Justice or Just Us?
Justice for Oil?
After the Warren Commission and Bush v. Gore, the illusion
of an independent judiciary is over
on this page
John Roberts and the Cheney Energy Task Force
John Roberts and the Florida 2000 "recount"
abortion is not the issue (as important as that is)
fascism and covert government is the real reason to reject
Roberts -- and the Democrats do not have an interest in exposing this, so Roberts
will be confirmed to a lifetime position
Interesting that Cheney/Bush picked a judge who supports Cheney's efforts
to keep information secret from the 2001 "National Energy Policy Development
Group."
The best introduction to the importance of the "Cheney Energy Task Force"
is
www.fromthewilderness.com/free/ww3/011805_simplify_case.shtml
Crossing the Rubicon:
Simplifying the case against Dick Cheney
by Michael Kane
Perhaps the fact that Cheney/Bush didn't pick a female candidate for the Supreme
Court to replace Sandra Day O'Connor will help keep this nomination from being
confirmed - but after Bush v. Gore, there's no need to have illusions about
the Supreme Court.
The message sent by this nomination is that "Justice" is really
"just us."
from "People for the American Way"
www.pfaw.org/pfaw/general/default.aspx?oid=13523
John Roberts, DC Circuit
In the short time since he was confirmed by the Senate in May 2003, Judge
Roberts has issued troubling dissents from decisions by the full D.C. Circuit
not to reconsider two important rulings. These included a decision upholding
the constitutionality of the Endangered Species Act as applied in a California
case and a ruling against Bush Administration efforts to keep secret the records
concerning Vice President Cheney's energy task force.
Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003): constitutionality
of Endangered Species Act
This case involved a real estate development company's contention that the
application of the Endangered Species Act to its construction project in California
was an unconstitutional exercise of federal authority under the Commerce Clause.
After the United States Fish and Wildlife Service determined that the company's
project "was likely to jeopardize the continued existence of the arroyo
southwestern toad," placed on the Endangered Species List by the Secretary
of the Interior in 1994, the company filed suit "[r]ather than accept
an alternative plan proposed by the Service." Rancho Viejo, LLC v. Norton,
323 F.3d 1062, 1064 (D.C. Cir. 2003). The district court dismissed the company's
complaint, and a panel of the D.C. Circuit unanimously upheld the dismissal
(323 F.3d 1062), following prior D.C. Circuit precedent upholding congressional
authority under the Endangered Species Act. By a vote of 7-2, the D.C. Circuit
denied a petition for rehearing en banc (by the entire court) of the panel's
ruling.
The only dissenters were Judges Roberts and Sentelle. All of the other Republican-appointed
judges on the court - Judges Ginsburg, Henderson, and Randolph - joined the
court's Democratic appointees in voting to deny rehearing en banc. The panel's
opinion upholding the authority of Congress under the Commerce Clause in this
case not only followed D.C. Circuit precedent, but was also consistent with
a recent ruling of the Fourth Circuit in Gibbs v. Babbitt, 214 F.3d 483 (4th
Cir. 2000), cert. denied, 531 U.S. 1145 (2001). The opinion in that case upholding
the authority of Congress to protect endangered species on private lands was
written by Judge J. Harvie Wilkinson, a conservative Republican-appointee.
Roberts's dissent in Rancho Viejo strongly suggested that he thought it would
be unconstitutional to apply the Endangered Species Act in this case. By his
vote to rehear the case and thus potentially reverse the district court, Roberts
indicated that he may well be ready to join the ranks of such right-wing officials
as Judge Michael Luttig (who dissented in Gibbs) and Alabama Attorney General
William Pryor - nominated by President Bush to the Eleventh Circuit - in their
efforts to severely limit the authority of Congress to protect environmental
quality as well as the rights and interests of ordinary Americans.
In re: Richard B. Cheney, Vice President of the United States, 2003 U.S.
App. LEXIS 18831 (D.C. Cir. 2003), cert. granted, 2003 U.S. LEXIS 9205 (2003): secrecy of Vice President Cheney's energy task force
Judge Roberts was one of the dissenters in the court's 5-3 denial of a petition
for rehearing en banc (with one judge not participating) filed by the Bush
Administration in its continuing efforts to avoid releasing records pertaining
to Vice President Cheney's energy task force. This ruling came in litigation
brought by Judicial Watch and the Sierra Club charging that the Vice President's
task force had violated federal law by not making its records public. The
court's ruling marked "the fourth time a judicial panel has rebuffed
efforts to keep the information from the public." Carol D. Leonnig, "Energy
Task Force Appeal Refused," Washington Post (Sept. 12, 2003). At the
Administration's urging, the Supreme Court has agreed to review the case;
a decision is expected by the end of June 2004.
Title: Bush Judicial Nominees Bring Close Corporate Ties to the Bench
Source: Courting Influence
URL Source: www.courtinginfluence.net/inv_findings.php? id=4
Published: May 20, 2005
Center for Investigative Reporting Makes Judges' Financial Data Public
President George W. Bush’s nominees to some of the most influential
positions on the federal bench during his first term are notable for their
close ties to corporate interests, especially the energy and mining industries,
according to a new investigation by the Center for Investigative Reporting.
Many of the nominees have been appointed to judgeships holding central jurisdiction
over litigation affecting these industries.
CIR is making its research available to other journalists and the public via
this website marking the first time that the financial disclosure statements
and Senate confirmation questionnaires of federal judicial nominees have been
made freely and easily accessible to the public. CIR’s investigation
focuses on the Bush administration’s 59 judicial nominees to federal
courts of appeals and the U.S. Court of Federal Claims, which hears major
property rights claims and land disputes.
The investigation reveals that more than a third of President Bush’s
nominees to these federal courts – 21 of 59 nominations since 2001 –
have a history of working as lawyers and lobbyists on behalf of the oil, gas
and energy industries. Eighteen of the 21 have been nominated to the Appellate
Courts in the 4th, 5th, 9th, 10th and District of Columbia circuits where
those same industries frequently battle over cases with huge financial interests
at stake. These five circuit courts are at the forefront of establishing judicial
precedent on matters involving conflicts over natural resources. The placement
of the nominees suggests an administration strategy of nominating corporate
friendly judges in circuits where they will make the greatest impact. In many
cases, these same corporations and industries are also major campaign contributors
to the Bush Administration and the Republican Party.
Among the findings:
* 5th Circuit Court nominee Charles Pickering, who was appointed by President
Bush through a controversial "recess appointment" in January 2004,
is the resident agent and managing member of an oil and gas exploration company
in his home state of Mississippi. Pickering's son Charles "Chip"
Pickering Jr., a four-term U.S. Congressman and a House Energy Committee member,
filed financial disclosure documents in July showing he is a partner in his
father's Mississippi oil business. The New Orleans-based 5th Circuit covers
three oil producing Gulf Coast states. Prior to this appointment, Pickering
was, since 1990, a sitting federal district court judge in Mississippi where
he heard dozens of cases involving the oil and energy industry.
* In April 2000, Washington DC lawyer John Roberts filed an amicus
brief on behalf of the National Mining Association in the federal 4th Circuit
Court to block a lawsuit filed by West Virginia citizens opposed to the coal
industry's destructive "mountaintop removal" practice. Two years
later, Roberts was nominated by President Bush and confirmed to the powerful
DC Circuit Court of Appeals. In April 2004, as a judge on that court, Roberts
ruled against environmentalists who were pushing for more restrictive government
regulations over copper smelters--many of whose owners are members of the
National Mining Association--that emit toxic lead and arsenic pollutants.
* Four nominees have worked as registered lobbyists for the energy and mining
industries, promoting the legislative agendas of companies such as Enron,
Peabody Coal and Andalex Resources. Seventeen others have litigated on behalf
of energy industry clients – including Kennecott Energy and other coal
and oil companies – while working for corporate law firms.
* 9th Circuit Court nominee William Myers worked as a lobbyist in Washington
on behalf of the nation's three largest coal companies during the late 1990's
and through the 2000 election campaign. Those three companies – Peabody,
Kennecott and Arch – frequently fight their legal battles in the 9th
Circuit, which covers nine western states and is one of the key courts to
hear natural resources disputes involving energy and mining companies. As
reported by CIR, Peabody Coal had two cases pending before the 9th Circuit
when the Senate Judiciary Committee voted to confirm Myers’ nomination
in April, 2004. A Democratic filibuster has thus far blocked Myers’
confirmation, but President Bush has continued to express his support for
Myers and the possibility of a recess appointment remains.
* At least nine nominees are board members, advisers or active members of
conservative legal think tanks such as the Washington Legal Foundation and
the Defenders of Property Rights, which have been strident advocates of less
government oversight over natural resource industries, and supporters of "takings"
compensation - two themes that are frequently at the core of environmental
conflicts in the courts.
* Twenty-five of the nominees contributed at least $1,000 to Bush's election
campaign in 2000. Three of the nominees worked for Whitewater prosecutor Ken
Starr's investigations of former President Bill Clinton; one was Republican
Senate counsel during Clinton's impeachment trial.
Legal scholars have told CIR that the nominations suggest a concerted effort
to seed courts with individuals pre-disposed toward the corporate interests
within their jurisdictional domain, raising the potential for the appearance,
at the very least, of conflict of interest. Even the appearance of conflict
of interest, according to legal experts, can undermine public trust in the
courts.
Sheldon Goldman, a political scientist at University of Massachusetts at Amherst
and author of Picking Federal Judges (Yale University Press, 1999) says that
putting a lobbyist on the bench -- from whatever industry -- inevitably raises
questions as to their ability to be "fair and objective" when faced
with cases relating to the industry on behalf of whose interests they once
lobbied.
Others observe a growing trend toward the nomination of judges with prior
industry connections. "It's quite new and striking to have this many
people with these particular backgrounds, and is quite a contrast to President
Clinton's nominees," says Jay Feinman, a professor at Rutgers University
School of Law, whose book, Un-Making Law, on efforts to roll back consumer
protection in the courts, was published in Fall 2004. "Increasingly you
will have federal courts with a pro-industry and anti-government perspective."
Elliot Slotnick, a political science professor at Ohio State University who
has closely studied the judicial nomination process, says that the data suggests
there may be even closer industry ties to judges today than there were during
the 1920's, an era notorious for the influence wielded by railroad and insurance
companies over the composition of the federal courts.
About This Project
In the course of its investigation, CIR collected the financial disclosure
forms that each nominee submitted to the Senate Judicial Committee and to
the Administrative Office of the U.S. Courts. These documenta contain details
of positions held, businesses owned, sources of income, free trips and debts.
Whie members of the U.S. Congress and senior members of the executive branch
must routinely file statements of their financial holdings, federal judges
enjoy special privileges that help shield their information. For example,
judges are permitted to redact information at their own discretion, and are
informed of who made the request in advance of releasing it. Congress is scheduled
to revisit these provisions in 2005. (View a full description of financial
disclosure regulations).
Judges & Nominees in this investigation finding: William Myers III, Sr.,
Charles Pickering
http://slate.msn.com/id/2121270/?nav=ais
The Supreme Court Shortlist
The views of the likely candidates.
By Emily Bazelon and David Newman
Updated Friday, July 1, 2005, at 8:34 AM PT
John Roberts
Age: 50
Graduated from: Harvard Law School.
He clerked for: Judge Henry Friendly, Chief Justice William Rehnquist.
He used to be: associate counsel to the president for Ronald Reagan, deputy
solicitor general for George H.W. Bush, partner at Hogan & Hartson.
He's now: a judge on the U.S. Court of Appeals for the D.C. Circuit (appointed
2003).
His confirmation battle: Roberts has been floated as a nominee who could win
widespread support in the Senate. Not so likely. He hasn't been on the bench
long enough for his judicial opinions to provide much ammunition for liberal
opposition groups. But his record as a lawyer for the Reagan and first Bush
administrations and in private practice is down-the-line conservative on key
contested fronts, including abortion, separation of church and state, and environmental
protection.
Civil Rights and Liberties
For a unanimous panel, denied the weak civil rights claims of a 12-year-old
girl who was arrested and handcuffed in a Washington, D.C., Metro station for
eating a French fry. Roberts noted that "no one is very happy about the
events that led to this litigation" and that the Metro authority had changed
the policy that led to her arrest. (Hedgepeth v. Washington Metropolitan Area
Transit Authority, 2004).
In private practice, wrote a friend-of-the-court brief arguing that Congress
had failed to justify a Department of Transportation affirmative action program.
(Adarand Constructors, Inc. v. Mineta, 2001).
For Reagan, opposed a congressional effort—in the wake of the 1980 Supreme
Court decision Mobile v. Bolden—to make it easier for minorities to successfully
argue that their votes had been diluted under the Voting Rights Act.
Separation of Church and State
For Bush I, co-authored a friend-of-the-court brief arguing that public high-school
graduation programs could include religious ceremonies. The Supreme Court disagreed
by a vote of 5-4. (Lee v. Weisman, 1992)
Environmental Protection and Property Rights
Voted for rehearing in a case about whether a developer had to take down a fence
so that the arroyo toad could move freely through its habitat. Roberts argued
that the panel was wrong to rule against the developer because the regulations
on behalf of the toad, promulgated under the Endangered Species Act, overstepped
the federal government's power to regulate interstate commerce. At the end of
his opinion, Roberts suggested that rehearing would allow the court to "consider
alternative grounds" for protecting the toad that are "more consistent
with Supreme Court precedent." (Rancho Viejo v. Nortion, 2003)
For Bush I, argued that environmental groups concerned about mining on public
lands had not proved enough about the impact of the government's actions to
give them standing to sue. The Supreme Court adopted this argument. (Lujan v.
National Wildlife Federation, 1990)
Criminal Law
Joined a unanimous opinion ruling that a police officer who searched the trunk
of a car without saying that he was looking for evidence of a crime (the standard
for constitutionality) still conducted the search legally, because there was
a reasonable basis to think contraband was in the trunk, regardless of whether
the officer was thinking in those terms. (U.S. v. Brown, 2004)
Habeas Corpus
Joined a unanimous opinion denying the claim of a prisoner who argued that by
tightening parole rules in the middle of his sentence, the government subjected
him to an unconstitutional after-the-fact punishment. The panel reversed its
decision after a Supreme Court ruling directly contradicted it. (Fletcher v.
District of Columbia, 2004)
Abortion
For Bush I, successfully helped argue that doctors and clinics receiving federal
funds may not talk to patients about abortion. (Rust v. Sullivan, 1991)
Judicial Philosophy
Concurring in a decision allowing President Bush to halt suits by Americans
against Iraq as the country rebuilds, Roberts called for deference to the executive
and for a literal reading of the relevant statute. (Acree v. Republic of Iraq,
2004)
In an article written as a law student, argued that the phrase "just compensation"
in the Fifth Amendment, which limits the government in the taking of private
property, should be "informed by changing norms of justice." This
sounds like a nod to liberal constitutional theory, but Roberts' alternative
interpretation was more protective of property interests than Supreme Court
law at the time.
www.smirkingchimp.com/article.php?sid=21675&mode=nested&order=0
Robyn E. Blumner: 'After Rehnquist'
By Robyn E. Blumner, St. Petersburg Times
© 2005 St. Petersburg Times
Reprinted from The St. Petersburg Times:
www.sptimes.com/2005/06/26/Columns/After_Rehnquist.shtml
.... Another judge who appears to be a finalist is John Roberts Jr., who
was appointed to the D.C. Circuit Court by Bush in 2003. He is 50 years old
- that magic number - and has a minimal judicial record to review, considered
a plus in a bruising confirmation battle.
His conservative stripes were earned mostly while serving in the Justice Department
under Reagan and the first President Bush. While there, Roberts co-wrote briefs
pushing the Supreme Court to overturn longstanding precedents on civil liberties.
In a case involving the constitutionality of a federal law barring doctors
who receive federal funds from counseling their patients on abortion, Roberts
went beyond the question presented in the case to argue for overruling Roe
vs. Wade.
When the high court was considering the issue of prayer at public school graduations,
Roberts urged the court in a friend-of-the-court brief to find those prayers
constitutional and exhorted the court to loosen its test for keeping church
and state separate.
Supreme Court nominee John Roberts was not named in the
Iran/Contra Independent Counsel report, as Secrecy News
erroneously reported today (Secrecy News)
SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2005, Issue No. 67 - correction
July 20, 2005** JUDGE ROBERTS AND THE IRAN-CONTRA AFFAIR (CORRECTION)
Supreme Court nominee John Roberts was not named in the
Iran/Contra Independent Counsel report, as Secrecy News
erroneously reported today.
There were two individuals named John Roberts who served in the
Reagan Administration -- John G. Roberts, Jr., the former
Associate Counsel to the President and present Supreme Court
nominee, and John B. Roberts II, who served in the White House
political office.
It was the latter individual who was named in the Iran/Contra
report.
Secrecy News regrets the error.
www.commondreams.org/headlines05/0721-07.htm
Published on Thursday, July 21, 2005 by the Miami Herald
Roberts Gave GOP Advice in 2000 Recount
John G. Roberts, President Bush's nominee to the U.S. Supreme Court, played
a role in the chaotic, 36-day period following the disputed 2000 presidential
election.
by Gary Fineout and Mary Ellen Klas
TALLAHASSEE -- U.S. Supreme Court nominee John G. Roberts provided legal
advice to Gov. Jeb Bush in the weeks following the November 2000 election
as part of the effort to make sure the governor's brother won the disputed
presidential vote.
Roberts, at the time a private attorney in Washington, D.C., came to Tallahassee
to advise the state's Republican administration as it was trying to prevent
a Democratic end-run that the GOP feared might give the election to Al Gore,
sources told The Herald.Judge Roberts worked to ensure that George Bush would
become president -- regardless of what the courts might decide. And now he
is being rewarded for that partisan service by being appointed to the nation's
highest court.
US Rep. Robert Wexler (D-Florida)
The maneuver, which the Democrats never attempted, might have kept the state
from sending its list of official ''electors'' -- the Electoral College members
who actually cast the votes that count -- to Congress and the National Archives.
If the names were not forwarded to Washington in a timely fashion, Republicans
feared, Gore might be declared the winner because Florida's 25 electoral votes
wouldn't be counted -- and the Democrat had garnered more electoral votes
than George W. Bush in the rest of the country.
Roberts, himself a noted constitutional lawyer, and an unnamed law professor
spent between 30 and 40 minutes talking to Bush in the governor's conference
room, sources told The Herald.
Roberts' perceived partisanship during the recount has been enough for some
Democrats to suggest that his nomination should be rejected by the U.S. Senate.
A spokesman for the governor confirmed Wednesday that Bush met with Roberts
during the recount.
Roberts was ''one of several experts who came to Florida to share their ideas,''
said spokesman Jacob DiPietre. Roberts came ``at his own expense and met with
Gov. Bush to share what he believed the governor's responsibilities were under
federal law after a presidential election and a presidential election under
dispute.''
The reason that Roberts was tapped: His connection to Dean Colson, a lawyer
with the Miami firm of Colson Hicks Eidson. Colson had been a clerk for Supreme
Court Justice William Rehnquist at the same time as Roberts in 1980 and was
best man at Roberts' wedding. Brian Yablonski, who was then a top aide to
the governor, worked at the Colson law firm before he went to work with Bush.
Since the recount, the ties between the firm where Roberts worked at the time,
Hogan & Hartson, and Florida's government has grown deeper, as Hogan &
Hartson has taken on several high-profile legal jobs in the state. The firm,
for which Roberts worked from 1986 to 1989 and again from 1993 to 2003, represents
and lobbies the Legislature for the Scripps Research Institute, which was
given $500 million by state and local governments to set up an operation in
Florida.
When Roberts came to Tallahassee in November 2000, he outlined for the governor
the formal process that needed to be followed once the Florida popular vote
was certified for Bush. At least one book documenting the period, Too Close
to Call by journalist Jeffrey Toobin, said Bush strategists feared Gore attorneys
would try to block the state from sending the ''certificate of ascertainment''
-- the list of electors -- to the National Archives. That book documents the
elaborate lengths to which the governor's staff went to ensure that the certificate
-- which said Bush had won -- was not subpoenaed by Democrats and stopped
in its tracks.
DiPietre refused to answer questions on Roberts' role during the recount or
why the governor talked to the attorney after his vow to recuse himself from
the dispute.
`SALT ON THE WOUNDS'
U.S. Rep. Robert Wexler, a Boca Raton Democrat, seized on Roberts' participation
in the 2000 recount and suggested it should be grounds for rejecting his nomination.
Wexler suggested the nomination ``threw salt on the wounds of the thousands
of Floridians whose voting rights were disenfranchised during the 2000 election.
''Judge Roberts worked to ensure that George Bush would become president --
regardless of what the courts might decide,'' Wexler said, relying on news
accounts that suggested Roberts gave the governor advice on how the state
Legislature could name Bush the winner. ``And now he is being rewarded for
that partisan service by being appointed to the nation's highest court.''
U.S. Rep. Tom Feeney, an Oviedo Republican who was state House Speaker during
the tumultuous recount period, shot back that involvement in the recount effort
would automatically disqualify a lot of lawyers.
That viewpoint was echoed by Benjamin Ginsberg, who was chief counsel for
the Bush-Cheney 2000 campaign.
Roberts ''was not part of the Bush-Cheney operation,'' Ginsberg said. ``What's
cool about that time in Florida is it attracted a lot of constitutional lawyers
and they were brought in as fast as possible. It was Woodstock for constitutional
lawyers.''
Both Feeney and one of the top lawyers for the Florida House of Representatives
said Wednesday that the idea of having the GOP-controlled Legislature intervene
in the recount controversy arose in the chamber itself, and that outside lawyers
actually frowned on the notion.
STATE TIES
Since the recount, the ties between Hogan & Hartson have deepened with
Gov. Bush's administration. Carol Licko, the governor's first general counsel,
became a partner with Hogan & Hartson after her Miami firm was acquired
by the bigger Washington firm.
Hogan & Hartson, which didn't open its first Florida office until 2000,
has handled several high profile cases for the state of Florida in the past
five years, including representing the state in a water-rights dispute against
Georgia and Alabama. Hogan & Hartson also represented the state in a court
fight against Coastal Petroleum, a company that held leases to drill for oil
in the Gulf of Mexico. Earlier this summer the state reached a settlement
to buy back the leases from Coastal.
Herald staff writers Marc Caputo, Lesley Clark, Carol Rosenberg and Jay Weaver
contributed to this report.
© Copyright 2005 Miami Herald
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