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Page One--Recent Items: Alito - Miers - Roberts
See Page Two for Earlier Items

Excerpted from Howard Phillips Issues & Strategy Bulletin of February 15, 2006

In observing the confirmation hearings of Judge Sam Alito, it was particularly disturbing to note all of the important Constitutional questions which were not asked. Were I a member of the United States Senate Committee on the Judiciary, here are some of the questions I would have directed to the nominee:

1. What relation, in your view, does the Declaration of Independence bear to the Constitution of the United States?

2. Do you agree with the statement in the Declaration that "all Men…are endowed by their Creator with certain unalienable Rights"?

3. The Preamble of the Constitution asserts that "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." Do you agree that "We the People" are the source of authority for the Constitution and everything in it?

4. How do you interpret the term "promote the general Welfare"?

5. Article I, Section 1 says "All legislative Powers herein granted shall be vested in a Congress of the United States". Do you believe that legislative powers may be exercised by entities other than the Congress? What about the Federal Reserve? May it exercise legislative powers? What about regulatory agencies? What about the Civil Service? What about Presidential Executive Orders? What about international organizations such as the World Trade Organization (WTO)? What about NAFTA? What about the Judiciary?

6. In the event of a national calamity, it is possible that many members of Congress may suffer death or disability. Article I, Section 5 asserts that "a Majority of each [House] shall constitute a Quorum to do Business". In your view, how ought such a majority be defined? Would it be a majority of the living? A majority of those physically and mentally capable? What would it be?

7. Do you attach any religious significance to the language in Article I, Section 7 which, in defining the time available to the President to consider whether he shall veto a piece of legislation which has arrived on his desk, permits him "ten Days (Sundays excepted) after it shall have been presented to him". Is there a Christian premise to this language in the Constitution?

8. Article I, Section 8 says "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States". Do you believe that the power of Congress, as stipulated, is limited to those matters set forth in Article I, Section 8?

9. Article I, Section 8 says "Congress shall have Power…To regulate Commerce with foreign Nations". Did Congress violate this provision in accepting U.S. participation in the WTO, in NAFTA, and in CAFTA?

10. Article I, Section 8 says "Congress shall have Power…To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures". Does this not imply that our money shall be of fixed value, not subject to regulation by an entity such as the Federal Reserve?

11. Article I, Section 8 says "Congress shall have Power…To constitute Tribunals inferior to the supreme Court". Does this not suggest that Congress also has the power to abolish Tribunals which it has constituted?

12. Article I, Section 8 says "Congress shall have Power…To declare War". To what extent can the President intrude on this authority?

13. Article I, Section 8 says "Congress shall have Power…To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions". What is your understanding of the term "the Militia"?

14. Article I, Section 9 says "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." During his tenure as Chairman of the Federal Reserve, Alan Greenspan accepted a title of nobility from the Queen of England. Did this violate, in your opinion, the Constitution, even though Congress had previously legislated a general waiver to this Constitutional restoration?

15. Article I, Section 10 of the U.S. Constitution asserts that no State shall "make any Thing but gold and silver Coin a Tender in Payment of Debts". How do you interpret this requirement and its current application?

16. Article II, Section 1 sets forth the oath to be taken by the President: "Before he enter on the Execution of his Office … ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’ " In your opinion, has President Bush faithfully, consistently, and without exception defended the Constitution of the United States?

17. Article II, Section 2 says "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". In your opinion, is the President entitled to be regarded Commander in Chief when the Army and Navy of the United States and the Militia of the Several States have not been called into the actual service of the United States?

18. Article II, Section 2 states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur". (a) Do you believe that U.S. participation in NAFTA and the World Trade Organization should have required, as treaties, a two thirds vote of the Senators present and voting? (b) Do you regard as valid Executive Agreements which may be entered into by the President of the United States?

19. Article III, Section 1 states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Do you agree that this implies that the Congress may disestablish inferior courts which have been created by statute?

20. Article III, Section 1 says "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour". (a) How do you define "good behaviour"? (b) If a judge is found to have violated standards of "good behaviour", may such a judge be removed from office by simple majority vote of the Senate, which confirmed his appointment to office?

21. Article III, Section 2 says "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;… —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States…. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." What restrictions, if any, do you think are permissible on the authority of Congress to limit the appellate jurisdiction of the Supreme Court?

22. Article III, Section 2 stipulates that "The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed." The U.N.’s proposed International Criminal Court (ICC) treaty seems to be in clear violation of these provisions. Do you agree that it would be un-Constitutional for the Senate to ratify the International Criminal Court (ICC) treaty?

23. Article IV, Section 1 of the U.S. Constitution says "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." In your opinion, does this language require other states to recognize the Massachusetts "same sex" marriage procedures?

24. Article IV, Section 4 says "The United States shall guarantee to every State in this Union a republican Form of Government, and shall protect each of them against Invasion". In your view, what is the Federal government required to do in response to the invasion of illegal aliens which has particularly affected such states as California, Arizona, and Texas, among others?

25. Article VI says "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land". In your view, does this require that treaties ratified by the U.S. Senate are the "supreme Law of the Land", even when such treaties are in conflict with provisions of the U.S. Constitution?

26. The First Amendment to the Constitution stipulates that "Congress shall make no law respecting an establishment of religion". (a) Do you agree that this language was included in the Constitution to prevent any interference by the Federal government in the establishments of religion which existed by authority of the legislatures of the several states which had joined in ratifying the Constitution? (b) In your view, are different interpretations of this clause valid for purposes of Constitutional interpretation?

27. The Second Amendment says "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." Do you believe that in light of this language any or all of Federally enacted gun control laws are Constitutionally valid?

28. According to the Fourth Amendment, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (a) Do you believe that any branch of the Federal government has the authority to violate the Fourth Amendment for any reason whatsoever? (b) Do you believe that the requirements of the Fourth Amendment have ever been violated by the Federal government, if so, when, by whom, and in what circumstances?

29. The Fifth Amendment says that "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb". Was not this provision set aside in the Rodney King case when law enforcement personnel were prosecuted for the same alleged offense under both state and Federal law?

30. The Sixth Amendment requires that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed". (a) How do you interpret the term "speedy"? (b) When, in accordance with your definition, this provision is violated, what should be the remedy?

31. The Eighth Amendment says that "cruel and unusual punishments" may not be inflicted. How would you define a cruel and unusual punishment?

32. The Tenth Amendment says that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (a) When powers which Constitutionally ought be reserved to the states are usurped by the Federal government, what remedy is available to states thus aggrieved? (b) Is nullification a valid response? (c) Is interposition an appropriate response?

33. The Thirteenth Amendment says that "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." In your view, does adherence to this amendment preclude the possibility of a military draft?

34. Many people have questioned the inclusion of the Fourteenth Amendment in the U.S. Constitution, inasmuch as part of a conditional readmission to the Union, certain southern states were required to ratify this amendment. In some cases, ratification was enforced at the point of a gun by occupying military troops. (a) Do you think the Fourteenth Amendment was properly ratified? (b) If not, do you believe it should be enforced?

35. The Fourteenth Amendment says that no state may "deprive any person of life, liberty, or property, without due process of law". (a) In your view, at what point does the unborn child qualify for consideration as a person? (b) At such point, does it become unconstitutional to deprive any such person of life without such person having been duly convicted of a crime by a jury of his or her peers?

36. The Fourteenth Amendment also says that no person shall be denied "the equal protection of the laws". In your view, does this make affirmative action laws unconstitutional?

37. The Sixteenth Amendment says that "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." How do you define the term "incomes"?

38. The Nineteenth Amendment says "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex". Does this use of the word "sex" refer exclusively to gender, or can it be construed to cover sexually activity?

39. The XXVII Amendment to the Constitution says "No Law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened." Despite this language, which seems to preclude members of Congress from accepting pay increases recommended by commissions or operating in reliance on changes in the cost of living, are violative of the Constitution.

CHAIRMAN ARLEN SPECTER (R-Pa.): "Judge Alito has said privately that he believes if a doctrine is embedded in the culture of the country and if there is reliance on it, as there has been on Roe, that those are weighty factors." Source: CBS’s Face the Nation, 1/8/06, p. 2

"In the second day of Senate hearings, U.S. Supreme Court justice nominee Samuel Alito said he would handle any case involving abortion with an open mind. …

"The nominee, chosen by President Bush to [replace] retiring Justice Sandra Day O’Connor, said his writings opposing abortion reflected an attorney representing a client’s interests and, if confirmed, he would ‘approach the question with an open mind.’ …

"Responding to a question by Committee Chairman Arlen Specter, R-Pa., Alito said he agrees ‘with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent.’ " Source: WorldNetDaily.com, 1/10/06

"On substantive matters, the hearings contained some reassurance for those anxious about the degree of Judge Alito’s conservatism. He persuasively explained writings from before his judicial service that seemed to question the Warren Court’s famed reapportionment cases – leaving no reason to worry that he has ambitions to upend the principle of one man, one vote. He similarly made clear that his phraseology was ‘inapt’ when he referred to the ‘supremacy of the elected branches of government,’ clarifying that he believes the courts are an equal branch of government in a system of separated powers. … Judge Alito repeatedly affirmed his commitment to following the court’s precedents, to the value of stability in American constitutional law, and to the principle of stare decisis that embodies respect for the court’s past holdings." Source: Editorial, The Washington Post, 1/13/06, p. A20

Here follow excerpts from the Senate Judiciary Committee hearings on the nomination of Judge Samuel Alito to the U.S. Supreme Court:

SENATOR HERBERT KOHL (D-Wisc.): "Judge Alito, one of the ways you get a person’s judicial philosophy is to look at the people whom they admire. In an interview that you gave in 1988, you were asked about your thoughts about Judge Robert Bork’s nomination and you said, and I quote, ‘Judge Bork was one of the most outstanding nominees of this century,’ unquote.

"Many Americans do not share Judge Bork’s narrow views about the Constitution, views that would undermine many of the rights that we now take for granted, Judge Alito. Judge Bork thought that Americans had no constitutional right to use contraception, saying, and I quote, ‘The right to procreate is not guaranteed explicitly or implicitly by the Constitution,’ unquote. Judge Bork thought minorities had no constitutional right to have their votes counted equally, saying that in guaranteeing one man/one vote, the court, quote, ‘stepped beyond its boundaries as an original matter,’ unquote. In 1981, Judge Bork called Roe v. Wade, quote, ‘an unconstitutional decision, serious and wholly unjustifiable usurpation of state legislative authority,’ unquote. In addition, he had an unreasonably broad view of executive power, claiming that a law requiring a president to obtain an order from a court before conducting surveillance in the United States and against U.S. for foreign intelligence purposes was, quote, ‘a thoroughly bad idea and almost certainly unconstitutional.’

"Can we assume from your admiration of Judge Bork that you agree with some of these statements, or at least that you support some of these beliefs if you were sitting on the Supreme Court? Frankly, it’s curious to me that someone like yourself would consider someone with his views to be, quote, ‘one of the most outstanding nominees of this century.’ "

JUDGE SAMUEL ALITO: "Senator, when I made that statement in 1988 I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination. I do not think the statement goes beyond that.

"There are issues with respect to which I probably agree with Judge Bork and there are a number of issues with which – on which I disagree with him. Most of the things that you just mentioned are points on which I would disagree with him. I expressed my view about Griswold earlier this morning."

JUDGE ALITO: "On the issue of reapportionment, as I sit here today in 2006, and I think that’s what is most relevant, I think that the principle of ‘one person, one vote’ is a fundamental part of our constitutional law. I think it would be – I do not see any reason why it should be reexamined. And I do not know that anybody is asking for that to be done. Every legislative district in the country and every congressional district in the country has been reapportioned, has been redistricted numerous times in reliance on the principle of one person, one vote. And the old ways of organizing state legislatures have long been forgotten. So I think that is very well settled now in the constitutional law of our country." Source: www.washingtonpost.com, FDCH e-Media, 1/10/06

"The Constitution does not say what criteria the Senate should use in deciding whether to confirm a Supreme Court nominee. But at least one clear test has emerged over the first three days of Judge Samuel Alito Jr.’s confirmation hearings. This nominee must, it seems, continually refer to and, if at all possible, endorse the views of the woman he aims to replace, Justice Sandra Day O’Connor. …

"Whenever the opportunity arose, Judge Alito and his supporters highlighted instances in which he had ruled as she had. He invoked her name on 9 occasions, and he had good things to say about her decisions 10 times. On Tuesday, Senator John Cornyn, Republican of Texas, ticked off areas in which the two judges had agreed. …"

"By Wednesday morning, Senator Tom Coburn, Republican of Oklahoma, had grown frustrated with all the O’Connor talk. ‘The fact that you have to fit the Sandra Day O’Connor mold is really a misapplication,’ he said. ‘There is no precedent that would say that.’ "

"Judge Alito said he would be his own person, but not before offering one more tribute. ‘No nominee can ever be a duplicate of someone who retires,’ he said, ‘and particularly when someone retires after such a distinguished career and such a historic career as Justice O’Connor. Nobody can be expected, as a nominee, to fit that mold.’ …"

"Judge Alito said he would follow Justice O’Connor’s approach in religion cases. …"

"From the moment he was nominated in October, Judge Alito has made clear his fondness and admiration for Justice O’Connor. That was based in part, he said in remarks accepting the nomination, on something she had done at his first argument before the Supreme Court in 1982, an occasion that filled him with ‘a sense of awe.’

" ‘I also remember,’ he said, ‘the relief that I felt when Justice O’Connor, sensing, I think, that I was a rookie, made sure that the first question that I was asked was a kind one. I was grateful to her on that happy occasion, and I am particularly honored to be nominated for her seat.’ " Source: Adam Liptak, The New York Times, 1/12/06, pp. 1, A16

The following is a portion of the transcript of the Senate Judiciary Committee hearings on the nomination of Judge Samuel Alito to the U.S. Supreme Court:

U.S. SENATE JUDICIARY COMMITTEE CHAIRMAN ARLEN SPECTER (R-Pa.): "Starting with the woman’s right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?

JUDGE SAMUEL ALITO: "Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there’s an invasion of a right to privacy, a legitimate expectation of privacy."

CHAIRMAN SPECTER: "Well Griswold dealt with the right to privacy on contraception for married women. You agree with that."

JUDGE ALITO: "I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14^th Amendment."

CHAIRMAN SPECTER: "Would you [agree] also with Eisenstat, which carried forward Griswold to single people?"

JUDGE ALITO: "I do agree also with the result in Eisenstat."

CHAIRMAN SPECTER: "Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman’s right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman’s right to choose.

"In Casey, the joint opinion said, quote, ‘People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail.’ Pretty earthy language, but that’s the Supreme Court’s language. And the court went on to say, quote, ‘The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives.’ Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition. How would you weigh that consideration on the woman’s right to choose?"

JUDGE ALITO: "Well, I think the doctrine of stare decisis is a very important doctrine. It’s a fundamental part of our legal system. And it’s the principle that courts in general should follow their past precedents. And it’s important for a variety of reasons. It’s important because it limits the power of the judiciary. It’s important because it protects reliance interests. And it’s important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It’s not an exorable command, but it is a general presumption that courts are going to follow prior precedents."

CHAIRMAN SPECTER: "How do you come to grips with the specifics where the court in the joint opinion spoke of reliance on the availability of abortion in the event contraception should fail – on that specific concept of reliance?

JUDGE ALITO: "Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests. …"

CHAIRMAN SPECTER: "Let me come now to the statement you made in 1985 that the Constitution does not provide a basis for a woman’s right to an abortion. Do you agree with that statement today, Judge Alito?"

JUDGE ALITO: "Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration. Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we’ve been discussing, and that’s the issue of stare decisis."

CHAIRMAN SPECTER: "So you would approach it with an open mind notwithstanding your 1985 statement?"

JUDGE ALITO: "Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role.

"And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues." Source: www.washingtonpost.com, FDCH e-Media, 1/10/06

New Supreme Court Justice Samuel Alito split with the court’s [conservatives] Wednesday night, refusing to let Missouri execute a death-row inmate contesting lethal injection.

"Alito, handling his first case, sided with inmate Michael Taylor, who had won a stay from an appeals court earlier in the evening. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas supported lifting the stay, but Alito joined the remaining five members in turning down Missouri’s last-minute request to allow a midnight execution." Source: Associated Press, FoxNews.com, 2/2/06

Excerpted from Howard Phillips Issues & Strategy Bulletin of November 30, 2005

"Two key Republicans and some Democrats said yesterday that Supreme Court nominee Samuel A. Alito Jr. will be unable to assert during his confirmation hearing that his personal views have no bearing on how he might rule because he has stated legal opinions on contentious issues so strongly.

"Alito’s comments on abortion, affirmative action and other issues in a 1985 memo went beyond personal musings, these senators said, and instead were stated as clear-cut legal opinions. One of those opinions was that ‘the Constitution does not protect a right to an abortion.’

"According to the senators, including Republicans Olympia J. Snowe (Maine) and John Cornyn (Tex.) and Democrat Charles E. Schumer (N.Y.), Alito has two options in his ongoing efforts to distance himself from the comments: He can say he has changed his mind, they said, or he can say the accumulation of cases affirming the 1973 Roe v. Wade abortion decision now outweighs his belief that Roe was wrongly decided. …

"Alito’s 1985 memo ‘may be a legal opinion, but it is not an answer to the question, "If confirmed, will you apply the principles of stare decisis in regard to Supreme Court decisions including Roe v. Wade?" ’ Cornyn, an Alito advocate, told reporters.

"Snowe, who supports abortion rights and is uncommitted on Alito, met with him yesterday and then addressed reporters. ‘He didn’t repudiate what he said’ in the 1985 memo, she said, and it was unclear to her whether he still thinks the Constitution does not protect abortion rights." Source: Charles Babington and Jo Becker, The Washington Post, 11/17/05, p. A8

"Reversal of the landmark Supreme Court decision that legalized abortion nationwide could produce an upheaval in U.S. politics and would put candidates who oppose abortion rights at risk of defeat in many parts of the country, a leading House Republican said yesterday.

"Rep. Thomas M. Davis III (R-Va.), chairman of the Government Reform Committee, said the desire of GOP conservatives to see a newly constituted Supreme Court eventually overturn Roe v. Wade could produce a political backlash, particularly in the suburbs. ‘It would be a sea change in suburban voting patterns,’ Davis said at a breakfast hosted by the Christian Science Monitor. …

" ‘If Roe v. Wade is overturned,’ Davis said, ‘you’re going to have a lot of very nervous suburban candidates out there…. It’s easy to say you’re for a culture of life, but the answer is what do you do about it at that point.’ " Source: Dan Balz, The Washington Post, 11/17/05, p. A8

Excerpted from Howard Phillips Issues & Strategy Bulletin of November 15, 2005

AT PRINCETON, ALITO RECOMMENDED THAT PRIVATE EMPLOYERS BE REQUIRED TO HIRE OTHERWISE QUALIFIED HOMOS

"Alito’s student recommendation on hiring discrimination has yet to be translated into law. Although some states, including California, forbid workplace bias against gays and lesbians, Congress has not passed a federal law barring such discrimination by employers." Source: David Savage, Los Angeles Times (www.latimes.com), 11/3/05

"Whatever happened to ‘free markets and free people’ in the marketplace of ideas? Does it make any sense for the Journal, whose parent company is the multibillion dollar conglomerate Dow Jones, to take federal money?" Source: Cliff Kincaid, Media Monitor, www.aim.org, 10/27/05

"What is an Oxymoron? Definition: A rhetorical figure in which incongruous or contradictory terms are combined. Example: ‘Oxymoron’ – Removing the Ten Commandments from the courthouse while making people inside the court swear to tell the truth, the whole truth & nothing but the truth, so help you God – while your hand is on the Bible!" Source: Sir Harry Schultz, Harry Schultz Life Strategies (HSL 650), cameleon@gf-net.com, 10/30/05, p. 12

BETRAYED BY THE BENCH

John Stormer’s newest book, BETRAYED BY THE BENCH, has just been released. The subtitle is: How Judge-made Law Has Transformed America’s Constitution, Courts and Culture." Other good books on the court problem published recently deal largely with symptoms. Some solutions proposed are good – but most require Constitutional Amendments which, humanly speaking, are almost impossible. BETRAYED BY THE BENCH takes a very different approach. Stormer challenges readers to examine what they can look to God to do through them.

Humanly speaking, according to Stormer, any realist evaluation of the influence exerted by the culture-shaping institutions shows there is no hope. Those who want to see America restored must relearn the Bible-based history of our political foundations and how they’re been betrayed. BETRAYED BY THE BENCH looks at that history. The book also examines how God has intervened twice in America’s history and turned the nation upside down morally and politically. The first time was the Great Awakening between 1740 and 1785 which preceded the War for Independence. A hundred years later God moved again.

BETRAYED BY THE BENCH also examines two 19^th Century Academic theories (Hegel and Darwin) which people in key places have used to revolutionize the courts and culture. The book shows how the Biblically-based common law which protected the individual, his freedom and his property has been replaced by sociological jurisprudence and code law which bases law on the supposed needs of society as determined by social scientists. The book analyzes how the Court has used its misinterpretation of the Fourteenth Amendment to negate the Ninth and Tenth Amendments and transfer control of education, voting, criminal justice, etc. from the States to Washington.

BETRAYED BY THE BENCH has unusual bipartisan endorsements. Phyllis Schlafly says BETRAYED BY THE BENCH is "must reading". Robert Baine was the Democrat candidate for attorney general of Missouri in 1980. John Ashcroft defeated him. Baine, who has argued and won before the U.S. Supreme Court, says:

In 50 years as an attorney, I’ve observed what court decisions have done to our constitutional heritage and culture. I’ve read the books about what courts have done and are doing now. My experiences and the books I read combine to produce the depressing thought that there is no real remedy. However, John Stormer’s book, BETRAYED BY THE BENCH, has given me a glimmer of hope. Every citizen should read it --- particularly those in law, in education, and the clergy.

Dr. D. James Kennedy says, "BETRAYED BY THE BENCH is a book which every American should read … I heartily recommend it …"

BETRAYED BY THE BENCH is priced at $26.95 plus $3.00 for shipping and handling. However, those who mention the Howard Phillips newsletter can buy single copies for $25 or five copies for $100, all postpaid. The book is available from Liberty Bell Press, P.O. Box 32, Florissant MO 63032.

Constitutional conservatives owe a debt of gratitude to Alan Keyes, Ann Coulter, Laura Ingraham, David Frum, George Will, David Keene, National Review, Human Events, Rush Limbaugh, Mat Staver, Gary Bauer, Phyllis Schlafly, Richard Viguerie, Robert Bork, Bill Kristol, Charles Krauthammer, and members of The Conservative Caucus for their outspoken challenge to the nomination of Harriet Miers to be an Associate Justice of the Supreme Court.

It’s also a plus that so many conservative leaders warned of their opposition should President Bush name his Attorney General, Alberto Gonzales, to a seat on the court.

Because so many conservatives – a large number of whom had previously been uncritical of the Bush presidency – took a stand in the Miers case, we now have a much better choice to sit on the court, Samuel Alito.

Howard Phillips
November 3, 2005

Excerpted from Howard Phillips Issues & Strategy Bulletin of October 31, 2005

“Dear Governor and Laura: Each year the Anti-Defamation League selects a lawyer to receive their Jurisprudence Award for devotion to the principles enshrined in the Constitution and for symbolizing commitment to the democratic values which characterize America. … [T]his year I have been selected to receive this Award. …

“The purpose of this letter is to request that you serve as Honorary Chairs of this function, which is a fundraising event for the ADL.” Source: May 13, 1996 letter from Harriet Miers to Governor George W. and Laura Bush

“On May 17, 2000, while Harriet Miers was managing the law firm of Locke Liddell from the firm’s Dallas office, she contributed $415 to the law firm’s political action committee. Federal Election Commission reports show that two days later, Locke Liddell’s PAC contributed $1,000 to Hillary Rodham Clinton’s Senate Campaign Committee. For an unexplained reason, Harriet Miers listed herself as a ‘self-employed attorney,’ according to the FEC Report on her 2000 contribution to the Locke Liddell PAC.”

“FEC records also show a $500 contribution on Feb. 15, 2000, by the Locke Liddell PAC to Democrat Nicholas Lampson, who ran unsuccessfully against Tom DeLay.”

“Locke Liddell’s contributions also reached out to out-of-state Democratic congressmen. According to FEC records, on July 27, 2000, the Locke Liddell PAC contributed $1,000 to Richard Gephardt’s congressional re-election campaign in Missouri. Locke Liddell also supported Democrats in Louisiana, contributing $1,000 to Mary Landrieu, on Dec. 4, 2000, and $1,000 to the campaign of [Louisiana] congressman William Jennings Jefferson on June 6, 2000.

“Locke Liddell’s PAC contributed to the re-election campaign of Houston Democratic Congressman Kenneth Edward Bentsen Jr., nephew of Congressman Lloyd Bentsen. The law firm also supported the congressional campaigns of Texas Democrats Lloyd Doggett, Chet Edwards, Martin Frost, Sheila Jackson Lee, and Max Sandlin. In 2000, three separate contributions were made to the campaign of Texas Democrat Regina Montoya Coggins, who ran unsuccessfully against congressman Pete Sessions - the records also reflect two contributions to Pete Sessions in 2000. …

“Harriet Miers has already indicated that she switched from Democrat to Republican, suggesting she voted for Ronald Reagan, despite making campaign contributions to Al Gore and Bill Clinton in the 1990s. Until now, there had been no discussion that Harriet Miers’ campaign contributions had also ended up supporting Hillary Clinton, as well as opposing the re-elections of Majority Leader Tom [DeLay] and Republican Texas Congressman Pete Sessions.” Source: Jerome Corsi, WorldNetDaily.com, 10/9/05

“You can’t say George W. Bush isn’t carin’ and compassionate. He finally found a date for David Souter.”

“Harriet Miers may be the toughest spinster since Aunt Gertrude plowed the bottom field without the mule, the greatest lawyer since Sir William Blackstone wrote the book on the law, and more conservative than a Boston banker considering a loan for an ailing widow. Miss Miers was, after all, the lawyer for Mickey Mouse. (You could look it up.) But we won’t know who Harriet Miers is until she has been on the Supreme Court for a while. Vice President Dick Cheney suggests it might take 10 years.”

“But what this appointment can tell us for now is that Harry Reid, Nancy Pelosi and the Democrats have got George W.’s number.

“For the past fortnight the president has been on the run, catering to every media whim and dark shadow dancing across his bedroom wall. Frightened by a rising tide, he’s desperate not to give offense. He reprises the familiar Republican campaign slogan: ‘I’m a conservative, sort of, but I’m not as bad as you think.’

“After first treating Hurricane Katrina as a summer afternoon squall, strumming ‘Home on the Range’ at Prairie Chapel Ranch while his FEMA director dawdled and New Orleans drowned, George W. transformed himself from president of the United States to an alderman for the Ninth Ward of New Orleans. Air Force One now flies to the Gulf Coast more often than Southwest Airlines.

“The man who came to town as a small-government conservative - carin’ and compassionate but suspicious of inside-the-Beltway consensus - has become the man who thinks prudent spending is for wimps in black pinstripes and high starched collars. He dispenses billions here and a few more there every time he hears heavy footfalls behind him. Or thinks he does. …

“The friends of George W. - and he has never needed friends more - expected a brawl over confirming a successor to Sandra Day O’Connor. Indeed, some of us, like the cowboy anticipating Saturday night, looked forward to it.” Source: Wesley Pruden, Editor in Chief, The Washington Times, 10/4/05, p. A4

“ ‘To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity…. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.’ [From Alexander Hamilton’s Federalist No. 76] (The italics are mine.)”

“Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush’s personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton’s description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?”

“As the quote from Hamilton suggests, the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of ‘cronies,’ which Merriam-Webster defines as ‘a close friend especially of long standing.’ Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent - especially during the remaining term of her former boss. …”

“To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered ‘judicial philosophy,’ by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers’s professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement. …

“Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

“Given her lack of experience, does anyone doubt that Ms. Miers’s only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser? Of course, Hamilton also thought that the existence of Senate confirmation would deter the nomination of cronies: …

“For their part, Senate Republicans were content to parrot the empty line that a judge ‘should follow the law and not legislate from the bench.’ Sit tight and vote seemed to be their approach. …

“Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution’s limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question. What hearings will tell us, however, is whether the Senate, too, will succumb, in Hamilton’s words, to ‘a spirit of favoritism.’ ” Randy Barnett (Austin B. Fletcher Professor of Law at Boston University and author of Restoring the Lost Constitution: The Presumption of Liberty), The Wall Street Journal, 10/4/05, p. A26

“The Senate should reject the nomination to honor the original meaning of the Constitution. As Alexander Hamilton amplified in Federalist 76, the Senate confirmation role was intended to ‘prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.’ ” 

“President Bush’s sound track during two campaigns was Scalia-Thomas as the philosophical North Star for Supreme Court appointments. Miss Miers, in contrast, is an ink blot. On constitutional matters, to paraphrase Gertrude Stein, there is no there there. She has neither said nor written anything edifying about constitutional law or politics during more than three decades as a lawyer. Her nomination evokes Sen. Roman Hruska’s ill-conceived defense of G. Harrold Carswell: ‘Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?’ ”

“Miss Miers has taken to an extreme Saint Paul’s advice to be all things to all people. Her political loyalties have fluctuated between Democrat presidential aspirants Michael Dukakis and Al Gore to Republican hopeful Phil Gramm and President George W. Bush. Former Republican National Committee chairman Ed Gillespie conceded Miss Miers was a Democrat throughout the 1980s. Her unelaborated conversion to Republican ranks smacks more of expediency than conviction. …”

“Mediocre minds resist challenges to prevailing orthodoxies, which means Miss Miers would neither disturb nor confine the court’s outlandish privacy, racial preference, church-state, death penalty, campaign finance, or enemy combatant decrees.

“President Bush’s nomination of Miss Miers tacitly endorses a modified ‘petrified forest’ concept of the Supreme Court ardently articulated by Sen. Charles Schumer, New York Democrat, i.e., its philosophical balance should be frozen in perpetuity irrespective of elections or popular will unless and until Democrats overcome Republicans in the White House and Senate. In other words, a conservative should replace a conservative, a moderate should succeed a moderate and a liberal should replace a liberal. Thus, if aging Justice John Paul Stevens were to retire, President Bush can be expected to nominate a liberal of the same or similar ilk.

“To save herself and the Supreme Court from caricature or derision, Miss Miers should ask that her nomination be withdrawn. That act of statesmanship and courage would win her honor in the history books far surpassing anything she could accomplish by her appointment.” Source: Bruce Fein (constitutional lawyer and author of Advice & Consent Handbook on Supreme Court appointments and the judicial filibuster), The Washington Times, 10/6/05, p. A21

“President Bush’s choice of Harriet Miers to replace Justice Sandra Day O’Connor on the Supreme Court is ‘a terrible disappointment and a missed opportunity,’ Eagle Forum President Phyllis Schlafly told NewsMax.com.

“ ‘We were expecting President Bush to move the Court away from an activist, supremacist Court toward a Constitutionalist Court and there is no evidence that Harriet Miers would be any better than Sandra Day O’Connor,’ said Mrs. Schlafly….”

“ ‘I don’t know of any pro-life positions that she’s taken. The one thing they say is that she contributed to a pro-life organization but that’s really dishonest; she bought a ticket to an annual dinner that all the politicians go to so they can be introduced - a $150 ticket - and I don’t call that something that would convince anybody that she’s pro-life.’ ”

“The real question she said, is ‘would she be a vote to overturn Roe v. Wade, and I don’t see any evidence of that. All the women around Bush are opposed to overturning Roe v. Wade - his wife, his mother, his Secretary of State, the [co-chair] of the Republican National Committee … There is no woman around Bush who is in favor of overturning Roe v. Wade.’ …”

“As for Miers’ qualifications for the Court, Mrs. Schlafly said ‘There are probably 100 lawyers in every big city who are just as qualified as she is. She really doesn’t have anything to recommend her except that she is a friend of George Bush.’. …

“Turning to the President’s role in the nomination, she said, ‘I find this thing of his saying “trust me” offensive. We trusted Ronald Reagan and look what he gave us; we trusted Bush One and look what he gave us. Reagan gave us Kennedy and O’Connor and Bush One gave us Souter, so how can you trust them? I don’t think trust is a good argument.’ …”

“Mrs. Schlafly said she thinks that Miers, on the other hand, will be another [O’Connor]: ‘roll back and forth, and then the commentators will say she’s the most powerful woman in America because we don’t know what she’s going to do - she’ll be the five to four vote one way one time and another way another time.” Source: Carl Limbacher and NewsMax.com staff, 10/7/05

“Laura Bush said yesterday that some critics of Harriet Miers may be motivated by sexism, echoing an allegation that earlier infuriated conservative activists opposed to the Supreme Court nominee.”

“On NBC’s ‘Today’ show, Laura Bush joined President Bush in defending Miers as the ‘most qualified’ person her husband could have appointed to the Supreme Court. She also said it’s ‘possible’ that questions about Miers’s intellectual qualifications are sexist in nature, a charge other defenders of Miers have made publicly and in private [conversations] with conservatives opposed to the nomination. …”

“William Kristol, a conservative who runs the Weekly Standard and is a leading critic of Miers, said the first lady’s suggestion of sexism yesterday were ‘obviously ridiculous’ and indicative of a flailing White House strategy. ‘It is striking to me they are spending less time explaining the merits of Harriet Miers and more time … using liberal talking points to criticize the critics,’ he said. ‘I think it is going to backfire.’

“Conservative Web logs also were filled with criticism of Laura Bush’s remarks. Jonah Goldberg, writing on his National Review blog yesterday, said the sexism charge ‘is horribly disappointing and the sort of thing I normally expect from left-wingers.’ …

“Kristol, who Rove called recently to defend the Miers pick, said he did not think Rove was deeply involved [in] the selection that has caused the biggest fight of the Bush presidency between the White House and conservatives. These conservatives said people close to Bush are saying Laura Bush was a driving force behind the selection.” Source: Jim VandeHei, The Washington Post, 10/12/05, p. A4

“THEN: ‘Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?’ - Senator Roman [Hruska] on Nixon Supreme Court nominee Harrold Carswell

“NOW: ‘If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole.’ - Senator Dan Coats on Bush Supreme Court nominee Harriet Miers” Source: Dan Flynn, flynnfiles.com, 10/12/05

“Today, Liberty Counsel announced that it does not support President George W. Bush’s nomination of Harriet Miers for the United States Supreme Court. Liberty Counsel also calls on President Bush to withdraw the nomination and to keep his campaign promise that he would appoint Justices like Antonin Scalia and Clarence Thomas. Liberty Counsel is a nationwide public interest litigation, education and policy organization that specializes in constitutional law.

“Mathew D. Staver, President and General Counsel of Liberty Counsel, stated: ‘I am terribly disappointed with President Bush’s decision to nominate to the Supreme Court someone who operates under the radar. Bush has turned his finest hour into a political debacle that threatens to split his conservative base. The reverberations from his decision to nominate Harriet Miers have political consequences, if not corrected, that will haunt the Republican Party for some time.’ ”

“Staver said that during the 2000 presidential election, everyone knew the real battle was over who would appoint the next Supreme Court Justice. ‘I didn’t litigate nonstop for five weeks for a stealth nomination. …

“Ms. Miers is 60 years of age, and yet we have no clue from her speeches or writings about her judicial philosophy. If she hasn’t developed a consistent judicial philosophy by now, then how can the President ask us to blindly trust him? President Bush should keep his campaign promise to appoint Justices like Scalia and Thomas. The only way to remedy a disastrous decision is to redo it.’

“Staver points out that Liberty Counsel’s opposition is twofold: ‘I oppose this nomination for two reasons. First, the President had a number of highly qualified candidates with proven track records and well-developed judicial philosophies. He passed over them and chose an invisible nominee. Second, selecting a nominee who has held her views in silence for 60 years sends a wrong message to conservatives - if you want to be appointed to the federal bench, you should keep your views to yourself. That’s a terrible message to send to our future leaders.’ ” Source: Liberty Counsel Alert (liberty@lc.org), 10/11/05

PATRICK BUCHANAN: “Ms. Miers’ qualifications for the Supreme Court are utterly non-existent. She has not only not ruled or written on any of the great controversies of our time on religion or faith, morality. She has shown no interest in them in 40 years. This is a faith-based initiative. The president of the United States is saying, ‘Trust me.’ And when you have the decisive vote on the United States Supreme Court, that is not enough. …”

“[O]n abortion, I am not sure the president [of] the United States wants to see Roe v. Wade overturned. His wife does not, his mother does not. He refuses to say whether … he wants to see Roe v. Wade overturned. There are a number of Republicans, moderate Republicans, who say, ‘Well this would be a political disaster.’ I’m not sure the president of the United States wants the Supreme Court to overturn Roe v. Wade. …”

TIM RUSSERT: “According to The Washington Post this morning Senator Pat Leahy asked Ms. Miers who was her favorite Supreme Court justice. And she answered Warren. And he said, ‘Earl Warren?’ And she said, ‘No, Warren Burger.’ Warren Burger of the Burger Court, Burger who voted, as you know, in support of Roe v. Wade. Does that trouble you? …”

DR. RICHARD LAND: “It does. But I - once again, I don’t know Harriet Miers. I know George W. Bush. And I’m trusting George W. Bush. He understands - we all understand - his legacy depends on this nomination. …”

MR. DAVID BRODER: “[H]ere I find myself in rare agreement with Pat Buchanan - I think it does reveal, in fact, that the president’s priorities are not the same as some of the conservative constituents. I do not think that he has a high-priority goal of reversing Roe v. Wade. And the fact that she is unknown on that subject is not, in his eyes, a liability.” Source: Excerpts from the transcript of NBC’s Meet the Press, 10/9/05

“According to the owlish observation of former House Speaker Newt Gingrich, Miss Miers must be a female version of Justice Antonin Scalia because ‘George W. Bush selected her.’ But President Bush should be distrusted over Miss Miers because no one else (including Miss Miers herself) would have made the nomination.

“The president is thoroughly unschooled in constitutional law and ill-equipped to recognize gifted and longheaded minds - for example, Chief Justice John Marshall and Associate Justices Joseph Story, Oliver Wendell Holmes, Louis D. Brandeis or Robert Jackson.

“Fallible presidents need skepticism and criticism to check their follies. President Dwight Eisenhower would have profited from protests against two of his self-confessed biggest mistakes: the appointments of Chief Justice Earl Warren and Associate Justice William Brennan. Ditto for President George Herbert Walker Bush’s appointment of Associate Justice David Souter, who was preposterously touted as a ‘grand slam’ expounding a judicially conservative philosophy. …

“Miss Miers has never elaborated any interpretive theory. Her entire professional life - actions, education, reading enthusiasms and writings - fail to substantiate any avidity or aptitude for constitutional history, theories of democratic government, or the study of human nature to garner insights into oppression or persecution, for example. Shakespeare’s ‘Julius Caesar,’ ‘Macbeth,’ or ‘Richard III,’ Gibbon’s ‘Decline and Fall of the Roman Empire,’ Montesquieu’s ‘The Spirit of Laws,’ Alexis de Tocqueville’s ‘Democracy in America,’ or Plato’s ‘The Republic.’

“Further, nothing in Miss Miers’ intellectual temperament suggests she would seek to master these and similar works with alacrity after elevation to the Supreme Court. In sum, it is not Miss Miers as a person or as a lawyer that evokes opposition, but her complete inability to understand, to amplify, and to defend originalism as a justice. She is not even an epigone of Antonin Scalia.

“[Ronald A. Cass, co-chairman of the Committee for Justice and dean emeritus of Boston University School of Law] acclaims Miss Miers for dormant but potentially dazzling insights into cases affecting business or economic growth because of her experience in the corporate trenches. But he cites nothing she has said or written about the Contracts Clause, the Commerce Clause, the Takings Clause, antitrust law, labor law or federal pre-emption to substantiate his wild speculation. Toiling in the trenches or practical experience, moreover, do not mean higher wisdom.

“A foot soldier who understood the practical implications of the Revolutionary War was no substitute for Gen. George Washington. The business experience of Frederick Engels did not prevent the folly of his 1848 ‘Communist Manifesto,’ written with Karl Marx. Similarly, all the pedestrian experience of Miss Miers is not worth a peppercorn in interpretations of the Contracts Clause, the Sherman Antitrust Act or other business-related laws faithful to their original meaning.” Source: Bruce Fein (constitutional lawyer and author of Advice & Consent Handbook on Supreme Court appointments and the judicial filibuster), The Washington Times, 10/11/05, p. A15

“Circumspect and clever Roberts has been. No one really knows. But I predict two things: (a) Chief Justice Roberts will vote to uphold Roe v. Wade, and (b) his replacing his former boss, Chief Justice William Rehnquist, will move the court only mildly, but most assuredly, to the left - as measured by the only available yardstick, the percentage of concurrences with the opinions of those conservative touchstones, Scalia and Thomas.”

“I infer this not just by what Roberts has said in his hearings - that he supports Griswold v. Connecticut, that he deeply respects precedent and that he finds Roe itself worthy of respect. That is little beyond boilerplate. I infer it from his temperament, career and life history as an establishment conservative who prizes judicial modesty above all. Which means that while he will never repeat Roe, he will never repeal it and be the cause of the social upheaval that repeal would inevitably bring. …

“If you’re a conservative looking for a return to the good old days, you’ll be disappointed. And if you’re a liberal who lives for the good old days because that’s all that liberalism has left, tell Chuck Schumer to relax.” Source: Charles Krauthammer, The Washington Post, 9/16/05, p. A31

“Former Lesbian/Gay Political Coalition member Marc Lerro, a D.C. resident, said … he endorsed Miers for the Council post, saying he recalls that she expressed general support for equal rights for gays and indicated she opposed discrimination based on sexual orientation.”

“According to Lerro, Miers later appointed Dallas gay attorney Don McCleary to Dallas’ Community Development Block Grant Board, which helped the city decide how to spend federal housing and urban development funds;. Under Dallas’ city manager form of government, members of the Council have authority to make city appointments.

“ ‘I can’t say policy wise that she will be good on our issues,’ Lerro said. ‘But on a personal level, she was very open to having gay people serve on boards and commissions.’ ”

“Lerro said Miers ‘welcomed’ his endorsement in the 1989 Council race and added his name to one of her campaign brochures. … Mark Johnson, a past president of the Oregon State Bar Association and former co-chair of the National Lesbian & Gay Law Association, said he worked with Miers when the two served in leadership positions with the American Bar Association.

“ ‘She is a very nice person and seems quite fair-minded,’ Johnson said. ‘Really, the fact that she is a personal friend of the president’s is the only thing about her that makes me question her judgment. I like her a lot and I’m very happy for her personally.” Source: Lou Chibbaro Jr., NewYorkBlade.com, 10/3/05

“ ‘George W. Bush’s nomination of White House Counsel Harriet Miers to the Supreme Court was at best an error, at worst a disaster. There is no need now to elaborate on Bush’s error. He has put up an unknown and undistinguished figure for an opening that conservatives worked for a generation to see filled with a jurist of high distinction. There is a gaping disproportion between the stakes associated with this vacancy and the stature of the person nominated to fill it,’ [Weekly Standard’s William] Kristol said. …

“ ‘So what now? Bush has made this unfortunate nomination. What is to be done? The best alternative would be for Miers to withdraw.’ ” Source: Greg Pierce, Inside Politics, The Washington Times, 10/10/05, p. A6

Excerpted from Howard Phillips Issues & Strategy Bulletin of October 15, 2005

"Candidate George W. Bush promised to nominate Scalias and Thomases if made president. Today, President George W. Bush nominated Harriet Miers to replace Sandra Day O’Connor on the Supreme Court. Did Clarence Thomas and Antonin Scalia spend the Reagan years as Democrats or give money to Lloyd Bentsen and Al Gore?" Source: Dan Flynn, flynnfiles.com, 10/03/05

"A man who lacks convictions can’t betray them. This is why crying ‘betrayal’ at President Bush’s nomination of Harriet Miers to the Supreme Court falls flat. Let us instead look in the mirror and see who, after five years of the Bush presidency, has really betrayed conservative principles.

"When candidate Bush vowed to make education his top federal priority, and to provide prescription drugs for seniors at state expense, conservatives reassured themselves, and others, that these were mere campaign promises. When President Bush did what he promised to do, conservatives sought to mute criticism lest it help the Democrats in 2004. When candidate Bush characterized McCain-Feingold campaign-finance reform as unconstitutional, and mocked ‘nation-building’ in his debates with Al Gore, conservatives applauded. When he signed McCain-Feingold into law, and embarked upon mammoth nation-building ventures, we didn’t boo."

"One could just as easily cite President Bush’s nationalization of airport security, the farm, energy, and transportation bills, plan to grant amnesty to illegal aliens, unprecedented federal financing of embryonic stem-cell research, support for affirmative action…. If President Clinton had attempted any of this, would we have responded in the same quiet manner?"

"All of this leads one to wonder if the raison d’etre of the conservative movement is no longer limited, Constitutional government, but non-stop electioneering to keep Republicans in power. Power is not an end but a means.

"Principles lost are difficult to recover. After selling out our principles for the president’s benefit, we now have the gall to accuse George W. Bush of selling us out? It’s not difficult to understand why President Bush felt it politically safe to insult his base by nominating Harriet Miers: no consequences for past assaults on conservative principles results in future assaults on conservative principles. Fool us once, shame on the president. Fool us 137 times, shame on us."

"The [bogeymen] of ‘President Al Gore’ and ‘President John Kerry’ are gone. All that remains is the Bush presidency – bigger government, nation-building commitments abroad, a growing national debt, and a Supreme Court that will likely be more liberal than the court President Bush inherited. This is not only disheartening, but a blow to the credibility of conservatives. By projecting ‘conservatism’ upon President Bush, we have tethered our movement to the negative connotations of the Bush presidency. Will future voters think ‘Bushism’ when they hear ‘conservatism,’ or will they think ‘limited government, personal responsibility, low taxes, strong defense, and family values’?"

"Despite a Republican Senate, a Republican House, seven of nine Supreme Court justices appointed by Republicans, and a Republican in the White House, conservative principles have less influence in our government than ever. It is time to chart a new course." Source: Dan Flynn, flynnfiles.com, 10/04/05

"The President has made it a key selling point that she is a ‘born-again Christian.’ This is wonderful, and speaks highly of her as a person. But this fact does not give us any insight into her judicial philosophy, her constitutional interpretation, or how she would perform as a judge. While I could worship with her, study the Bible with her, and spend eternity with her, it does not mean I want her sitting on SCOTUS."

"Additionally, her Christian credentials have been called into question by a news report that was released on October 6^th detailing an incident during Harriet Miers’ tenure at the White House. It has been reported that in 2001 after a staffer wrote a Christmas speech for the President, that Harriet Miers told him to change it so that those of other faiths would not be offended. The staffer then ran the speech by Ken Mehlman, who was then political director and is Jewish, and was informed that the speech was not offensive. However, Ms. Miers continued to insist that the speech be changed to avoid offending anyone with its Christian content. When the staffer refused the speech was assigned to someone else, and he was encouraged to apologize to Ms. Miers."

"Harriet Miers purposefully sought to dilute the Christianity of the message, thus revealing at least a willingness to compromise unnecessarily without outside pressure. This attitude does not reveal a biblical worldview, and seemingly destroys the only ‘plus’ the White House has been willing to offer." Source: Mark Sutherland, President, National Policy Center, 10/7/05

"Supreme Court nominee Harriet E. Miers has a long track record of supporting legal services for the poor [sic], a dedication that has even led her to unofficially lobby President Bush to support funding for the Legal Services Corp., according to several lawyers who know her. …"

"Her strong record on the issue could help her deflect attacks from Democrats during the confirmation hearing, but might also serve to add to concerns among social conservatives that she is a stealth candidate who is more moderate than they would hope."

"Since arriving in Washington, D.C., in 2001 as President Bush’s staff secretary, Miers has continued to advocate for better legal services, according to Bill Whitehurst, a former chair of the ABA’s Standing Committee on Legal Aid and Indigent Defendants."

"Whitehurst said he had spoken to her on the issue of funding for legal services within the last six months, since she became White House counsel."

" ‘I continue to work with her on legal services for the poor issues,’ Whitehurst added. ‘In every position she has held, she has been a supporter of that, including federal funding.’ "

"He said her prominent position in the White House allowed her to be ‘very helpful … in advising President Bush’ to ensure that the Legal Services Corp. receives substantial budget allocations."

"Asked whether she agreed with Whitehurst’s assessment, former ABA president Martha W. Barnett said, ‘That’s what I understand as well.’ "

"Barnett, with Holland & Knight in Florida, conceded that funding for the corporation is a ‘controversial issue’ because of the opposition of some conservatives.

" ‘There are [sic] a core group of people who don’t believe in federal funding,’ Barnett said. ‘That’s never been a burden of Harriet’s.’

"Esther Lardent, president of the Washington, D.C.-based Pro Bono Institute, also stated that Miers – who she worked with on an ABA legal services committee – has been an advocate for the corporation within the White House. …"

"Lardent said that the White House’s support for maintaining the level of funding was a stark contrast to the Reagan administration, which attempted to eliminate all funding for legal services. …

"It was the issue that she chose to champion when she was president of the Texas bar in 1992-93. …

"Miers continued to advocate increased support for legal services as a member of the ABA’s House of Delegates during the 1980s and 1990s, according to San Francisco attorney Joanne Garvey.

" ‘Harriet was one of the people who was willing to stand up and be counted,’ she said." Source: Lawrence Hurley, Daily Journal Newswire (www.dailyjournal.com), 10/5/05

"Harriet Miers, President Bush’s nominee to the U.S. Supreme Court to replace Sandra Day O’Connor, is on record as supporting the establishment of the International Criminal Court, homosexual adoptions, a major local tax increase and women in combat, WorldNetDaily has learned. …

"[D]uring Miers long affiliation with the American Bar Association, she submitted a 1999 report to the ABA’s house of delegates that included recommendations to develop and establish an International Criminal Court and the enactment of laws and public policy providing that the sexual orientation of adults be no bar to adoption of children.

"Under the heading Family Law and subheading Adoption, the document states: ‘Supports the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child.’

"Also included, under the heading International Law and Practice, is a recommendation for ‘the development and establishment of an International Criminal Court.’

" ‘The Committee urges all Delegates to review this list for items of interest to their constituencies, and to act as the catalyst for further contact and action so that each entity will have the earliest opportunity for consideration and input.’ The memo is signed by Miers as chairwoman of the Select Committee of the House."

"As a city councilwoman, Miers also said Dallas had a responsibility to pay for AIDS education and patient services. And she courted the support of the Lesbian/Gay Coalition of Dallas in her successful 1989 campaign.

"In addition, economic conservatives pleased by her corporate law background may find it distressing that in 1990 Miers voted for a 7 percent property tax increase during her short tenure on the Dallas City Council." Source: Joseph Farah, editor and CEO, WorldNetDaily.com, 10/3/05

"The Chronicle of Higher Education reports that Supreme Court nominee Harriet Miers helped establish an endowed lecture series in feminist issues at Southern Methodist University while an advisor for SMU’s law school during the late 1990s [Ed. Note—Named to honor pro-abort lawyer Louise B. Raggio]. After advancing the idea, Miers donated and solicited donations for the women studies speakers series."

"SMU’s website details that the lecture series ‘brings role models of vision and achievement to SMU to speak on gender and women’s issues. It expands students’ opportunities to hear and interact with nationally renowned speakers in the area of women’s studies as well as strengthens intellectual ties between the University and the greater community.’

"This year’s lecture, to be held next month, will feature Newsweek columnist Anna Quindlen. Save for last year’s speakers, a pair of Southwest Airlines executives, all of the ‘role models of vision and achievement’ showcased by the lecture series are on the left side of the political spectrum. Past speakers include Gloria Steinem, Susan Faludi, and Pat Schroeder. To loosely paraphrase the program’s inaugural lecturer, universities need more feminist lecturers like a fish needs a bicycle." Source: Dan Flynn, flynnfiles.com, 10/11/05

"The Chronicle of Higher Education [Oct. 6] published a story on Supreme Court nominee Harriet Miers. It spoke of her ‘playing a key role’ in the late 1990s in establishing the Louise B. Raggio lectureship at Southern Methodist University, Miss Miers’ alma mater. The article says Miss Miers ‘pushed for the creation’ of the Raggio speakers’ series. The Raggio lectureship brought an apparently unbroken string of pro-abortion speakers to the university’s Dallas campus.

"Among those tapped to enlighten young law students were Gloria Steinem, founder of Ms. Magazine and a veteran campaigner for liberal abortion laws. Also holding forth were Congresswoman Patricia Schroeder, Susan Faludi, author of Backlash: The Undeclared War Against American Women, and even former Texas Governor Ann W. Richards, the pro-abortion Democrat whom George W. Bush defeated in 1994. …"

"Ms. Raggio is a high-profile Dallas lawyer who has received well-publicized awards from the ACLU and Planned Parenthood. …

"The atmosphere on all too many campuses is, tragically, pro-abortion. But the climate of opinion around the U.S. Supreme Court is more intensely so. The reporters, commentators, lawyers, and far too many clerks constitute a powerful pro-abortion monopoly of opinion. A man or woman must have strong principles and unshakable determination to resist those pressures. President Bush has assured us that Harriet Miers does have that inner toughness. We certainly hope she does." Source: Tony Perkins, Family Research Council’s Washington Update, 10/7/05

"Phyllis Schlafly, founder of the Eagle Forum, said she is worried that Miers ‘is a female Souter,’…. Schlafly was also critical of the conservative credentials of newly installed Chief Justice John G. Roberts Jr.

"Bush is building his own empire without regard for the conservative movement or the party,’ she said. ‘People expected him to move the Supreme Court away from its activism, and there is nothing in Miers and Roberts to show that he has moved the court one inch away from where it is.’ " Source: Michael Fletcher and Thomas Edsall, The Washington Post, 10/5/05, p. A6

"Even in Dallas, home of groups such as Texas Eagle Forum and the Republican National Coalition for Life, some religious conservatives say Miers, 60, has demonstrated an insufficient commitment to family values. They cited a questionnaire she filled out for a gay rights group in 1989 as a candidate for Dallas City Council, indicating that gay people should have the same civil rights as straight people and that the city should fund AIDS education and services. After her election, she appointed an openly gay lawyer to an influential city board. …

"[S]ome antiabortion activists noted that Justice Anthony M. Kennedy was described as a devout Catholic when he was nominated by President Ronald Reagan – and he still voted to uphold Roe v. Wade. … Colleen Parro, director of the Republican National Coalition for Life … said she does not care whether Miers is a born-again Christian, or the companion of [her law firm colleague, Nathan] Hecht.

" ‘It’s not about her church, or the fellow she dates. It’s about her record,’ Parro said. ‘She seems like a fine lady, but this nomination does not advance the culture of life.’ " Source: Michael Grunwald, Jo Becker and John Pomfret, The Washington Post, 10/5/05, pp. 1, A6

JUSTICE "HARRY" PUSHED PATRIOT ACT

"As President Bush’s counsel, Harriet E. Miers continued the expansive interpretation of presidential powers favored by her predecessor, Alberto Gonzales, who backed Bush’s authority to hold terrorist suspects without trial, as well as the White House’s right to withhold more administration documents from public disclosure than in the past.

"Miers has also been outspoken in her support of reauthorizing the Patriot Act, which gave the executive branch new powers of surveillance over US citizens. …

"[I]n a speech in April 2005, before a GOP lawyers’ group, Miers said that reauthorizing the Patriot Act was ‘critical,’ because it ‘has been used in so many ways to help protect this nation and its people and in the war on terror.’ " Source: Charlie Savage, The Boston Globe (www.boston.com), 10/5/05

"Elsewhere in Texas, conservatives on councils were voting to add language to city charters stating that life begins at conception. But once elected, Miers steered clear of abortion. Perhaps the most controversial symbolic action Miers took was to support a resolution asking Congress to amend the Constitution to ban flag burning. The vote was 11 to 0. [Ed. note — Why amend the Constitution when an Article III statute would suffice?]

"For the most part, Miers operated in the background, leaving her colleagues perplexed about her political ideology. She also had a tendency to switch stances on critical issues, a trait supporters said showed her thoughtfulness but that critics labeled indecision.

" ‘We spent about 1,200 hours together and had in excess of 6,000 agenda items, and I never knew where Harriet was going to be on any of those items until she cast her vote,’ former council colleague Jim Buerger said. ‘I wouldn’t consider her a liberal, a moderate or a conservative, and I can’t honestly think of any cause she championed.’ …

"Miers led the council’s efforts to settle a key housing discrimination lawsuit after a federal judge ruled that the city had perpetuated segregated public housing.

"Although at one point she criticized the resulting record $118.7 million settlement as so open-ended as to constitute a ‘blank check,’ the civil rights lawyers who brought the case credit her with hammering out the guts of the deal and said that Miers’s problem was that certain provisions left the city open to liability indefinitely, not the substance of the agreement."

SHE PUSHED LOW INCOME HOUSING IN AFFLUENT NEIGHBORHOODS

"Among other things the agreement forced the city to demolish or renovate dilapidated minority-occupied housing projects and increase the supply of low-income housing in more affluent, white suburban neighborhoods. Miers subsequently voted to make it easier to prove housing discrimination cases by lowering the burden of proof. …

"The federal judge in the housing case subsequently handed down another important decision, on voting rights, saying that Dallas’ election system discriminated against blacks and Hispanics. Opponents charged the judge was substituting his own preferences for the law, but Miers would not criticize him.

"After initially supporting a voter-approved plan that was opposed by African American and Hispanic leaders, Miers switched sides and advocated the plan supported by the minority community – a plan that eliminated citywide seats like hers." Source: Jo Becker, The Washington Post, 10/8/05, pp. 1, A8

ELAINE DONNELLY: "I am very disappointed by the President’s choice for the Supreme Court, and regret that I have no choice but to explain the apparent implications of the nomination of Harriet Miers to the Supreme Court. Ms. Miers does not have a judicial ‘paper trail,’ but her record as White House Counsel is a legitimate cause for concern. Democrats and liberals who are willing to use the military for purposes of social experimentation have reason to be pleased."

"In either case, White House Counsel Harriet Miers has apparently allowed the Administration to flaunt the law. (I am assuming that the many messages I sent to the White House on this issue were forwarded to Ms. Miers, among others, as the public debate developed over the past 18 months.)

"In the same way, I can only conclude that Ms. Miers approved of the Bush Administration’s incomprehensible retention of Clinton’s ‘don’t ask, don’t tell’ (DADT) regulations, which are different from the 1993 law that Congress actually passed. Again, either Miers is for Clinton’s indefensible, expendable policy, or she does not understand the implications of DADT. President Bush could have eliminated that administrative policy early in his Administration while upholding the law. Instead, the confusing illogical [sic] of DADT could result in the law being declared unconstitutional by a future Supreme Court decision, with [or] without reference to foreign court rulings."

"Judge Michael Luttig, as a member of the 4^th Circuit Court of Appeals, wrote unequivocally about the difference between the law and DADT. Instead of naming Luttig or someone like him to the Supreme Court, Bush has named a less-than-stellar nominee because she is an old friend. That relationship would be enough to recommend Ms. Miers to any other administration job, but not to the Supreme Court. Too much is at stake.

"In August I took the precaution of making a special trip to Washington to ensure that everyone concerned with the Roberts nomination understood what the Lohrenz v. Donnelly & CMR case, which D.C. Court of Appeals Judge Roberts helped to dismiss, was all about. I also raised the judicial issues of deference to the military and opposition to foreign court opinions being used in Supreme Court decisions. Democrats did not raise the Lohrenz case, which was fine, and Roberts gave excellent answers on the judicial/military issues that CMR is concerned about.

"But on both of these judicial/military issues, we now have a nominee who is likely to confuse the issue of what the Administration’s position is on women in combat, registering women for Selective Service, and gays in the military. To which policy will the Supreme Court defer?"

"As with women in combat, the President has said one thing and done another, and let us down. What’s worse, it appears that he has let the military down." Source: Elaine Donnelly (President, Center for Military Readiness), elaine@cmrlink.org, 10/3/05

"[S]ome point to her role in attempting to keep the American Bar Association neutral on the issue of abortion. But a long time Miers friend, Darrell Jordan, also a former president of the Texas Bar Association, told the Dallas Morning News, ‘It had nothing to do whether she was pro-choice or pro-life. That was irrelevant to the issue.’ Jordan is quoted again in a Los Angeles Times article today suggesting that Miers would be hesitant to overturn Roe, ‘I think she would take the view that only in the rarest of circumstances would she do something to reverse that kind of precedent.’ " Source: Gary Bauer, American Values, 10/5/05

"Troy Newman, president of the anti-abortion group Operation Rescue, said he felt ‘betrayed’ by Mr. Bush and believed that the president had capitulated to the left because ‘Republicans are on the ropes’ over the administration’s handling of the Iraq war and Hurricane Katrina.

"The president ‘was given a mandate by the American people to reform the Supreme Court,’ Mr. Newman said in a phone interview. … Bush promised us [he] would appoint justices in the line of Scalia and Thomas, and our position is: Mr. President, Ms. Miers is no Scalia or Thomas.’ " Source: Maeve Reston, Pittsburgh Post-Gazette, 10/4/05

"Handed a once-in-a-generation opportunity to return the Supreme Court to constitutionalism, George W. Bush passed over a dozen of the finest jurists of his day – to name his personal lawyer.

"In a decision deeply disheartening to those who invested such hopes in him, Bush may have tossed away his and our last chance to roll back the social revolution imposed upon us by our judicial dictatorship since the days of Earl Warren. …"

"What is depressing here is not what the nomination tells us of her, but what it tells us of the president who appointed her. For in selecting her, Bush capitulated to the diversity-mongers, used a critical Supreme Court seat to reward a crony, and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the court in the image of Scalia and Thomas. In picking her, Bush ran from a fight. The conservative movement has been had – and not for the first time by a president by the name of Bush.

"Choosing Miers, the president passed over outstanding judges and proven constitutionalists like Michael Luttig of the 4^th Circuit and Sam Alito of the 3^rd. And if he could not take the heat from the First Lady, and had to name a woman, what was wrong with U.S. appellate court judges Janice Rogers Brown, Priscilla Owens and Edith Jones?

"What must these jurists think today about their president today? How does Bush explain to his people why Brown, Owens and Jones were passed over for Miers? …"

"What does it tell us that [the] White House, in selling her to the party and press, is pointing out that Miers ‘has no paper [trail].’ What does that mean, other than that she is not a Rehnquist, a Bork, a Scalia or a Thomas? …

"A paper trail is the mark of a lawyer, a scholar or a judge who has shared the action and passion of his or her time, taken a stand on the great questions, accepted public abuse for articulating convictions."

"Why is a judicial cipher like Harriet Miers to be preferred to a judicial conservative like Edith Jones?

"One reason: Because the White House fears nominees ‘with a paper trail’ will be rejected by the Senate, and this White House fears, above all else, losing. So, it has chosen not to fight."

"Bush had a chance for greatness in remaking the Supreme Court, a chance to succeed where his Republican [predecessors] from Nixon to his father all failed. He instinctively recoiled from it. He blew it. His only hope now is that Harriet Miers, if confirmed, will not vote like the lady she replaced, or, worse, like his father’s choice who also had ‘no paper trail,’ David Souter." Source: Patrick Buchanan, Human Events on Line, 10/3/05

"The White House and its surrogates spent most of yesterday dealing with fire from the right, pleading with conservatives to give Miss Miers a chance.

" ‘This is a pick that was made from weakness,’ radio talk show host Rush Limbaugh declared. ‘There was an opportunity here to show strength and confidence and I don’t think this is it. There are plenty of known quantities out there who would be superb for the court.’

"Vice President Dick Cheney called in to soothe him.

" ‘I’m confident that she has a conservative judicial philosophy that you’d be comfortable with, Rush,’ he said. ‘I’ve worked closely with Harriet for five years. I’ve seen her and worked closely with her, hand in glove with her.’ " Source: Charles Hurt, The Washington Times, 10/4/05, pp. 1, A9

"Just imagine a nominee that said to Schumer, Leahy, Feinstein, Kennedy, etc.:

" ‘I am a conservative. I believe the carnage of one million abortions a year is not required by our Constitution. I see nothing in our founding documents that requires "under God" to be removed from the Pledge of Allegiance. Our Founders did not write a Constitution that requires us to permit men to "marry" men. I look forward to an open and frank discussion with the Judiciary Committee on these matters.’

"The White House would have had millions of activists and average Americans on the battlefield with them, instead of the division it has today."

"Have we grown so timid and are we so lacking in confidence that we believe we will lose such a debate? Great majorities of the [country] are with us on marriage and on religious liberty. On abortion the divide is more narrow, but still very winnable for our side. If Senate liberals were to block the president’s nominee on these issues, I believe the result would be a Senate with fewer liberals in 2006."

"Instead, our ‘trumpet’ is uncertain. Our strategy is ‘stealth,’ and our cause is unclear. Even if Harriet Miers ends up being surprisingly good on the Supreme Court, surely this isn’t the way for men and women of God to change minds and touch hearts. It isn’t even the way for conservatives to be the governing majority of the country." Source: Gary Bauer, American Values, 10/4/05

Excerpted from Howard Phillips Issues & Strategy Bulletin of August 15, 2005

John Glover Roberts, Jr., George W. Bush’s nominee to the U.S. Supreme Court, is no Antonin Scalia. It appears he is more like an Anthony Kennedy.

As reported in the Los Angeles Times (Richard Serrano, 8/4/05): "Supreme Court nominee John G. Roberts Jr. worked behind the scenes for a coalition of gay-rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation.

"Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay activists as part of his law firm’s pro bono work. While he did not write the legal briefs or argue the case before the Supreme Court, he was instrumental in reviewing the filings and preparing oral arguments, according to several lawyers intimately involved in the case."

"The coalition won its case, 6 to 3, in what gay activists described at the time as the movement’s most important legal victory. The three dissenting justices were those to whom Roberts is frequently likened for their conservative ideology – Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas. …"

"The lawyer who asked for his help on the case, Walter A. Smith Jr., then-head of the pro bono department at Hogan & Hartson, said Roberts did not hesitate. ‘He said, "Let’s do it." And it’s illustrative of his open-mindedness, his fair-mindedness. He did a brilliant job,’ Smith said."

"Roberts did not mention his work on the gay-rights case in his 67-page response to a Senate Judiciary Committee questionnaire released Tuesday.

"The committee asked for ‘specific instances’ in which he had performed pro bono work, how he had fulfilled those responsibilities, and the amount of time he had devoted to them. …

"Jean Dubofsky, lead attorney on the case and a former member of the Colorado Supreme Court, said she came to Washington to prepare for the Supreme Court presentation and immediately was referred to Roberts.

" ‘Everybody said Roberts was one of the people I should talk to,’ Dubofsky said. ‘He has a better idea on how to make an effective argument to a court that is pretty conservative, and hasn’t been very receptive to gay rights.’ "

"The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Activists across the country cheered the victory. Suzanne B. Goldberg, a staff attorney for Lambda, a legal services group for gays and lesbians based in New York, called it the ‘single most important positive ruling in the history of the gay-rights movement.’"

There are several reasons for conservatives, Christians, and Constitutionalists generally to be troubled by the voluntary assistance provided to the homosexual activists by Mr. Roberts. Among them are these:

1) Judge Roberts did not disclose his involvement when he responded to a specific question on the questionnaire he filed with the Senate Judiciary Committee;

2) Judge Roberts apparently had no moral objection to using his skills to advance the homosexual agenda;

3) It suggests an absence of an understanding by Mr. Roberts that homosexual conduct is sinful and ought to be discouraged;

4) It suggests that, as a Supreme Court Justice, Judge Roberts would divorce himself from common law principles and Biblical morality in determining his position in particular cases; and

5) It is another example of how Judge Roberts seems to go out of his way to pander to those on the Left who might otherwise oppose him."

Pending further explanation, it seems necessary to withhold support for the confirmation of Judge Roberts to be a Justice of the U.S. Supreme Court. We do not need another Anthony Kennedy, Sandra Day O’Connor, or David Souter.

Here is the opinion of the Supreme Court in the case of Romer v. Evans as delivered (May 20, 1996) by Associate Justice Anthony Kennedy. This opinion was facilitated by assistance Mr. Roberts provided to the homosexual proponents in their brief before the Court:

"The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. … The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. … which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. … What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. …

"Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads:

"No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.’ Ibid. …

"The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association….

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. … the judgment of the Supreme Court of Colorado is affirmed."

Joining Kennedy in his opinion were Justices John Paul Stevens, Sandra Day O’Connor, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

SCALIA DISSENTS: ELITE PANDERING TO HOMOSEXUAL ACTIVISTS OUGHT NOT OVERRIDE CONSTITUTIONAL GUARANTEES

Antonin Scalia filed a dissent in which Rehnquist and Thomas joined, and Scalia observed:

"The constitutional amendment before us here is not the manifestation of a ‘bare … desire to harm’ homosexuals … but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. …

"In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick … and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. … Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality … is evil."

"When the president announced John Roberts’ nomination to the United States Supreme Court – the most powerful deliberative body in the world, membership in which comes with lifetime tenure – I had doubts."

"As I said in a previous column, I wanted a nominee whose professional life was a 4-lane highway paved with paper. I wanted a picture window on his soul – I mean an iron-clad guarantee that we weren’t getting another Souter in Scalia-clothing.

"Everything we know about John Roberts says here is a man who’s been polishing his resume since age six – a go-to guy who wanted to be liked by his colleagues, a savvy lawyer who put his conscience in a blind trust to advance his career."

"When the nomination was announced, the White House breathlessly informed us that when Roberts was tapped for the DC Circuit Court, 152 members of the DC Bar – prominent Democrats as well as Republicans – sang his praises to the Senate Judiciary Committee. Never trust a man who’s universally loved. Real conservatives are despised by the left."

"Before last week’s revelations, it was still possible to give Roberts the benefit of the doubt. Not any more. In an August 4^th article, the Los Angeles Times disclosed that as a partner with the high-octane DC law firm of Hogan & Hartson, in the mid-1990s, Roberts helped a homosexual group engineer one of the most disastrous Supreme Court decisions of the past two decades."

"In Romer v. Evans (1996), the Court overturned an amendment to the Colorado Constitution – passed by 53% of the state’s voters – prohibiting municipalities from enacting so-called gay rights laws (conferring special status based on bedroom behavior). It was the first time the Court recognized homosexuals as a protected class for civil rights purposes."

"Romer led directly to Lawrence v. Texas (2003), which declared laws against homosexual sodomy unconstitutional. If the Supreme Court ever finds a right to same-sex marriage banging around in the 14^th Amendment’s Equal Protection Clause, Romer will be the precedent."

"In his blistering dissent, Justice Antonin Scalia (supposedly the president’s model for Supreme Court nominees) said the majority opinion in Romer: ‘has no foundation in American constitutional law and barely pretends to. The people of Colorado have adopted an entirely reasonable provision….Amendment 2 (the initiative the Court threw out) is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will.’ "

"And Bush’s first Supreme Court nominee helped facilitate this national disaster. According [to] Walter A. Smith Jr. (then the head of the firm’s pro-bono department), when he approached Roberts to assist the Lambda Legal Defense Fund in helping it to demolish the nation’s moral foundation, the Great Right Hope didn’t hesitate, ‘Let’s do it!’ Roberts reportedly said."

"And do it he did. He read briefs, participated in a moot court session (to prepare the Lambda lawyer for the kind of tough questions she might get in oral arguments) and coached her on strategy. Jean Dubofsky, the plaintiff’s lead attorney, recalls that Roberts instructed her, ‘You have to know how to count and to get five votes. You’re going to have to pick up the middle.’ Advising gay litigators on how to push their cause is like giving Rommel a French road map."

"Says Smith, who now runs a liberal interest group: ‘I would have expected on these cases that he (Roberts) would turn them down. But none of them raised so serious a concern to him personally.’

"Their conversation might have gone something like this:

"Smith: ‘John, I’d like you to help us get civil-rights status for homosexuals. We want to negate the will of Colorado voters, further eroding representative government in this country. We hope to establish the precedent that a state’s voters are to have no say over whether localities can create special rights based solely on performing certain sex acts.’

"Roberts: ‘Delighted to help. I have no serious concern about marshalling the troops for this particular assault on Judeo-Christian values.’ "

"Roberts’ apologists on the right (who are legion) are trying to rationalize his participation in this case, arguing:

"1) His involvement was minimal. Supposedly, Roberts only spent 5 hours on the case. 2) As a lawyer with Hogan and Hartson, Roberts was expected to take pro-bono cases, regardless of his personal opinions. 3) There’s no way that this can be taken as a sign that the nominee supports gay rights. (In other words, Roberts has never actually been seen leaving a motel with Barney Frank.)

"In reality, Roberts’ contribution to the case was crucial. He worked in the Reagan Justice Department, clerked for Chief Justice William Rehnquist and argued 39 cases before the Supreme Court. Thus, he was perfectly positioned to provide insights into the thinking of conservative justices – how to counter the objections they’d likely raise to the anti-Amendment 2 position."

"If Smith had gone to one of the many liberal lawyers at Hogan & Hartson and asked them to help Operation Rescue with a challenge to Roe v. Wade, or to assist the NRA in trying to overturn the assault weapons ban – what do you think the response would have been?

"But for Roberts – a solid conservative and a strict constructionist, the administration’s conservative cheerleaders assure us – assisting the homosexual lobby to establish a lethal precedent raised ‘no serious concern.’ "

"Romer isn’t Roberts’ only pandering to political correctness. He spent over 200 hours representing DC welfare queens who saw their free-lunch counter shut down during a budget crisis."

"He also helped a Florida mass murderer (who gunned down eight people in two drug-related shootings) in his attempts to have his death sentence vacated on the grounds of temporary insanity (which certain conservative leaders may be pleading after Roberts has been on the Court for a few years)."

"Smith discloses: ‘Unlike a lot of conservative lawyers at the firm, I don’t think that John had a doctrinaire view about certain issues that would cause him to say, "I shouldn’t work on that." ’ This suggests that other conservatives at Hogan and Hartson declined to be involved in such cases, based on principle. Not John Roberts.

"It makes you wonder what other issues – besides gay rights – Roberts does not hold ‘doctrinaire views’ (i.e., is morally flexible) on: abortion, religious expression in the public square or applying European standards to American justice?

"I don’t know if John Roberts supports gay rights or welfare rights or the rights of mass murderers. But neither do his conservative defenders. And neither does George Bush."

"After solemnly and repeatedly promising the right Supreme Court nominees who are intellectual clones of Thomas and Scalia, the president gave us a man without a paper trail, a 50-year-old lawyer who isn’t on record expressing a conviction about anything more controversial than a preference for tuna-fish sandwiches over BLTs – a moral tabula rasa."

"Ann Coulter points out that, before he was confirmed, there was more in the background of David Souter to suggest he would be a conservative vote on the Court than there is in Roberts’ history.

"Apparently, the president’s priority is less putting another conservative on the Supreme Court, than getting one of his nominees confirmed without much of a fight. …

"My take on Roberts: Ambitious, obsessively cautious, sociable and morally flexible – not the temperament that produces a Thomas or a Scalia.

"Souter me once, shame on you. Souter me twice, shame on me." 8/8/05

"—‘He’s a scholarly man; he has a good education; he has been recommended by legal authorities; he has a good record in lower courts.’ – President Bush

"—‘This decision had the advantage of being acceptable to conservatives, plus Democrats won’t be able to attack him. There is nothing to grab a hold of, to whack him on.’ – An administration official.

"—‘Virtually every conservative who knows him trusts him and thinks he’s a competent guy.’ – Newt Gingrich

"—‘(He) has voiced opposition to many forms of abortion. He dislikes affirmative-action programs, contending that they amount to reverse discrimination. Also, he has vigorously defended … the Lord’s Prayer in its public schools.’ – Los Angeles Times

"—‘He is a remarkable intellect and he’s had great experience and he’s had wide knowledge, and you all would enjoy an evening or more with him.’ – C. Boyden Gray

"—‘This guy is a complete S.O.B. of a conservative and you can’t prove it.’ – P.J. O’Rourke

"—‘When you look at the man’s record, his experience, his integrity and his ability to deal with tough questions of law in a way that the courts should, in a restrained way, not to attempt to legislate from the bench, I think he’s a man in tune with the times.’ – Dick Thornburgh

"—‘His view is: "Here’s what it says state government can do – and if it doesn’t say it can do it, then it can’t do it." ’ – Lawyer who argued cases before the nominee

"—‘(He) seems to be a judicial conservative, what we call a constitutional constructionist. … That’s satisfactory with us, if that’s true.’ – National Right to Life’s John Willke

"—‘He is a "stealth nominee." … The right’s not yelling; the left is trying to yell but can’t find much to yell about.’ – Bob Beckel

"—‘This is a home run.’ – President Bush’s chief of staff

"He is David Hackett Souter, only the most recent reason Republican presidents – especially Republican presidents named ‘Bush’ – have lost the right to say ‘Trust me’ when it comes to Supreme Court nominations.

"The other reasons are: Earl Warren, William Brennan, Harry Blackmun, John Paul Stevens, Sandra Day O’Connor and Anthony Kennedy."

"Like John Roberts, Souter attended church regularly. Souter was also touted for his great intellect. He went to Harvard! And Harvard Law! (Since when does that impress right-wingers? So did Larry Tribe. It is one of the eternal mysteries of the world that liberals are good test-takers.)"

"At least when Souter was nominated, we needed a stealth nominee. The Senate was majority Democrat back then. The Judiciary Committee consisted of eight Democrats and six Republicans – two of whom were aggressively pro-abortion. A year later, faced with the same Democratic Senate, the current president’s father nominated Clarence Thomas. Who would have thought the current Bush would be less macho than his father?

"Roberts would have been a fine candidate for a Senate in Democratic hands. But now we have 55 Republican seats in the Senate and the vice president to cast a deciding vote – and Son of Read-My-Lips gives us another ideological blind date.

"Fifty-five seats means every single Democrat in the Senate could vote against a Republican Supreme Court nominee – highly unlikely considering some of those Democrats are up for election next year – along with John McCain, Arlen Specter, Olympia Snowe, Susan Collins and Lincoln Chafee. We would still win.

"Of course it’s possible that Roberts will buck history – all known human history when it comes to the Supreme Court – and be another Scalia or Thomas. (And we’ll hear this news while attending a World Series game between the Cubs and, oh, say … the Detroit Tigers.)

"That will not retrospectively alter the fact that Bush and all the other Zarathustra Republicans cheering for Roberts haven’t the first idea what kind of justice Roberts will be right now. They are telling us their hopes and dreams. …"

"Bush said ‘Trust me,’ and Republicans trust him. It shouldn’t be difficult for conservatives to convince themselves that Roberts is our man. They’ve had practice convincing themselves of the same thing with Warren, Brennan, Blackmun, Stevens, O’Connor, Kennedy and Souter."

Source: Ann Coulter, www.anncoulter.com, 7/27/05

Excerpted from Howard Phillips Issues & Strategy Bulletin of July 31, 2005

"Supreme Court nominee Judge John G. Roberts wrote that Congress should not be able to strip federal courts of jurisdiction in cases involving school prayer, according to a previously undisclosed document obtained by The Washington Times."

"The document contradicts newspaper and wire-service reports that suggest he favored legislation aimed at barring federal courts from reviewing school prayer cases."

ACCORDINGLY, HE WOULD OPPOSE CONSTITUTION RESTORATION ACT (CRA)

" ‘Such bills were bad policy and should be opposed on policy grounds,’ he wrote in a May 6, 1985, memo to his boss, White House Counsel Fred Fielding. …

"Mr. Roberts wrote the 1985 memo in response to a request from the White House Office of Management and Budget, which sought a legal opinion on the proposed Voluntary School Prayer Act of 1985.

" ‘This bill would divest the Supreme Court of jurisdiction to hear any case involving voluntary school prayer,’ he wrote on White House stationery.

"Mr. Roberts then noted that he had already looked into the issue when he was an assistant attorney general. Although he concluded such bills were ‘bad policy,’ he acknowledged they were not expressly prohibited by the Constitution.

" ‘After an exhaustive review at the Department of Justice, I determined that such bills were within the constitutional powers of Congress to fix the appellate jurisdiction of the Supreme Court,’ he explained. …

"Mr. Roberts believed such bills should be opposed on policy, not constitutional, grounds…." Source: Bill Sammon, The Washington Times, 7/28/05, p. A22

"Democrats should recognize an olive branch when they see it.

"By choosing John G. Roberts to replace Sandra Day O’Connor on the Supreme Court, President Bush came as close as possible to finding a non-ideological, consensus nominee who can also lay claim to being a Republican. …

"Roberts has no far-reaching ideology, no creative articles, no revolutionary plans for constitutional law. He looks like an emblem of the Washington establishment….

"He is most likely to follow the center of the court in its current direction … as a standing member of the Washington establishment he won’t try to turn the ship around or steer it to a completely different port. … Roberts is no Robert Bork…. Confirming Roberts could also be the first step in bringing consensus to the Supreme Court itself." Source: John Yoo, The Washington Post, 7/21/05, p. A23