Posted 11:54 PM by Howard Bashman

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July 26, 2005

ROBERTS LIKELY TO STONEWALL TOUGH QUERIES
In 2003, Nominee Offered Little to Judiciary Committee

By Brent Kendall
Daily Journal Staff Writer
WASHINGTON - Given John G. Roberts Jr.'s short tenure as a federal appeals court judge, Democrats will be looking for President Bush's Supreme Court nominee to shed light on his legal views during his upcoming Senate confirmation hearings.

But if Roberts' previous testimony before the Senate Judiciary Committee is any indication, he and his toughest questioners will have significantly different ideas about what types of answers are appropriate.

When lawmakers considered Roberts in 2003 for a prized seat on the U.S. Court of Appeals for the D.C. Circuit, Democrats, who wanted his views on everything from abortion to the current Supreme Court justices, complained that Roberts was less than forthcoming.

Roberts resisted their repeated efforts to elicit his views on Supreme Court decisions and hot-button issues, but in doing so, he said he was only following the prudent path laid out by one of the Democrats' own nominees: Ruth Bader Ginsburg.

Roberts' most direct confrontations in 2003 came with Sen. Charles Schumer, D-N.Y.

In written and oral questions, Schumer asked Roberts to name three Supreme Court decisions of which he was critical. Roberts demurred, saying it was inappropriate to criticize binding Supreme Court precedent.

Schumer asked Roberts which Supreme Court justices matched his judicial philosophy.

"I do not believe that a nominee should, as part of the confirmation process, compare and critique the philosophies of the sitting justices," Roberts responded.

Schumer asked Roberts to identify a Supreme Court case that represented judicial activism. Roberts would not.

"Senator, you're getting back in the area of asking me to criticize particular Supreme Court precedents," Roberts said. "Justice Ginsburg thought that was inappropriate because it would be harmful to the Supreme Court. I think it's inappropriate because it would be harmful to the independence and integrity of the federal judiciary."

Roberts said that, if he critiqued one Supreme Court ruling, then lawmakers would want his views on other decisions.

"You are going to have your list of 10 cases you want to know about, and Chairman [Orrin] Hatch is going to have his list of 10 cases," Roberts told Schumer. "The reason Justice Ginsburg ... thought it was inappropriate to answer that question is because it is an effort to obtain a forecast or a hint about how a judge will rule on a particular case."

An irritated Schumer said Roberts' nonanswers rendered the Senate's advise and consent process "useless."

"You are making this an absurd process, sir, when you are saying that you can't answer even broad questions about specific jurisprudence, when you can't say how you feel about previous court cases," said Schumer, one of three committee Democrats who voted against Roberts.

Meeting with Roberts last week, Schumer urged the nominee to be more informative this time around. He also gave Roberts an advanced a list of roughly 80 questions that he plans to ask on topics including Roe v. Wade, the court's recent Ten Commandments decisions and Bush v. Gore, the ruling that ended the disputed 2000 presidential election.

In his previous testimony with the Judiciary Committee, Roberts appeared well-versed in Ginsburg's 1993 answers to senators considering her for the Supreme Court.

When Sen. Arlen Specter, R-Pa., asked Ginsburg whether she agreed with the high court's decision in Rust v. Sullivan, 500 U.S. 173 (1991), in which the justices ruled that the federal government could withhold money from family planning services that engaged in abortion counseling, she declined to answer, saying she felt like a skier at the top of a hill.

"I think I have to not descend that slope because once you ask me about this question, this case, then you will ask me about another case that's over and done and another case," Ginsburg said.

Roberts quoted that passage in his written answers to questions from Sen. Edward Kennedy, D-Mass.

Roberts also quoted a Ginsburg answer where she declined to say whether she believed the court's ruling in Buckley v. Valeo, 424 U.S. 1 (1976), was an example of judicial activism.

On issues ranging from the death penalty to discrimination based on sexual orientation, Ginsburg chose not to answer specific questions about her legal views.

Interestingly, Specter, who now heads the Judiciary Committee and will preside over Roberts' hearing, was one of the lawmakers in 1993 who said Ginsburg could have been more forthcoming.

"My own reading of ... prior nominees has been that, as a general rule, there were more answers," Specter told Ginsburg.

When Ginsburg declined to discuss the Rust ruling, Specter asked: "What is the problem, on a matter which has been litigated and is finished, in having a senator on the Judiciary Committee ask a nominee for the Supreme Court whether that case was correctly decided?"

Jay T. Jorgensen of Sidley Austin Brown & Wood, who examined Ginsburg's testimony in a paper he wrote for the Federalist Society, said her approach to answering questions was a good one as a matter of policy and strategy.

"We don't want to get into a situation where it's entirely political," Jorgensen said. Voting to confirm a judge, he said, is not supposed to be like voting for a congressional candidate.

The difficulty, he said, lies in the fact that the opposing political party always worries that the nominee "is whispering in the ears" of the president and his allies.

"The one side always thinks the other side knows something they don't," Jorgensen said. "But it's a flawed assumption. Just look at Justice [David] Souter."

Jorgensen, however, noted that Ginsburg did discuss the law and her legal approach in broad terms - information, he said, that senators need to evaluate nominees.

It's "very fair," he said, "to ask nominees what cases they agree with generally."

Using one of Schumer's questions as an example, Jorgensen said there would be nothing wrong with Roberts naming three Supreme Court decisions he disagreed with.

"The danger there is, they start answering those questions, then things go to specifics quickly," he said.

University of North Carolina law professor William P. Marshall said it was "perfectly legitimate" to ask judicial nominees about decided Supreme Court cases as well as their approach to constitutional interpretation.

Questions on issues such as judicial activism, federalism and the right to privacy are all fair game, Marshall said.

Senators, he said, want to know whether Roberts thinks like President Bush's model justices, Antonin Scalia and Clarence Thomas.

"The only way to do that is to probe the nominee for his views on issues," he said.

New York University law professor Stephen Gillers said Roberts would not compromise his impartiality or obligate himself to sit out cases "simply by virtue of speaking about his views on current constitutional issues or decided cases."

But Roberts surely can refuse to answer questions that he does not want to address, Gillers said.

He added that if Roberts' advisers believe his refusal to answer certain questions won't affect his confirmation, "then I expect that he will refuse."

Posted 3:25 PM by Howard Bashman

Bright Spotlight Comes with Court Opening

The Recorder
http://www.callaw.com
By Mike McKee
July 14, 2005

Steven Perren had a curious response when Gov. Gray Davis' people called him out of the blue four years ago and told him he was on a short list for a seat on the California Supreme Court.

"Frankly, my reaction was, 'Come on.' I wasn't buying it," the Ventura-based justice said. Having been on the Second District Court of Appeal for less than two years at the time and having never been mentioned as a candidate, he felt there had to be others more deserving.

"I asked for, and received, time to think about it," he said.

The position -- vacated by the unexpected death of legendary Justice Stanley Mosk on June 19, 2001 -- eventually went to Carlos Moreno, then a federal judge in Los Angeles and one of three other men on Davis' list. But for a few weeks, Perren and his co-nominees found themselves in the media spotlight and enduring a grueling application and interview process -- something Perren recalls being a "muddled mess."

So he can sympathize with a handful of judges and attorneys from Sacramento to San Diego whose names have surfaced in recent weeks as possible successors to Justice Janice Rogers Brown, who left the high court on June 30 for the D.C. Circuit U.S. Court of Appeals.

Unlike Perren, their names haven't yet been placed on an official list. But they're being mentioned time and again in news accounts, with political pundits and court scholars making their best guesses about who could become Gov. Arnold Schwarzenegger's first Supreme Court appointee.

Some of those mentioned -- such as Justice Arthur Scotland of Sacramento's Third District, San Francisco-based U.S. District Judge Martin Jenkins and Sacramento-based U.S. District Judge Morrison England -- didn't want to talk about their sudden fame. And others, such as Oakland-based U.S. District Judge Saundra Brown Armstrong, didn't return calls.

Even those who agreed to talk said that while it's flattering to be bandied about for one of the state's seven highest judicial posts, it's also disconcerting because it's all coming from a bunch of talking heads.

"It's pure speculation," said former Second District Justice Elwood Lui, a Jones Day partner who wouldn't say whether he would be interested if tapped.

"I had a great 12 years on the bench and I met a lot of people and the work was interesting, and I've turned the page with another career," he said. "Whether I turn the page or not again is not a question I'm prepared to answer right now.

"I would say this," he added, "anyone who's mentioned as a candidate should be pleased to even be considered."

For the most part, the individuals named thus far aren't sure why they're being talked up or if it's even causing a buzz.

"As far as I know, you and I are the only two people talking about this," Justice Carol Corrigan, of San Francisco's First District, half joked. "Nobody's called me."

Justice Judith Haller, of San Diego's Fourth District, said she wasn't aware that she had been touted as a candidate until colleagues told her during a conference call. She called it a "complete surprise," but said -- other than taking a few congratulatory telephone calls -- the news hasn't changed her daily routine.

"You take your cases, you do your best, you try to make well-informed and reasoned decisions and you move on," she said. "Your job is to make decisions and you can't let something like this influence what you are going to do."

If the governor came calling, however, Haller said she'd jump at the chance. Corrigan, of the First District, also admitted it would be hard to say no.

Candace Cooper, another Second District justice whose name has appeared as a Brown successor, goes a step further. She's so intrigued by the rumors that she's already checking into filing an official application for the job.

"I will send it in," she said. "I will put my name in."

What the high court does is somewhat similar to an appellate justice's job, she said, so she doesn't find the prospect of the work daunting.

Cooper said she wasn't "exactly surprised" that her name came up, in that it's not unexpected that a black woman, such as herself, would be mentioned as a replacement for Brown, the first black female on the state's high court.

The only other blacks on the state's appellate bench are the Second District's Vaino Spencer and the Third District's Vance Raye.

Raye's name has also been thrown out by pundits, and he admits to having a "certain amount of denial" about the chatter. As with Perren four years ago, he's humbled to even be named.

"You concentrate on the possibility and, at least for me, you wonder whether you are worthy of being considered because it is such an important position," Raye said. "Since the California Supreme Court has historically been somewhat of a pace-setter in numerous areas, it is one of the most important judicial positions in the nation, and so you wonder whether your name should have been bandied about, whether you're truly up to the task."

If any of the individuals named by the press actually get called by Schwarzenegger's staff, the clamor for their attention will ramp up considerably.

Dennis Cornell, a justice on Fresno's Fifth District who was one of Davis' four nominees for Mosk's position in 2001, said that while he, Perren, Moreno and Second District Justice Dennis Perluss granted no press interviews after being named finalists, they still met with interested groups: law enforcement associations, unions, tort reformers, "the entire panoply of legal groups."

All four were also asked to submit applications, undergo interviews and background checks and provide copies of all their written opinions. Cornell said he provided two large boxes full of rulings.

"That was just one of the many tasks that had to be undertaken," he said. "It was flattering and somewhat hectic, but it all came with the territory."

Both Perren and Cornell said the process was quickened four years ago in hopes of getting a new justice on the court in time for the fall arguments -- a hope again expressed by Chief Justice Ronald George in trying to replace Brown.

Cornell said he got the call from Davis' office at 9 p.m. on a Friday and had his application to the Judicial Nominees Evaluation Commission by the following Tuesday. But even at a rushed pace, Moreno missed two oral argument sessions before being confirmed to the court.

Asked if he had any advice for the judges and attorneys now involved in the name game, Perren said, "Be sure it's what you really want. There's the lure of the moment, but a little reflection might be called for. It is an august job that has high demands."

Cornell added that what appears in the press should be taken as a grain of salt. After all, neither he nor Perren had been named by pundits before getting the governor's call.

"Unless they are in direct contact with the governor's office," Cornell said, "nobody knows."

Reporter Jill Duman contributed to this report.

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