A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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July 20, 2005John Roberts: The day afterLast night, at The Reaction, I argued that Roberts is something of a "right-wing radical". On issues like abortion, the separation of church and state, criminal law, and habeas corpus, he is certainly on the right, though of course how you label him is very much a matter of perception. (See Slate's review of his background here.) I'm on the center-left, generally speaking, and so to me he's too conservative. Mathew makes an excellent and eloquent case for him here, but I respectfully disagree. In this sense, I must say that I'm somewhat disappointed with Bush's nominee. I was hoping for Gonzales, or perhaps Luttig, and I might even have been willing to consider an intellectual heavyweight like McConnell. But it seems that Roberts was the most conservative pick Bush could have made without risking a serious confirmation battle. He thus played it safe while simultaneously pushing the envelope and satisfying his base. Yes, I'm disappointed, but I was enough of a realist not to expect a moderate nominee and, to be honest, I'm certainly not outraged. He may indeed turn out to be an excellent justice (whether or not I agree with him on any number of issues). I suspect that he'll be confirmed, and rather easily. There are hardly any "extraordinary" circumstances here, and there likely won't be any surprises, and he's spent much of his career inside the Beltway. This makes him something of a known quantity, and he's obviously quite likeable (given what we saw of him last night and given what people are saying of him), but there are also a few problems that worry me: First, he's only been a federal judge for a couple of years, and hence there's hardly any paper trail. Second, most of his career has been spent as an advocate for conservative causes and political appointee/operative under Reagan and Bush I. As the Times put it today (see here for its editorial), "he has a thin record on controversial subjects". The Post even calls him "sphinx-like". And, third, his tenure on the D.C. Circuit Court, however brief, indicates that he may very well be an ideologue. What's interesting is that liberals seem to be adopting a wait-and-see attitude (see, for example, the Post's quite favourable editorial; some more left-wing groups like People for the American Way, as predicted, are already attacking the nomination) while conservatives are in, well, disharmony. It probably doesn't matter much what Ann Coulter thinks (on anything, but especially this), but over at The Weekly Standard, where many of the more thoughtful conservatives hang out, there is some disagreement. Bill Kristol sees Roberts as a courageous (i.e., good) pick, while Fred Barnes sees him as a safe (i.e., bad) pick. For an interesting critique of one element of Roberts's judicial record, see Emily Bazelon's piece at Slate, where she reveals that "[a]s a member of a three-judge panel on the D.C. federal court of appeals, Roberts signed on to a blank-check grant of power to the Bush administration to try suspected terrorists without basic due-process protections". In addition, see William Stuntz's piece at TNR, where he argues that Roberts is essentially a Rehnquistian, more about political bottom lines than judicial reasoning. I look forward to a thoughtful debate here at Centerfield. I realize that there's been a lot of -- perhaps even an overkill of -- SCOTUS-talk lately, but, as the Times put it so well: President Bush did the country a service by making his nomination early enough for the Senate to have ample time to investigate the judge's record and hold hearings. The leaders in both parties should resist any pressures to move quickly. It would be irresponsible to take a position on the nomination of Judge Roberts until his background is carefully reviewed, and until senators have a chance to question him at length. The nomination of a new Supreme Court justice is a great moment for the nation, providing new vigor to a great American institution. The entire country has a stake in the outcome.Posted by Michael J.W. Stickings at July 20, 2005 03:29 PM Comments
Interesting points Michael, I don't think any of that changes my opinion that he is qualified, intelligent, well respected, and therefore should be confirmed. Also, there is a lot of predicting going on in some of those articles that are, at best, educated guesses. I read the insightful TNR piece that may answer some of Keegan's questions in my last post. I am attaching a chunk in this comment for those who do not have a TNR password. William Stuntz says: In at least one respect, though, Roberts and Bush appear to be cut from the same cloth. Bush is a bottom-line president who cares more about results than the supporting reasons. Roberts is a career litigator used to winning cases, not advancing theories--by all accounts intelligent, but without a reputation for flights of abstraction. He is less creative than Michael McConnell, another name often mentioned for the Supreme Court, but also more predictable than someone like McConnell, less likely to change his mind about premises and so end up with different conclusions.Posted by: Mathew at July 20, 2005 03:40 PM Thanks, Mathew. It's tough with those by-subscription-only TNR pieces. I realize that I'm on the left of the Centerfield spectrum, but I think we're generally on the same page. I have my reservations about Roberts, but I just can't get that riled up about his nomination. It's sort of like the papal election. There were those who were shocked and outraged at Ratzinger's win (like Sullivan), but, honestly, what did they expect? The same here. Bush was obviously going to nominate a conservative, but at least Roberts isn't as far to the right as others. (Indeed, the Post editorial indicates that there are some who are already worrying about whether he isn't another Souter. His lack of a paper trail may help him get through the Senate, but it also means that there's a certain unpredictability to him.) Posted by: Michael Stickings at July 20, 2005 04:11 PMI am not surprised at the public reaction of Ann Coulter and Fred Barnes (a reaction shared by others on the right), and I have suggested that conservatives are, in their heart of hearts, deeply disappointed in the choice. Posted by: Michael Meckler at July 20, 2005 04:33 PMThere's something that's very much bothering me about the upcoming nomination process. At this point, it is clear the entire future Senate debate over John Roberts will hinge on whether 2 of the Gang of 14 Democrats will decide to filibuster Roberts' confirmation vote. Why is this a problem? After all, isn't it safe to assume most Democrats in the country are lining up with the 45 Senate Dems/Inds, while most Republicans are standing behind their 55 Senators? Because there are the many voters out there, Independents, conservative Democrats, liberal Republicans who don't reliably vote for one party or the other and who hold many of the views of each party, the debate over John Roberts isn't going to be an airing of his wide range of views or approaches to cases -- it's going to be about Gotcha politics from the Dems, with Republicans doing everything they can to hold the line. For example, from what I've read so far, I'm a bit worried John Roberts has something of a pro-government record. Pro-government views can mean both good and bad things to each of the two parties. Therefore, is it going to be important enough for the Judiciary Committee members to solicit Roberts' views about the role of government? Will they have much incentive to do so? No -- because the entire debate is going to center around Democrats getting Roberts rejected by the full Senate, and Republicans getting him through. Posted by: Scott at July 20, 2005 08:31 PMThat wasn't exactly the most lucid piece; I will follow up later in more detail. Posted by: Scott at July 20, 2005 08:34 PMRoberts is a career litigator used to winning cases, not advancing theories--by all accounts intelligent, but without a reputation for flights of abstraction.Isn't that what folks liked about Sandra Day O'Connor? Posted by: c3 at July 20, 2005 10:02 PM Isn't that what folks liked about Sandra Day O'Connor?It's one of the things I disliked about her. Posted by: Simon at July 20, 2005 10:20 PM Simon, whaddaya think of this from Randy Barnett:
I will not defend the justices in the Kelo majority on this score as they did not seek to rest their opinion on originalist grounds. Alas, there are others, including my friend Bullock, who seem willing to read their own ideological preferences into ambiguous constitutional text. When you stop think about it, this is really a pretty serious insult that goes to the intellectual integrity of those about whom it is said. In essence, it is asserting that, while I have the integrity to set my own preferences aside when reading the Constitution, my opponent does not. It attributes a form of intellectual corruption to one's opponent, in which he puts his interests above the truth, so much so that he is unable to tell the two apart. And it adds nothing substantive to any particular debate. Whether or not your opponent is guilty of this will depend entirely on the originalist evidence for his or her position, or the lack thereof.
"But I think we all ought to realize the true implications of this particular form of (non)argument, and generally refrain from using it unless it is overwhelmingly justified." If it wasn't justified in the Kelo decision, when would it be justified????? The government can forcibly remove you from your 'home' and then 'sell or give' it to a developer to make millions from..... just because the city wants more tax dollars?????? You can't honestly believe that the framers of the Constitution would have allowed that!! Posted by: debsay at July 21, 2005 11:05 AMYou can't honestly believe that the framers of the Constitution would have allowed that!! No I can't say that, which is why I didn't. I think Barnett's point remains, which is that it's better to argue the facts than to accuse others of corruption and intellectual dishonesty. The assumption of intellectual goodwill is in my view, pretty important to substantive productive dialogue. Eugene Volokh has made the point that the Kelo (eminent domain) decision is not much of a departure from established jurisprudence, so it's not especially surprising. I agree that the founders most likely did not mean for eminent domain to include the things the kelo decision approved. The founders probably couldn't have envisioned such circumstances, and the judges clearly rules based on how a series of precedents served to establish the spirit of "public use' in the current context. I think they've wrongly crossed the line. Relatedly, I speculate that the founders also did not intend for the interstate commerce clause to include the right for the federal government to police commerce within a single state related to a whole host of things into which it has since chosen to stick its nose. But I'm nevertheless glad in many instances that the fed'l gov't does so. There are any number of things the government regulates that the founders arguably didn't intend for them to regulate, but withdrawing that regulatory power could result in a balkanized wild west while we await the remedy of an amendment. Not everyone wants the judiciary to fill in the blanks, but i think there's an argument to be made for expediency, IOW for the sake of timely justice in the absence of clarity, based on the spirit of the constitution, as adjudicated by the supreme court under the watchful eyes of the people.There are instances where America has been well served by rulings based on the perceived spirit of the constitution, so I'm willing to grant such leeway and accept the results most of the time, standing ready to clarify the desires of the people in cases where the court may have strayed from our wishes. I expect that Kelo will beget an amendment movement, and I think that such a process would be useful and instructive. In the meantime, let's not go too overboard. Even if you find the kelo takings themself deeply unjust, let's grant that the ruling did not set a precedent granting carte blanche for arbitrary and capricious takings, only takings subsequent to a careful review of the details via a process that included feedback from a variety of sources. I still don't like it, and think we should err on the side of individual property rights, but in my view there's every reason to think such takings will continue to be rare, and subject to careful review. In other words., the court left the door open for review of more cases, and the making of appeals on the basis of whether or not the taking was indeed based on a fair and careful process which balances individual's rights against public needs. I know a lot of people think this is dangerous, and they have very good points to make. For me, the bottom line is that I am just not convinced that our nation would be a better and more just place for ALL the people if the supreme court acted as reticent technicians constrained by the letter of the law and the strongly determinable intent of people who may well not have been able to imagine many of the problems of today's world. Simon, for one, makes a valid point that the intent was that we'd pass an amendment whenever we wanted a substantive change, but as time has passed and the world become more complex, I think if you insist on doing it this way most or all of the time, the real-world result may be justice delayed or even denied. YMMV. Posted by: bk at July 21, 2005 12:41 PM"Not everyone wants the judiciary to fill in the blanks, but i think there's an argument to be made for expediency, IOW for the sake of timely justice in the absence of clarity, based on the spirit of the constitution, as adjudicated by the supreme court under the watchful eyes of the people." I don't want the judiciary to fill in the blanks, because I don't want laws made by 5 elitists that live in Washingtong DC and run with the powerful dogs.... I want to have a say in these laws.... If things are just decided this way, WE DON'T HAVE A SAY. "There are instances where America has been well served by rulings based on the perceived spirit of the constitution, so I'm willing to grant such leeway and accept the results most of the time, standing ready to clarify the desires of the people in cases where the court may have strayed from our wishes." Exactly how are you going to clarify the desires of the people when the court has strayed from our wishes? What can you do about it if you have given your power to 5 people that wear black robes? You can't vote them out, you can't do anything. These people aren't infallable, they make bad decisions. I don't understand how you can say that you are defending the spirit of the constitution when you are being unconstitutional to begin with. The Judiciary Branch wasn't given the power to make laws in the constitution.... That power is given to the legislative branch for a reason, we cease to be a Democratic Republic if the citizens cannot check the power of it's government.... If you concede to allow 5 people to make things up as they go along, you become an Oligarchy. That is taking the Constitution and wiping your behind with it. "I expect that Kelo will beget an amendment movement, and I think that such a process would be useful and instructive. In the meantime, let's not go too overboard. Even if you find the kelo takings themself deeply unjust, let's grant that the ruling did not set a precedent granting carte blanche for arbitrary and capricious takings, only takings subsequent to a careful review of the details via a process that included feedback from a variety of sources. " I certainly wrote to my congress men... as to your other point, it may be a careful review of the details but, you know, a few well place bribes... is all it would take. There are millions to be made here..... you think this isn't going to happen. The more often this is allowed to happen the less review there will be the next time. I can see them out waxing the slippery slope now. "I still don't like it, and think we should err on the side of individual property rights, but in my view there's every reason to think such takings will continue to be rare, and subject to careful review. In other words., the court left the door open for review of more cases, and the making of appeals on the basis of whether or not the taking was indeed based on a fair and careful process which balances individual's rights against public needs." You are being awful trusting on this one, now that there has been a precedent set, fewer and fewer cases will get to the Supreme Court because this has already been decided once. Public needs? How about Private Profit! That's what this is about.... they just said 'public needs' so people wouldn't argue to loudly. "I know a lot of people think this is dangerous, and they have very good points to make. For me, the bottom line is that I am just not convinced that our nation would be a better and more just place for ALL the people if the supreme court acted as reticent technicians constrained by the letter of the law and the strongly determinable intent of people who may well not have been able to imagine many of the problems of today's world." Once again, you have an awful lot of trust... or you are being very nieve. If you give this court the power to 'make laws' then how are you going to limit the powers when you get a group that are making laws that you consider unconstitutional? You can't, you've already signed over the deed to the country... We both know that you can get extremely conservative or extremely liberal judges - the constitution should be the deciding factor in deciding these cases. If there needs to be changes to the law that is what the CONGRESS is for.... If there needs to be changes to the constitution itself, that is what the amendment process is for.... That way EVERYBODY gets to have a say - it isn't left up to 5 elitists in black robes to dictate to the rest of us. That is how the constitution was written, it was written that way for a reason... a very important reason. "but as time has passed and the world become more complex, I think if you insist on doing it this way most or all of the time, the real-world result may be justice delayed or even denied. " You are forgetting that somebody is getting justice denied anyway (losing party), I don't care if it is delayed I don't trust people in power, it goes to their head and they start morphing into monsters.... I want to keep the constitution the way it was intended - otherwise we aren't citizens we are subjects! Posted by: debsay at July 21, 2005 04:21 PMDeb, we've discussed this at length on many other threads, recently, so you're a little bit late to the party, and I don't have the energy to repeat myself again. But I take issue with the notion that the judges are in fact making laws as you describe it. They're interpreting them, and what they are doing is, IMO within their purview. And as I pointed out, most legal scholars would say that this decision, much as it surprises you, is not much of a stretch at all from previous related decisions, so it's not really a very outlandish "precedent". Oh, and bribes are already illegal. Posted by: bk at July 21, 2005 04:55 PMDeb, I wanted to pick this up, so I'm back. I don't consider myself naive or especially trusting. I'm much more of a "trust but verify" guy at best. Here's the thing, if you don't trust the government at all, and posit malice on their part, then you have to acknowledge that if they have the strong will to act corruptly, they'll be able to find a way. You mentioned bribes as a way to corrupt the process that I described as not being entirely unreasonable. Sure, that's possible now, but how protected were you really, before Kelo? What was there to stop a corrupt developer from bribing an insider crony to take property by eminent domain for an already accepted "public" use, bulldoze it under, and build a park or police substation. And then sell it off 5 years later because they discover, "oh we can't afford the upkeep and we need to expand the tax base." You are forgetting that somebody is getting justice denied anyway (losing party), I don't care if it is delayed
I want to keep the constitution the way it was intended - otherwise we aren't citizens we are subjects! And don't forget, the supreme court doesn't necessarily have the final say. We can amend the constitution if the SC crosses the line and interprets the spirit of the constitution beyond what the people feel is proper. And if SC justices act with disregard for the people and the laws we pass, we can impeach them . GViven that these checks and v]balances exist in response to SC decisions, it simply isn't the case that we're becoming "subjects" of the judiciary. That's just silly. In the case of the SC, I think the justices are doing their best to act in good faith as they see it.
BK, We've had this out elsewhere, as you say, so I won't repeat my arguements either. I'll just address one small point you raise here that I haven't before. "And as I pointed out, most legal scholars would say that this decision, much as it surprises you, is not much of a stretch at all from previous related decisions, so it's not really a very outlandish "precedent". No one ever travels a mile in one giant leap.... they do it in a thousand small steps. At the end, you still end up a mile from where you started though. Cengel. Let me point out that I was wrong in giving the impression that I know this (noit far frinmm opast decisions) to be true. In fact, I know only that Eugene Volokh said so, and extrapolated solely on the basis of the absence of knowledge of challenges to that statement. Generally Volokh seems to be reliable, though, and I've heard no disagreement with this. Your point is well taken, and I agree with it. Here's the thing, though. it's only the last step off the cliff that kills you. Some people are so afraid of the cliff that they build fences hundreds of feet away from the cliff. Those even more afraid use prisons and shackles and sentries.I value freedom and leeway enough that I'm willing to live without the sentries and fences, even if it means a dummy goes over every once in a while. Posted by: bk at July 22, 2005 02:18 PMGetting back to the subject at hand, Roberts seems like a safe choice--until he says he "can't remember" whether or not he beloged to the federalist Society. That sounds suspiciously--dare I say it?--Clintonion. Posted by: Blue Jean at July 25, 2005 11:12 AM |
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