Think Progress

	DON'T MISS JUDICIARY: Seven myths, distortions, and falsehoods about the Supreme Court. WOMEN'S RIGHTS: The 1000 Women for the Nobel Peace Prize Initiative. PLAMEGATE: Was it perjury? American Prospect reports that Rove didn't initially disclose full extent of his Cooper conversation. DAILY GRILL "We can't have leaks of classified information. It's not in our nation's interest. But we're now in extraordinary times...I see in the media that somebody, or somebodies, feel that they should be able to talk about classified information. And that's just wrong...it is unacceptable behavior to leak classified information when we have troops at risk." -- President Bush, 10/9/01 VERSUS "Key political advisers to President George Bush and vice-president Dick Cheney were named yesterday as sources in the leaking of the name of a CIA operative." -- The Guardian, 7/18/05 DAILY OUTRAGE The AP reports that chances are "dim" for a Senate vote on stem cell legislation. When "asked whether the bill was stuck or even dead for the year," Majority Leader Bill Frist (R-TN) replied, "Not yet." ARCHIVES Progress Report

by Judd Legum, Faiz Shakir, Nico Pitney,
Mipe Okunseinde and Christy Harvey

SUPREME COURT	The Nominee You Know Nothing About
PLAMEGATE	How Rove's Leak Undermined National Security
UNDER THE RADAR	Go Beyond The Headlines
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SUPREME COURT
The Nominee You Know Nothing About

Last night, President Bush nominated D.C. Court of Appeals Judge John G. Roberts to the vacancy on the Supreme Court. Beyond his legal credentials, little else is know about whether John Roberts lies in the mainstream of legal thought and opinion. Confirmed to the D.C. Circuit Court of Appeals in June 2003, Roberts has not had enough time on the bench to signal any clear indication of what his views may be on a wide variety of issues. Knight Ridder questions, "What does Roberts think about affirmative action or gay rights? About separation of church and state or the death penalty? Legal insiders in Washington, where Roberts has spent nearly 30 years as a lawyer, government official and judge on a prestigious appeals court, respond unanimously: Who knows?" As Roberts prepares to go before the Senate for confirmation, the "threshold question," as Sen. Chuck Schumer (D-NY) has noted, is: "Will he be forthcoming in both answering questions and making available documents about his previous record?"

ROBERTS IS QUALIFIED BUT UNKNOWN: There is little doubt about whether Judge Roberts has the experience necessary to sit on the highest court in the land. He has argued 39 cases before the Supreme Court, both as a private and government lawyer. A former law clerk to Chief Justice William Rehnquist, Roberts served as "principal deputy solicitor general under Kenneth W. Starr" in the George H.W. Bush administration and as associate counsel to President Reagan from 1982-86. But Roberts has advocated on behalf of controversial issues in the past, including on issues of reproductive rights, environmental protections, corporate interests, and civil liberties during wartime. In his Senate confirmation hearing on January 29, 2003, Roberts explained that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer as his personal beliefs or his personal positions." Despite the fact that Roberts has "little paper trail," supporters of Bush are already ascribing their own views to Roberts, such as a "Thomas-Scalia type judicial demeanor" who will not "redefine traditional marriage" or "strike under God from the Pledge of Allegiance." It is the duty of the Senate to determine where Roberts' personal beliefs truly lie and where his views are in relation to positions he has advocated in the past.

ROBERTS' PERSONAL POSITION ON REPRODUCTIVE RIGHTS IS UNKNOWN: As deputy solicitor general in the first Bush administration, Roberts co-wrote a brief in 1991 which argued "Roe was wrongly decided and should be overruled." He went as far as to suggest that a right to an abortion finds "no support in the text, structure, or history of the Constitution." The position he took at the time went well beyond what was necessary to advocate his view in the case that doctors in federally-funded family planning programs should be prohibited from discussing abortions with their patients. Roberts later explained the "statement in the brief was my position as an advocate for a client" and insisted that Roe v. Wade was "the settled law of the land." Roberts added, "It's a little more than settled. It was reaffirmed in the face of a challenge ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." In his Senate confirmation hearing, Roberts argued that a judge is "bound to follow the Supreme Court precedent, whether he agrees with it or disagrees with it... personal views, personal ideology -- those have no role to play whatsoever." That argument will no longer hold in the upcoming nomination hearings. Roberts' personal views need to be probed further to explain these contrasting positions because "as a Supreme Court justice, he would be free to overturn precedent on abortion" and related privacy rights, like the right to contraception. The question is particularly relevant given that, in the coming term, the Supreme Court will take up "the constitutionality of a New Hampshire parental notification law that lacks an emergency health exception for minors."

ROBERTS SHOULD BE QUESTIONED ON SUPREME COURT'S OVERSIGHT OF EXECUTIVE BRANCH IN WAR ON TERROR: Just last Friday, Judge Roberts ruled with two of his colleagues on the D.C. Circuit that the Bush administration's plan to convene military tribunals to try terrorist detainees at Guantanamo Bay was constitutional. Roberts overruled a lower court's opinion that the tribunals violated the Geneva Convention. In the opinion, Roberts asserted the position of the Bush administration that the Geneva Convention does not apply to the Guantanamo detainees because they belonged to no government entity. Columbia law professor Michael Dorf argued that the Roberts ruling simply assumed one of the facts that needs to be determined -- whether the detainee is in fact as "unlawful combatant." Justice Sandra Day O'Connor, the departing member of the Court whom Roberts would replace, had previously argued, "A state of war is not a blank check for the President." Roberts' ruling, according to Dorf, "extended [Bush] a very large line of credit." Because Roberts would be replacing O'Connor, whose ruling in Hamdi v. Rumsfeld gave a narrow victory to the principle of due process, it is important to probe Roberts on how much deference the President should have in conducting the war on terror.

HOW DOES HE BALANCE CORPORATE INTERESTS VERSUS RIGHTS OF WORKERS AND CONSUMERS?: The Wall Street Journal reports Bush's "business backers were cheered by the appointment of Judge Roberts." "As a private litigator, Roberts often served corporate clients, among them Toyota Motor Corp. and the American Gaming Association." In private practice, Roberts "represented Toyota at the Supreme Court, winning limits on disabled workers' claims." Roberts also argued on behalf of mining companies who wanted to use criminal contempt fees to force the end of a strike which had been ruled unlawful. Roberts' strong advocacy on behalf of corporate interests is tempered by this his representation of 19 states in a suit filed against Microsoft for antitrust violations. Roberts' understanding of the need for worker and consumer protections must be explored further in the Senate hearings.

ROBERTS RAISES CONCERNS OF ENVIRONMENTALISTS: In a 2003 case, Roberts wrote a dissenting opinion that questioned his court's precedent for upholding protections in the federal Endangered Species Act based on his position that the species in question never crossed state lines. Some environmentalists now fear that Roberts will rule that the congressional power to regulate interstate commerce does not extend to protecting species that never cross state lines, thus limiting the enforcement power of the Endangered Species Act. Roberts should explain his view of federal law-making authority.

PLAMEGATE
How Rove's Leak Undermined National Security

Did the outing of Valerie Plame damage U.S. national security? Many have claimed it did not, since (in the words of conservative Victoria Toensing) the CIA "gave [Plame] a desk job in Langley. You don't really have somebody deep undercover going back and forth to Langley, where people can see them." Yesterday, a bipartisan group of 11 former intelligence officers -- including Col. W. Patrick Lang, the former Director of Defense Human Intelligence Services at the Defense Intelligence Agency, and Vince Cannistraro, former counterterrorism chief at the CIA -- submitted a letter to congressional leaders rebutting these claims. The officers argue that the "desk job" excuse reveals "an astonishing ignorance of the intelligence community and the role of cover." More importantly, they say, the "disclosure of Ms. Plame's name was a shameful event in American history and, in our professional judgment, may have damaged U.S. national security and poses a threat to the ability of U.S. intelligence gathering using human sources."

"THE GRAVITY OF THE SUSPECTED CRIME...": Perhaps the best indication of the severity of the Plame leak is found in the opinion of Circuit Judge David Tatel. In February 2005, Tatel joined his colleagues on the D.C. Court of Appeals in ordering reporters Matthew Cooper and Judith Miller to reveal their sources despite the fact that he believes current law provides "a federal privilege for reporters that can shield them from being compelled to testify to grand juries and give up sources." So what explains his ruling? Tatel wrote that, in this case, the journalists' privilege had to give way to "the gravity of the suspected crime." Tatel's opinion on the matter is crucial, both because of his status as an independent, nonpartisan source, and because he admits to "[h]aving carefully scrutinized [the special prosecutor's] voluminous classified filings," which virtually no other public figure commenting on the Plame case has had the opportunity to do. Later in his ruling, as MSNBC analyst Lawrence O'Donnell notes, Tatel "says he 'might have' let Cooper and Miller off the hook '[w]ere the leak at issue in this case less harmful to national security.'" And Tatel's colleagues are "at least as impressed with the prosecutor's secret filings as he is. One simply said 'Special Counsel's showing decides the case.'"

PLAME WASN'T THE ONLY VICTIM OF ROVE'S LEAK: In late 2003, the Washington Post revealed that Plame's outing had "also exposed the identity of a CIA front company," and so might "have damaged U.S. national security to a much greater extent than generally realized." One former high-level agency official said the front firm was "apparently also was used by other CIA officers whose work now could be at risk," meaning that "once Plame's job as an undercover operative was revealed, other agency secrets could be unraveled and her sources might be compromised or endangered." A former diplomat warned the Post that "every foreign intelligence service would run Plame's name through its databases within hours of its publication to determine if she had visited their country and to reconstruct her activities." The exposure of the front firm forced the CIA's Directorate of Operations to conduct an "extensive damage assessment," though its results have never been released.

DESTROYING A TWENTY-YEAR CAREER: Valerie Plame spent most of her adult life in the CIA, joining "shortly after graduating from Pennsylvania State University with a degree in journalism." Retired agency officer Larry Johnson, who trained with Plame when both entered the CIA in the mid-1980s, explains that "[a] few of my classmates, and Valerie was one of these, became a non-official cover officer. That meant she agreed to operate overseas without the protection of a diplomatic passport. If caught in that status she would have been executed." Clandestine service officers working under such cover "are considered to hold the most sensitive and vulnerable jobs in intelligence," the New York Times reports. And training those agents "costs millions of dollars and requires the time-consuming establishment of elaborate fictions, called 'legends,' including in this case the creation of a CIA front company that helped lend plausibility to her trips overseas." "This situation has been very hard on her, professionally and personally," said Melissa Boyle Mahle, a former C.I.A. case officer and a friend of Plame, told the Times. "Not only have you removed from the playing field a very knowledgeable counterproliferation officer at a time when we really need her services. But before this she was on a fast track as a candidate for senior management at the agency. With something like this, her career will never recover." And the assault continues to this day. Larry Johnson notes that as "operatives fan out on the airwaves in an unrelenting assault on [Plame's] character and reputation, ...Valerie, who is still a full time employee of the CIA, is not allowed to defend herself."