Justice or Just Us?

After the Warren Commission and Bush v. Gore, the illusion of an independent judiciary is over

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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

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"

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


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)

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.


Robyn E. Blumner: 'After Rehnquist'
By Robyn E. Blumner, St. Petersburg Times
© 2005 St. Petersburg Times
Reprinted from The St. Petersburg Times:

.... 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)

from the FAS Project on Government Secrecy
Volume 2005, Issue No. 67 - 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
Secrecy News regrets the error.


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.
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.
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