Author Archive | Denny Burk

What Do They Know That We Don’t?

At first blush, the nomination of John Roberts to the Supreme Court looks like a welcome development. All indications are that he is an originalist in his approach to constitutional interpretation—that is, he believes the constitution to have a fixed meaning grounded in the original intention of the framers.

Yet it also looks like Roberts fits the description of a so-called “establishment conservative”—meaning, he will show some degree of deference to the traditions of the high court. To this effect, Time magazine speculates:

“Roberts may agree in spirit with those who see the past 50 years of jurisprudence as too expansive and too intrusive but respect too much the way the law is shaped to ride in and blowtorch it. He may just prove willing to conserve even opinions he faults” (source).

So it may be that Judge Roberts is a judicial conservative. But does it not remain to be seen the extent to which he will be willing to overturn past precedent? This is precisely the concern raised by a handful of conservatives such as Fred Barnes and Ann Coulter, who are not certain that Roberts would vote to overturn Roe v. Wade.

Nevertheless, a bevy of well-known religious conservatives have lauded the Roberts nomination (see article in CT). For example, both James Dobson and Tony Perkins have expressed their approval of this nominee.

My question is, what do they know that we don’t know? I am trying to understand how folks like Dobson and Perkins can be so certain that Roberts will prove to be a good pick. Is it not possible that Roberts could turn out to be an establishment conservative who is unwilling to overturn a precedent like Roe v. Wade?

My hope is that George Bush knows something that we don’t know. So far in every situation, the President has remained true to his promises. If he has remained true to his pledge to nominate conservative judges, then he must know something that the rest of us don’t.


New Plame Memo: A Big Splash at the Washington Post?

The headline of a story in today’s Washington Post reads “Plame’s Identity Marked As Secret.” The first paragraph of the story goes on to state the following:

“A classified State Department memorandum central to a federal leak investigation contained information about CIA officer Valerie Plame in a paragraph marked ‘(S)’ for secret, a clear indication that any Bush administration official who read it should have been aware the information was classified.”

At first blush, this information looks very damning for Karl Rove. It’s the kind of headline that makes a really big splash on the front page of a newspaper. Yet one finds critical qualifications buried in the text of the story.

First, the memo was apparently written by a State Department intelligence analyst and was intended for then Secretary of State Colin Powell, not Karl Rove.

Second, though Valerie Wilson’s name appears in the paragraph marked as secret, it is not at all clear that her own status was marked as covert. It looks like her name appears merely as background.

For readers who bother to read the whole article, there’s not much of a splash after all.


Bush’s Man: John Roberts

Well, he’s not a woman like many were speculating. But John Roberts looks pretty good anyway.

Here’s the watershed quote from a brief Roberts co-wrote in 1990: “We continue to believe that Roe was wrongly decided and should be overruled . . . the Court’s conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure, or history of the Constitution” (source).

Some news outlets are already citing remarks that Judge Roberts made in 2003 in his confirmation hearing for the U.S. Court of Appeals for the District of Columbia: “Roe v. Wade is the settled law of the land . . . There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent” (source).

I don’t think we can conclude from this statement that a Justice Roberts would uphold Roe v. Wade if it ever came to that. As a lower court Judge, Roberts is obliged to follow Supreme Court precedent. But as a Supreme Court Justice, he can vote to overturn that precedent, and it seems that he has indicated that he would do just that.

So don’t get upset when you see the pundits playing these two quotes against one another. I don’t think they are necessarily at odds.

Washington Post
New York Times


SCOTUS Scuttlebutt

SCOTUS Scuttlebutt

I won’t pretend that I know who the President’s nominee will be to the Supreme Court. But I have been following the educated guesses of the pundits in the press. The scuttlebutt is that Bush will nominate a woman who is an originalist. Among those who might fit that description and who are likely candidates:

Edith Jones
Edith Brown Clement
Priscilla Owen
Janice Rogers Brown
Karen Williams
Alice Batchelder
Mary Anne Glendon
Lillian R. BeVier
John S. Shannon
Maura D. Corrigan

(Sources: Bill Kristol’s article and MSNBC’s list of prospective nominees.)

The Washington Post and MSNBC have pages that give information on many of these prospects. Some of the ones they list are not females.

Justin Taylor has links to profiles of some of the ones on this list.


Tonight’s the Night!

Be sure to tune in tonight at 9pm Eastern time (8pm Central) to hear President Bush’s announcement of his nominee to the Supreme Court.

Buckle your seatbelts, this will be the political ride of 2005. Get set for the battle royal that will make Election 2004 look like child’s play. Let the games begin!


Patrick Buchanan on the Plame Game

“Everybody knows this is about what Watergate was about and Iran-Contra was about: bringing down a Republican president the left could not defeat at the ballot box” (source).

We have come full circle. This is precisely what the Democrats accused the Republicans of doing when Bill Clinton was impeached. Go figure.


The Big Story

Time magazine reporter, Matt Cooper on “Meet the Press,” July 17, 2004

Now Time magazine’s Matt Cooper is outing Karl Rove as his source on the identity of CIA agent Valerie Plame. In an article in the most recent issue of Time, “What I Told The Grand Jury,” Matt Cooper reports the following: “So did Rove leak Plame’s name to me, or tell me she was covert? No. Was it through my conversation with Rove that I learned for the first time that Wilson’s wife worked at the CIA and may have been responsible for sending him? Yes. Did Rove say that she worked at the ‘agency’ on ‘WMD’? Yes” (source).

Whether Matt Cooper’s testimony will lead to an indictment of Karl Rove remains to be seen. One thing, however, does seem to be clear at this point. Time magazine seems to have arrived at the conclusion that Rove is guilty. Not only do the articles in the current issue point in this direction, but Time’s cooperation with the investigation and their reporter’s public airing of the whole matter on “Meet the Press” leave little doubt as to where they stand.

So much for impartial media coverage.


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