After three days of debate, the Senate voted Thursday to confirm John Roberts as the 17th Chief Justice of the U.S. Supreme Court. Just three hours later, Justice Stevens, who is the most senior justice and acted as chief justice after the death of Chief Justice Rehnquist, swore in Roberts in a White House ceremony.

The court will have a second change in membership in the next few months. President Bush is expected to nominate a successor to Justice Sandra Day O’Connor as early as next week. She has agreed to remain on the Court until her replacement is confirmed.

It will be a very busy Supreme Court term for civil liberties. Roberts will be leading a court that will decide important cases relating to reproductive freedom, free speech, and end-of-life decisions, among many other issues.

You can learn more in the ACLU’s Supreme Court preview, or watch video of this week’s breakfast briefing by ACLU Legal Director Steve Shapiro, and ACLU attorneys Ann Beeson and Jennifer Dalven.

Before getting into the relatively scanty pre-vote Roberts coverage, Slate mentions the ACLU of Pennsylvania’s lawsuit in Dover challenging the school district’s decision to teach “intelligent design” as an “alternative” to evolution.

In anticipation of the full Senate vote Thursday on Judge Roberts’s nomination to replace Chief Justice Rehnquist, the media continues to come out with follow-ups on his testimony before the Senate Judiciary Committee, and his past record on issues likely to come before the court during his (very long) tenure.

The New York Times had a piece yesterday reporting on a scathing memorandum, mistakenly attributed to Roberts, criticizing New York Times v. Sullivan, the landmark case requiring government officials (in that case a Southern city commissioner) alleging libel to prove “actual malice.” Turns out the critique was actually written by Bruce Fein, general counsel for the Federal Communications Commission under President Reagan.

The update, however, does note another short memorandum written by Judge Roberts on Times v. Sullivan:

In that memorandum, dated Aug. 28, 1985, Mr. Roberts offered what he called “my own personal view” on the proper balance between the interests of libel plaintiffs and the interests of the press. He said he would favor relaxing the standards established by the Sullivan case, which gave the press increased protection from libel suits brought by public officials, in exchange for eliminating punitive damages, which can often account for the bulk of libel awards.

The Times also has this run-down on the Senate politicking and potential O’Connor replacements. Here’s the Post on replacements, mentioning Harriet Miers, current White House counsel, and Larry Thompson, formerly John Ashcroft’s deputy attorney general, who personally approved the “extraordinary rendition” of Maher Arar, the Canadian man who was effectively kidnapped at John F. Kennedy Airport in New York and sent to Syria where he was allegedly tortured during interrogation.

Here’s Ron Brownstein at the Los Angeles Times on potential vote arithmetic.

Finally, we learned yesterday that SCOTUS will take a new state campaign finance case, and is being prodded by the Bush administration to reverse the three appellate court decisions overturning the latest so-called “Partial Birth Abortion” ban, which does not include an exception to safeguard the health of the mother.

It also agreed to decide the long-running feud between Playboy model and Trim Spa devotee Anna Nicole Smith and the son of her late husband, J. Howard Marshall, over claims on Marshall’s vast estate. The issue in the case is when federal courts may hear probate claims decided in state courts.

The Senate Judiciary Committee voted 13 to 5 today to send Judge John Roberts to the whole Senate for a vote on his nomination as chief justice of the United States. It seems close to a certainty that he will be confirmed.

The five Democratic senators voting against Roberts were: Edward Kennedy from Massachusetts, Joseph Biden from Delaware, Dianne Feinstein from California, Charles Schumer from New York and Richard Durbin from Illinois (who, incidentally, was among several senators who spoke briefly with Caroline Fredrickson, the new director of the Washington office, at a reception in the Capitol building last night in her honor).

Democrats voting in favor were the ranking member on the committee, Senator Patrick Leahy, and Senators Herbert Kohl and Russell Feingold, both from Wisconsin. Senator Feingold, however, told the Post: “My voting in favor of Judge Roberts does not endorse his refusal to answer reasonable questions.

Senator Schumer summed up the sense of the dissenting Democrats in the New York Times: “Mr. Schumer said he, too, regretted that he had to vote no. The senator said the nominee had failed to answer the most vital question of all Who is Judge Roberts?’ - and that there was a reasonable danger’ Judge Roberts could become a jurist bent on changing America through the courts, as conservative Republicans have been intent on doing, in Mr. Schumer’s view.

Even with today’s 13 to 5 vote, the Times also had ths news analysis piece on how Democratic activists are not quite as torn.

The ACLU released a statement from Executive Director Anthony Romero expressing “deep concern” with Judge Roberts’s record on civil rights and civil liberties, and calling once again on the White House to release records relating to the nominee’s work as principal deputy solicitor general under President George H.W. Bush.

Here’s Anthony:

Senators are now in the difficult position of judging a nominee without all of the evidence. Not only was Roberts less than fully forthcoming in many of his answers to questions from the senators, but also the administration refused to turn over key documents from his time as a political appointee in the solicitor general’s office. Senators should not have to resort to reading tea leaves to understand the record of a nominee for chief justice.

The rest of the coverage basically says the same things as the immediate reporting on the committee vote, except for this story by Bob Egelko at the San Francisco Chronicle on whether Roberts’s contacts with the White House while he was considering the Hamdan decision (dealing with the constitutionality of the military tribunals at Guantanamo Bay) represent a conflict of interest.

Speculation now turns to who President Bush will pick to replace Justice Sandra Day O’Connor, who said she would remain on the court until her successor is appointed.

Elizabeth Bumiller of the Times says the focus now is on diversity. The Post says Senate Democrats intend to give the next nominee a harder look, and that Senator Arlen Specter, chairman of the Senate Judiciary Committee, has asked the White House to delay the next nomination until next year to “defuse tension.” The White House, reportedly, rejected that suggestion, and intends to announce the choice next week, shortly after the full Senate votes on Judge Roberts’s confirmation.

Here’s the transcript from this morning’s confirmation session.

That’s what ACLU affiliates in 18 states are saying today about abstinence-only-until-marriage programming. Affiliates in Alaska, Arkansas, California, Connecticut, Delaware, Georgia, Illinois, Kansas, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New York, Pennsylvania, Rhode Island, Tennessee, and Wyoming are all participating in a coordinated action to get curricula that spread misinformation and endanger teens out of local schools and after-school programs. For a sample letter sent to local school officials click here.

In conjunction with the Not In My State action, the Take Issue, Take Charge Web site will begin featuring local activists who have made a difference in their community by fighting to keep biased, inaccurate, and ineffective abstinence-only-until-marriage programming out of their local communities. Sue Briss is a parent in DeKalb County, GA, who earlier this year was part of the fight to get the program Choosing the Best out of her daughter’s local middle school. You can read more about Sue’s story here. Renee Walker led the charge against CryBabies in Concord, CA, after discovering the sex ed program she had given permission for her seventh grade son to attend was nothing more than a vehicle for a political agenda. For more about Renee’s story click here. Both women are evidence that one person can be very successful in bringing about tremendous change on this issue.

Finally, the Director of the ACLU Reproductive Freedom Project, Louise Melling, has an op-ed posted on our Web site today about the dangers of abstinence-only-until-marriage programming. Overall, the ACLU Not In My State action should serve as a much-needed reminder that we all need to take a proactive role when it comes to making sure that teens are being taught medically accurate, age-appropriate, unbiased information about the benefits of abstinence and proper contraceptive use. The stakes are too high for any of us to turn our backs on this issue. Failing to provide honest and accurate information about sexual health can have devastating lifelong consequences.

third of three entries

The Senate’s treatment of John Roberts’ prior nominations reveals some of the institutional difficulties the political branches have struggled with serving as a check on the independent judicial branch of our federal government.

For the past few decades in particular, since the defeat by filibuster of Justice Abe Fortas, LBJ’s nominee for chief justice, the confirmation process has seen numerous substantive and procedural battles.

The intersection of the political branches with this dispassionate and impartial judicial branch has often been a passage rife with friction, dating back to George Washington’s chief justice nominee Justice John Rutledge, who was defeated based in part on a speech he’d given criticizing the Jay treaty favored by Senate Federalists.

More than two centuries later, the meaning of the Constitution’s “advice and consent” clause still remains the subject of great dispute, over both rules and substance. What follows represents one person’s up-close observations of some of these confirmation debates.

In early 2003 the Senate leadership signaled its commitment to the Roberts nomination by putting him on the first Senate Judiciary Committee hearing of 2003. Roberts was one of three at the time

In the 15 years prior to that hearing, there had never been a confirmation hearing for three controversial appellate nominees at one time. That was because there was a long-standing written agreement between Senators Thurmond and Biden and the majority and minority leaders to allow only one controversial nominee per hearing that had been in effect since 1986. In January 2003, the leadership scheduled Roberts for a hearing along with two other controversial appellate nominees, Jeffrey Sutton and Carolyn Kuhl. Sutton was considered the premier advocate in Supreme Court cases to prevent federal courts from hearing discrimination claims against state employers, a position he advanced as the head of the Federalist Society’s federalism practice group. Judge Kuhl, Roberts’ former colleague at the epicenter of the Bob Jones case, had become a state court judge w ho had taken some heat for her decisions including one regarding the scope of privacy rights for breast cancer patients.

Several senators protested this scheduling, noting the long-standing agreement and the desire to have sufficient time to question each nominee. Democratic senators decided to focus on the three appellate nominees on the hearing one at a time, starting with Sutton, and asked in writing for additional hearings for the other two. The request was rebuffed.

The day Roberts was reported out of the Judiciary Committee, every member in the minority stood together in opposing a vote. But Roberts’ nomination was reported out of the Committee, despite the language in Rule IV of that Committee, honored for its entire 24 year history, stating that to force a vote on any matter at least one member of the minority party must agree to a vote. There was no such agreement on Roberts.

In the discussions that followed the reporting out of the Roberts nomination, the Senate leadership agreed to reinstate Rule IV and give Roberts a second hearing, and the minority agreed to promise him a vote, even though the prior president’s last two nominees to the DC circuit (Allen Snyder, a big firm partner who clerked for Rehnquist, and Elena Kagan, a White House advisor who would go on to be the first woman to serve as the Dean of Harvard Law School) had not gotten a vote in committee or on the Senate floor.

At the second Roberts hearing, Senators noted that the rule was reinstated, but what garnered press coverage was the heated exchange between Chairman Hatch and Senator Schumer about the questions Roberts was being asked.

With the agreement, and with other judicial nominees being filibustered, Roberts was given a confirmation vote. He did not get a recorded vote, however, due to his controversial work in the Reagan and first Bush administrations. He was approved by a unanimous consent agreement where the majority and minority leader agree to approve a nomination or bill without a vote.

Almost two years after Roberts’ confirmation, he was tapped by President Bush for the Supreme Court. The day it happened I received several calls from former colleagues reminding me that I had predicted that Roberts would be elevated to the Supreme Court, a prediction I had not forgotten.

second of three entries

Roberts’ work, intellect and devotion to the Reagan agenda won him a post at the White House Counsel’s Office, a plum job that combines high profile with more mundane ones. His memos from that time reveal both a keen intellect and a zeal for some pretty controversial policy positions. After a stint in private practice, he reunited with Ken Starr in the Justice Department’s Solicitor General office, arguing cases before the Supreme Court. As the political (versus civil service) deputy in that office he had a substantial influence on the cases that would or would not be appealed to advance the first Bush Administration’s legal agenda. It was from that perch that he was first picked out for an opening on the circuit court.

As the press and pundits review Judge Roberts’ performance and answers in his nomination hearings this week, it might be helpful to remember his first nomination.

In fact, he did not fare well in that first nomination in 1992. Despite his experience arguing cases before the Supreme Court, the ABA did not find him “Well Qualified” for a position on the DC Circuit. (While members of the ABA committee did find him to be qualified for a lower court position, it did not give him the Well Qualified rating that he was given this year when nominated to the highest court in the land.) Progress on his nomination was also delayed by a scrum between the White House and Senate following the battle over the nomination of Clarence Thomas to the Supreme Court, when the first Bush administration tried to limit the Senate staff’s access to FBI background investigations of nominees.

Nevertheless, Chairman Biden pushed through more than 60 judicial nominees to confirmation in the presidential election year of 1992. Although Senator Biden got more Bush judges confirmed in 1992 than in the three previous years of the administration, John Roberts was not among them. His views and contributions had won him a nomination to the court by a White House whose ideological agenda for the federal courts was documented in memo after memo, but he did not win confirmation. After Bush’s defeat, Roberts left public service and joined Hogan and Hartson as a litigator.

During the eight years of the Clinton presidency, Roberts did not influence policies at the White House or Justice Department. And, while he gave few speeches on any political issues during this period in private practice, he remained connected to party leaders and even worked on the Bush recount fight in the 2000 election. When George W. Bush won his own Supreme Court case and became president, Roberts was still at the top of the Republican list for the DC Circuit, which is considered the feeder court for the Supreme Court. (Scalia, Thomas, and Ginsburg all served there.)

Roberts was one of the first eleven judicial nominations made by President Bush on May 9, 2001. Shortly afterward, the Senate changed hands. When Congress recessed at the end of 2002, Roberts remained unconfirmed. He was considered controversial, and a potential pick for the Supreme Court. And, as in 1992, there were other nominees in the queue who were either easier to evaluate or had been promised hearings in response to requests by Senators. So Roberts failed in his second judicial nomination to be an appellate judge.

coming next: Roberts Revisited

first of three entries

After a summer of movie prequels, this fall brings us the final chapter of John Roberts’ ambition to serve on the United States Supreme Court. But long before the nation knew Roberts’ name, he was subject to not just one but two failed nominations to our appellate courts. The fact that he was rebuffed for lower court positions twice before may be news to many and could be cause for pause to some.

Roberts, whose pedigree of ivy league schools and prestigious clerkships is widely known now, was first nominated to a lifetime position as a federal judge hearing appeals over a decade ago.

He was quite young but, as presidential advisor Brad Berenson said recently, Roberts had proven his mettle in political perches in the Reagan and first Bush administrations. Berenson went on to say that he had no concerns that Roberts’ views would waiver on the Supreme Court, since his views had been strengthened and “tempered” by the political fires of Washington, where partisanship has only grown with the years. Thus, judge pickers like Berenson may not be worried that a Justice Roberts would slide to the middle on the court like other nominees whose commitments were untested in Washington.

Some might say Berenson’s candid remarks to Ted Koppel the night of the nomination were both astute and unintentionally revealing: one can certainly see a marked difference among the seven Republican appointees to the nine-member Rehnquist court, with those justices who served as top policy advisors or policy makers in Washington ruling in a more consistently deferential way on cases involving the Republican agenda than those whose careers were made outside the beltway.

Rehnquist served as Assistant Attorney General at the Justice Department in the Nixon Administration, Scalia held that same post in the Reagan Administration, and Thomas hailed from Reagan’s embattled Equal Employment Opportunity Commission, while O’Connor served in the Arizona legislature, Kennedy practiced law in San Francisco, Souter served on the New Hampshire Supreme Court, and Stevens was a registered Republican who had worked in Washington for a few years after law school but returned home to Chicago and became widely regarded as a judge’s judge so fair-minded was his reputation.

In any event, John Roberts was nominated to the DC Circuit by the first President Bush in the early 1990s. Due to his lack of judicial experience the then-more-rigorous ABA did not give him the high ABA rating it would most likely bestow today. Roberts had cut his teeth in the Justice Department working with Ken Starr, who was his senior by a few years and was also nominated to the DC Circuit at a very young age. He would also later be on the short list for the Supreme Court during the first Bush administration, for the openings that eventually passed to President Clinton. Clinton chose Ginsburg and Breyer, rather than Starr and Hatch who had been at the top of the list for Bush. Starr is now more widely known as the prosecutor who wrote the report on the Monica Lewinsky scandal.

The ACLU’s Roberts memo describes some of his early work with Starr and another later George W. Bush pick for the appellate courts, Carolyn Kuhl. Suffice it to say that Starr, Roberts, and Kuhl were young stars in the Reagan administration, wielding tremendous influence over national policy, as illustrated by the debacle of the Reagan administration’s decision to give Bob Jones University tax exempt status despite its overt policies of racial discrimination illustrates. (That ill-advised decision, counseled by these young policymakers, was rebuked by both the Supreme Court and Congress.)

coming tomorrow: the first Roberts nomination …

The coverage of yesterday’s Roberts confirmation hearing is daunting in sheer quantity of paper, but here are some of the most relevant civil liberties-related stories.

(Just as an aside, I’ve been mulling over what is to me the most remarkable thing about these otherwise milquetoast hearings: Given Judge Roberts’s age, we might not see another hearing for chief justice for 30 or 40 years. I’ll be pushing 70.)

Adam Liptak at the NY Times has this run-down of why Democrats continue to push for documents produced by Judge Roberts during his first year at the Bush I solicitor general’s office:

The documents, said Senator Patrick J. Leahy, the senior Democrat on the Judiciary Committee, could help illuminate the nominee’s views in three areas: civil rights, privacy and access to justice. While the first two areas have garnered attention from interest groups and the news organizations, the third category - access to justice - has received relatively little scrutiny.

Analyzed one way, his arguments reflect a cramped view of the role of the courts, exalting technicalities over justice. Viewed another way, they represent exacting fidelity to the law and a keen awareness of the limited power of the federal courts to right every wrong.

Stuart Taylor Jr. at the subscription-based National Journal had a comprehensive piece on the concern (or hope in some quarters) that Judge Roberts may prove to be exceedingly deferential to the president and executive branch on any question burdened with the patina of “national security.”

Judge Roberts has said that Jackson is one of the justices he most admires. Perhaps some senator will ask Roberts next week whether he shares the passion expressed in Jackson’s concurrence in the 1952 Youngstown case: “No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.”

Charles Lane at the Washington Post reports on the first independent statistical analysis (PDF), by political science Professor Kenneth L. Manning at U. Mass-Dartmouth, of Judge Roberts’s votes on the D.C. Circuit:

[Professor Manning] found that, where such an identifiable ideological dimension did exist, Roberts made a conservative decision 67.1 percent of the time, or about 30 percent more frequently than the average federal appeals court judge.