Centerfield

I agree, Mathew. Very well said. Not who I would have chosen, but also not someone beyond the pale.

Posted by: JBD at July 19, 2005 10:42 PM

Judge Roberts should be confirmed. It's unlikely he's done anything really disqualifying ethically or legally since his 2003 background check, and it's unlikely the FBI missed anything the first time. (Those FBI background checks are pretty damn thorough, even for a lowly government attorney, so I'm sure they're especially invasive for a federal judge, especially a top federal judge.) But he's had checks before--to work as a law clerk to Justice Rehnquist, to work in the counsel's office for Reagan, to work in the Solicitor General's office for President Bush the Elder, and to be confirmed to the D.C. Cir. bench. I'd say the guy is squeaky clean.

He's being managed by a political pro, former-Senator Fred Thompson, so it's unlikely any slips will be made during the confirmation process. (I bet cash money that at no phase of the confirmation process are we going to hear, "Yes, Senator, I do believe that setting kittens on fire is a great idea, and I do it every day.")

The only evidence short of his two-year D.C. Cir. record is his casework as an attorney, and I'll defend to the death the fact that a government attorney (especially) often represents opinions to the court with which he disagrees. Unless he wrote something wild and whacky as Harvard Law Review's managing editor ("Kittens should be imolated at every opportunity."), I doubt that anyone will glean anything persuasively and substantively problematic.

On the other hand, that doesn't stop some folks. The People for the American Way have already issued their "preliminary report" on Judge Roberts, highlighting his "brief" two-year term on the D.C. Cir. and citing mostly his government briefs. Two problems: (1) you don't have to have been a judge at all, let alone a federal judge, let alone a federal appellate judge, let alone a federal appellate judge for a particular length of time, to make an excellent Supreme Court Justice; (2) as DSG, his duty was to represent the Administration position on legal issues presented on appeal. The preliminary report tries to make hay about the fact that Judge Roberts was the "Principal Deputy" and that he therefore had some say in the decision of whether to appeal a case and on what legal grounds--that is true. It's true in the sense that Bob works for a large law firm, the firm has a client that represents 75% of its business, Bob's senior partner says, "Bob, our client just lost a case and you're going to appeal it; tell me what grounds you're going to use." Bob's options at that point are (1) think up some grounds, (2) quit, or (3) get fired. That's the position the PDSG is in.

He is conservative. Is he an "orginalist"? I don't care (for two reasons: (1) that means different things to different people, and (2) he's smart enough to defy labels).

Finally, I was disturbed to hear Senator Durbin on CNN saying that testing a nominee's position on values issues is legitimate in a SCOTUS confirmation hearing. Sen. Durbin conceded that Judge Roberts has credentials, temperament, and respect in the legal community. Case closed.

Posted by: The Jaded JD at July 19, 2005 10:49 PM

I don't like cats or kittens; I have a feeling the Judiciary Committee would expose me like a bubble boy to the outside world.

Posted by: Scott at July 19, 2005 11:51 PM

I strongly agree about Durbin, Jaded. I also was disgusted when Schumer all but said this was going to become an investigation into Roberts' personal views. I think the Democrats were outsmarted, and they are pissed about it.

Posted by: Mathew at July 20, 2005 06:59 AM

Anytime Chuck Schumer is irritated about something, I'm happy. I despise that guy.

Posted by: Scott at July 20, 2005 08:49 AM

Bush could have done a lot worse. I think the right really would have preferred Luttig; they may be uncomfortable with Roberts' lack of a paper trail which could suggest apostasy once he gets on the Court. The NYT story (which I have just skimmed) says he is more comfortable in the center. I think the Dems will have a hard time fighting this one and I'm not sure they should because anyone else could be worse. However, I think they will fight because their constituency will demand it. But I think they are screwed; if they try to filibuster on this guy, I suspect the Repubs could use the nuclear option without too much political fallout.

Posted by: MWS at July 20, 2005 09:28 AM

Several groups - e.g. NARAL - are going apeshit over this, but I suspect they are either dissembling, or mind-bendingly silly. There is moaning and whining that Roberts is not a "compromise candidate", but the reality is that he is exactly that. The left wanted a Souter at best or an O'Connor at worst; the right wanted a Scalia or a Thomas. From what little I know about Roberts, it seems that what we've got is none of the above - in temperament and approach, we've got another Rehnquist.

Furthermore, despite NARAL's bleating, Roberts' commitment to overruling Roe - and his opposition to substantive due process - is sketchy at best, and may even turn out to be non-existant. It's not much of a stretch for what looks like a Rehnquist to turn into a Kennedy.

My question for the liberal interest groups now turning blue in the face is, do you seriously want to stop this guy, or are you just making hay? It seems to me that they have no chance of stopping the nomination, even if they do stop it, the next nominee will be even less "palatable" to them (I suspect Bush was quietly and privately warned that, if he nominated Soutero, that nomination would be defeated by his own Senators - Bush might not have to answer to the GOP base again, but at least 53 Senators do), so I suspect that the opposition has been preplanned for months (if not years) as a propaganda device for the Democratic base, rather than any serious or valid contribution to the nomination.

Posted by: Simon at July 20, 2005 09:41 AM

How about if some of you legal eagles go over the arguments for why it's inappropriate for senators to expect nominees to respond to questions such as "name 2 or 3 recent supreme court decisions where you agreed with the dissenting minority" or "what's your view on what current law says about how civil liberties should be balanced against national security in instances such as declaration of enemy combatancy?"

I'm not familiar with the details of this argument about which questions are appropriate, and off the top of my head, it seems reasonable to me that this is the sort of stuff we'd want to know. The only substance of the argument I've come across so far is one that says that the role of advising and consenting is narrowly constrained to things like issues of character and competency. Legally speaking, where does the force of this argument come from? I'm open-minded on the merits and demerits of the sorts of questions I mention above, depending on the exact nature of the question.

So for example, I'm not troubled by a nominee who would demur on a question like "do you pledge to uphold Roe no matter what?" But in the instance of the 2nd question I used above as an example, the one about enemy combatancy, I'd like to see a nominee willing to expound on how he sees the intersecting issues, the conflict between liberty and security, his understanding of recent precedents, and where he thinks the exisiting law constrains the court and calls for legislation to remedy anticipated problems. I don't think he should be subjected to lengthy "suppose a case like x came before you," queries, but it seems to me that a potential justice should be willing to say something about the important issues he's likely to face.

I'm sure their are counterarguments, and I'd love to hear them, and am wide open to giving them credit where good points are made. My purpose in asking here is to provide a forum for familiarization, because I'm pretty sure I'm not alone in thinking that at a glance, the sorts of questions I suggest seem sensible, even if, upon more examination, they open the door to a circus and so on.

I'm not in favor of a circus, and I generally respect the Presidential prerogative in such cases. The President won the right to appoint a solid conservative in 2004 when he was re-elected, and I am down with that. But I think it's ok to ask pointed questions and to expect many of them to be answered, even if not in the way senators want. The thing that I fear in proscribing the asking of questions about philosophy is that someday a trojan zealot might get appointed. Suppose some day a nominee has a strong and closely held view about, say, jurisprudence on the establishment clause, and feels that this only ever meant that the US should not establish an official federal religion, and that all the rest of established jurisprudence on separation is constructivist fantasy. Even is this were true, I still think it would be a disaster.

I hasten to add that I have no reason whatsoever to think Roberts is a trojan zealot. But I expect that there's a wingnut out there somewhere whose tinfoil hat is receiving signals that Roberts is a carefully constructed Manchurean nominee that the right has artfully prepared to finally overthrow liberal jurisprudence. IMO, it's a virtual given that someone out there will construct a purely speculative and entirely ludicrous case for Roberts as the trojan zealot, and that they'll get the entire left crucified for it. Let me also add that i think our system is robust enough to endure a trojan zealot, even though I'd prefer a process adversarial enough to provide more security for nipping one in the bud.

Posted by: bk at July 20, 2005 09:43 AM

That is a great request, Brian, I suggest a post in defense of, or opposed to, the "Ginsberg standard," or both. I know why I think it is the right way to go, but I don't have the legal background to adequately back it up.

On Roberts' conservative credentials, or lack their of, the Post had an interesting quote this morning from a conservative law professor at Berkely:

John C. Yoo, a conservative professor of law at University of California at Berkeley who served in the Justice Department in the current administration, emphasizes what he called Roberts's traditional approach to the law. In the 39 cases that Roberts argued before the Supreme Court -- 25 of which he won -- Yoo said he never pushed the court to adopt "big new theories" but rather argued the facts of his cases.

"He's the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like," Yoo said.

"What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy," he added. "But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port.

Is John Roberts a conservative that centrists can embrace?

Posted by: Mathew at July 20, 2005 10:04 AM

I suspect that the opposition has been preplanned for months (if not years) as a propaganda device for the Democratic base, rather than any serious or valid contribution to the nomination.

Gee, d'ya think? (Puzzled look...) Sorry, I couldn't help myself.

I researched domain name purchases a few weeks ago on your hat tip, Simon, and came up with the fact that the Leadership Conference on Civil Rights registered STOPROBERTS.ORG and STOPROBERTS.COM on 11/15/2004. Two days later, on 11/17/2004, they added OPPOSEROBERTS.ORG, OPPOSEROBERTS.COM, SUPPORTROBERTS.ORG, and SUPPORTROBERTS.COM to their purchases. (If anyone wants to argue that LCCR purchased those latter two in order to actually support Roberts, I'm all ears!)

A few days after we detailed that here, along with the "laundry list" of purchases of ALL the known short-list-associated domains by PFAW, NARAL, and LCCR, Byron York of National Review picked it up and wrote an article on it. Clement was still "under the radar."

Yesterday I noted that LCCR had jumped on the vacant domains of STOPCLEMENT and variants yesterday morning after the rumors started circulating. One they missed getting was STOPCLEMENT.ORG--which PFAW purchased two days after York's article came out. Nice head fake, indeed.

So I kind of take it as a given that those organizations will actively oppose anyone remotely likely to be actually nominated by Bush. The big question is, will the Democratic Party and the Democratic Senators involved march in SIG-programmed lockstep, or just pay lip service, or try to keep their dignity?

The conservatives want an activist conservative judge, the liberals want an activist liberal judge. I think they're both going to be disappointed in Roberts as far as the "activist" part goes.

Posted by: Tully at July 20, 2005 10:17 AM

Well, Brian, I'm a lawyer, but probably not a "legal eagle" like some here. But I agree with you. I see no reason why Senators shouldn't ask pointed questions about judicial philosophy just because they didn't do it in the past. I've always been troubled by the ability of a president (whether liberal or conservative) who will serve for 8 years at most to determine the Supreme Court for the next 30 or 40 years. It's a lot different from a cabinet nominee.

The argument against, I suppose, would be that it violates the separation of powers since nominating judges is an executive branch function. But given that the Senate has to "advise and consent" that doesn't seem like a very strong argument to me.Also, it would violate separation of powers in that legal analysis is a judicial function and, therefore, not appropriate for congress to question.

Frankly, I think a lot of the arguments against stem from the traditional deference of congress to the president in these matters. And that deference stems from the fact that congress was traditonally less interested in judicial nominees and had much less ability to obtain information and to evaluate nominees. Personally, I don't think it makes sense today.

Posted by: MWS at July 20, 2005 10:40 AM

Ann Coulter opposes the Roberts nomination, and all of a sudden I passionately support it.

See here:

http://www.drudgereport.com/flash3acj.htm

Coulter, in her vodka soaked demeanor, says:

"We don’t know much about John Roberts. Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever... Oh, yeah...we know he's argued cases before the supreme court. big deal; so has Larry Flynt's attorney...

I'm glad to hear the man has a steady work record, but how did this make it to the top of his resume?

Finally, lets ponder the fact that Roberts has gone through 50 years on this planet without ever saying anything controversial. That’s just unnatural.

If a smart and accomplished person goes this long without expressing an opinion, they'd better be pursuing the Miss America title.

FYI, in a unanimous decision in which right wing conservatives concurred, Larry Flynt's attorney argued that, *gasp*, his client had a first amendment right to publish satire that suggested Jerry Falwell had sex with his mother.

Posted by: Mathew at July 20, 2005 10:51 AM

Finally, lets ponder the fact that Roberts has gone through 50 years on this planet without ever saying anything controversial. That’s just unnatural.

That might be the only thing I've ever agreed with Coulter about.

Posted by: Scott at July 20, 2005 10:55 AM

LOL. Yep, it's not libel unless it's believable....

Which is why you should be careful with using phrases like "vodka soaked demeanor" to describe Coulter.

Posted by: Tully at July 20, 2005 10:56 AM

As a centrist, socially left of center and a fiscal Conservative, I wrote on this nomination too. Here's an excerpt:

The President deserves to have this candidate as a Supreme Court Judge. He won the last election. Those that object and didn't vote in November of 2004, be quiet and reflect on why you didn't vote. This is the consequence of that choice. Maybe if we have more consequences that upset folks, voting will become more important to more people. Now is not the time to complain. You had your chance to voice your concern then. It was clear during the election that the next Supreme Court nominations that would affect us all, would be made by the next President. So the people have spoken, at least those that voted. You'll get a chance to vote again in 2006 and again in 2008.

Posted by: Charles Amico at July 20, 2005 11:24 AM

Brian,

I don't see anything wrong with the questions you've posed (name three decisions of the Court in which you'd have supported the dissent; how do you calculate the balance between civil liberties and national security re enemy combatants).

I think the enemy combatant issue is the issue for the Court in the next four years or so, not abortion or the death penalty. Nothing is more critical to the state than the circumscription of the powers of the executive to imprison citizens based on "prerogative." We know something about Judge Roberts on enemy combatant issues: he concurred in the D.C. Cir. panel's decision in Hamdan
last week, sustaining the military tribunal process for validating the designation of enemy combatant under the Hamdi framework.

I don't think Judge Roberts and I are on the same page on these issues surrounding enemy combatants, and I think that's the most important issue at the moment. But I still think he's a damn fine choice. Just I can respect just about anyone who's a procedural centrist, regardless of how extreme his substantive positions may be, I can respect a judge with whom I disagree if I'm satisfied he's deliberative and competent.

Posted by: The Jaded JD at July 20, 2005 12:00 PM

The President deserves to have this candidate as a Supreme Court Judge. He won the last election.

And, as Sen. McCain noted, "elections have consequences". One of those consequences is, as it seems to me, that the nominee of President Bush will not be indistinguishable from a potential nominee of a potential President Kerry. One of a President's jobs is to nominate judges, and that's one of the things you're voting for.

MWS:

Well, Brian, I'm a lawyer

Yet, you routinely make pointed comments suggesting that you're not really sure (or don't really know about) originalist views. And thinking about it, I've twice offered to (try to) answer any questions about it, and you've not taken me up on either occaision. Doth thou protest too much? ;)

Posted by: Simon at July 20, 2005 12:06 PM

Here are Sens. McCain and Kennedy on the nomination:

http://blogs.washingtonpost.com/campaignforthecourt/2005/07/reaction_sen_mc.html

McCain:

I don’t pretend to speak for my other members of the gang of 14, but it’s hard for me to believe that he would meet an extraordinary circumstances criteria

Fellow gang member Nelson of Nebraska was interviewed on PBS last night, and he echoed McCain's comments; Maine TV reported this morning that Sens. Snowe and Collins had made positive (but unspecified) comments about the nomination. So that's four.

McCain again:

[O]bviously he is conservative. Just as [Clinton nominees] Justice Breyer and Ruth Bader Ginsberg were liberal.

And this needs to be emphasized OVER AND OVER AGAIN. Justice Blackmun was a liberal; Justice Powell a conservative. Clinton chose two liberals to replace them. Justice O'Connor was a moderate, and so now the Democrats demand Bush pick...wait for it...A liberal. Because that's what a compromise is to these folks: Ginsberg was a "compromise", Breyer was a "compromise", and so they want another "compromise", i.e. a liberal; someone who will interpret the constitution "fairly", i.e. their way.

Kennedy:

This individual really comes highly qualified. He’s respected. I got to meet him during the course of those hearings. But the real issue in question now is how is the Senate going to fulfill its responsibilities?

Which is code for, will the democrats filibuster, and if so, will the Senate go nuclear. I think the real issues, which Kennedy doesn't want to say, are: what does Roberts think about Roe v. Wade, will the Senate go nuclear, how inflamed can the Democrats make their base over this issue, in advance of the 2006 elections, and what difference will it make (i.e., will Bush enjoy a 60-vote majority in the Senate for his next pick)?

Posted by: Simon at July 20, 2005 12:20 PM

Addenda to previous comment: my primary objection to O'Connor, and the reason I class her and Kennedy as moderates, is because they both, to a greater or lesser extent, buy into substantive due process, the use of foreign law, the living constitution, and all these tools through which Justices discover their own policy preferences in the constitution document. The process matters at least as much as the result; it doesn't matter whether those tools are used for conservative causes or liberal causes, and I would deny those tools to a conservative cause with the same absolutism with which I condemn their use by liberal causes. Thus, for example, just as I would argue that Roper was wrongly decided, even though I like the result (as a question of policy, that is, not on the question of whether the court should have decided that matter), I have to admit that I've read some pretty pursuasive articles suggesting that Bush v. Gore was wrongly decided, even though I'm pleased (in retrospect) with that result. It isn't a matter of what your policy views are, it's a question of why it should matter what one's policy views are when it comes to Constitutional interpretation, and the answer to that question depends on how you think the court should approach its task.

Posted by: Simon at July 20, 2005 12:27 PM

Two of the arguments that have bothered me the most throughout this entire process are: 1) This is a "woman's seat," and 2) The President has an obligation to maintain the existing "balance" on the court.

First of all , I think it is degrading to women to designate a "female" seat. This type of designation--which I have heard many on both sides espouse--indirectly implies that a woman would not be considered for future openings if the opening was a "male" seat. Nominees must be judged on their qualifications, regardless of gender or ethnicity. Yes, I think it may have been a better PR decision to appoint a female, but to argue that Bush had an obligation does nothing to promote equality.

Secondly, the argument that the President has an obligation to maintain the current "balance" of the court...when did that suddenly become the law of the land? Where's the precedence for that? Sure, I'd be much more comfortable with someone with solid centrist credentials, but this is the President's choice. It's only natural that his nominee should reflect his political beliefs. I really wouldn't expect otherwise.

All of that aside, I think one of the more amusing things about the whole event was watching Ms. Roberts attempting to hold on to her very rambunctious son. I couldn't help but chuckle...all little boys are alike, regardless of whether they are in the same room as the President of the United States or Grandma.

Posted by: AR at July 20, 2005 01:25 PM

Gee, Simon, did I say I don't understand originalism? I think I just raised some rhetorical questions (to disguise my incisive analysis of it. ;)(is that how you do a smiley face?) Actually, I do understand it but I just disagree with it as a method of judicial analysis. As a matter of fact, I would recommend a very fine book on the subject that came out in the late 90s by Jack Rakove,a law professor, called "Original Meanings: Politics and Ideas in the Making of the Constitution." Of course, I suspect Rakove's take on originalism is a lot different than yours.

Actually, being a lawyer has nothing to do with understanding originalism. It's not something you study in law school (at least where I went). Law school is pretty much a trade school. But, of course, as a lawyer, I am within my rights to claim expertise about virtually any subject! ;)

Posted by: MWS at July 20, 2005 01:33 PM

The balance argument, unfortunately because I liked SDO'C so much, holds little weight simply because the Democrats who desire such balance are in the Senate minority.

Posted by: Scott at July 20, 2005 01:42 PM

I don't do emoticons. I'm not especially emotive anyway.

Law schools vary, and law students vary. I was one of the cerebral geeks (surprise!) who took the esoteric electives--like Theories of Interpretation--rather than the bar courses. (I figured that's what bar prep is for. That and I preferred papers to time-pressured exams.) Maybe that's why my experience is in teaching, clerking, and government work, and not so much the lucrative private practice litigation. And maybe that's why I still have to look up UCC to remember what it stands for.

Posted by: The Jaded JD at July 20, 2005 01:49 PM

AR,

CNN didn't have a wide-angle camera to show Jack doing his little dance, but I loved the picture in the Richmond paper's coverage this morning.

Posted by: The Jaded JD at July 20, 2005 01:50 PM

I disagree with the idea that the Senate should demand judicial nominees answer a laundry list of questions on specific issues. In the first place, one of the reasons Judge Roberts seems to be considered an excellent candidate is because, as one poster put it, he has argued and decided cases, not issues. In the final analysis, the Supreme Court, like any other court, must decide specific cases, not more generally-phrased issues. And it is and always has been absolutely improper for a judge to make decisions on particular cases before hearing them.

There's a pragmatic concern, as well. Suppose he answered that he didn't think the President can detain non-POW enemy combatants for an indefinite period of time. Of course, not having had the case in front of him at the time, he hasn't had the benefit of zealous argument by both sides with ample researching by law clerks and so forth to help him reach that conclusion. Then he gets on the bench, gets one of those cases, has the benefit of far more research and learned argument on the subject than he's ever had before, and realizes his first opinion, the one he gave to the Senate, was wrong, and the President does have that authority. Of course, he issues judgment based on his more learned view after hearing the case.

As a practical matter, imagine the uproar which would happen then. There would be calls for impeachment for lying to the Senate, allegations of fraud and deceipt, people claiming that as a Justice he should be held to a "higher standard". It would be impossible for him to get any work done in the future, and there would remain a perception that he had mislead the people, when in fact he was only doing his job, basing his decision on the law, facts, and arguments presented to him.

You can, of course, easily reverse this scenario to fit your own political proclivities (i.e., suppose he gave the Senate the "Right" and then issued the "Left" decision... picture Tom DeLay howling for impeachment).

All this, of course, is why judges shouldn't make policy decisions but instead stick to interpreting and applying the law to particular factual circumstances, but the lot of us (TJJD, BK, me, and several others) have been down that argument before; I don't mean to start this thread down that road, too.

Posted by: PatHMV at July 20, 2005 02:01 PM

Great points Pat. I concur, and this is the reasoning that Justice Ginsburg, a liberal, gave before she was confirmed by a majority of Republicans and Democrats. Republicans overuse that example, but I think it is apt in this case because, politically, it is going to be difficult for Democrats to put Roberts through the ringer on his personal point of view after the ease of both the Ginsburg and Breyer confirmations. I suppose it was strategic that Bush mentioned this last night.

A Bork like fishing expedition on Judge Roberts' opinion regarding abortion, the environment, torture, etc., would simply be as inappropriate now as it was then.

I'm not familiar with the details of this argument about which questions are appropriate, and off the top of my head, it seems reasonable to me that this is the sort of stuff we'd want to know.

I want to know what is the candidate's philosophy in arriving at a decision, rather than how they personally feel about torture policy, the environment, abortion, etc. The three cases question, or the civil liberties versus national security question, meet that criteria, I think, but it would be interesting to know why Roberts didn't answer the former in 2003.

Yes, MWS, the appointment of someone really extreme is a concern, but that is why we have checks and balances, a confirmation process that looks at things like judicial temperament, as well as nine justices and not one.

All this, of course, is why judges shouldn't make policy decisions but instead stick to interpreting and applying the law to particular factual circumstances, but the lot of us (TJJD, BK, me, and several others) have been down that argument before; I don't mean to start this thread down that road, too.

Which is a point that seperates Justice Scalia, who is a sound and intelligent jurist, from Justices Rehnquist and Thomas, who are IMO, not much more than Conservative legislators.

Posted by: Mathew at July 20, 2005 02:30 PM

I have no problem with an individual Senator asking a laundry list of questions. At the same time, I don't believe that a nominee is obligated to answer any question that they may deem inappropriate.

And, of course, as the saying goes, "There's no such thing as a stupid question, but there are stupid people who ask questions." If an individual Senator feels compelled to grill a nominee with questions that the rest of the country may view as rude or obnoxious, well, that's their business.

Justice Ginsberg has been frequently mentioned during this debate, and she certainly provides an excellent role model for a future justice to follow if they so desire.

There's always the right to ask, but no such guarantee exists for an answer.

Posted by: AR at July 20, 2005 02:32 PM

I think Randy Barnett's take at Volokh is on point:

Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted--taking a position, and defending it against all comers--is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one's own principles and an ability to articulate them and defend them publicly against contrary views.

This is a type of trial by ordeal that hones one's beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one's judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.

It'd be nice, IMO, to know where Roberts stands.

Posted by: bk at July 20, 2005 02:37 PM

oops!

Randy Barnett's take at Volokh

Posted by: bk at July 20, 2005 02:38 PM

Which is a point that seperates Justice Scalia, who is a sound and intelligent jurist, from Justices Rehnquist and Thomas, who are IMO, not much more than Conservative legislators.

I've always had a slightly different view of the differences between those three. Thomas and Rehnquist, to my knowledge, have not cited church doctrine in arriving at their opinions. Let's take for example, Lawrence v. Texas--the infamous sodomy case. While I somewhat applauded the decision because I felt that individual rights were violated, I had absolutely no problem with Thomas' reasoning in his dissent. Thomas held to the belief that although he view the law as idiotic (for the lack of a better word), he felt that a reversal of an existing statute would be best handled by the Texas Legislature. (Good luck there.) Scalia, on the other hand, was aggresively vile in his response, decrying the rise of "homosexuality" and the "homosexual agenda." He is the one who brought his moral beliefs into the equation. He may love the Constitution, but he has no problem with turning to papal edicts or the Bible to bring his own moral beliefs into the equation. Although I am a devoted Christian, I do not view the Bible as having any weight in judicial decisions. The duty of a judge is to the Constitution, not to personal moral beliefs. That's my problem with Scalia.

Posted by: AR at July 20, 2005 02:44 PM

I disagree with the idea that the Senate should demand judicial nominees answer a laundry list of questions on specific issues. In the first place, one of the reasons Judge Roberts seems to be considered an excellent candidate is because, as one poster put it, he has argued and decided cases, not issues. In the final analysis, the Supreme Court, like any other court, must decide specific cases, not more generally-phrased issues. And it is and always has been absolutely improper for a judge to make decisions on particular cases before hearing them.

I agree entirely. And you could make a fairly good case that, if Roberts WAS stupid enough to answer definitively a question on a substantive issue, he might have to recuse himself from any case involving that issue, as Scalia had to over the pledge of allegiance. Posted by: Simon at July 20, 2005 02:51 PM

Screamin' Howard on Roberts:

"Faced with a growing scandal surrounding the involvement of Deputy White House chief of Staff Karl Rove and Vice President Cheney's Chief of Staff Lewis Libby in leaking the identity of a covert CIA operative, President Bush announced his nomination of John Roberts to the Supreme Court late this evening...

It is disappointing that when President Bush had the chance to bring the country together, he instead turned to a nominee who may have impressive legal credentials, but also has sharp partisan credentials that cannot be ignored."

You mean like Breyer who worked in the Johnson Justice Department, was a Watergate lawyer and a Democratic staffer on the Judicial committee? Or Ginsburg who was an ACLU attorney?

Seriously Democrats, doesn't it embarass you that your chairman reads the Daily Kos and then writes a press release? What a petulant ass.

Posted by: Mathew at July 20, 2005 02:52 PM

Of course, Howard Dean circa 2005 is all about "bringing the country together." What a laugh.

Posted by: Scott at July 20, 2005 02:55 PM

I was one of the cerebral geeks who took the esoteric electives--like Theories of Interpretation--rather than the bar courses. Maybe that's why my experience is in teaching, clerking, and government work, and not so much the lucrative private practice litigation.

Y'all will know that TJJD and I disagree vastly on any number of issues, but - per the above statement - he's the kind of fellow we need more of in law schools. I reserve my right to continue disagreeing with him, though. ;) I did a year of law school in the UK, and even over there, none of the lecturers could believe that I wasn't interested in taking tort classes; it seems to me that way too high a percentage of those entering law school are there to make potloads of cash in private practise. Posted by: Simon at July 20, 2005 02:55 PM

Someone over at Volokh has contributed the following statement from Roberts' last confirmation hearing:

I don’t know if that’s a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, "I’m an originalist, I’m a textualist, I’m a literalist or this or that." I just don’t feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term "inferior court judge," I’ll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be. The other thing is, in my review over the years and looking at Supreme Court constitutional decisions, I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy. The Supreme Court certainly doesn’t. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don’t. And I don’t accept the proposition that a strict constructionist is necessarily hostile to civil rights.

So - explicitly not what I was looking for, then. There is a PDF of the hearings here - in all their 1236 page glory - and Roberts' can be found on pages 17-79 (those are the PDF pages, not the page numbers).

Posted by: Simon at July 20, 2005 03:44 PM

From the last link, some highlights:

Roberts on the Commerce Clause:

[S]tarting with McCullough v. Maryland, Chief Justice Marshall gave a very broad and expansive reading to the powers of the Federal Government and explained that—and I don’t remember the exact quote—but if the ends be legitimate, then any means chosen to achieve them are within the power of the Federal Government, and cases interpreting that, throughout the years, have come down. Certainly, by the time Lopez was decided, many of us had learned in law school that it was just sort of a formality to say that interstate commerce was affected and that cases weren’t going to be thrown out that way. Lopez certainly breathed new life into the Commerce Clause.

I think it remains to be seen, in subsequent decisions, how rigorous a showing, and in many cases, it is just a showing. It’s not a question of an abstract fact, does this affect interstate commerce or not, but has this body, the Congress, demonstrated the impact on interstate commerce that drove them to legislate? That’s a very important factor. It wasn’t present in Lopez at all. I think the members of Congress had heard the same thing I had heard in law school, that this is an important—and they hadn’t gone through the process of establishing a record in that case.

Roberts on judicial activism and deference to legislatures:

[T]he Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform ...[I]t’s a principle that is easily stated and needs to be observed in practice, as well as in theory.

Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic.

(This is a vital area, as even liberals are belatedly realizing in light of Kelo).

On Federalism:

[S]imply because you have a problem that needs addressing, it’s not necessarily the case that Federal legislation is the best way to address it...[T]he constitutional limitation doesn’t turn on whether it’s a good idea. There is not a ‘‘good idea’’ clause in the Constitution. It can be a bad idea, but certainly still satisfy the constitutional requirements.

(The obvious corollary being, it can be a good idea but certainly still fail to satisfy the constitutional requirements).

I loved this exchange, too:
ROBERTS: "My memory may not be correct, but I believe original drafts of the Constitution provided that the Senate would actually be appointing the judges."
CHAIRMAN HATCH: "That is what they [I assume he means the Democrats] think they are doing now."

Posted by: Simon at July 20, 2005 04:09 PM