Roberts Approved by Senate Judiciary Committee

The Senate Judiciary Committee today approved the nomination of John Roberts as the next Chief Justice of the United States Supreme Court.

Three Democrats voted with ten Republicans in a vote of 13-5.

Five Democrats -- Senators Dianne Feinstein of California, Joseph Biden of Delaware, Edward Kennedy of Massachusetts, Charles Schumer of New York and Dick Durbin of Ilinois voted against his nomination.

Republicans who voted yes:

Sen. Arlen Specter, Pennsylvania
Sen. Orrin G. Hatch, Utah
Sen. Charles Grassley, Iowa
Sen. Jon Kyl, Arizona
Sen. Mike DeWine, Ohio
Sen. Jeff Sessions, Alabama
Sen. Lindsey Graham, S. Carolina
Sen. John Cornyn, Texas
Sen. Sam Brownback, Kansas
Sen. Tom Coburn, Oklahoma

Democrats who voted yes:

Sen. Patrick Leahy, Vermont
Sen. Herbert Kohl, Wisconsin
Sen. Russ Feingold, Wisconsin

Democrats who voted no:

Sen. Edward Kennedy, Massachusetts
Sen. Joseph Biden, Delaware
Sen. Dianne Feinstein, California
Sen. Charles Schumer, New York
Sen. Richard Durbin, Illinois

New Jersey Enacts Security Breach; Security Freeze Law

Earlier today the state of New Jersey enacted a security breach notification law, when the Governor signed Assembly Bill 4001.

20 states now have a security breach notification law, (although Indiana's only applies to state agencies).

The law also creates of the strictest “security freeze” laws in the country.

The law goes into effect January 1, 2006.

SECURITY BREACH NOTIFICATION

The security breach provisions are similar to those of California.

The law provides that “any business that conducts business in New Jersey, or any public entity that compiles or maintains computerized records that include personal information, shall disclose any breach of security of those computerized records following discovery or notification of the breach to any customer who is a resident of New Jersey whose personal information was, or is reasonably believed to have been, accessed by an unauthorized person.”

This also applies entities which compiles or maintains information behalf of another business or public entity

Disclosures must be made “made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement.”

The law does provide that “Disclosure of a breach of security to a customer shall not be required under this section if the business or public entity establishes that misuse of the information is not reasonably possible.” Documentation of a breach must be kept in writing for five years.

Notice may be in writing, electronically, or through the media, “if the business or public entity demonstrates that the cost of providing notice would exceed $250,000, or that the affected class of subject persons to be notified exceeds 500,000, or the business or public entity does not have sufficient contact information.”

For breaches requiring notification to more than 1,000 people, notice must also be sent to the national consumer reporting agencies.

The law also limits how businesses may use or display a person’s Social Security number.


CREDIT FREEZE REQUIREMENT

The law also allows consumers to place a freeze on their credit reports.

A consumer reporting agency must place the freeze no later than five business days after receiving a written request from the consumer. Agencies must send a written confirmation of the security freeze to the consumer within five business days of placing the freeze, provide the consumer with a unique personal identification number or password to be used by the consumer when providing authorization for the release of his credit for a specific party or period of time.

A consumer reporting agency that receives a request from a consumer to temporarily lift a freeze must comply within three business days.

The law requires consumer reporting agencies to develop procedures involving the use of telephone, fax, the Internet, or other electronic media to receive and process request from consumers to temporarily lift a freeze on a consumer report.

The law requires the state to create regulations which would require consumer reporting agencies to lift a security freeze “as quickly as possible, with the goal of processing a request within 15 minutes of that request.”

If a security freeze is in place, a consumer reporting agency may not change any of the following official information in a consumer report without sending a written confirmation of the change to the consumer within 30 days of the change being posted to the consumer's file:

* Name
* Date of birth
* Social Security number
* Address.

The following entities are not required to place a security freeze in a consumer report:

-- A check services company or fraud prevention services company.

-- A demand deposit account information service company

ChoicePoint Reveals Four Security Breaches

On Friday, ChoicePoint revealed four different security breaches.

One invovled a Miami-Dade police officer who allegedly accessed, improperly, thousands of consumer records in what database giant ChoicePoint described as illegal use of its information. ChoicePoint also announced that two private investigators allegedly improperly used ChoicePoint records, so seek out customers, as well breaches at a company in Texas and breach involving an insurance company.

ChoicePoint is sending affected consumers notices and will offer them a free year of credit monitoring.

John Roberts & the Right to Privacy - Part 6

This exchange (edited, some emphasis added) took place between Senator Schumer and John Roberts yesterday (September 14):

SCHUMER:

"Yesterday, you stated that you, quote, agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that, unquote. And you noted that the court's later decisions have based the constitutional right to privacy on the liberty component of the due process clause of the 14th Amendment.

Now, Justice Thomas, at his confirmation hearing, answered in a way very similar to the way you did. During his confirmation hearing, here's what he said, quote: I believe the approach that Justice Harlan took in Griswold in determining the -- or assessing -- the right to privacy was an appropriate way to go, unquote.

Now, we all know that Justice Harlan's approach located the right to privacy in the liberty interests of the due process clause of the 14th Amendment.

And Justice Thomas also said at his confirmation hearings, along the same lines, that he agreed with the court decision in Eisenstadt v. Baird, where the court held that single people have the same right to privacy as married people on the issue of procreation.

However, since he's been confirmed to the court, Justice Thomas has NOT applied the right to privacy to keep protections -- for instance, in Lawrence, in 2003, he declared that there is no general right to privacy in the Constitution.

Now, yesterday you said that, quote, LIBERTY is not limited to freedom from physical restraint.

SCHUMER: It does cover areas, as you said, such as PRIVACY. It's not only protected in procedural terms, but protected substantively as well.

You said that you agreed that, quote, There's a RIGHT TO PRIVACY to be found in the liberty clause of the Fourteenth Amendment.

So that seems directly to contradict Justice Thomas' view, once he got on the court, as I outlined, in Lawrence.

I assume that you disagree with Justice Thomas's view that there is no general right to privacy, as he stated in Lawrence."

ROBERTS:

"Well, I think that question depends, obviously, on the modifier and what you mean by general. I noted in going over the nomination hearings of Justice Breyer, he also said that the privacy interest is protected as part of the liberty protected by the due process clause. I think that is the general approach. Now, the..."

SCHUMER:

"Let's talk about Justice Thomas. He said there is NO GENERAL RIGHT OF PRIVACY. You seemed to say yesterday -- you didn't seem to say; you said, that there WAS a right to privacy.

Let's forget that Justice Thomas said it. You would disagree that there is no general right to privacy in the Constitution."

ROBERTS:

"I wouldn't use the phrase general, because I don't know what that means. I don't know if by saying general they're trying to describe the particular scope to the right to privacy or not. I think there IS a right to privacy protected as part of the liberty guarantee in the due process clause."

SCHUMER:

"A substantive right to privacy?"

ROBERTS:

"It's protected substantively, YES."

SCHUMER:

"Your reading of Justice Thomas' case in Lawrence, that he does NOT believe in that?"

ROBERTS:

"NO. I think his statement obviously focused on general. And his conclusion in that case was that the right to privacy protected under the due process clause that you noted he acknowledged at his hearings did not extend to include the activity at issue in Lawrence."

SCHUMER:

"This is obviously very important, because Justice Thomas seemed to be more full in his view of privacy at his confirmation hearing than later, when he was on the court, at least if you read his decisions. And you are NOT willing to say that your view is DIFFERENT than the view Justice Thomas stated in Lawrence."

ROBERTS:

"I'm not willing to state a particular view on the Lawrence decision. And that's consistent with the approach that I've taken..."

SCHUMER:

"Let me ask you a broader question. Do you disagree with Justice Thomas' interpretation of the right to privacy in ANY decided case?"

ROBERTS:

"Senator, I'm not going to comment on whether I think particular cases were correctly decided or not, in areas..."

SCHUMER: "I didn't ask that."

ROBERTS: "Well, I don't know which cases you're talking about."

SCHUMER: "Any -- any one you want."

ROBERTS:

"Well, that would be commenting on whether that decision was correctly decided or not. If I'm agreeing or disagreeing with one of the justice's views in that case, that would be commenting on whether that view was correct or not. If it was in a dissent, it would be disagreeing."

ROBERTS:

"If it was in the majority, it would be agreeing. And because those are in areas that could come before the court, like every other nominee to come before this committee who's on the court today, I think it's inappropriate to comment on the correctness or incorrectness of those decisions in areas that could come before the court."

SCHUMER:

"So, you're not -- you don't have to answer this. It's obvious you will not state where you disagree with Justice Thomas, and it could well be that what he said at his hearing and you said at your hearing might lead to -- might -- lead you to rule in the same way on privacy."

ROBERTS:

"Well, again, my view on privacy -- as I've expressed, but there IS a right to privacy, protected as part of the liberty under the due process clause."

SCHUMER: "Would you say there's a general right to privacy?"

ROBERTS: "I don't know what general means."

SCHUMER: "Substantive right to privacy."

ROBERTS: "Well, SUBSTANTIVE, YES. I have said that, that the protection extends to substantive protection. But when you say general, I don't know what that means. I don't know if that means..."

SCHUMER: "Excuse me. Didn't Justice Thomas disagree with the substantive right to privacy in Lawrence?"

ROBERTS: "His conclusion was that the liberty protected by the due process clause did NOT extend to that right, yes."

SCHUMER: "Thank you. So, it would seem to me you DISAGREE with him. I think you said it without saying it."

ROBERTS: "NO, Senator, you're asking me whether the right to privacy protected under the liberty clause extends to a particular right, the right at issue in Lawrence."

SCHUMER: "I think what I'm asking you: Is there a substantive right to privacy? I don't apply it to a particular case."

ROBERTS: "I have said there IS A SUBSTANTIVE RIGHT TO PRIVACY."

SCHUMER: "And in Lawrence, Justice Thomas seemed to say there is NO substantive right to privacy."

ROBERTS: "NO, as I understand it -- again, his testimony as a nominee was that there was. What he said was -- the quote you read in Lawrence --said there's no general right to privacy. Now, I don't know..."

SCHUMER: "His holding was that there was NO substantive right to privacy under the liberty clause. Wasn't it? Wasn't that the whole thrust of his argument?"

ROBERTS: "NO, I think, Senator, that his conclusion in Lawrence was that whatever right there was, it did not extend to the activity that was at issue in Lawrence."

SCHUMER: "Bottom line is: You're unwilling to differentiate yourself from Justice Thomas's view on Lawrence."

ROBERTS:

"Well, it's consistent with the approach I've taken that I don't think it's appropriate to protect -- necessary to protect the independence and integrity of the court, to comment on whether that decision was correctly decided or not. And that is consistent with the approach that every member of the court..."

SCHUMER: "Yes, I just didn't ask you that. I asked if you disagreed with his particular holding."


*** FEINSTEIN ***

Later, Diane Feinstein had these questions:

FEINSTEIN:

"Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause."

Do you think that right of privacy that you're talking about there extends to single people, as well as married people?"

ROBERTS:

"The courts held that in the Eisenstat case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstat."

FEINSTEIN:

"OK. Do you think that that same right extends beyond family choices then about a child's education?"

ROBERTS:

"Well, that's where it actually got started 80 years ago in the earliest cases. Meyer and Pierce involved questions about how to raise children, whether you could teach them a foreign language, whether you could send them to a private school. And those decisions are really what started that body of law."

John Roberts & the Right to Privacy - Part 5

In a Senate hearing today, several Senators aggressively question Judge Roberts on his understanding of the concept of a Constitutional right to privacy.

The hearing had barely begun before the Chair went to straight to the privacy law issue:

SPECTER:

"It is 9:30. The confirmation hearing of Judge Roberts will now proceed. Welcome, again, Judge Roberts."

ROBERTS: "Thank you, Mr. Chairman."

SPECTER:

"We begin the first round of questioning in order of seniority, with 30 minutes allotted to each senator. Judge Roberts, there are many subjects of enormous importance that you will be asked about in this confirmation hearing, but I start with the central issue which perhaps concerns most Americans, and that is the issue of the woman's right to choose and Roe v. Wade."

A few minutes later, Specter said:

"I want to get right to the core of the issue. In Casey, [Casey v. Planned Parenthood] the key test on following precedents moved to the extent of reliance by the people on the precedent.

And Casey had this to say in a rather earthy way: People have ordered their thinking and living around Roe. To eliminate the issue of reliance, one would need to limit cognizable reliance to specific instances of sexual activity. For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail. That's the joint opinion; rather earthy in its context. Would you agree with that? "

Roberts replied:

"Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion, but also in other opinions outside that area of the law. The principles of stare decisis look at a number of factors. Settled expectations is one of them, as you mentioned. ROBERTS: Whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision had been eroded by subsequent developments. For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent."

Roberts came close to supporting precendent a few minutes later, stating:

"Well, in the particular case of Roe, obviously you have the Casey decision in 1992, '93... in which they went through the various factors on stare decisis and reaffirmed the central holding in Roe, while revisiting the trimester framework and substituting the undue burden analysis with strict scrutiny. So, as of '92, you had reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be ENTITLED to RESPECT under those principles."

That was followed by this exchange:

SPECTER:

"The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. Do you agree with that statement, Judge Roberts?"

ROBERTS:

"Well, YES, Senator, as a general proposition, but I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions."

They went back and forth over the merits of overruling precendent, prompting these remarks:

ROBERTS: "I do think that it is a jolt to the legal system when you overrule a precedent."

SPECTER: "A jolt to the legal system, a movement against stability, one of the Roberts doctrines."

Roberts went on to agree that Roe and Casey are setteld law, and that his religion would not prevent him from applying the law.

Then Specter asked the big question:

SPECTER:

".... You wrote, quote, that, Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have -- that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution. Do you believe today that the right to privacy does exist in the Constitution?"

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."

*** BIDEN ***

Later, Joseph Biden questioned Roberts:

BIDEN:

"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?"

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."

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."


*** KOHL ***

Later, Sen. Kohl addressed the issue:

KOHL: "Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception.

Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?"

ROBERTS:

"I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach."

KOHL:

"Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.

These scholars reason that it follows logically that, if a woman's right to privacy and her control of her body includes the right to contraception, that it also includes a woman's right to choose to terminate her pregnancy.

I am not sure whether you wish to comment on that. I just wanted to point out to you something that I'm sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe."

ROBERTS:

"Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people. The other area is an area that is, to quote Justice Ginsburg from her hearings, live with business. There are cases that arise there. And so that's an area that I do not feel it appropriate for me to comment on."

Roberts on National ID Card

According to the LA Times, memos written by John Roberts back when he was with the Reagan Administration suggest that he supported a national ID card. What this might portend for the country should he become Chief Justice is obviously difficult to say.

Journalists David G. Savage and Henry Weinstein write:

"On the issue of I.D. cards, he [Roberts] said that worries of a police state in the
offing were badly exaggerated and that those who yearned for personal
privacy were engaged in wishful thinking.

Even if citizens were required to have such a card, it would "not suddenly
mean Constitutional protections would evaporate and you could be arbitrarily
stopped on the street and asked to produce it," he wrote.

"We already have, for all intents and purposes, a national identifier - the
Social Security number.. And I think we can ill afford to cling to symbolism
in the face of the real threat to our social fabric by uncontrolled
immigration," he said."