Supreme Court nomination hot links; judging Judge Roberts on employment law

Though not an employment story, the Supreme Court nomination should be of interest to all.

Aside from the Court’s impact on fundamental and hot-button issues affecting us all, each term the Court decides a number of labor and employment cases. See Ross Runkel’s Supreme Court Review: 2004-2005 Employment Law Cases

Here, I’m doing two modest things, and refraining from adding much analysis of my own.

First, I’m listing some of the sites to watch. The Roberts nomination and upcoming confirmation process are being blogged by the very best. The blogosphere will outpace traditional journalism on this story. Many of the best experts will get quoted on the subject only in brief out-of-context sound bites on the evening news, or the print equivalent. But they will be blogging in depth. Caveat: this is not a comprehensive list: I didn’t research it, other than casually websurfing around from one to the other.

Second, several bloggers from our HR/Employment corner of the blogosphere have already compiled extensive information on Judge Roberts from the employment law perspective, illustrating the speed and depth of blogosphere coverage.

Blawg Review # 16 preempts me with an excellent job of the first of the above tasks.

Blawg Review #16 is up at Objective Justice. No wild and crazy stuff, just a nice normal job of blawg aggregation.

Leads off with the Roberts nomination, suggesting an excellent standard for evaluating the nominee: “Does Roberts seem like the type of guy you would want to go get a beer with.”

After answering that question affirmatively, with explanation, Blawg Review goes on with some good links about the nomination, overlapping somewhat with what is to follow here.

A Mainstream Legal Press Story to Get Started

Friday’s ABA e-Journal has this: “Judging Roberts: High Court Nominee’s Rep Ranges from ‘Lawyer’s Lawyer’ to ‘Superhottie,’” by Molly McDonough.

This piece informs us that while the Senate is doing its thing with this nomination, the ABA will be working more quietly on “a nationwide peer review”:

Investigators will scour each judicial circuit, conducting confidential interviews about the judge’s integrity, professional competence and judicial temperament. Teams of law school professors have been assigned to examine Roberts’ written work, and a team of Supreme Court practitioners will do the same.

May this important and time-consuming work receive appropriate publicity and Senatorial attention.

Craig Bradley of the Indiana University School of Law-Bloomington is quoted:

“He really doesn’t come across as an ideologue.” . . . Bradley also points out that just because Roberts is a former Rehnquist clerk doesn’t mean he’s an ideological clone of Rehnquist.

“It’s more likely than not that he’s pretty conservative,” Bradley says. “But there’s conservative and there’s conservative. My hope will be that he will be in the mold of [Justice Sandra Day] O’Connor and conservatives who have concern for precedent. There’s no sign that he’s a right-wing firebrand.

Bradley’s knowledge of Roberts is as a fellow “Rehnquist clerk alumnus who got to know Roberts during law clerk reunions.”

Wowie Zowie! Only two (or is that one?) degrees of separation from John Roberts! I went to Indiana University-Bloomington and had Craig Bradley as a law professor! And he knows Roberts!

Hot Links (add their RSS feeds to your newsreader to stay atop this story)

Goldstein & Howe, P.C., creators of SCOTUSblog, the definitive blog on the Supreme Court, have started a sister blog, Supreme Court Nomination Blog. If you read only one of these, I’d recommend this one, as it looks to be comprehensive and full of linkage.

PointofLaw.com has started a category on the Roberts nomination.

This outstanding right-leaning blog promises to bring together a great team of law profs to cover the story. An early sample (follow the link to get all the links I was too lazy to copy over):

Eight or nine things we know about him:

He isn’t a member of the Federalist Society after all. It’s not safe to infer that he agrees with the positions advanced in the briefs he prepared. President Bush’s strange facial expressions while introducing him the other night have been explained. He’s done pro bono work on behalf of welfare recipients challenging eligibility restrictions. His replacement of O’Connor might shift the Court’s jurisprudence on affirmative action, church-state separation, election law and the regulation of late-term abortion. He’s apparently never made a ruling on a Daubert issue. Florida plaintiff’s lawyer Dean Colson, a fellow Rehnquist clerk, was best man at his wedding. He’s unlikely to start spouting off to Senators at hearings. One of his law school classmates recalls him saying “to me a long time ago there was no case he had been on where he couldn’t have done the other side.”

Other posts promise much more serious jurisprudential analysis and counterattacks on the liberal attacks on Roberts (a preview: “Fair Game in Judicial Confirmation Hearings”).

Another impressive group of law profs gathers at PrawfsBlawg (”A group of young legal turkeys offering their thoughts on law and the things that really matter in life.”)

Sample: “The Religious Test Clause and the Roberts Nomination”

For something lighter and offbeat, to relieve the mental stress from reading all the serious commentary, click over to Underneath Their Robes (”News, gossip, and colorful commentary about the federal judiciary”), where anonymous blogger “Article III Groupie” (”A3G”) will track the story from her usual entertaining and unique angle.

Sample: “The Roberts Nomination: And What About da Clerks?” Nugget:

One former Roberts clerk with a decent shot at a SCOTUS clerkship . . . : the extremely handsome Matthew D. McGill, currently an associate at the awe-inspiring firm of Gibson, Dunn & Crutcher . . . After clerking for Judge Joseph M. McLaughlin (2d Cir.) and Judge Roberts, McGill served as a Bristow Fellow. This stint in the Solicitor General’s office gives Matt the added advantage of familiarity with Supreme Court litigation.

Finally, it must be noted that Matt McGill is the beau of the luscious Lori Alvino, who is clerking at the Court this coming Term for Justice Ruth Bader Ginsburg. Take a look at the happy — and photogenic — couple, pictured at left . . . Judge Roberts, wouldn’t it be nice to give Matt and Lori the chance to spend some quality time together?

A few for a leftish view.

Think Progress: Supreme Court Extra

Sample: “Roberts Would Swing Supreme Court to Right”

Despite his mild manner and midwestern charm, the nomination of John G. Roberts, Jr. . . . is a seismic event that threatens to deepen the nation’s red-blue divide. Instead of choosing a consensus candidate,. . . Bush has opted for a conservative thoroughbred who, if confirmed, will likely swing the Court sharply to the right on many critical issues. . .

There’s no doubt Judge Roberts has a brilliant legal mind. . . . But a Supreme Court nominee must be evaluated on more than legal intellect. . . .
What we already know from Judge Roberts’ record is cause for concern. His legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.

With remarkable consistency throughout his career, Roberts has applied his legal talent to further the cause of the far right. His activities fit the profile of a social, political, and economic conservative and, importantly, not a judicial conservative. His record suggests that he has a substantive vision for American law—a right-wing vision antagonistic to important rights and protections we currently enjoy—and that he is not afraid to flex judicial muscles to achieve it.

TPMCafe: Politics, Ideas and Lots of Caffeine, Supreme Court Watch, a group blog, leads with: “No Extreme Supremes”:

The good news is that the public is already demanding that Judge Roberts’ record be reviewed thoroughly and carefully. A recent CNN/Gallup/USA Today survey suggests that most Americans are reserving judgment on Judge Roberts until they find out more about his views on important issues.

That is good news. The public follows my advice about keeping an open mind?

National Women’s Law Center: NominationWatch.org

Guess what issue is the focus of the only single-issue Supreme Court nomination blog I ran across (I’m sure there are others). Surprise: it’s “reproductive rights” (a/k/a abortion a/k/a choice a/k/a life).

Wake up, pro-choicers and right-to-lifers. That’s not what this is about. A Supreme Court nomination must not revolve around a single issue – any issue. That does not mean Judge Roberts’ possible vote to overrule Roe v. Wade does not concern me.

It’s a grave step indeed to overrule a deeply ingrained case such as Roe, however controversial, and one that a conservative judge may hesitate to take, whatever his personal beliefs, because overruling established precedent is a decidedly non-conservative thing to do.

As a practicing lawyer, I want to be able to count on stability in the law, particularly as established by the Supreme Court. Existing precedent is the raw material for lawyers’ stock in trade: advice, arguments, jury instructions, motions, and briefs.

Roe is just one instance in which this key issue of respect for precedent could arise, and this larger issue is certainly fair game for questioning, as in: “Judge Roberts, under what circumstances do you think it is appropriate for the Supreme Court to directly overrule its own precedent?”

Collections of Roberts’ Cases

Selected D.C Circuit opinions by Judge Roberts, from Supreme Court Nomination Blog

One interesting point, from PDK Lab., Inc. v. United States DEA, 362 F.3d 786 (CADC 2004): Judge Roberts “wrote separately to express concern about the breadth of the majority opinion . . . : “This is a sufficient ground for deciding this case, and the cardinal principle of judicial restraint–if it is not necessary to decide more, it is necessary not to decide more–counsels us to go no further.”

Will he adhere to this viewpoint? I generally like it. I suspect some of the undesirable fragmentation of the Court into narrow majority decisions and multiple opinions is caused by trying to say too much — in violation of this “cardinal principle.” A Justice dedicated not to scoring ideological points, but to seeking broad consensus for closely drawn opinions would be most welcome.

Summaries of cases Roberts argued, from Oyez.

Selected Commentary

“Roberts’ Place On The Ideological Spectrum of the D.C. Circuit”

Here’s the kind of analysis you’re getting (very promptly) in the blogosphere:

In an effort to gauge where Judge Roberts has fallen along the ideological spectrum in the D.C. Circuit, we reviewed each of the approximately 200 decisions in which Judge Roberts voted during his brief tenure on the court of appeals.

Wow!

“The Presidents’ Man: Why John Roberts’ service in the White House Counsel’s office matters,” by Hugh Hewitt.

The four years that John Roberts served as associate counsel to President Reagan . . . is passed over quickly on the way to noting Roberts’s extraordinary record as an advocate before the SCOTUS . . . That service is one of the many reasons why Judge Roberts will make an outstanding Supreme Court jurist. . .

[C]lose scrutiny of presidential power from . . . within the executive branch provides very clear vision on the limits of presidential power as well as its necessary reach. For those who have served presidents at close range, the Article II [executive powers] debates that come before them are never academic, and that is a very good thing for the Court and the country.

The selection of John Roberts puts before the Senate a nominee of unquestioned intellectual accomplishment and promise, as well as a man of great character, graciousness, and good humor.

But it also brings to the highest court the sort of experience it deserves among its members, especially in a time of war. It can only help all the justices, even those who will vigorously disagree with the new justice from time to time, to have within their number a genuine voice of experience from within the inner circles of presidential decision-making.

“Grasping at French Fries: Evaluating Judge Roberts,” by Daniel Solove

We’re really grasping at French fries, I think, to fuel our speculation over Judge Roberts. The only thing we can say for sure is that we have so extremely little to go on. Circuit court judges are bound by Supreme Court precedent, are also bound by the precedent of their circuit. So we don’t know much about how they’ll be when they’re unbound, when they grow comfortable in their Supreme Court robes. And advocates argue their clients’ positions, not their own, so we’ll never know if any of the statements he made as a lawyer were his own beliefs.

Certainly we can read the tiny opus of opinions Judge Roberts authored in his short stint as a judge. But it often takes time for judges to ripen on the bench, so even these will not be very telling. The short of it is that we just don’t know. And that’s what’s so frustrating.

The source of the french fry metaphor? “Ansche Hedgepeth’s French Fry,” by Kim Lane Scheppele.

Ansche Hedgepeth was, at the time of her crime, 12 years old. She was waiting . . . at [a] Metrorail station in Washington, DC when she committed the fateful act.

She opened the fast food bag she was carrying and ate one French fry – in plain view of an undercover police officer.

[She was arrested for violating . . . ] a city ordinance against eating in Metro stations.

Read the post to see how Judge Roberts ruled. And here’s Heidi Bond’s excellent comment on the french fry case, from the Letters of Marque blog. Heidi is a U. Mich. law student, and her post is followed by a string of comments demonstrating how blogging is enhancing legal education.

“Roberts’ Rhetoric” (PrawfsBlawg):

While not approaching the florid prose of Justice Scalia, Judge Roberts’ opinions have some interesting rhetorical characteristics—amounting to what I might call the judicial version of “compassionate conservatism.” The two cases that have provided a focal point for commentary, Hedgepath v. Washington Metropolitan Area Transit Authority and Rancho Viejo v. Norton, exemplify this style, which consists in expressing demonstrative sympathy for the unfortunate “victim” of official action, while at the same time proclaiming that no legal remedy exists.

From the left, a thoughtful and moderate view: “Evaluating Roberts: Sympathy for the Devil”

Judge Roberts and Employment Law

Jottings By An Employer’s Lawyer: “A More Complete List of Judge John Roberts’ Labor and Employment Related Decisions”

Jottings By An Employer’s Lawyer: “Senator Schumer’s Questions - Limited Role of Labor and Employment Law Issues”

Confined Space:

[T]he question on all Confined Space readers’ minds today is:”‘How is John Roberts on workplace safety and labor issues?”

The answer is probably not great.

All Deliberate Speed: “Roberts By The Numbers.” Look at this, along with the Jottings post cited above, to get a great overview of the Roberts employment law record, such as it is.

(photos by Justin DC/Justin T. Johnson (Supreme Court building) and hawaii/Ryan Ozawavia(kid w/ gavel) via flickr)