Readers, I’m scared. For once I agree with a statement made by President Bush. The White House is refusing to release documents and/or transcripts pertaining to advice given to the President in the Oval Office, by Harriet Miers. Unlike say official memos written by a Deputy Solicitor General, the documents and conversations that take place between a President and his advisers should remain confidential unless a crime is being investigated.

It doesn’t take a large stretch of the imagination to understand that the conversations that occur most likely would involve unpopular positions. These might not even be the personal positions of the person voicing them, but there job is to offer multiple scenarios to the President.

However, the question remains, if we are willing to forego documents that contain advice from the Lawyer of the President to the President, then what do we have left to examine her qualifications besides questioning. The White House should come up with other documents that are not as confidential, the absence of journal articles or anything written to show her views on constitutional issues, only further dooms this nominee.

The news is very slow currently, which is another reason that Gary and I have had trouble with producing posts. Yesterday in the NY Times Magazine was a great article about what Roberts should be asked. It was not so much about him personally or even current debates but what the future of Supreme Court cases might be. It is all very what if and a lot of science that is perhaps likely but not assured.

Some of the issues scare me personally, face recognition cross referenced with massive data mining of every book I’ve ever read, magazine I’ve received and visas I’ve secured will certainly make the future interesting. Security might be what will concern us from a constitutional point of view, but I foresee a “Minority Report” like era where advertising is personalized to our faces being ubiquitously scanned.

All of the genetics, reproductive cloning, DNA scanning, etc is very fascinating. I suggest everyone who has a chance read the article for those insights, but to be honest I haven’t worked out my legal and moral views of those issues. I’ve only had enough time to be perplexed.

There is also an interesting section about copy write, intellectual property and the future of digital freedom. Gary will most likely be blogging about this in the future.

I said I would look into the Virginia DUI statute surrounding the judge’s interpretation of the law, throwing out two drunk driving cases. Additionally, a commenter, ZacharyRD also was wondering what information I had found. So, here’s what I dug up, the latest, as of 2004, statute on the books regarding driving while under the influence in Virginia.

Driving motor vehicle, engine, etc., while intoxicated, etc It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article,

So, the first part of the law is consistent with that I beleived it to be, that driving with a .08 is illegal. But there are additional clauses.

ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (iv) while such person is under the combined influence

However, the second and third clause seek to determine intoxiation through a means of observation and circumstantial evidence. I think on those grounds the Judge might have been right, if .08 is the legal limit, that should be the law, unfortunatley it seems they tried to be very nuacned to offer the prosecutors and police a lot of room. As a result, they opened up a huge hole for the defense.

I just wanted to point your attention to a very well written diary at DailyKos by a poster known as ‘Categorically Imperative.’ The author looks in the second half of the entry at Roberts and the right to privacy, something to which I have blogged on a number of times. In particular he looks at the arguments of constructionists which ironically in the sense of the GOP, has come to resemble a position that is antithetical to the Federalists they adore. After all it was the Federalists who worried that creating a Bill of Rights would give the notion that if the right has not been enumerated, it doesn’t exisist, which is simply not the case.

Roberts appears to be of the view that the cases recognizing a right to privacy are a form of judicial lawmaking that undermines the constitutional system set up by the Framers. In that system, judges do not stray from the strict limits of their role as interpreters of the constitutional text, and they certainly do not announce “rights” that are not specifically enumerated in the Constitution and which are based on their own personal preferences and views of what is right or just.

The author continues with great examples and thoughtful analysis, you all should give it a read.

Additionally, I renew my statements that privacy is this man’s weakness, and I want to know before the Senate during the confirmation hearings, what are his views on privacy. As I’ve stated, privacy will be at the heart of some of the most important cases the Court will hear during his tenure if confirmed. What views does he hold about key cases like Roe and Griswold? Let’s hope they’re nothing similar to the opinions of Senator Santorum.

Finally, I feel I should address that in earlier posts regarding Roberts I wasn’t advocating going after him just to go after him. Roughing him up, as I phrased it, meant asking plenty of tough questions and not allowing a simple process. I feel that these concerns over his views on privacy are exactly the type of questions I was talking about, and hope to have answered. Because as it stands, each day makes me think he’s more anti-privacy then before, and if that is the case, then I’ll be completely against this nomination, despite at first beginning hopeful.

What is it about this guy, it seems that every day a new headline is released about documents that have come out we find more and more evidence of his lack of respect for women’s rights and equality. Yesterday, you’ll remember that he wrote a memo wondering if “encouraging homemakers to become lawyers contributes to the common good.” Today, memos show that he scoffed at the idea of making O’Connor Supreme Court Chief Justice.

As a lawyer in the Reagan White House, John Roberts scoffed at the notion of elevating Supreme Court Justice
Sandra Day O’Connor to chief justice as a way to close a political gender gap, calling it a “crass political consideration.”

Now, I don’t disagree that this would have been a cheap pander, but as a White House lawyer, wouldn’t you expect his objection to be more legally based? And when you see this along with his attitudes toward other women’s and civil rights issues, it makes you wonder what this guy really stands for.

On another topic, Roberts, who was nominated as a justice by
President Bush last month, advised the White House to strike language from a description of a housing bill that referred to the “fundamental right to be free from discrimination.” He said that “there of course is no such right.”

I suppose the Fourteenth Amendment wasn’t very popular in his office. In fact the memos give us more of his personal opinions on what he calls fundamental rights:

“Fundamental rights” is a legal concept that has been used to justify a broad array of civil rights under the Constitution, including a right to privacy.

Noting that the proposed administration bill would justify penalties by pointing to a “fundamental right to be free from discrimination,” Roberts advised that the language be deleted.

“There is of course no such right; at the very least ‘illegal’ should modify ‘discrimination,’” Roberts wrote. “More significantly, ‘fundamental right’ is a legal term of art triggering strict judicial scrutiny.”

This is really important, privacy will be the number one issue that the Court will have to face in the coming years and the better part of term Roberts would serve if confirmed. Yet, we’re planning to confirm someone who doesn’t give any credit to the idea that protections of privacy do exist in the Constitution, a presumption that has fueled many equal rights cases including Lawrence v. Texas being the most recent.

The reason privacy will be most important is for two fronts, the first is the continued struggle for equal rights, especially by Gay and Lesbian groups. Secondly, privacy will determine how the government uses the new technology being created every day and will determine the future of causes such as internet anonymity, government viewing of email, and other means of collecting information that a reasonable person would expect to be private, at least without a warrant.

I think we’re being subdued into thinking Roberts poses no threat; he’s a nice guy and a very smart one at that. I’m sure when you meet him he comes off as a very likable person. However, his memos are speaking for himself at this point, and Democrats with only these documents ”never mind the thousands of pages from when he served as a lawyer for the Solicitor General which have been unreleased ”have plenty of questions to ask in September. We shouldn’t let ourselves be tricked into thinking this guy isn’t so bad, as a replacement for someone like O’Connor, we’re getting a conservative activist, a foot soldier in Reagan’s army, and someone who has a hard time accepting privacy, women’s, and equal rights. Is that a Supreme Court Justice we’re willing to live with?

More memos have been released, and they don’t really tell us anything different. What we’re gaining is the picture of a young conservative lawyer dedicated to conservative causes, even in one memo where he “referred favorably to efforts to ‘defund the left.”

I think this type of partisanship from someone who aspires to be a Supreme Court justice, one who will serve a very long term, raises concern for further questioning. The general theme I’m seeing in these memos is that his dedication lied first to the President and Party instead of law, but there’s a lot of time to see his true stripes.

In fact we’d be able to get a greater picture of the judge if memos were released from his time as Solicitor General to George H. W. Bush, since that position makes him the government’s lawyer before the Supreme Court; we’d gain a better understanding for how he views key issues.

One of the most repeated criticisms is his views on equal rights for women and the documents recently released do little to remove that concern, instead they increase it:

Disparaged state efforts to combat discrimination against women and wondered whether “encouraging homemakers to become lawyers contributes to the common good.”

Perhaps we should wonder if making someone with that view a Supreme Court justice contributes to the common good.

It appears as though Roberts will slide into being an associate justice with little, if any, battle. Gary and I feel that we have all but given up before the battle has even begun. Democrats have not asked the man a single question and its all but decided that nothing is going to be done. The party does not seem to have a position nor does it seem to be searching for one.

As pointed out by some other bloggers, we need to frame the debate in how average lives will be changed by Roberts on the court. As the eminent domain case showed, Americans can care when the cases are shown to have a possible impact on their life. He is no doubt a qualified a man, but the average American seems to take little interest in how this nomination affects their lives. It is true that the politics of the Supreme Court are difficult to get down into 10 words phrases that apply to cases other then Roe vs. Wade, but that doesn’t mean we should have given up already.

Roberts is being lauded as the perfect candidate because he is not scary and ideological. However, he does have an ideology that shapes his decisions and we should be outlining that. As we let this nominee just waltz into his seat, we reinforce the idea that it is a presidential privilege to appoint whomever. This will have lasting ramifications in the coming years as other seats are vacated. I predict that each nominee will be more conservative then the last and it will become harder to fight an unknown future nominee as we so weakly fight this one.

The AP Wires are reporting that documents and memos authored by Roberts are being released from the Reagan library. The documents cover abortion, school prayer, and the war powers of the President. The documents are still being digested by news sources, but here’s some of what they found:

In a Nov. 21, 1985 memo released Monday by the National Archives, Roberts was responding to a move by Congress to permit “group silent prayer or reflection in public schools.” He said he would not object if Justice Department officials announced that President Reagan had no formal role in passing an amendment to that effect, but said he would support such a move.

The Supreme Court’s conclusion that “the Constitution prohibits such a moment of silent reflection — or even silent ‘prayer’ _ seems indefensible,” Roberts wrote in a memo to White House counsel Fred Fielding.

The article focuses primarily on school prayer, and brings us to another example of the young lawyer’s efforts to defend school prayer..

Earlier, in a June 4, 1985 memo, Roberts argued that White House officials could exploit the Supreme Court’s decision prohibiting school prayer. While justices struck down an Alabama statute mandating a one-minute moment of silence, “careful analysis shows” it was on technical grounds, he said.

Roberts said that a majority of justices would allow a similar law if it were worded more carefully to avoid expressing a religious purpose behind the measure.

More is sure to come out as the days pass this week, and we’ll stay on top of it. Right now we already have his ardent objections to any right to privacy in the constitution and now we see his views on school prayer.

Roberts’s views on the Establishment clause should be made known; in particular does he feel that government displays and prayer are a violation, from these documents I’d say no. Also, does he feel that the use of taxation for the support of religious groups is a violation?

This one comes via Talk Left: VA Judge Declares DUI Law Unconstitutional.

A judge in Virginia ruled the state’s DUI law unconstitutional because it presumes anyone with an 0.8 blood alcohol level or higher is intoxicated.

Now, I think this is an interesting story, mainly because I enjoy a good legal argument. Now I’ll have to claim ignorance here to the VA DUI statutes because I truly know nothing about them. But it seems to me that central question we should be looking at is does the law say ‘intoxicated’, or does the crime instead focus on your BAC being at a certain level or greater. I’d argue that the statue, if it doesn’t already say this, should be worded as the later. Now, if it is not, and indeed the statute says that it is driving while intoxicated and the police in court use the results of a breathalyzer as evidence, then I’d be tempted to agree with the judge, who in his ruling said:

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence

Precisely why I’d like to know more about the VA statue, and will look into it when I have more time this weekend. Because after all, if the law is merely intoxication then I think the judge has a point, because the prosecutor can say they had a BAC of .08, and that should be the end of the story. Now, if it is actually how I assume it to be and the law merely states you may not drive with a BAC of .08 or greater than this is really poor legal logic, and will be overturned on appeal.

And a note to Virginia, if your statute is written otherwise, then perhaps this is the wake-up your legislature needs in order to enact a law that accomplishes your intended effect.

(Note TwoDems.Com does not condone Drinking and Driving)

I was reading an article in the New York Times Zac sent me regarding the now infamous NARAL advertisement, and there was one paragraph, albeit a bit unrelated, that really struck me.

So far, there is little fire, and this week one Democrat, Senator Mary L. Landrieu of Louisiana, said she was leaning toward supporting the nomination

I’d just like to ask the Senator from Louisiana what she knows that the rest of the Democratic Senate doesn’t. We have yet to ask Judge Roberts a single question, and while I am open-minded about the process and willing to give him a fair chance; I think it’s awfully premature to come out and say you’re leaning toward confirmation before a single hearing has taken place, or before any documents being requested have been released.

I wonder what her intentions were here, the only thing I can imagine is boosting her moderate credentials in a red state, but shouldn’t those moderates wonder what she’s even basing this on? If there are any Louisiana natives reading, maybe you could be so kind as to send your Senator a letter, and ask her why she is ready to confirm a justice that we haven’t even truly met yet.

A Federal appeals court has upheld a Virginia law requiring the reading of the Pledge of Allegiance every day in schools. The ruling itself is unsurprising, but the opinion holds something I wouldn’t expect to see:

“Undoubtedly, the pledge contains a religious phrase, and it is demeaning to persons of any faith to assert that the words ‘under God’ contain no religious significance,” Judge Karen Williams wrote. “The inclusion of those two words, however, does not alter the nature of the pledge as a patriotic activity.”

To be honest, the view isn’t that bad to me. The court understands the objections, and admits them, but makes a sensible decision that the Pledge is largely seen as a patriotic exercise and not a prayer.

If we wanted to debate “under God” we could, but we did that a year ago, and I don’t think it’s something that minds can be changed on. My personal preferences aside, I think that the Justices made a reasonable decision much like the existence of “In God We Trust” on our currency. Perhaps it shouldn’t have been done, perhaps the Pledge shouldn’t contain “under God” but reasonable people, myself included, see the Pledge as a voluntary affirmation of Patriotism, and as long as it stays voluntary then I don’t think I’d be standing on the steps of the Supreme Court protesting against it.

As our first post, I thought I would talk about the pending John Roberts nomination process. Today’s Washington Post article is worth a read. Essentially, it boils down to the fact that in 2001 Bush signed an executive order that the current White House has the right to review and deny the release of all presidential papers from previous administrations. Now the White House is reviewing thousands of articles and memos Roberts wrote during the Reagan administration, the most damaging of which most likely won’t be released just as those from his time as Bush I’s time as deputy solicitor general weren’t. The delay is startling for its blatant disregard for any notion of fairness in the process. Republicans (it would be foolish to assume the White House is truly limiting the knowledge to themselves) are being given information far in advance to strategize and discuss the best was to minimize objections. This is not exactly the thoughtful process of equitable review we would all hope would exist. As quoted in the NY Times today:

Sen. Charles Schumer, a New York Democrat, said he was “at a loss to understand why White House political aides may have had access to these vital documents” before senators, adding, the “time for such a partisan review of the documents was before” Roberts’ nomination.

On a better note, as summed up well by Richard Cohen, Roberts worked to strike down a law discriminating against gays and lesbians in Colorado. He also believes in an independent judiciary.

I am sure Gary and I will continue to blog on this subject, there are literally hundreds of news stories a day to be linked to.