Judiciary Committee Chairman Arlen Specter Presses Judge John Roberts on His Commerce Clause Views:
Will The "Ginsburg Rule" Apply?

By JOHN W. DEAN
Friday, Aug. 12, 2005

Senator Arlen Specter of Pennsylvania knows his way around the Constitution; indeed, Richard Nixon considered appointing Specter to the Supreme Court. He also knows his way around Capitol Hill, where he has served since 1986. Now Senate Judiciary Committee chairman, Senator Specter is putting his expertise and experience to good use: He has sent a letter to Supreme Court nominee Judge John Roberts, asking about his "thinking on the jurisprudence" of the holding by the Rehnquist Court "which overturned almost 60 years of Congress's power under the Commence Clause."

This is a core issue of importance to every American - and Specter is right to raise it.

Hot-button issues like abortion, flag-burning, school prayer, homosexual rights, and the like, are of great concern to only some subset - albeit, in some cases, a large subset -- of Americans. In contrast the issue of the scope of the powers of the U.S. Congress under Article I, section 8 of the Constitution - which gives Congress the power to "regulate Commerce with foreign Nations, and among the several states" -- has significance for every American.

While talk of the Commerce Clause may glaze the eyes of non-lawyers, it shouldn't -- for this Constitutional provision is the foundation of a wide range of laws protecting the environment, civil rights, consumers, labor, and public health and safety. Pull this cornerstone out, as many conservatives would like to do, and the federal government will be returned to its late-Nineteenth-Century status of being unable to effectively protect Americans.

Commerce Clause Rulings Of The Rehnquist Court

Chairman Specter raised two specific cases in his letter to Judge Roberts: The Supreme Court's 1995 decision in United States v. Lopez, and its 2000 decision in United States v. Morrison. These holdings have brought great confusion not only to lower federal courts, but also to the Congress - which is now unclear on the scope of its own powers.

Historically, the Supreme Court had held that Congress could regulate local activities only if the activity "directly" affected interstate or foreign commence. That less-than-precise standard was, notoriously, used by the Supreme Court to block President Franklin D. Roosevelt's efforts to legislatively stabilize the depressed economy.

Accordingly, that standard gave way in 1937 to a new standard, the ruling in NLRB v. Jones & Laughlin. As described by Chief Justice Rehnquist in Morrison, NLRB gave Congress "considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted."

More than sixty years passed, during which stare decisis reigned, and precedent was respected. And then, in 1995 and 2000, with Lopez and Morrison, the Court abandoned sixty years of precedent - as Chairman Specter noted in his letter - to attempt a return to the standard that would have left FDR hamstrung, and the nation mired in a Depression.

In Lopez and Morrison, the modern Rehnquist Court all but declared that Congress could not regulate local matters, under the Commerce Clause, if those matters had no "economic" value. Implicit in this ruling is the judicial myth that non-economic matters do not impact interstate commerce. But as common sense would suggest, they do: There is no way to crisply separate business out from the rest of the life of the nation.

Morrison Shows The Problems This Jurisprudence Causes Congress

First, let's take a look at Morrison. In 1994, after four years of hearings, Congress enacted the Violence Against Women Act (VAWA). Congress acted based on findings that were supported by overwhelming evidence elicited during the hearings.

For example (as a lower court government brief summarized those findings), Congress found that violence was the leading cause of injury to women from ages 15 to 44; that in 1991, on a weekly average, over 2,000 women were raped; also every week 90 women were murdered with 9 out of ten being killed by men; that women in the United States are three times more likely to be raped than European women; that approximately four million women are battered every year by husbands or partners; and that three out of four women in America will be victims of a violent crime in their lifetime.

Congress expressly found that this violence had a serious impact on interstate commerce, not to mention the nation's economy. Violence deters women from taking jobs, using public transportation, and otherwise traveling interstate. Congress estimated the cost of the violence to be between $5 to $10 billion per year, because of added health care and criminal justice expenses, and between $3 to $5 billion a year, because of employment absenteeism.

In 1995, by a 5-4 holding, the Morrison Court ruled that Congress, in passing VAWA, had exceeded its powers under the new reading of the Commence Clause developed in Lopez. Delivering the opinion for the majority, Chief Justice Rehnquist wrote that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case." And he reasoned that in-state criminal conduct is not commercial activity, and thus does not fall within Congress' Commerce Clause power -- regardless, it seems, of that criminal conduct's impact on interstate commerce and the economy. He adopted the same rationale for violence against women.

It is difficult to imagine how Congress could have made a showing stronger that it did, in support of VAWA. But it seems a stronger showing was required under this emerging Commerce Clause jurisprudence.

As a result of Lopez and Morrison, existing federal civil rights, public safety and other laws that rely on the Commerce Clause may now also be vulnerable to being held unconstitutional by the High Court.

This is relevant to Judge Roberts's confirmation hearing because in a recent ruling by the DC Circuit Court of Appeals, Judge Roberts indicated that he thought that Lopez and Morrison, as broad as they are, ought to have been interpreted even more broadly - and the Commerce Clause, even more narrowly .

Judge Robert's Gratuitous Opinion In Rancho Viejo v. Norton

Shortly after arriving on the federal appellate bench, Judge Roberts issued a gratuitous four-hundred and fifty word dissent to the denial of rehearing in Rancho Viejo v. Norton. He did so to make the point that the majority holding was, in his view, "inconsistent with the Supreme Court's holdings in United States v. Lopez, and United States v. Morrison."

Although this dissent does not say how Judge Roberts would have decided the case, it certainly suggests that he views the Commerce Clause extremely narrowly. The only judge who similarly dissented was the most conservative member of that court, Judge Sentelle.

To appreciate Roberts's position it should be noted that dissents to denials of rehearing are rare in the DC Circuit. There had already been a panel decision in the case; the full court had voted to reject rehearing, and in the view of seven other judges, no more needed to be said. More importantly, these seven other judges -- including three conservative Republican-appointees, namely Judges Ginsburg, Henderson and Randolph -- rejected this narrow reading of the Commerce Clause.

In short, Chairman Specter has good reason to want to quiz this high court nominee on his Commerce Clause jurisprudence. And if anyone can pose those questions in a manner to avoid the so-called "Ginsburg Rule," it is Senator Specter.

ABA's Canon 5: Why The "Ginsburg Rule" Is Non-Binding

The conservative spin apparatus, fully engaged to win confirmation for Judge Roberts, is widely circulating an OpEd piece written by former Attorney General Edwin Meese III and Todd Gaziano of the Heritage Foundation. It reminds readers that in 1993, when Senator Joseph Biden of Delaware chaired confirmation hearings for Supreme Court nominee Ruth Bader Ginsburg, Biden instructed his committee colleagues not to ask questions about "how [Judge Ginsburg] will decide any specific case that may come before her."

Judge Ginsburg - who was then on the DC Circuit Court of Appeals, just as Judge Roberts is today -- refused to answer a number of questions about matters she believed would come before her as a Supreme Court Justice. She was confirmed by a vote of 93 to 3.

Meese and Gaziano suggest the same rules that applied to Ginsburg, should also apply to Judge Roberts.

Senator Biden based his position on, and Judge Ginsburg found her shelter in, Canon 5 of the American Bar Association's Model Code For Judicial Conduct. Canon 5(d)(i) states: A candidate for a judicial office (a "Candidate" is defined as a person seeking selection for judicial appointment) shall not: with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.

As a close reading of this Canon shows, it only applies to "pledges, promises, or commitments" regarding "cases, controversies, or issues that are likely to come before the court." Thus, on its face, it does not preclude a nominee from making broad statements about the law, so long as they are not "pledges, promises, or commitments."

A narrower interpretation that would have this preclusive effect has been added in the "Commentary," but it is advisory only - which is telling. The ABA's commentary states that this Canon "prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court." This prohibition on statements, however, is broader than the Canon itself. (The commentary also notes that Canon 3 precludes sitting judges from discussing matters before them.)

The Ginsburg Rule, then, is binding on no one. Supreme Court confirmation proceedings are purely political, and the chairman can run his committee much as he sees fit.

Accordingly - and rightly so -- in submitting specific questions to Judge Roberts, Chairman Specter has made clear that he believes the nominee must respond. Judge Ginsburg was able to refuse to answer questions not because of Canon 5, but rather because the Senate Judiciary Committee permitted her to do so. Had a majority insisted she respond, she would have had to respond, or risk not having her nomination reported out of the committee.

If Judge Roberts fails to respond to Chairman Specter's questions, he will be playing a dangerous game of stonewalling. There is nothing in the ABA Canons that precludes him from explaining his Commerce Clause jurisprudence.

Thus, if Roberts thinks the U.S. Congress is relatively powerless under the Commerce Clause provision, he is free to say so - and it is only fair that he should. If that is his thinking, then the U.S. Senate can decide if it wants to diminish its powers by placing Judge Roberts on the High Court.


John W. Dean, a FindLaw columnist, is a former counsel to the president.

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