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Roberts saved Obama's law: Sen. Obama voted against his confirmation

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Updated with Obama 2005 Senate floor statement, full story....

WASHINGTON -- Chief Justice John Roberts saved the day for President Barack Obama on Thursday, providing the critical swing Supreme Court vote to uphold his signature health care law -- ironic since Obama declined to confirm him to the high court when he was a U.S. senator in 2005.

Roberts and Obama last were in the news together when Roberts flubbed a line when he swore Obama into office on Jan. 20, 2009, on the Capitol steps -- which led to a private redo in the White House the next day.

Roberts, raised in Long Beach, Ind. -- not far from Chicago -- graduated from La Lumiere School, a Catholic high school in LaPorte after attending Notre Dame in Michigan City. His father worked for Bethlehem Steel in Burns Harbor and Roberts spent summers at the steel mill lugging tools for electricians.

Supreme Court observers all bet wrong in guessing that Justice Anthony Kennedy would be the swing vote in a close 5-4 decision, putting chips on Kennedy perhaps mainly because he had played that role in the past.

Roberts, appointed by former President George W. Bush, a Republican, demonstrated that a string of past rulings are not always predictive. In a big surprise, the man seen as a bedrock conservative joined four liberal justices -- Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Stephen Breyer -- appointed by Democratic presidents in a historic opinion, which he authored.

Back in 2005, Obama met with Roberts before the confirmation vote and said at the time he had no doubt Roberts was qualified. Obama said in interviews and from the Senate floor he was concerned about the depth of Roberts' "empathy," didn't quite know what was in his "heart" and didn't want to be "flying blind" with a yes vote.

I wrote in 2005 that Obama thought Roberts should not have played his cards so close to his vest when he decided to say little about how he would decide cases.

"I think that given how closely divided the court is, and given the magnitude of some of the decisions that will probably be coming down during the course of his tenure on the court, that I will be flying blind a little bit," Obama said in 2005.

Obama took to the Senate floor on Sept. 22, 2005, to explain why Roberts should not be confirmed.

Legal precedents and constitutional interpretations could only go so far. "In those five percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision," Obama said.

"...In those difficult cases, the critical ingredient is supplied by what is in the judge's heart," said Obama.

Roberts obviously did pass muster -- he was confirmed 78-22. Vice President Joe Biden, then a senator from Delaware, also voted no, as did Sen. Dick Durbin (D-Ill.). Later on, Obama was hit with criticism from the left-of-center Democratic allied progressive political community when he voted to elevate Roberts to chief justice.


Click below for Obama's entire Senate statement from the Sept. 22, 2005 Congressional Record....

(Senate - September 22, 2005)
[Page: S10365]
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Mr. OBAMA. Mr. President, thank you very much.

[Page: S10366] GPO's PDF
First of all, let me congratulate Senator Specter and Senator Leahy for moving the process of confirming the nomination of Judge Roberts along with such civility, a civility that I believe speaks well of the Senate.

Let me also say that I remain distressed that the White House during this confirmation process, which overall went smoothly, failed to provide critical documents as part of the record that could have provided us with a better basis to make our judgment with respect to the nomination. This White House continues to stymie efforts on the part of the Senate to do its job. I hope with the next nominee who comes up for the Supreme Court that the White House recognizes that in fact it is its duty not just to the Senate but to the American people to make sure we can thoroughly and adequately evaluate the record of every single nominee who comes before us.

Having said that, the decision with respect to Judge Roberts' nomination has not been an easy one for me to make. As some of you know, I have not only argued cases before appellate courts but for 10 years was a member of the University of Chicago Law School faculty and taught courses in constitutional law. Part of the culture of the University of Chicago Law School faculty is to maintain a sense of collegiality between those people who hold different views. What engenders respect is not the particular outcome that a legal scholar arrives at but, rather, the intellectual rigor and honesty with which he or she arrives at a decision.

Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his résumé, his conduct during the hearings, and a conversation I had with him yesterday afternoon.

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court--adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

The problem I face--a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts--is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases--what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled--in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

The bottom line is this: I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes.

Let me conclude with just one more comment about this confirmation process.

I was deeply disturbed by some statements that were made by largely Democratic advocacy groups when ranking member Senator Leahy announced that he would support Judge Roberts. Although the scales have tipped in a different direction for me, I am deeply admiring of the work and the thought that Senator Leahy has put into making his decision. The knee-jerk unbending and what I consider to be unfair attacks on Senator Leahy's motives were unjustified. Unfortunately, both parties have fallen victim to this kind of pressure.

I believe every Senator on the other side of the aisle, if they were honest, would acknowledge that the same unyielding, unbending, dogmatic approach to judicial confirmation has in large part been responsible for the kind of poisonous atmosphere that exists in this Chamber regarding judicial nominations. It is tempting, then, for us on this side of the aisle to go tit for tat.

But what I would like to see is for all of us to recognize as we move forward to the next nominee that in fact the issues that are confronted by the Supreme Court are difficult issues. That is why they get up to the Supreme Court. The issues facing the Court are rarely black and white, and all advocacy groups who have a legitimate and profound interest in the decisions that are made by the Court should try to make certain that their advocacy reflects that complexity. These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process in the past and constrained each and every Senator in this Chamber from making sure that they are voting on the basis of their conscience.

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earlier version of post below...

WASHINGTON--In 2005, then Sen. Barack Obama (D-Ill.) voted against confirming John Roberts for the Supreme Court--the very justice who on on Thursday saved President Obama's signature health care law, providing the critical swing vote.

In explaining his vote against Roberts on Sept. 22, 2005, Sen. Obama said from the Senate floor, "The bottom line is this: I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes."

I wrote in 2005: Obama met with Roberts before the vote and explained his decision not to vote to confirm Roberts in part because Roberts kept his views to himself during the session and Obama did not like the notion that he would be "flying blind" in voting for Roberts.

And I wrote this: "Roberts' decision to "say as little as possible" about how he would decide cases was a concern. "I think that given how closely divided the court is, and given the magnitude of some of the decisions that will probably be coming down during the course of his tenure on the court, that I will be flying blind a little bit," Obama said.

Later in the year, Obama earned scorn from the progressive community when he voted to elevate Roberts to Chief Justice.

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Lynn Sweet

Lynn Sweet is a columnist and the Washington Bureau Chief for the Chicago Sun-Times.

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This page contains a single entry by Lynn Sweet published on June 28, 2012 10:30 AM.

Mitt statement on Supreme Court upholding Obama health care law 11:45 a.m. est was the previous entry in this blog.

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