Thursday, July 12, 2007

Seduced and abandoned

Long-time Faegre & Benson partner John French has the resume you would write if you sat down to make up the resume of a great lawyer: Harvard Law School, Law Review, clerk to Justice Felix Frankfurter. A DFLer, French nevertheless threw the weight of his not inconsiderable opinion behind John Roberts when he was nominated to be the new chief justice of the Supreme Court. Based on Robert's record as an appellate judge (including recently having voted to deny Salim Hamdan Common Article Three protection under the Geneva Conventions and upholding the president's military commissions, a part of which Scott Horton later said could not be called kangaroo courts without offending kangaroos), Spot was mystified by French's support of Roberts. French has some second thoughts, too:

Letter of the day: Restraint, thy name is not Justice Roberts

Published: July 12, 2007

When the Senate was considering the nomination of John Roberts to be a member of the U.S. Supreme Court, I wrote a letter urging that he be confirmed.

I based this recommendation on Roberts' public representations that he was guided by the principle of judicial restraint and that he most revered such great practitioners of judicial restraint as Justices Holmes, Brandeis, Frankfurter and Jackson.

Now, let's look briefly at some of the decisions in the Supreme Court term that just ended.

Notwithstanding decades of judicial support for affirmative action to rectify racial discrimination in the public schools, the court ruled that the use of race to determine placement at a school, even for the purpose of preventing resegregation, violated the 14th Amendment.

In the antitrust field, the court overturned one of its own price-fixing precedents that had stood for 96 years.

The court upheld the federal Partial-Birth Abortion Ban Act even though, in the year 2000, it had struck down a nearly identical state ban.

An inmate whose federal appeal was filed late because a judge gave the inmate's lawyer the wrong date lost his right of appeal even though the court had to overturn two earlier precedents to reach this result.

An important provision of the McCain-Feingold campaign finance reform law was struck down even though a 2003 decision of the court had upheld that statute.

And so on and so forth. As Justice Stephen Breyer wrote in one dissent, "It is not often in the law that so few have so quickly changed so much."

Chief Justice Roberts joined the majority in all of these cases. So much for Justices Holmes, Brandeis, Frankfurter and Jackson, and for the principle of judicial restraint.


By the way, boys and girls, guess who else French has endorsed?

Who, Spotty?

Rachel Paulose.


Yes really.

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