Where's the passion in the opposition to Roberts?

Douglas Laycock DLaycock at law.utexas.edu
Sun Jul 24 16:05:53 PDT 2005

There's no passion because it takes smoking guns to sustain a filibuster in the public eye, or to pull over moderate Republicans despite intense pressure to vote the party line.  Roberts' record doesn't offer any smoking guns.  He will probably be a disaster from a Democratic perspective, but disaster is susceptible of degrees.  
His vote on the Endangered Species Act looks like a smoking gun only to people who put that Act near the top of their priority list.  As I understand the facts before him, the Act was being applied to protect a toad with no commercial use that never crosses a state line.  I believe that the commerce clause reaches essentially all commerce in an integrated economy (and that commerce includes all forms of production and exchange), but I'm not sure how it reaches that toad.  It is certainly not a radical position to question whether it really does.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-471-6988 (fax)


From: conlawprof-bounces at lists.ucla.edu on behalf of Earl Maltz
Sent: Sun 7/24/2005 4:53 PM
To: conlawprof at lists.ucla.edu
Subject: Where's the passion in the opposition to Roberts?

I didn't know very much about John Roberts except by reputation until he
was nominated by the Court.  However, even I knew that he was a committed
conservative whose commitment to the cause was apparent on the face of his
actions and was vouched for by virtually every heavyweight in the
movement.  Now I find out that he has questioned the constitutionality of,
of all things, the Endangered Species Act.  Now I, for one, would shed no
tears would shed no tears for the demise of that particular statute.  My
question is, why is Roberts being portrayed as the third coming of
John  Marshall Harlan by all but the most liberal elements of the
Democratic party (plus one insane;y conservative Senator from Kansas).  Why
is there no widespread passion in the opposition?

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