Josh's Weblog: Dear Mr. Poulson

Dear Mr. Poulson

I got a prompt reply!

Dear Mr. Poulson,

Thank you for writing to express your views on the nomination of John G. Roberts to be Chief Justice of the United States Supreme Court. I appreciate your thoughts on this critical issue.

We'll see how much she appreciates them below.

In a 78–22 decision, John Roberts has been confirmed by the Senate to become Chief Justice of the Supreme Court. As you may know, I opposed the confirmation of Chief Justice Roberts. I made this decision after much deliberation and a thorough consideration of his testimony.

Most troubling to me is Chief Justice Roberts' ambiguous position on the right to privacy. We are at a time when individuals are concerned about protecting their most personal information from being compromised for commercial gain or by an overreaching federal government. Washingtonians have a deep tradition of respect for individual privacy. A right of privacy is guaranteed in article I, section VII of the Washington State Constitution. Personal freedoms and privacy are integral to the U.S. Constitution and I cannot support a nominee who does not make clear his intent to protect fundamental American privacy rights.

Unless there's some odd interpretations or code words at play here, I can't agree that Judge, now Justice, Roberts doesn't believe in a right to privacy. Also, he seemed pretty explicit about it when he testified.

Let's look at the record:

Senator Arlen Spector: “Do you believe today that the right to privacy does exist in the Constitution?”

Judge John Roberts: “Senator, I do. The right to privacy is protected under the Constitution in various ways.

“It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.

“It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.

“It protects privacy in matters of conscience.

“It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

“And in addition, the court has—it was a series of decisions going back 80 years—has recognized that personal privacy is a component of the liberty protected by the due process clause.

“The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well.

“And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.”

Okay, maybe that part isn't ambiguous. Maybe if a Democrat was questioning? Let's look at a later exchange:

Senator Joe Biden: “Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that—not what said law is—what do you think?

“Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?”

Judge John Roberts: “I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.

“Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.

“If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.”

Biden: “Do you think there's a liberty right of privacy that extends to women in the Constitution?”

Roberts: “Certainly.”

Biden: “In the Fourteenth amendment?”

Roberts: “Certainly.”

I'm left to conclude that Maria did not watch the same confirmation hearings that I did.

Let's go back to Maria's email:

During his nomination hearing, Chief Justice Roberts refused to comment on what specific rights of privacy are included in the U.S. Constitution. Nor did he ever express his views on a person's private decision to end medical treatment. Chief Justice Roberts has also raised questions about Congress' power to enact environmental protections and civil rights laws, and these unqualified statements concern me.

The first claim is hogwash. Judge Roberts went into great depth as to where the right to privacy could be found. Maria has transformed these into a set of nonspecific rights, here, however. If she specified what they were we could understand her statement. Most likely she is claiming that the right to abortion is one of the rights of privacy.

The second two are clearly cases that could come before the Judge at the Supreme Court. Judge Roberts was careful not to comment on a question that was likely to be decided by that court. If you express an opinion in advance, you make it hard to have a fair hearing on an issue. If you make no statements, people are more likely to accept that you are being fair.

Another specific concern involves Chief Justice Roberts' commitment to upholding a woman's right to choose. The people of Washington State have made clear their support of this right. In 1970, Washington voters enacted protections for a woman's right to choose, a full 3 years before the Roe v. Wade decision. 21 years later, in 1991, Washington voters went further to protect the right to choose by voting to codify the Roe v. Wade decision. As a Senator of Washington State and a firm supporter of a woman's right to choose, I felt it was necessary on my part to take this issue into consideration when deciding on the confirmation of Chief Justice Roberts.

Finally abortion is brought up, which is apparently the core reason to oppose Roberts. Frankly, I consider abortion to be a side issue.

If Roe v. Wade were overturned, the issue would go back to the individual states. Since Washington is in such good shape—as she points out—I'm not sure what her complaint really is. My position on Roe v. Wade is that it was an egregious usurpation of states' rights.

As Chief Justice, John Roberts will have the immense responsibility of guiding the nation's highest court through the most pressing and important issues for many years to come. I could not support someone who failed to assure me he would protect our personal rights, as well as the rights of future generations who will no doubt be affected by decisions made by the Supreme Court.

Of course, Maria doesn't support my second amendment rights, which makes me vote against her at every opportunity, using the same reasoning she uses above.

In her use of the words, however, Maria is looking for a judicial activist who would legislate from the bench. Not only that, she's hoping for someone that would legislate her particular world view and values, which are hardly universal, even in Washington.

Thank you again for contacting me to share your thoughts on this matter. Finally, you may be interested in signing up for my weekly update for Washington state residents. Every Monday, I provide a brief outline about my work in the Senate and issues of importance to Washington State . If you are interested in subscribing to this update, please visit my website at http://gp1d.senate.gov/mailman/listinfo/cantwell-weekly-update. Please do not hesitate to contact me in the future if I can be of further assistance.

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