[Deathpenalty]death penalty news --- USA; TEXAS; FLORIDA; GEORGIA
j_sommer at gmx.net
Thu Sep 22 12:56:26 CDT 2005
death penalty news
September 22, 2005
Judge Roberts on Trial
Almost every recorded political statement John
Roberts has made throughout his life, from
adolescence to his nomination as chief justice,
suggests that he has strong conservative
political convictions and instincts, and many
people naturally fear that he will use his great
power on the Supreme Court in the service of his
politics. He promised that he would not, but the
Senate Judiciary Committee should have been more
effective than it was in testing that promise. In
fact it failed dramatically in its responsibility to do so.
In his public career Roberts has opposed
improving protection for the voting rights of
minorities; held that it would be constitutional
for Congress to strip the federal courts of their
powers to supervise racial integration;
denigrated efforts by a group of women
legislators to reduce gender inequality in the
workplace; referred to the right of privacy as
"so-called"; signed a brief advising the Supreme
Court to overrule Roe v. Wade; and described a
Supreme Court decision outlawing a moment of
silence that might be used for prayer in schools
as "indefensible." (See William L. Taylor's
recent article on Roberts's career in these pages. )
In the Senate hearings now concluded, Roberts
repeatedly said that the more outrageous of these
opinions were only those of a lawyer doing his
job, in the Justice Department and the White
House, for a very conservative client: the Reagan
administration. But of course he did not have to
join that administration and the tone of many of
his comments suggests not just an obedient staff
member but an enthusiastic proponent. The Bush
administration has refused to allow senators to
see Roberts's more recent memoranda, written
when, as deputy solicitor general in the first
Bush administration, he had more responsibility
for making policy. We can only speculate about
what political opinions these would reveal.
Nor is there much in Roberts's record as
disclosed to the Senate that suggests any
personal impulse to moderate the right-wing
policies he has defended or any concern for those
at the bottom of our society whom such policies
would injure. He did advise his superiors that
stripping the courts of their jurisdiction over
the use of busing as a remedy for racial
inequality, though in his opinion constitutional,
would be "bad policy." But he said it would be
bad for technical reasons: because, as he told
Senator Herbert Kohl, it might "lead to a
situation where there's arguable inconsistency
and disuniformity in federal law." He did advise
the administration to sign a treaty condemning
genocide, but only because a failure to sign it
would be bad for the nation's image. As a lawyer
in private practice he acted pro bono in advising
a gay rights group preparing for a Supreme Court
challenge to Colorado's discriminatory
constitutional amendment. But he did so, he told
Senator Richard Durbin, because the partners of
his firm asked him to, and he seemed happy to
add, in response to Durbin's further question,
that he would "of course" have been willing to
advise Colorado how to resist the challenge if
its officials had walked through his door first.
We find no greater reassurance that Roberts will
not use his power on the Court to advance a
right-wing political agenda when we study his
decisions during his brief term as a judge on the
District of Columbia Circuit Court. In one of the
two most politically sensitive of his cases he
declared that the federal government has no power
under the Constitution's interstate commerce
clause to force a California developer to protect
an endangered species of toad that has so far
been found only in that state. In the other case
he joined an opinion declaring that the courts
must show great deference to the President's
opinion that international treaties, including
the Geneva Conventions, do not protect the
Guantánamo prisoners. Whether or not these
positions are correct in law, they offer no
reason to think that Roberts would often hold, in
difficult cases, that the law is contrary to what
a conservative would wish it to be.
Roberts plainly saw the Senate confirmation
hearings as his best opportunity to dispel any
suspicion that he would be a political judge, so
we must look with some care at the record of
those hearings. It is important to be clear what
we are looking for. Roberts declared often enough
throughout the hearingsindeed, he took every
possible opportunity to declarethat he would be
guided in all his decisions by "the law" and not
by his personal politics or his faith or by
anything but the law. In his introductory remarks
he said that he would decide every case
"according to the rule of law" and that his job
was that of an umpire calling balls and strikes
but not pitching or batting. He repeated his vow
to decide "according to the rule of law"
throughout the hearings. We must ask whether, for
Roberts, these repeated declarations can have any
substance. We can only answer that question by
discovering how he decides what the law is when
the pertinent constitutional or statutory
provisions are vague or abstract. Does his method
of legal reasoning in such cases provide a
filter, or protective screen, between his
politics and his judgment about what the law requires?
As Senator Joseph Biden reminded Roberts, an
umpire cannot set the strike zone: that is
determined by the explicit rules of baseball. But
a Supreme Court justice faces no such constraint.
The great constitutional clauses and much crucial
legislation are drafted in highly abstract terms
that demand interpretation. Much of this is
abstract moral language: the Constitution demands
"due" process, forbids punishments that are
"cruel" as well as "unusual," commands "equal"
protection of the laws, and outlaws
"unreasonable" searches and seizures. Important
Supreme Court precedents rule out "undue" burdens
on women seeking abortions, for example, and make
the constitutionality of laws depend on their
"rationality." Statutes often make the liability
of a person or corporation turn on whether they
have behaved in ways that are "unreasonable" or
even "unconscionable." The bare statement that a
judge should enforce "the law" when dealing with
clauses that are so abstract tells us nothing:
the crucial question is how the judge should decide what the law is.
Roberts himself demonstrated the difficulty and
importance of that question in a crucially
important statement he had carefully prepared. He
pointedly disagreed with the constitutional
philosophy often called "originalism," which is
the thesis that judges ought to interpret the
abstract moral clauses of the Constitution by
asking how the framers of each clause would have
expected that clause to be appliedthat judges
should decide what punishments are "cruel," for
example, by referring to what punishments those
who wrote the Eighth Amendment in the eighteenth
century thought cruel. On that test, capital
punishment, which was of course practiced very
widely then, would not be cruel. Some very
conservative jurists, including Justices Antonin
Scalia and Clarence Thomas and former judge
Robert Bork, have explicitly adopted that view of
When Scalia tried to defend this view in a
discussion of his judicial methods at Princeton
some years ago, the objection was made that
originalism, so understood, ignores a crucial
distinction between what the framers intended to
say and what they expected would be the effect of
their saying what they intended to say. The
framers might have set out their own particular
views about what counts as cruelty in punishment,
what counts as a denial of equal protection in
legislation, and so forth in the constitutional
clauses they wrote. But they did not. Instead
they chose to lay down general moral principles.
So true fidelity to their intentions requires
judges to ignore the framers' concrete opinions
and do their best to apply these principles as
moral principles: to decide, for themselves, that
is, what punishments are in fact cruel and what treatment is in fact equal.
Roberts explicitly accepted this objection to
Scalia's version of originalism. In reply to a
question from Senator Charles Grassley, he said,
about the equal protection clause that was adopted after the Civil War,
There are some who may think they're being
originalists who will tell you, Well, the problem
they [the framers] were getting at were the
rights of the newly freed slaves. And so that's
all that the equal protection clause applies to.
But, in fact, they didn't write the equal
protection clause in such narrow terms. They
wrote more generally.... We should take them at
their word, so that is perfectly appropriate to
apply the equal protection clause to issues of
gender and other types of discrimination beyond
the racial discrimination that was obviously the driving force behind it.
Liberal commentators were pleased to learn that
Roberts rejects a method of interpretation that
they associate with Scalia and other right-wing
justices. But he said nothing about how he would
decide the great moral questions about due
process and equal treatment that, on his
understanding, the Constitution requires justices
to decide. Rejecting Scalia's "originalism"
increases the responsibility of contemporary
judges, but it does not tell them how to exercise
that responsibility. Suppose judges must decide,
for instance, whether it is consistent with the
Constitution's command of "equal protection" of
the laws that a state university grant some
limited preference to minority applicants, or
whether a state government respects "due process"
when it outlaws early abortion. If they may not
rely on historical evidence about whether those
who wrote those phrases would have expected them
to condemn affirmative action or permit making
abortion a crimeif judges must ask themselves
directly what answer follows from the abstract
moral language the framers laid downthen how can
they help putting into effect their own
convictions, conservative or liberal, about
whether affirmative action is fair or whether abortion is immoral?
The cynical view of many lawyers is that judges
simply follow their own political preferences and
disguise their doing so by announcing that they
are following "the law." These lawyers think that
constitutional adjudication is only politics by a
grander name, that if a president appoints
someone with the policy preferences of John
Roberts to the Supreme Court, the nation will
then be governed by a very conservative
interpretation of abstract clauses of the
Constitution. The Supreme Court's outrageous
decision in Bush v. Gore reinforced that cynical
view because in order to ensure that Bush became
president, the justices who preferred him ignored
the doctrines of constitutional interpretations
they had previously embraced. But most judges
insist that there is a difference between what
the law requires them to decide, even when they
are applying the very abstract moral language of
the Constitution, and how they would vote if they
were legislators free to vote in accordance with
their own policy preferences. How is that possible?
A judge can draw that distinction in such cases
only if he has, in addition to his partisan
commitments and policy preferences, political
convictions of a different and independent kind:
convictions about the proper role of a judicially
enforceable constitution in a democracy. A
constitution shapes democracy by assigning powers
to different institutionsby specifying the
composition and responsibilities of the
legislative, executive, and judicial branchesand
it regulates democracy by creating individual
rights that act as constraints on what those
different branches of government may do. Our
constitution, for example, limits the powers of
Congress to matters of national concern, leaving
purely local issues to state government, and it
also limits the power of all branches of
government by specifying that no branch may use
censorship as a tool of government. But as I have
said, it imposes these structures and constraints
in very abstract language: it declares that
Congress has power only over "interstate
commerce," and that government must not invade
"the freedom of speech." Judges can interpret
that abstract language only by appealing to a
vision of a desirable, workable form of democracy
that they believe both fits and justifies the
overall structure of the Constitution. They can
then justify choosing one reading of the abstract
clauses rather than another by explaining how
that reading makes a better contribution to democracy so conceived.
They can interpret their own proper role in a
democracy in the same way: by asking what view of
the powers of unelected judges to check what
other branches of government have done follows
from the view of democracy they have identified
as best fitting and justifying our Constitution
and our practices. That judgment must include a
view of how far it serves the appropriate
understanding of democracy to require judges to
be governed by their own past decisions as
precedents and when and why they may depart from
precedent in search of what they take to be a
more effective democracy. Judges must ask, for
example, whether it better serves what they take
to be the right understanding of democracy for
Supreme Court justices who think Roe v. Wade was
wrongly decided to correct what they believe to
have been a serious mistake or to respect the
nation's reliance on that decision for three decades.
We must try to discover from his statements at
the Judiciary Committee hearings whether Roberts
has such a constitutional philosophya vision of
democracy that can filter out his partisan
commitments and policy preferences when he
decides what the Constitution requires. It might
be helpful first to briefly notice examples of
constitutional philosophies that other judges
have embraced and how these philosophies can act
as filters in this way. Scalia's announced form
of originalism, if in fact he held to it with any
important degree of consistency, would
constitute such a philosophy. He might suppose
that a constitution serves democracy best when it
limits the power of democratic majorities only in
the ways that were widely accepted when the
nation began. A judge who held this conception of
good democracy would sometimes be required to
refuse constitutional challenges that his own
policy preferences would encourage him to
sustain: it would require him to uphold capital
punishment against constitutional challenge, for
example, even if he himself detested
state-mandated killings. Roberts was right to
reject this unattractive vision of democracy,
particularly since it has no basis in our
history. As he said, the framers themselves
rejected it by using the abstract moral language they chose.
Justice Stephen Breyer, in his recent book
setting out his own constitutional philosophy,
offers a more attractive example. He argues that
the liberty protected by an appropriate
conception of democracy embraces not only a
citizen's freedom from undue government
interference but a more active freedom to
participate in self-government as an equal; and
he undertakes to show that an understanding of
the Constitution as aiming to promote that form
of liberty can guide constitutional adjudication
in several matters, including free speech,
federalism, and the constitutionality of affirmative action.
I have myself defended a similar view of the
Constitution: that it aims to create what I
called a "partnership" rather than a majoritarian
form of democracy by insisting that all citizens
are entitled to an equal role and voice in their
self-government, that government at all levels
must treat citizens with equal concern, and that
government must leave individual citizens free to
make the personal decisions for themselves that
they cannot yield to others without compromising their self-respect.
That partnership conception is, of course, only
one possible vision of democracy. Still, it
illustrates the crucial distinction between the
kind of political convictions a constitutional
philosophy requires a justice to employ in
reaching a constitutional decision and the kind
of political positions it excludes. No judge
could be guided by such a partnership conception
without convictions about, for example, whether
minority preferences deny equal concern to white
applicants or whether questions about the use of
one's own body in reproduction are among those
that dignity requires be left to oneself as an
individual. But these general convictions about
the Constitution are independent of a judge's
personal opinions about whether affirmative
action is wise policy or whether abortion is
immoral, and they may therefore act as a screen
insulating a judge's constitutional opinions from
his personal or partisan preferences.
It would be nonsense to say that a judge who has
a constitutional philosophy of the kind these
examples illustrate has set aside all his own
moral and political convictions to decide just in
accordance with what the Constitution requires.
He relies on his own convictions about the best
conception of democracy and the role of the
Constitution in creating that form of democracy
in order to decide what the Constitution,
properly understood, does require. But the
crucial point is that these convictions about the
character of democracy are independent of the
more immediate and partisan policy preferences
that lead a judge to vote for one party or the
other or to favor one legislative scheme about
some particular regulatory issue over another. It
is the possibility of a constitutional philosophy
of this sortand only that possibilitythat can
give meaning to a Supreme Court justice's claim
that he sets his own political preferences aside
in deciding constitutional cases.
So we must look at the record of the Senate
hearings carefully to discover whether Roberts
revealed a constitutional philosophy, even
indirectly, and if so what his constitutional
philosophy is. Senator Orrin Hatch put that
question to Roberts early in the hearings. He
asked him whether he is "an originalist, a strict
constructionist, a fundamentalist, perfectionist,
a majoritarian or minimalist...." Roberts replied
that he resists labels and wants to be known only
as a modest judge, that is, a judge who does not
legislate or execute the laws but simply enforces
the law correctly. Hatch was not satisfied and
continued: "You are probably eclectic [in] that
you would take whatever is the correct way of
judging out of each one of those provisions?
There may be truths in each one of those
positions, and none of them absolutely creates an
absolute way of judging." Roberts replied: "Well,
I have said that I do not have an overarching
judicial philosophy that I bring to every case."
Senator Grassley returned to the issue of
Roberts's constitutional philosophy later. He
summarized an exchange Roberts had had during the
hearings considering his successful nomination to
the circuit court. Grassley recalled Roberts as
saying then, "I do not have an all-encompassing
approach to constitutional interpretation.... I
would not hew to a particular school of
interpretation, but would rather follow the
approach or approaches that seem most suited in
the particular case to correctly discerning the
meaning of the provision at issue." Roberts
accepted Grassley's recollection of his earlier
statement and then added, falling back once again
on his hollow reference to law, "And I don't have
an overarching view.... [I] take a more practical
and pragmatic approach to trying to reach the
best decision consistent with the rule of law."
This more "pragmatic" approach, which lets a
judge's sense of how the case should be decided
govern the method of interpretation he uses to
decide it, rather than the other way around, is
the most open invitation possible to
result-driven adjudication, that is, to a judge
putting his own policy preferences into his
decision rather than trying to filter them out.
Of course Roberts is right that a constitutional
philosophy should not be an academic straitjacket
that makes the facts of particular cases and the
practical consequences of a decision one way or
the other irrelevant. But that means only that a
decent philosophy must show how facts and
consequences are relevant, not that no such philosophy is needed.
The effect of these discussions was that Roberts
declined to describe and embrace any general
theory of constitutional adjudication. But he
did discuss what must be an important part of any
such theorythe doctrine of
precedentextensively. Most of the Judiciary
Committee was interested in his opinions about
precedent for a single reason: they wanted him to
say either that he would or would not vote to
overrule the central holding in the famous 1973
Supreme Court decision in Roe v. Wade that states
may not prohibit early abortion. The Court had
itself reaffirmed that central holding in 1992,
in its decision in Planned Parenthood v. Casey.
The hearings therefore offered the unusual
spectacle of liberal senators insisting that
established precedents should not be disturbed
and conservative senators insisting with equal
fervor that they sometimes should be.
Roberts declared that since the question whether
Roe should be overturned would very likely come
before the Court, he should avoid expressing any
opinion about whether that case was correctly
decided or whether, if not, it should now be
overturned. But he did say, several times, that
he had great respect for the doctrine of
precedent, that any earlier decision of the Court
is entitled to "deference," that a justice should
therefore not vote to overrule an earlier Supreme
Court decision just because he thinks it was
wrongly decided, and that several other factors
bear on that issue, including whether people had
changed their positions in reliance on the past
decision, whether that decision had proved
"unworkable," and whether its basis in law had
been eroded by other Supreme Court decisions
taken since it was decided. He noted that the
three-judge plurality in the case of Planned
Parenthood v. Casey had themselves proposed those
tests and had concluded that they should not
overrule Roe; but he refused to say whether he
thinks they were right in that conclusion. He
also noted that the Court sometimes has overruled
its own past decisions of long standing, and
cited, as the obvious example, the Court's 1954
decision in the Brown case overruling its much
earlier decision, in Plessy v. Ferguson, that
public school segregation by race is constitutional.
Roberts succeeded in leaving it entirely unclear
whether he would vote to overrule Roe when the
Court is next presented with the opportunity to
do so, though it is worth noting that
conservative commentators think he may do so.
But his careful equivocation also left it unclear
whether he has any view of precedent that would
prevent his own opinions about the morality of
abortion from dictating that decision, because he
left open what he means when he says that a past
decision has proved "unworkable."
Is a decision unworkable when after three decades
it continues to provoke passionate and even
violent opposition and has therefore failed to
resolve a divisive social conflict? That is a
crucial question in considering Roberts's likely
votes not only about abortion but about many of
the Court's other precedents. Would his theory of
precedent permit him to repeal long-established
precedents barring prayer in public schools on
the ground that these too had proved "unworkable"
in resolving deeply divisive issues?
In an important though little-noticed exchange,
Senator Arlen Specter asked Roberts whether
overruling Roe would mean bowing to public
pressure, which the Court ought not to do.
Roberts replied only that public condemnation of
a precedent is "a factor that is played different
ways in different precedents of the Court." He
said that in one case, in which the Court had
reversed its earlier opinion that victims may not
testify in the sentencing phase of a criminal
trial, the fact of wide public dissatisfaction
with the precedent was taken as a ground for
overruling it. He did not, however, indicate
whether he thinks that ground is appropriate.
So Roberts's discussion of precedent, though
extensive, offers no reassurance that he will not
follow his own political preferences in deciding
which precedents to sustain and which to
overrule. We must reach the same conclusion about
his discussion of another jurisprudential issue:
"judicial activism." Conservative politicians
once gave that name to the practice of liberal
justices who overruled state and national
statutesincluding statutes making abortion or
homosexual sodomy a crimeto create what the
liberals considered a more just society. In
recent years conservative judges have been much
more willing than liberals to strike down
congressional statutes in order, according to
liberal critics, to create the more limited
federal government that conservatives favor. In
the two most notorious such decisions the Court
ruled that Congress has no power to make carrying
a gun and bullets into school a crime or to give
women who are the victims of "gender-motivated"
violence a civil remedy. In both cases, the
conservative justices declared, the Constitution
limits congressional power to matters of
"interstate commerce," and gun possession and
violence against women are matters of local, not
interstate, transaction. So liberals now accuse
conservative justices of "activism."
Several senators, both liberal and conservative,
asked Roberts to comment on whether and when the
Supreme Court should be active in that way.
Roberts properly replied that judges have a
constitutional duty to test legislation against
the Constitution and that it is not any sin of
activism but simply a mistake when judges strike
down a statute they ought to sustain, just as it
is not activism but simply a mistake when they
sustain a statute they ought to invalidate. He
therefore rejectedin my view correctlyanother
possible constitutional philosophy that might
insulate a judge's decisions from his own policy
preferences: that judges should respect any
elected legislature's decision about the scope of
its own powers except when its violation of the
Constitution is undeniable. But once again he put
nothing in the place of that theory except yet
another anodyne appeal to the illusory constraint
that judges should follow "the law."
I do not expect Roberts to vote to overturn Roe
v. Wade, or even to overturn the Court's repeated
decisions sustaining limited affirmative action
programs in state universities and professional
schools. It seems likely, moreover, that neither
decision will be seen as in the best interests of
political conservatives. Overruling Roe would
suddenly make abortion again an urgent national
political issue for many millions of women who
have come to take for granted the right that
women have enjoyed for two generations and who
now vote to express their views on other issues,
often for Republicans. Overruling Roe would not
be helpful to the national Republican Party. Nor
does the Bush administration actually oppose
using the law to achieve greater diversity in
universities and professional schools, a goal
endorsed by the military and major corporations
in briefs submitted to the Supreme Court in the
Michigan cases of 2003 testing the
constitutionality of affirmative action programs.
The administration itself submitted a brief
urging the Court to declare the Michigan programs
unconstitutional, but as I said in my discussion
of those cases in these pages, it did not in fact
call for the elimination of all programs whose
explicit goal is to improve racial diversity.
It is argued only that different means should be found for pursuing that goal.
The danger is greater, in my view, that Roberts
will join with the other conservative justices in
extending the President's power to conduct his
war against terrorism without regard for either
international law or the traditional rights of
prisoners. During the hearings he insisted that
the Bill of Rights remains in full force during a
war, and he seemed to reject Chief Justice
Rehnquist's famous comment that though the laws
are not silent in times of war they speak in a
quieter voice. Yet he emphasized the president's
powers as commander in chief and suggested, when
Senator Patrick Leahy asked him whether the
president had the power to order the torture of
prisoners, that that depended on whether Congress
was "supportive" of the president's action.
That view hardly seems consistent with the
assumption that the most fundamental rights hold
with full force even in wartime. When Senator
Russell Feingold asked him whether he had any
"concerns about the practice of extraordinary
rendition, of our government secretly sending
people to countries that we know use torture," he
replied that he could not comment because the
issue might come before the Court "in one form or
another." But it hardly seems likely that the
Supreme Court will be called upon to judge the
odious practice of sending prisoners abroad to be
tortured because it is unlikely that any
government would admit to the practice.
In one of Roberts's decisions as a circuit court
judge that I mentioned earlier, Hamdan v.
Rumsfeld, he joined an opinion that took an
extraordinarily broad view of the president's war
powers, a view that was unnecessary to the
decision. The Geneva Conventions, to which
the United States is a party, provide that
military prisoners who do not qualify for the
full protection of prisoner-of-war status are
nevertheless entitled to "humane" treatment and
to "the judicial guarantees which are recognized
as indispensable by civilized peoples." President
Bush has determined, by executive fiat, that the
prisoners at Guantánamo whom he accuses of aiding
al-Qaeda are not entitled even to that very modest protection.
A prisoner who is accused of being Osama bin
Laden's driver and bodyguard brought a habeas
corpus challenge to his forthcoming trial by a
military commission citing that provision of the
Geneva Conventions among other reasons why he
should not be tried before such a commission.
Though Circuit Court Judge A. Raymond Randolph
held that in any event treaties cannot be
enforced in federal courts, he also declared that
Bush's opinion that the treaty should be
interpreted as not applying to particular
prisoners is entitled to judicial deference, and
Roberts, without writing a separate opinion,
joined in that declaration. A third judge, Senior
Circuit Court Judge Stephen Fain Williams, joined
in the decision on the first ground but protested
that though a president's "construction" is
entitled to "great weight," Bush's interpretation
of the Geneva Conventions' language was so
clearly wrong that it should not be accepted.
Roberts could have joined with Williams rather
than Randolph without affecting the overall
decision in the case, but he took the opportunity
to declare an amazingly broad view of the president's powers.
As this is written, there seems no doubt that the
committee and then the Senate will confirm Judge
Roberts's nomination, probably, in the latter
case, by a large margin. He is a stunningly
intelligent lawyer who may well prove to be an
excellent chief justice. The country will have to
wait and see. But Senator Biden was right when he
said that in approving his nomination the Senate
is "rolling dice." The Judiciary Committee
allowed him to keep his jurisprudential
convictions, if he has any, almost entirely
hidden. The senators asked him to comment on very
specific cases and issues, an invitation he
steadilythough with at least one notable
exceptionrefused. I believe he was wrong to
refuse to answer these specific questions. His
argument that it is unfair to litigants to reveal
his present opinion of issues he might later
confront is very weak. His honest statement of
his present views would in no sense be a promise
or commitment. He will have to consider arguments
in specific cases before making a decision, and
he will join a Court most of whose other members
have publicly stated their opinions on many of
the issues that will come before them without
raising any question of fairness to future
litigants, who must often argue knowing that
certain justices are disposed to vote against
them. His argument, moreover, wholly neglects a
very powerful contrary consideration: that
according to any plausible view of democracy the
public has a right to know his views on matters
affecting their fundamental rights in some detail
before their representatives award him lifetime power over those rights.
Whether or not Roberts answered the committee's
detailed questions about particular issues,
however, it should have pressed him on the
character of the more general constitutional
philosophy he would employ finally to decide
those issues when they arise. It should not have
accepted his reiterated banalities about being
guided by the law, or deferring to the rule of
law, or taking due account of precedent, or
deciding legal issues in a practical, pragmatic
way, or allowing the facts their "proper role."
It should have asked him what all those words and
phrases actually mean. The Senate has no right to
gamble with the nation's constitution and its future.
The committee will shortly have another, equally
important, opportunity to protect both when Bush
nominates a successor to Sandra Day O'Connor. We
must hope that it has learned from its failures
in the Roberts nomination. It should demand to
know the new nominee's constitutional philosophy.
If he or she refuses to disclose it, or claims
that it is only to respect the rule of law and
adds nothing more helpful about what that means,
then its constitutional duty is to advise the
Senate to reject that nominee as either disingenuous or incompetent.
 "The Nominee," The New York Review, October 6, 2005.
 See the exchange between Scalia and me in
Antonin Scalia, A Matter of Interpretation
(Princeton University Press, 1997), at pp. 115ff
and 144ff. See also my articles, "Fidelity as
Integrity: The Arduous Virtue of Fidelity:
Originalism, Scalia, Tribe, and Nerve," 65
Fordham Law Review 1249 (1997), and "Bork's
Jurisprudence," University of Chicago Law Review, Vol. 57 (1990).
 See my article "A Badly Flawed Election," The
New York Review, January 11, 2001.
 See the exchange between Scalia and me, footnote 2 above.
 Stephen Breyer, Active Liberty: Interpreting
Our Democratic Constitution (Knopf, 2005). The
First Amendment's guarantee of freedom of speech,
Breyer says, should be understood "as seeking to
facilitate a conversation among ordinary citizens
that will encourage their informed participation
in the electoral process" (p. 46), and he
concludes that First Amendment values argue not
just against but also for legal limits on
politicians' campaign expenditures because too
much money in politics cheats ordinary people of
their voice. Moreover, the Constitution should be
seen as distributing power between Congress and
state governments so as to encourage as much
political participation by individual citizens as possible.
Seen in that way, affirmative action programs are
constitutional, in spite of their use of racial
criteria, because such programs make many more
citizens capable of informed and effective
political activity. Each of these arguments,
drawn from Breyer's conception of the role of the
Constitution in promoting the right understanding
of democracy, offers him grounds for deciding to
reject constitutional challenges to programs and
policies whether or not he himself thinks them wise.
 I describe that conception of democracy and
illustrate its application to a large variety of
constitutional issues in my book Freedom's Law
(Harvard University Press, 1996), and also in
Sovereign Virtue (Harvard University Press, 2000).
 Roberts did, however, appeal to a "theory of
democracy" at one point in the hearings. In
answer to Senator Jon Kyl's invitation to comment
on the practice of some justices to refer to
foreign legal materials in their own opinions, he
said that he thought the practice was offensive
to democracy because only American judges are
appointed by officials elected by the American
people. I believe he misunderstood the practice,
as I say in footnote 11 below, but it is
revealing that he thought it appropriate to refer
to a particular conception of democracy in this way.
 For example, Leonard Leo, currently on leave
as executive vice-president of the Federalist
Society to help coordinate support for Judge
Roberts, said on the PBS Journal Editorial Report
on September 16: "I think that he left the door
wide open to reviewing Roe and possibly even
overturning it." Transcript available from
www.pbs.org/wnet /journaleditorialreport/091605/transcript _leadstory.html.
 "The Court and the University," The New York Review, May 15, 2003.
 415 F.3d 33 (2005).
 Roberts contradicted this view when he
vigorously opposed the practice of some justices,
including Breyer and Anthony Kennedy, of
referring to foreign law and decisions in their
opinions, a practice conservatives have
denounced. Roberts may have misunderstood the
practicethese justices refer to foreign
materials only for the benefit of the views of
other legal cultures that have faced similar
issues, not as precedents that are to any degree
controllingbut in any case the question whether
it is proper to refer to such materials for
guidance will certainly come up, again and again,
in a large variety of cases that the Court will face.
(source: Ronald Dworkin in: The New York Review of Books, Sept. 21, 2005)
Death penalty more like 'state-sanctioned murder'
Texas made history recently by executing its
first African American woman since the Civil War.
However, it wasnt the historical significance
that should have made the papers; the important
part was the still lingering questions about the guilt of this woman.
Perhaps a bit of history about the case would be
helpful in explaining the regrettable
circumstances. Frances Newton was convicted in
1988 for the murder of her husband and two small
children. The prosecution claimed that the motive
for the murder was to collect on an insurance
policy taken out weeks earlier. They also had a
gun that supposedly connected her to the crime.
Seems pretty simple, but as with most things in life, it wasnt that simple.
There were inconsistencies about the case in
several different areas. One is the motive.
Prosecutors said that she did it to collect on an
insurance policy she recently took out. What they
didnt say was when she got the policy. She went
to buy car insurance and it was only after the
saleswoman convinced her that she agreed to get
the life insurance. And she didnt get it because
she had planned on killing her family, more
likely it was because recently her aunts house
had burned down, killing her children and the
family didnt have enough money to bury them.
That seems like a pretty logical reason to agree to life insurance.
There is still the physical evidence. The police
connected her to a gun that she led them to.
Apparently the reason she had the gun was pretty
benign as well. Her husband, Adrian Newton, had
been having a drug problem and it created strains
on their marriage, but earlier that day he
promised her that he had stopped. Curious as to
whether he was telling the truth, Newton looked
in the cabinet where he normally stored his drugs
and instead saw a gun. She was worried because
earlier her husband and his brother were talking
about having problems with his drug dealer so she took the gun.
Later that day, while at her cousins house, she
hid it in an abandoned house near her cousins
home. After that, she and her cousin went back to
Newtons house, where they discovered the bodies.
Her husband and two children had been shot
execution-style and lay in a bloody mess.
According to the prosecutions timeline, Newton
would have had to kill her family, dispose of the
evidence, including her bloodied clothes, and get
to her cousins house within a half-hours time.
It didnt matter that Newton was clean of any
traces of blood, after participating in a very
bloody act that left a trail throughout the
house. It didnt matter that her husbands
brother told police that Adrian Newton owed a
drug dealer $1500 and gave the cops his address.
That point was left uninvestigated; the drug
dealer was never visited. Additionally, it was
later revealed that detectives came across two
separate guns instead of just the one. It will
never be known which gun actually matched the ballistics.
And yes these are all very important points, and
most respectable defense attorneys would have
brought these up at trial. But Newton was
unfortunate enough to get stuck with the infamous
Ron Mock. So infamous in fact for his failure at
death penalty cases that he was called Death Row
Mock. Not only did he fail to investigate these
plausible alternatives on behalf of his client,
he failed to even question any of the witnesses,
or bring any witnesses for the defense on the
stand. Adrian Newtons parents even wanted to
testify on Newtons behalf but they were never
called to the stand. This defense attorney has
been so negligent in his cases that he has been
brought before the State Bar five times for
misconduct and is currently suspended until 2007.
And yet despite all of this, Frances Newton was
executed on Sept. 14 by lethal injection.
Inconsistencies like these are all too common in
capital punishment cases. The injustices of our
court system are spectacular. Race is
consistently a factor. Although African Americans
make up only 13 percent of our population, the
death row population is 41.7 percent black.
Additionally, a huge issue in death penalty cases
is the quality of representation. In just about
all of the capital cases the defendant couldnt
afford his or her own lawyer. In these life or
death situations court appointed lawyers have
been known to fall asleep during the trial or
come in intoxicated. I doubt that is what the
framers of our Constitution had in mind when they
spoke of proper representation. And then comes
the important question of guilt. Over 114 people
have been exonerated from death row since 1973.
If this many people have been cleared then it
seems pretty inevitable that innocent people have
been executed in the past and some are awaiting their deaths today.
Aside from all these discrepancies we really
should be asking ourselves if this is the kind of
society we want to live in. Are we really as
civilized as we claim to be with state-sanctioned
murder? My dictionarys definition of murder is
the killing of a person inhumanely. And humane is
defined as kind, tender, sympathetic. I dont see
how killing can be done kindly. Are those that
support the death penalty doing so out of the
kindness of their hearts? I doubt it.
Aside from all these judicial and societal
questions, the best one that remains is what my
young cousin asked, his innocence and simplicity
explaining it best: We kill people who kill
people to show that killing people is wrong? It just doesnt make any sense.
(source: Column, Collegiate Times)
Prosecutors Ask For Death Penalty In Murder Case
Without Body - Defense Says No Body Means No Crime Committed
A South Florida jury was asked Wednesday to give
the death penalty to a murder suspect, despite
the fact that authorities have never found the
body of the alleged victim or a murder weapon.
Juries sometimes convict even in cases in which
physical evidence is sparse, such as the Scott
Peterson or Shannon Melendi cases.
Prosecutors hope their circumstantial case is
strong enough to win them a conviction and a
death sentence against Jesus Rodriguez, whose
estranged wife, Isabel Rodriguez, has been missing for nearly four years.
"There is no body. The defendant made sure we'd
never find a body," prosecutor Abbie Rifkin said.
Jesus Rodriguez has denied killing his wife, and
his lawyers called the charges flimsy.
"Sometimes a lack of evidence is not proof of the
perfect crime. Sometimes it means no crime was
committed," Rodriguez's lawyer, Andrew Rier, said.
Jesus Rodriguez is accused of killing Isabel
Rodriguez at her home, stuffing her body in the
trunk of his Lincoln and disposing of her body on
his east Everglades ranch so well that three
intensive high-tech searches turned up nothing.
However futile the search for clues on
Rodriguez's ranch, prosecutors said a volatile,
talkative defendant has bolstered their circumstantial case.
Missing persons detective Giancarlo Melito
testified that the defendant was teary-eyed, then
hateful when questioned about his missing wife.
"His eyes would just turn pure white and he'd
state she was the devil," Melito said.
Jesus Rodriguez called his wife "the devil" in a
letter he wrote to the judge and is accused of
threatening her when she enforced a stay-away
order against him, prosecutors said.
Defense lawyers objected to this, saying witnesses never heard a death threat.
The defense told jurors that any suggestion that
Jesus Rodriguez built a fire on his ranch and
burned the body are ludicrous. Their research for
the case included a visit to a Miami crematory.
They said ovens that can destroy remains require
higher temperatures than any open-air fire can achieve.
The defense also said that inmate witnesses who
will claim Jesus Rodriguez incriminated himself
to them should not be believed, since Rodriguez
stuck to denials through hours of police questioning.
"Then, the same man gets into jail and -- 'I did
it, I did it! It was me!' Yeah, right," Rier said.
The trial might last more than a month, and Jesus
Rodriguez take the stand before the trial ends.
Prosecutors seek death penalty in shooting of elderly man
Gwinnett County prosecutors intend to seek the
death penalty against a Lawrenceville man accused
of gunning down an 85-year-old partially blind
man during an attempted burglary.
Gwinnett County District Attorney Danny Porter
said 35-year-old Joseph David Botto is eligible
to be prosecuted in Georgia for a capital offense
since the slaying occurred during the commission
of a burglary, what is known as a statutory aggravating circumstance.
Porter said he also took into account Bottos
extensive criminal history when making the
decision. Botto has criminal cases pending in
Barrow and Walton county for several incidents
involving first-degree forgery, theft, aggravated
stalking and harassing phone calls in 2004.
Botto is also under other indictments in Gwinnett
for a Feb. 11 incident involving terroristic
threats, criminal trespass and simple battery and
a 2004 incident involving forgery, burglary, an
automobile break-in and carrying a concealed weapon.
No pretrial hearings have been scheduled in the
murder case yet, said lead counsel and Chief
Assistant District Attorney Tom Davis.
Botto allegedly wanted to burglarize the home of
85-year-old Hubert Papa Massey and his
84-year-old wife, Geneva, on Windsor Farms Drive
in Lawrenceville. Authorities said Botto targeted
the Masseys because he was an acquaintance of one
of their relatives and he knew them to be a frail elderly couple.
Police believe Massey woke when an intruder
shattered a glass window pane in the back door of
his home on Feb. 19. Family members said he was a
light sleeper. While his wife remained asleep in
bed, the World War II veteran armed himself with
a pistol he reportedly kept at his bedside and
confronted the burglar at the door.
A shootout ensued, and Massey was wounded in the abdomen, arm and chest.
Massey left behind an extensive family, including
his wife of 66 years, three daughters, four
grandchildren, five great-grandchildren and two
great-great grandchildren. Porter said there was
a mixed reaction from Masseys relatives about
Porters decision to seek the death penalty.
Several were in favor and some had no input on
the decision, but no one opposed it, Porter said.
Masseys daughter, Brenda Harris, said the family
will participate throughout the arduous process
of pretrial motions, trial and appeals.
Its hard to think about somebody being killed,
but yet he killed my daddy so I dont know,
Harris said. I think we realized from the
beginning that it was going to be a real long
process, but well do what we have to do.
This week has been a difficult one for the
tight-knit Massey family. Tuesday was the
seven-month anniversary of his death, and the
family was preparing to celebrate Genevas 85th birthday on Wednesday.
We still try to do all the things that we did
before and celebrate the holidays and events. We
always try to include my dad, Harris said. We
put a picture of him on the table when we do
birthdays and things so we feel like hes still with us.
Other cases pending
Several other death penalty cases also are pending in Gwinnett County.
Jury selection began this month in the trial for
Wesley Harris, accused of fatally shooting a
young mother and her 2-year-old in November 1999,
placing their bodies in the trunk of a car and then lighting it on fire.
Donald Sanders and his sister-in-law, Kayla
Sanders, are also facing a potential death
sentence if convicted of stabbing to death a
family acquaintance, 67-year-old Doris Joyner of Snellville.
(source: Gwinnett Daily Post)
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