Redstate

You said, "Once Souter is confirmed", I think you meant "Once Roberts is confirmed".

I heard the comment and had the same reaction, but I think that you have to think about it from this point of view.

Roberts knows that he has to win over moderates not conservatives to get this seat.  It's really going to be impossible to tell until he sits on the abortion cases in this next term, if he's a Souter, a Kennedy, a Rehnquist, or a Scalia.

The real question that all of this makes me wonder is just how conservative of a nominee Bush can get away with on the second round.

Given that Roberts has made a distinction between what Ginsburg wrote about and commented on versus what she didn't write about and wouldn't comment on, where does that leave us with Edith Jones?

I'm fairly sure that she has said Roe was wrongly decided.

Also, I wonder if we can expect Specter to carry water for Jones as he has for Roberts. (and yes I'm projecting a lot, but Jones or Priscilla Owen are my current "favorites") to get the other nomination slot.

One was that Roberts reiterated the right to privacy. He rejected his Reagan Era Memo about the "so called right to privacy" and did a good job of stroking Feinstein.

The other point is his point (can't find a source for this) that President Reagan would have been for Affirmative Action today. Reagan was against the strict quotas proposed in teh 70-80's but would be for the type of Affirmative Action as it exists today.

Most of the hearing is public posturing on all sides, but it's also obvious that Roberts isn't going to present himself as the movement conservative that got him hired into the Reagan Justice Dept.

Roberts' easy endorsement of Griswold? That is, of course, the "penunbras or emanations" opinion that set the stage for the whole mess we have today. Not very reassuring.

That we are all seriously unsure of where Roberts will vote in an abortion case is astonishing to me. All the assurances of the Bush men and their media darlings will not convince me until I see where he votes.

about reiterating the right to privacy.  I am in fact constantly amazed that people on this site find it so problematic. Anyone with a ghost of allegiance to the notion of limited government would see this as a pretty good check against govermnmental excesses. Yes, it is not an enumerated right-- but then neither is the right to property, and no one would reject that right, or suggest that it is not one of the unenumerated rights of the 9th Amendment. And yes, the right to privacy was misued in Roe vs Wade, but the answer to that is to correct the mistake there, not to throw out the right to privacy entirely. Would anyone suggest getting rid of property rights just because once upon a time some people misued that right to justify slavery?

really wants a justice to abolish abortion.  I'm not convinced.

The anti-abortion movement is a cash cow for the GOP.  What I expect out of Roberts is that he will further restrict abortion rights along the lines of Casey ("my hands are tied by stare decisis").  But there will be no wholesale overturning of the constitutionality of abortion.  That would give the Dems ammunition for the next 25 years and suck the wind out of movement conservatism.

Roberts is a phenomenally talented advocate, and there is no question that he could fool people if he wanted to.  But at this point I am inclined to beleive that when he says he would be a "modest" jurist he is telling the truth.

I'm not aware of any "right to property," except inasmuch as it is protected from uncompensated takings by the fifth amendment or arbitrary ones by the fifth/fourteenth amendments.

And while the "right to privacy" might be a check on governmental excesses (and I support most of the results to which it has led), the rationale of basically boundless Court power which supports it is not.

Roberts did not, as I saw it, saw that there was an unambiguous 'right to privacy' in the constitution, but that there were specific amendments that provided that expectation of a certain element of a right to privacy.  

The easiest (for me) example is the 1st Amendment: since the 1st amendment prohibits the establishment of a religion, an individual can choose to practice (or not) their own religious model (so long as it doesn't infringe on another right of another individual, i.e. no ritual human sacrifice).  People thus have a right of privacy to their own religious practices.

But the question of whether the 14th amendment's guarantee of a right to liberty can be interpreted as an unfettered right to privacy in all circumstances and thus a right to terminate a life at the earliest stages of development or conversely at the end stages of life was not specifically addressed by DiFi or Roberts.

and I'm sure Thomas, if he notices, will come with the flaming sword, but I agree with the notion that you cannot have Liberty (clearly in the constitution) without privacy any more than you can have a house with walls and a roof.  Privacy is a subset of liberty, liberty to do what you please within the bounds of the law and liberty from the prying eyes of government.  That's the right to privacy in a nutshell.  Maybe I'm being fooled by the Mr. Rogers schtict, but I honestly think Roberts is not the pedantic literalist some on the right hope for, and I think I can come to respect him even though I oppose him.

I thought we wanted judges who were umpires, not political creatures with agendas.  Do you really want our method of judicial selection to boil down to a 20 question checklist on the hot political topics of the day?  Perhaps you still suffer Souter Shock Syndrome, but reading some of his positions from the 80s I have trouble envisioning him a friend of legal abortion.

Setting aside the whole "substantive due process is a red herring" objection (since that would presumably be pedantic literalism), I'll concede that you're correct about the importance of "privacy."  But the most critical aspects of that right are already protected by portions of the first, third, and fourth amendments, among others.

There might be good policy reasons for going beyond that, and like I said, I celebrate most of the results.  And I'd be a lot less disturbed had the Court shown any inclination to place some type of limitation on its ability to define liberty interests, except that economic liberty somehow doesn't count (anyone who believes that should consider a law limiting how much you can spend on an abortion each year, or supporting a political candidate, oh wait. . . ).

But they haven't, and so we're left with a shifting phrase that means nothing more than what the Justice thinks it means at the time.  We have Justice Brennan assuring us in the 1960s that the right to privacy doesn't cover homosexual conduct, then asserting that it does in the 1980s.  And who knows?  No one, because there's no text or framing history to draw upon, and the Court hasn't shown much interest of late of drawing upon what history exists.

If you're going to bother with a written constitution, you should at least be respectful of the writing.

Clarence Thomas said similar things during his confirmation hearings:

SENATOR BIDEN: Does the Fourteenth Amendment protect the right of women to decide for themselves in certain instances whether or not to terminate pregnancy?

JUDGE THOMAS: My view is that there is a right to privacy in the Fourteenth Amendment.

BIDEN: Well, does that right to privacy protect the right of a woman to decide for herself in certain instances whether or not to terminate a pregnancy?

THOMAS: The Supreme Court has made clear that the issue of marital privacy is protected, and in the case of Roe v. Wade has found an interest in the woman's right to terminate a pregnancy. I do not think that at this time that I could maintain my impartiality as a member of the judiciary and comment on that specific case.

And

SEN. LEAHY:

Because I ask that because you've expressed some very strong views, as you know better than all, on the Ninth Amendment, and you had an article that was reprinted in a CATO Institute book, an article -- the book was on the Reagan years, but you referred to Justice Goldberg's invention, using the Ninth Amendment in his concurring opinion in Griswold. And you said, and let me quote from you, you said, "Far from being a protection, the Ninth Amendment will likely become an additional weapon for the enemies of freedom." A pretty strong statement, but you would say, would you not, Judge, notwithstanding that strong statement, if a Ninth Amendment case came before you, you'd have an open mind?

      JUDGE THOMAS:

Again, Senator, as I noted, my concern was that I didn't believe that -- it's such an open-ended provision as the Ninth Amendment. It was view that a judge would have to tether his or her view or his or her interpretation to something other than just their feeling that this right is okay or that right is okay. I believe the approach that Justice Harlan took in Poe v. Ullman and again reaffirmed in Griswold in determining the -- or assessing the right of privacy was an appropriate way to go.

      SEN. LEAHY:

That's not really the -- my point. The point I'm making is that you expressed some very strong views, and you have here too, about the Ninth Amendment, but my question is, if -- notwithstanding those very strong views you've expressed about the Ninth Amendment, pretty adverse views about it, would you have an open mind in a case before you where somebody is relying on the Ninth Amendment?

      JUDGE THOMAS:

The answer to that is, Senator, yes.

From my perspective I don't see much difference between Thomas' statements and Roberts saying that Roe, Casey, etc are precedents of the Court and deserve the appropriate respect under the doctrine of stare decisis.

It's a dodge, sure, and we have been burned in the past, but a judge who said otherwise wouldn't get 60, or even 50, votes in the Senate as it is currently constituted.

we come down to differing forms of jurisprudence, and that is a fair and proper thing for discourse.  I agree with you that the Court needs to tailor its rulings to provide more actual guidance and less focus on merely solving the specific case at hand (the departure of Sandy Day will help that immeasurably).

Without a right to property, stealing can't be a crime.

Please back up your accusation with evidence, or go away.

"the departure of Sandy Day will help that immeasurably"

You mean its possible to answer a constitutional question without a balancing test?

5th and 14th against unlawful takings, is in fact a right to own property.  By stating the the federal government cannot infringe that right, the Amendment is establishing that the right exists and is protected.

but the right to property is still just inferred as a logical deduction from the text not specifically enumerated in it, as freedom of speech is enumerated. In that respect it is no different from the right to privacy, which can also be inferred from the same portions of the text. Indeed, property and privacy are inextricably linked.

And withiout a right to privacy voyeurism could not be a crime.

it will be too late, Paul.  We lost.

There are times and places when a balancing test is the only solution short of dividing the proverbial baby.  But yes, there are in fact constitutional questions which can be decided without some bizarro 3-2-3-1 split decision, with Sandy writing the penultimate concurrence that sort of incorporates elements from all three other opinions.  Balancing tests don't function very well when not even the Court of Appeals can actually use them for anything except to put out an opinion that will eventually have to go back up the Supremes anyway.  

This whole line of reasoning seems backwards. You seem to be trying to find out what rights the Constitution grants, but the Constitution isn't supposed to grant rights. Rights are innate and the Constitution is supposed to say where the federal government can legislate.

This was the exact problem that the Federalists saw with including the Bill of Rights. Abset this enumerated list, it was much clearer. The government could only legislate in areas that the Constitution gave specific warrant. Now, however, people seem to have this turned on its head, instead looking for the Constitution to prohibit, though rights talks, what the government cannot legislate.

The "Right to Property" and other rights are not mentioned speficially because they are inherent in the Constitution not giving the federal government the right to control property except in the takings clause.

Similarly, there is no "Right to Privacy" explicit because the Constitution doesn't allow the government to legislate in areas of privacy.

If the federal govt is one of ennumerated and limited powers, then stop looking for rights to be defined in the Constitution. Of course they are not defined there.

I agree that Bush does not want to overturn Roe v. Wade.  He has made no serious effort to do this during his administration.  There have been no attempts to submit a constitutional amendment, no pressure applied to either the Republican-controlled House or Senate to pass legislation to overturn key elements.

I believe the high level conservative political machinery wants to leave things exactly as they are now.  The abortion issue generates tens of millions of dollars in campaign contributions and millions of votes - at the local, state, and federal level.

If overturned, there could be very high political costs, as polls show a majority of voters supporting it.  Plus there would be hundreds of stories about backroom abortions with women dying that would fall on the head of the conservatives.

Thus I believe that Bush knows Roberts is not going to vote to overturn and that combined with his overall judicial constraint philosophy, made Roberts the obvious choice.

or he's just going slow about it. There are many of us who want Roe overturned immediately, but that may be too much of a shock to the country. A slow and deliberate (methodical) eroding of Roe is a more prudent way to go (politically).

bush knows the votes are not there for an amendment.

the only way bush could have taken action to have roe immediately reversed would have required forcing three pro-roe justices off the court thru

an offer they couldn't refuse? Aborting the justices?

Or, he could, and i'm only half kidding,

have declared that as cheif executive, he is sworn to uphold the 5th amendment's requirement that life not be taken absent due process

and insisted that fetuses be entitled to a jury trial before being aborted.

Verdict: guilty of curtailing mom's social life

sentence: hoover or oreck depending on the state

Between Thomas's recognition of Griswold as court precedent entitled to respect, and Roberts's ENDORSEMENT of that decision.