Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (CADC 2003): Judge Roberts dissented from the denial of rehearing en banc in this case, which presented the question of whether the federal Endangered Species Act's application to the non-commerical Arroyo Toad exceeds the commerce clause authority of the federal government. As Judge Roberts argued, the panel's opinion incorrectly focused on "whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does so." Judge Roberts found this approach "inconsistent" with the Supreme Court's holdings in United States v. Lopez and United States v. Morrison. Quoting the Fifth Circuit's opinion in GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622 (CA5 2003), Judge Roberts pointed out that "looking primarily beyond the regulated activity ... would 'effectually obliterate' the limiting purpose of the Commerce Clause," and, under such an approach, "the facial challenges in Lopez and Morrison would have failed."I'll get back to that case in another post, but I'll just say that it seems to be the only fully ideological (not fact-driven) ruling as they describe the cases.
Overall, he seems committed to the facts and the details of particular cases. Now, he obviously knew his name was on the short list, so he may have been playing it safe. But this is what you want in a judge. You want someone who will review the facts on their own basis.
As Nitpicker notes, Roberts was rejected under Bush I as too extreme in his ideology. I don't want anything I wrote yesterday to be seen as an endorsement of Roberts.
Strategically, I don't think he's a good candidate for a filibuster, and I don't see Republicans voting against him. That means he'll get through, and my opinion won't change that.
This nomination has to lay the groundwork for Rehnquist's replacement. We need to make clear what the stakes are, how extreme this guy is, and how much more extreme the rest of the short list is. He's signed briefs while working for the White House arguing that Roe was wrongly decided, and has argued in favor of some forms of prayer in school. I think he's wrong on both counts, but he wasn't writing these briefs alone or with only his interests in mind.
I don't trust him, and I want real answers about those and many other rulings. Don't expect him to overturn Kelo or Lawrence v. Texas. Worry about a slippery slope on Roe, maybe more parental notification or carving out new classes of procedures, but don't expect him to attack Roe head on. Worry about unnecessarily harsh sentencing, and worry about a Commerce Clause so narrow that Congress can't govern.
More on that anon.
Quick summary: Roberts isn't as bad as he could have been. Clement would have been better. We won a small victory by forcing Bush out of the ideological mold of Scalia and Thomas, but a Rehnquist crony is a Nixon crony's crony. I still say we should ask tough questions and then move on.
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