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Chief Justice John Roberts
strikes his classic pose,
repressing a smile like
someone missing a front
tooth. But it's not a tooth
he's missing.





In a case of architecture imitating
life, a piece of the facade of the
Supreme Court building fell off
in November, 2005, narrowly mis-
sing some schoolchildren below.
The court's facade of impartiality
is in no better shape with the ap-
pointments of the last 20 years:
Reagan's Scalia (1986), Bush I's
Thomas (1989), and Bush II's
Roberts (2005) and Alito (2006).




By Robert C. Keating, Editor

Just four days before George W. Bush named John Roberts to fill retiring Justice Sandra Day O'Connor's seat on the Supreme Court, Judge Roberts cast the deciding vote in Hamdan vs. Rumsfeld before a D.C. federal appeals court. "In a crucial victory for the administration [overturned by the U.S. Supreme Court on June 29, 2006, with Roberts not taking part], the court upheld President Bush's creation of special military tribunals for trials of alleged terrorists and denied them the protection of the Geneva Convention. Roberts was one of the judges who decided that case, but he should have recused himself," according to law professors Stephen Gillers, David J. Luban and Steven Lubet, in a Los Angeles Times article September 15, 2005.¹

"While the case was pending in his court, Roberts was interviewing with high White House officials--including Attorney General Alberto R. Gonzales, Vice President Dick Cheney, and Deputy Chief of Staff Karl Rove--for a seat on the Supreme Court. In the words of the federal law on judicial disqualification, this placed the judge in a situation where 'his impartiality might reasonably be questioned'....

"In Hamdan vs. Rumsfeld, a three-judge panel upheld the use of military tribunals to try detainees held at the U.S. base in Guantanamo Bay, Cuba. But the decision didn't stop there. Roberts and a second judge also ruled that the Geneva Convention--which guarantees basic human rights--does not protect alleged Al Qaeda members. The third judge disagreed on the question of the Geneva Convention. Thus, Roberts cast a deciding vote on an issue of central importance to the president, just as administration aides were holding out the possibility that the president might choose him for a place on the highest court in the American legal system."

Roberts' decision was of extraordinary importance to the White House. "By rejecting the Geneva Convention's protections, the case eliminated an important legal safeguard against humiliating or degrading treatment of prisoners.

"Previous federal cases," the article says, "as well as advisory opinions of the Judicial Conference of the United States (the official policymaking body for the federal judiciary), have uniformly held that a judge must recuse himself when a lawyer in a case or a party to it is in a position to influence the judge's job prospects.

"Even if he considered disqualifying himself but decided against it, he should at least have notified Hamdan's attorneys once the administration showed serious interest in promoting him to the Supreme Court. That would have given them an opportunity to file a formal recusal motion and argue the point."¹

The Chief Justice sets the standard for recusal throughout the federal judiciary, and soon Roberts' poor example affected his colleagues. When the Supreme Court agreed to hear Hamdan vs. Rumsfeld, Associate Justice Antonin Scalia made his views on the case known before oral arguments even began. Asked in Switzerland about the claims of detainees like Hamdan, Scalia said, "Give me a break. If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield, and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean, it's crazy." (Scalia's son, Matthew, served with the U.S. Army in Iraq.)

An ordinary citizen who made such an outburst would not even be allowed to serve on a jury, but Justice Scalia refused to recuse himself from the Hamdan vs. Rumsfeld case. "Not only did he indicate that he had already made up his mind on the subject before Hamdan made a single argument, but he expressed a personal interest that affected his decision," law professor Jonathan Turley wrote in the Los Angeles Times.²

On June 29, 2006, the Supreme Court majority ruled for Hamdan, 5 to 3. The majority: John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer, David H. Souter, and Anthony M. Kennedy. The dissenters: Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. (This time Chief Justice Roberts sat out the case.)

In 2005 the media ignored two big stories in covering Roberts' nomination: the ethics breach involving the President and his pick for Chief Justice of the United States, and the long-range effect of Roberts' decision in Hamdan vs. Rumsfeld, which removed legal safeguards against the mistreatment of prisoners and "gave Bush near-absolute authority over detainees in the 'war on terror.'"² Instead of covering these stories, the media played Roberts' Supreme Court confirmation as a human interest story--focusing on how nice his family looked, and what a decent and good-humored man he seemed to be.

Roberts told the Senate Judiciary Committee during his confirmation hearings, "I have no platform." He said that he aspired to a humble and limited role as leader of the Supreme Court, and that the court should play a more modest role in American government.³ (Indeed, sitting by while a president removes basic legal protections certainly qualifies as "a more modest role" for the Supreme Court.)

"Justices and judges are servants of the law, not the other way around," Roberts told the Senate Judiciary Committee. "Judges are like umpires. Umpires don't make the rules; they apply them. Nobody ever went to a ball game to see the umpire."³

Nice try. But we're going to keep our eyes on you anyway, Ump.

¹Los Angeles Times, September 13, 2005. Stephen Gillers is a professor of law at New York University; David J. Luban is a professor of law and philosophy at Georgetown University (and a faculty colleague of Hamdan's attorney) and Steven Lubet is a professor of law at Northwestern University.
²Los Angeles Times, March 28, 2006. Jonathan Turley is a law professor at George Washington University.
³Los Angeles Times, September 13, 2005, David G. Savage.

© 2006 MostCorrupt.com


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