could hope for.
Prof Tushnet: Thinks you can respectfully not vote for a candidate whom you don’t disagree with without demonizing him.
Audience Qs
Q: Significance of Robert’s pro bono work?
Prof. Heinzerling: Very small part of overall practice. Not a strong indicator.
Q: Robert’s personality – could his public statements have been sucking up to Bush?
Prof. Seidman: By that you mean he likes bike riding?
Student: At least he knows how to stay on it.
Prof. Barnet: Different view of precedent as appellate court judge v a justice.
Wouldn’t *you* tell president what he wanted to hear if you were nominated?
Q: Should Democrats filibuster? Specially requests of Seidman to respond.
Prof. Tushnet: Limited political capital, filibuster thus unadvisable, but all Dems should vote against him.
Prof. Barnet: Opposed to use of filibuster philosophically. A minority in the senate would effectively require a supermajority to approve the nomination.
Prof. Heinzerling: On board with both statements thusfar.
Prof. Seidman: In favor of a filibuster. Constitution does not say anything about the number of votes needed for a confirmation. In favor of filibuster because to exercise power is to gain power. Vital to future of country that the Democrats start gaining and exercising power.
Prof. Barnet: Use of this power might mean the destruction of this power.
Q: How much might Roberts change over time?
Prof. Heinzerling: Troublesome. DOJ work shows a snide, dismissive side. When elevated at a young age, there was no humility involved whatsoever. Possibility that he’ll become more modest, humble, as some of his post appellate court statements might indicate, or he could have the opposite reaction – becoming more dismissive of other people’s point of view.
Q: Compare Roberts to Souter and Scalia - What was known of them at this point in the nomination process, how did they change?
Prof. Tushnet: Hearings were very revealing about Souter, at end of hearings we had good picture.
Q: Gets lots of e-mails that say “Word coming to an end with Robert’s nomination” – is it? What is future of the court?
Prof. Heinzerling: Remember he is replacing Justice O’Connor. People should tone down volume to some extent.
Q: Political work (Bush v Gore) how does it play into nomination?
Prof. Tushnet: Just shows he’s a very politically conservative Republican. Process ought to proceed on the open acknowledgement of that.
Prof. Barnet: Ditto. Politics don’t matter so much as judicial philosophy. Politics not a perfect determent of judicial philosophy.
Q: Significant that Roberts is replacing a woman, in terms of substantive decision making?
Prof. Heinzerling: Yes. Court should have diversity. Different experience as a woman in this country than as a man. Now we have one less diverse voice on the court..
Prof. Barnet: To President’s credit that he didn’t play the race or gender game.
Prof. Heinzerling: Bush played the gender card subtly.
Q: Should Roberts have recused himself of the Hamdan case? Important?
Prof. Seidman: Explains case - 3 notable legal ethicists thought Roberts acted improperly when voting on Constitutionality and legality of military tribunals at Gitmo while also interviewing for post on the Supreme Court.
Prof. Heinzerling: Clear appearance of impropriety, disturbing.
Q: What remedy is appropriate?
Prof. Heinzerling: It’s hard to recuse self retroactively.
Prof. Tushnet: No strong views on the matter. Seems like small window in time – would have missed a couple of dozen cases if he recused himself from all cases involving the US. DC circuit would not have been impaired had he chosen to do so.
Q: Should Roberts not answer questions as best hope of getting the nomination confirmed? Does this show a good system? Can/should we change it?
Prof. Tushnet: Recently saw performance of “HMS Pinafore”– ‘stay close at home and never go to sea’. Nothing new. Not a good thing, but is the way of government.
Prof. Barnet: Agrees.
*Aside – Amusing moment while cleaning up my blogging notes, a couple of nearby 1Ls despair over the fact that they have to learn “a lot of political theory and not constitutional law” in their Con Law class. When does the refund period for tuition end, I wonder?
Is now available at 
Thanks for that; I was so upset that I had to miss it.
About the 1L's - that's funny. I'm in the opposite boat: my Con Law I prof was all about "the law" and not about the theory. Now with Peller going over some of the cases we read in CL1 I feel like _I_ should get a refund for the Con Law 1 class.
Posted by: blm | August 31, 2005 at 10:51 PM
I'm not sure what Peller is like in ConII, but he's probably going to introduce you (at length) to the crit grab-bag we were taught in Section 3 - shifting the baseline, private/public distinction, the indetermancy of rights rhetoric, etc. I'm sure that you picked up on a bunch of this stuff in section other, or through your own reading, but Peller's got a worthwhile take on it.
Also - Tamboli reports that I was on C-Span last night. Whoo.
Posted by: Scoplaw | September 01, 2005 at 01:46 PM