Ted Kennedy Eyes the Court

...The first order of business is digging for as much information as possible on Bush's nominee, with or without White House compliance...

...He is, however, as close to a "blank slate" as the Bush Administration could get...

...A lower court had previously ruled that the military tribunals violated the Geneva Conventions and were an illegal extension of Presidential power...

...The kind of conservative that Judge Roberts is fits in so well with the Rehnquist vision," Shapiro said...

...That is the significance of Roberts's judicial philosophy...

...Whatisitabout the admittedly non-confrontational Roberts that so appealstothe rightwing Bush Administration...

...Even without all the documents the White House is withholding, it's pretty clear that Roberts is not the hoped-for unifying nominee...

...While the right likes him for his work for conservative political causes, particularly a memo he wrote when he was a lawyer for the first Bush Administration suggesting Roe v. Wade was "wrongly decided and should be overturned," centrists point out that he was merely doing his job as an advocate for his client, and that the language was Administration boilerplate...

...Since the Commerce Clause is also the foundation of various other federally recognized rights-most notably, the civil rights of minorities to be free from segregation and other racially discriminatory state laws, as well as the minimum wage, workers' rights, and Social Security-his opinion could have radical implications...

...Should liberals save their fire for a more obvious ideologue...

...When the White House dumped mounds of carefully screened pages of memoranda and other records from Roberts's career, Kennedy took to the floor to object to the "staged photo-ops with thousands of very old documents that will not give the Senate much insight into John Roberts's more recent views and record as a high federal official...

...At the time, Attorney General Alberto Gonzales was considered a possible nominee, and some on the left were suggesting he would be an agreeable choice because of his moderate views on abortion...

...So his perspective now, as a Democratic leader on the Judiciary Committee, and as savvy and active a politician as ever, is revealing...

...Kennedy pledged not to "prejudge" any nominee based on a single issue or political background, but he emphasized the importance of knowing a Supreme Court candidate's judicial philosophy...

...Roberts and Rehnquist may take us several giant steps backwards with their fundamentalist interpretation of the Constitution, rolling back the gains of the civil rights movement, federally recognized environmental standards, basic workplace protections, the right to privacy, and a host of other constitutional protections Americans now take for granted...

...Kennedy added: "The United States Senate and the American people also are entitled to know what the White House knows about John Roberts...

...We have to go through the whole process to see," he demurred...

...Further, Shapiro says Roberts is a justice in the Rehnquist mold...

...But," he adds now, "if someone would clearly fail to uphold basic rights, that should be considered, and the Senate is entitled to know...

...A lawyer in the solicitor general's office, he pointed out on the Senate floor, "works for all the American people-not just the President," adding that the claim of attorney-client privilege "clearly does not prevent them from providing, or the Senate from receiving, these vital materials...

...So are the American people...

...Bush, he pointed out, has stated that it is important to examine any potential nominee's judicial philosophy, and Chief Justice William Rehnquist himself said of the Supreme Court justices, "We should not accept a blank slate...

...Kennedy immediately went on the attack...

...The Senator has been through twenty previous Supreme Court nomination processes, and he wanted to put the current political moment in perspective...

...So I don't think Rehnquist is going to retire...

...Is it possible that, with all the focus on the issue of abortion, Democrats who were willing to embrace Gonzales are missing the real danger of Bush's Supreme Court selection...

...Shapiro had this analysis of Bush's choice of Roberts: "The deepest motivation of the Bush Administration in choosing him, along with the questions of con-firmability and so on, is, in fact, that he's a judge who will reliably extend Presidential power in the war on terror...

...I don't think any vote we cast in the U.S...

...Inthe meeting with Kennedy, Yale journalism professor and Supreme Court watchdog Bruce Shapiro raised an interesting question that gets to the point...

...So far the White House, claiming attorney-client privilege, has declined to provide all of Roberts's material while he worked for President Reagan and the first President Bush in the solicitor general's office...

...He had argued essentially that the President need not answer to Congress or to the courts for the treatment of prisoners at Guant?-namo...

...The chief justice looks forward, no doubt, to sitting on the court with his prot?g?, bringing to fruition the "Rehnquist revolution...

...Robert Kennedy's famous portrait from his Appalachian poverty tour hangs in his office, as well as pictures of Martin Luther King and other civil rights marchers...

...Maybe Kennedy was just staking out a good political position, or maybe there was real reason to hope...

...Still, Shapiro pointed out, on the fundamental constitutional issue of balance of power, Gonzales was awful...

...Shapiro pointed to Roberts's decision as part of a three-judge panel ruling that military tribunals at Guant?namo may continue, and that terrorism suspects need not be granted prisoner-of-war status under the Geneva Conventions...

...Someone who on the one hand believes in eroding the power of the federal government over civil rights enforcement, environmental regulation, and so on, and on the other hand believes in strengthening the power of the Executive Branch, giving police agencies, giving the state, giving, in particular, the Presidency ever greater power...

...When I pressed him on Shapiro's point, he conceded that people might not necessarily see Gonzales as a unifying candidate...

...In other words, the other shoe may already have dropped...

...Still, the nominating process has become a cat-and-mouse game, as nominees decline to answer questions, and the Administration chooses to withhold relevant documents...

...I think that's the bottom line...

...In supporting Thurgood Marshall's nomination for the Supreme Court in 1967, Kennedy had a hand in shaping the liberal judicial legacy the Bush Administration is actively working to undo...

...Although he is widely respected as a brilliant lawyer and someone with deep respect for the law, as opposed to a results-oriented political activist, Roberts has made some strikingly backward legal rulings that appear to go against "settled" interpretations of constitutional rights...

...Political Eye Ruth Conniff Ted Kennedy Eyes the Court On a steamy Thursday afternoon in July, just days before President Bush chose John Roberts for the Supreme Court, Senator Ted Kennedy gathered a group of journalists in his Capitol "hideaway" office to talk about the Democrats' developing strategy for dealing with the Court question...

...Idon't want this to turn into a game of 'we know their views, but we're not going to tell you.'" In fact, that is exactly what happened...

...How bad is Roberts...

...This Administration is going to know the positions of its nominees," Kennedy told us...

...Some take comfort in his assertion during his appeals court confirmation process that Roe is "settled law" and that (as an appeals court judge) he would have no trouble upholding it...

...When Justice Thurgood Marshall, the architect of modern civil rights, was nominated to the Supreme Court in 1967, Senator Kennedy said, in his support, "I believe it's recognized by most Senators that we are not charged with the responsibility of approving [justices] if [their] views always coincide with our own...

...The question for Democrats is what to do now...

...Senate is as important as the one we cast for the Supreme Court," Kennedy began...

...There was hope, he told the group, that the President would pick a "unifying candidate"- someone who could bring the country together...

...Kennedy's career spans the triumphs of liberal politics in shaping modern American consciousness...

...There were several names of potential candidates floating around who were serious, respected constitutional scholars, not rightwing political activists...

...The answers to these questions are still evolving...

...For instance, in a case involving the Endangered Species Act, Rancho Viejo v. Norton, he issued an opinion that questioned the use of the Commerce Clause to protect the environment...

...On Democracy Now...

...And when will the other shoe drop-the Rehnquist replacement...

...What we do know about Roberts raises plenty of cause for concern...

...Ruth Conniff is the political editor of The Progressive...

...Kennedy agreed that Gonzales "would have to answer some questions...

...Conversations between the White House and Senate Democrats were going well...

...We are really interested in knowing whether the nominee has the background, experience, qualifications, temperament, and integrity to handle this most sensitive, important, and responsible job...