T Nation

Roberts' Nomination to USSC


#1

Seems that Bush made a pretty wise pick. The only groups truly getting wadded up are the MoveOn.org types -- even the Washington Post had a good editorial on Roberts, who is currently an appellate judge here in the DC Circuit:

The President's Choice

Wednesday, July 20, 2005; Page A22

IN NOMINATING Judge John G. Roberts Jr. to the Supreme Court, President Bush picked a man of substance and seriousness. Judge Roberts has served only briefly on the U.S. Court of Appeals for the D.C. Circuit, but he was previously among the country's best-regarded appellate lawyers, both in private practice and as deputy solicitor general during the administration of George H.W. Bush. Judge Roberts is a conservative, but he has never been an ideological crusader; he has admirers among liberals. If confirmed as the successor to Justice Sandra Day O'Connor, it is likely that he will shift the Supreme Court toward the right. But his nomination is not a provocation to Democrats -- as some other possible nominees would have been. Mr. Bush deserves credit for selecting someone with the potential to attract broad support.

This is not to say that Judge Roberts's nomination will proceed without controversy. At least one of his opinions since joining the D.C. Circuit raises a concern about his views of the balance of power between the federal government and the states. In that case, Judge Roberts intimated that he might take a very narrow view of the power of Congress to regulate interstate commerce -- the constitutional foundation of much of modern federal law. Judge Roberts poetically questioned whether "the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce . . . among the several States.' " Senators will need to explore whether he envisions a dramatic revision of federal power.

Other issues will surely arise. Judge Roberts's two nominations to the D.C. Circuit -- a failed bid at the tail end of the first Bush presidency, and a second in 2001 -- were both held up because of liberals' anxieties. Abortion rights advocates have objected to his having argued, as a lawyer for the government in a case about federal funding for family planning, "that Roe v. Wade was wrongly decided and should be overruled." Judge Roberts has never said whether that brief reflected his own opinion. But the question has already come up anew -- as have more general concerns that he is just too conservative.

The reality, however, is that nobody really knows what Judge Roberts believes, because he has been unusually careful about not discussing his views. His judicial work has been, generally speaking, careful and has given little away about the attitudes of the man who wrote it. So sphinx-like has he been that some conservatives have suggested he might have a "Souter problem" -- that is, not be a real conservative at all. This seems unlikely. But Judge Roberts's law practice was not ideologically driven, and he has not used his brief time on the bench -- as some judges and justices do -- as a platform to promote either his politics or a grandiose theory of judging. His confirmation hearings offer the Senate the opportunity to probe whether his evident reticence and caution would translate into a restrained jurisprudence that respects the stability of precedent.

Such a substantial picture of the nominee will require a serious and dignified confirmation process. The prospects for one are mixed. Senate Minority Leader Harry M. Reid (D-Nev.) noted Judge Roberts's "suitable legal credentials" and appropriately reserved judgment. By contrast, no sooner had the nomination been reported than People for the American Way declared itself "extremely disappointed" and suggested that his confirmation could be a "constitutional catastrophe." Conservative groups, meanwhile, are demanding his immediate confirmation. In the days that come, the cacophony of voices promoting or opposing him could easily drown out any serious discussion of a man who deserves careful consideration. The Senate needs to make sure that a fair, open and substantive confirmation process takes place even amid the noise.


And while the NYT is its usual liberal self in its editorial this time around, ( http://www.nytimes.com/2005/07/20/opinion/20wed1.html?hp ), that Roberts a scant two years ago was unanimously confirmed as an appellate justice by the Senate.

Jeffrey Rosen of liberal magazine The New Republic has a good synopsis of Roberts here:

https://ssl.tnr.com/p/docsub.mhtml?i=20041129&s=rosen112904

Here is the excerpt in which he evaluates Roberts, who is included under the title "Principled Conservatives":

John Roberts, 49. U.S. Court of Appeals for the Washington, D.C., Circuit. Top of his class at Harvard Law School and a former law clerk for Rehnquist, Roberts is one of the most impressive appellate lawyers around today. Liberal groups object to the fact that, in 1990, as a deputy solicitor general, Roberts signed a brief in a case involving abortion-financing that called, in a footnote, for Roe v. Wade to be overturned. But it would be absurd to Bork him for this: Overturning Roe was the Bush administration's position at the time, and Roberts, as an advocate, also represented liberal positions, arguing in favor of affirmative action, against broad protections for property rights, and on behalf of prisoners' rights. In little more than a year on the bench, he has won the respect of his liberal and conservative colleagues but has not had enough cases to develop a clear record on questions involving the Constitution in Exile. On the positive side, Roberts joined Judge Merrick Garland's opinion allowing a former employee to sue the Washington Metropolitan Area Transit Authority for disability discrimination. He pointedly declined to join the unsettling dissent of Judge David Sentelle, a partisan of the Constitution in Exile, who argued that Congress had no power to condition the receipt of federal transportation funds on the Metro's willingness to waive its immunity from lawsuits. In another case, however, Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress's power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that "the hapless toad ... for reasons of its own, lives its entire life in California," and therefore could not affect interstate commerce. Nevertheless, Roberts appears willing to draw sensible lines: He said that he might be willing to sustain the constitutionality of the Endangered Species Act on other grounds. All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament.


And the academics over at the Volokh Conspiracy were singing Roberts' praises for the last month in this string, in which some described Roberts as the ideal nominee, but doubted Bush would put him up -- and also analyzing how "The Deal" might work in Roberts' case:

http://www.volokh.com/posts/chain_1121816986.shtml

[If you follow the links, the posts are in reverse chronological order]


#2

I doubt the Senate will like any judge who thinks that federal power should be limited (as per the Constitution), but here's to hoping.


#3

Noted political journalist Howard Kurtz is saying the initial reaction seems to be collective agreement that Bush made a shrewd pick:

Supreme Timing

The initial television take last night was that this was not an incendiary nomination. "The Democrats were fearing someone much more conservative," Tim Russert said. "By all accounts, a lightning-fast intellect," said Brian Williams. Fox's Fred Barnes said Roberts was fine but not "demonstrably conservative" enough for some on the right, while Bill Kristol said he was now an "obvious" candidate to succeed Rehnquist.

MSNBC's Abrams says Bush threaded the needle: "He's just conservative enough to satisfy the base and yet there's not enough on paper for the liberal groups to get him."

The morning analyses, if you read between the lines, seem to say: shrewd choice .

Los Angeles Times ( http://www.latimes.com/news/nationworld/nation/la-na-scotus20jul20,0,2226321.story?coll=la-home-headlines ):

"In choosing Roberts, Bush settled on a traditional jurist with longtime Republican ties and sterling conservative credentials. But Bush missed an opportunity to appoint another woman to the court, or nominate the first Latino justice. Bush has opted for a low-key, cautious conservative to replace a judicial centrist who frequently cast a deciding swing vote on the nine-member court."

New York Times ( http://nytimes.com/2005/07/20/politics/politicsspecial1/20nominee.html?hp&ex=1121832000&en=a9ef76797bf4261f&ei=5094&partner=homepage ): "While Judge Roberts has impeccable Republican credentials and a record of service in the Reagan and first Bush administrations dating to 1981, his paper trail of opinions is comparatively thin, and he is not seen as a 'movement conservative.' . . .

"Abortion rights groups fault him for arguing, as deputy solicitor general for the first Bush administration in 1990, in favor of a government regulation banning abortion-related counseling in federally-financed family planning programs.

"He also helped write a brief then that restated the first Bush administration's formal opposition to Roe v. Wade, the 1973 Court decision that established the Constitutional right to abortion, contending, 'We continue to believe that Roe was wrongly decided and should be overruled.' But when pressed during his 2003 confirmation hearings for his own views, he said: 'Roe v. Wade is the settled law of the land,' and added, 'There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent.' "

Boston Globe ( http://www.boston.com/news/nation/washington/articles/2005/07/20/a_scant_paper_record_of_personal_views/ ): "Supreme Court nominee John G. Roberts Jr. has developed a reputation in the nation's capital as a respected intellectual with strong conservative credentials, but he has produced little record of his personal views on the most incendiary social issues that are settled by the nation's highest court."

Wall Street Journal: "Judge Roberts may be difficult for the Democrats to attack as being an extremist. Those who have worked with him say he is a gracious judge likely to communicate effectively during confirmation hearings, and who has avoided provocative comments from the bench or in public speeches. And the business community is certain to hail the selection of a jurist who often represented businesses on regulatory matters."

Chicago Tribune ( http://www.chicagotribune.com/news/nationworld/chi-050719bush-story,1,4308413.story?coll=chi-news-hed ): "President Bush's prime-time nomination Tuesday of Judge John Roberts Jr. to fill a Supreme Court vacancy demonstrated, once again, the president's signature defiance of the expected. . . .

"In Roberts, many analysts agreed, Bush could appease his conservative base, argue convincingly that the judge was the best-qualified available nominee and fend off any easy demonization of Roberts by Democrats. But Roberts is a step backward in terms of the court's diversity and that carries risk for the president. In that sense, rather than a bland choice, it was bold.


#4

The more I think about this, the more I like this choice.

We've got people on the far left and the far right opposing him already.

That means he is about right.

I think it's a scholar's choice.

Halliburton, George H.W. Bush, Cheney, (aka.. everyone but W.) did a great job with this selection process.

JeffR


#5

It won't be that easy for Roberts, politically active types like myself are just getting warmed up. The following in why:

http://slate.msn.com/id/2123055/

"But an opinion that the 50-year-old judge joined just last week in the case Hamdan v. Rumsfeld should be seriously troubling to anyone who values civil liberties. As 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."


#6

Jeff and Neph,

I'm hoping for some relatively smooth sailing on the confirmation, at least via the initial reactions. All the specific liberal objections I've seen voiced are rubbish -- and usually misrepresent the opinions in the cases. And some conservatives wouldn't be happy unless Roy Moore was nominated. Even with the horrible record of Republican Presidents with many of their appointments, I don't think anyone needs to worry that another Souter was put forward.


#7

This nomination was a great choice to get the maximum amount of distraction with the MSM.

It remains to be seen if the Plame scandle will fade until Fitzgerald starts indicting people.

Roberts will be grilled by the Democrats in the Senate as there is very little out there on Roberts.

I believe Roberts will be confirmed but I an not so sure he will be confirmed before the SCOTUS new session starts in October.

Who cares what the left wingnut interest groups day?

What matters more than anyone thinks is does Roberts pass the right wingnut evangelical's standards?

The Plame scandle will not go away and Bush needs all the support he can get.

It would not be good for Bush if Roberts is not deemed acceptable to the evangelicals.


#8

Katie Couric is really carrying the MoveOn.org banner today. Did anyone haoppen to catch her editorialized questions and back handed digs in reference to Roberts on the Today Show?

It was comical to say the least.


#9

Bring it on.

Hahahahahaha...


#10

I wouldn't hold out so much hope for the smooth sailing. It'll go fine until a democrat tries to force Roberts to voice his opinion on R v. Wade. Then all bets are off.

While I hope I am wrong about this, It would serve the Republicans well to keep the 'nuclear option' on the table and in plain sight. This is assuming, of course that Specter acts like a Republican for a change.

Why did they let him be Judiciay Committee Chairman?


#11

Specter is one of the few Republicans I respect.

Following Uncle Ronnie's 11th commandment is for sissies.


#12

Wag the dog style? Not sure about that... Which isn't to say that the administration doesn't know how to highlight good news while de-emphasizing less positive stuff.

If Bush wanted maximum distraction, he would have picked a nominee who would have engendered a bigger fight -- more support from the base, and more distraction for the MSM.


#13

rainjack,

I actually think it will be pretty smooth -- not without any bumps, but a lot smoother than Janice Rogers Brown would have been.

At any rate, the NARAL crowd doesn't have much to hang its hat on. I think the most they've got is that Roberts' wife is pro-Life and Roberts was the sixth attorney to sign a brief, when he was a lawyer for the Bush 41 legal dept., that in a footnote argued that Roe v. Wade was bad law. Not only was it not his position (it was the administration's), but he wasn't even the lead lawyer.

Also, if he takes a firm stand on not answering questions on how he would hypoethetically rule on hypoethetical cases, which is pretty clearly against judicial ethics (judges are supposed to look at the facts of the individual cases before them, and not base their judgments on their own previously held opinions), which has been the position of all the previous USSC nominees I can recall, he should be fine.

There won't be a filibuster -- at least not unless they really want to see the nuclear option. Even McCain was saying Roberts was a good choice whom he expected to fly through confirmation.


#14

I've heard that, since this is a 'unique time' on the political and judicial landscape. that type of hypothetical questioning is not off the table.

I hope you are right. I hope he sails through confirmation. But when the Pelosis, and the Reids and the Kennedys are involved, I get a funny feeling that someone is standing behind the machine with a big-assed monkey wrench witing to thrown it in just to see what happens.


#15

I expect and hope for a monkey wrench.

If the tables were turned I would expect the Republicans to throw a monkey wrench into the mix.

C-SPAN? Check
Popcorn? Check

I am good to go!


#16

This blogger, a conservative trial lawyer from Texas, lays out the probable strategies the Democrats will take to fight the Roberts' nomination:

http://beldar.blogs.com/beldarblog/2005/07/why_im_not_worr.html

EXCEPRT

The flip side of Judge Roberts having a thin public record as a judge, of course, is that there's less of a paper trail for Judge Roberts' opponents to pick through and distort; indeed, this was the "stealth candidate" rationale advanced by the Bush-41 Administration for the Souter nomination that, in hindsight, backfired so badly. Lacking a long paper trail of prior judicial opinions, Judge Roberts' opponents will instantly flip to alternative strategies.

First, they may decry the nominee's "lack of judicial experience." This is singularly unpersuasive with Judge Roberts, though, because his two years on the DC Circuit are nontrivial, he'd have been there since 1993 had not Bush-41 lost, and his other academic and career credentials are so varied in type but extraordinary in quality. Indeed, if his only credential were the extraordinary number of cases he's personally argued and won in the Supreme Court as an advocate, that alone would probably be enough to qualify him for a seat on that bench! So this strategy is unlikely to be very appealing or effective.

A second alternative strategy is available to the Dems precisely because Judge Roberts has spent much of his career as a public servant ? first, as a lawyer whose clients have most frequently been the President and the United States, and more recently as a judge. Using this fact, I guarantee you that opponents of this nomination will (as they did with Miguel Estrada) manufacture a bogus dispute by demanding executive-privileged documents that Dubya won't and can't turn over, and nor could any President without forever damaging our federal separation of powers system. Senators are no more entitled to seize, publish, and dissect John Roberts' privileged advice to the Executive Branch than they are entitled to seize, publish, and dissect his correspondence with other judges on the DC Circuit; but that won't stop them from trying. And ? again as with Estrada ? no matter what he says during his confirmation hearings, they'll contend that Judge Roberts has been "insufficiently candid" based on his refusal to let them put words into his mouth, or to answer "stopped beating your wife?" questions, or to pre-commit on or address the merits of "pending or impending" cases that a judge may not ethically discuss.

Third, Judge Roberts' opponents will try to tag him with public positions he's taken on behalf of clients, either governmental or private-party, before he became a judge. As a high-profile and active appellate advocate, John Roberts has, of course, advanced many arguments and taken many positions on behalf of the Reagan and Bush-41 Administrations and on behalf of Hogan & Hartson's private clients in what have been, by definition, high-stakes and hugely controversial cases. His name is on, and he's been personally involved in writing, a great many briefs, and he's also orally argued many of those cases.

Opponents of his nomination will therefore impute arguments and positions to him, personally and in full, whenever it fits their goal of portraying him as "extremist." (Indeed, they've already started). This may be a somewhat effective strategy, but it's extremely cynical and unfair, and it will ultimately fail because it ignores what even the general public understands to be the most basic truth of lawyering: Whenever John Roberts has appeared in courts as an advocate, he's been expressing views as an agent on behalf of his principals, not on his own behalf. That is his and every advocate's fundamental duty ? both when the advocate personally agrees with his principal and when the advocate personally disagrees (and has privately argued against that argument or position). The fact of the matter is that you can tell something about how clever and competent a lawyer is by observing his oral and written advocacy, but you can't really tell what's behind the mask, what's inside the advocate's heart. This might actually end up briefly troubling conservatives: Just as liberals can't conclusively assert that everything Principal Deputy Solicitor General Roberts wrote and argued as a public advocate for the Bush-41 Administration reflects his personal beliefs, neither can conservatives necessarily rely upon that either!


#17

One more good post on Roberts' qualifications, from libertarian BC law prof Randy Barnett:

http://volokh.com/archives/archive_2005_07_17-2005_07_23.shtml#1121879251

Randy Barnett, July 20, 2005 at 1:07pm] 2 Trackbacks / Possibly More Trackbacks

Who is John Roberts? Who Knows? Jonathan Adler says John Roberts is the "best available" nominee ( http://bench.nationalreview.com/archives/070034.asp ). John Podhoretz says he is a "boring choice." ( http://www.nypost.com/postopinion/opedcolumnists/50468.htm ) So which is it? . . . .

Sorry, I seemed to have fallen asleep. I guess that means Podhoretz is right. John Roberts is who you get when the President finally nominates the "best qualified" candidate. I mean truly best qualified as measured by college and law school degrees (both Harvard), grades (summa, Harvard; Magna, Harvard Law School), clerkships (Friendly, Rehquist), post law school job (Chief Deputy SG), big prestigious law firm job. He is widely reputed to be considered by the Justices themselves as among the very best Supreme Court oral advocates around today. And no one dislikes him.

But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the enumerated powers of Congress? We don't know. Would he have ruled with the majority in Kelo? We don't know.

What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.

John Roberts appears to be the quintessential A+ student. That means being very smart, working very hard, and generally scoping out what the teacher wants to hear--which includes just the right amount of intellectual disagreement. Indeed, these would seem to be the qualities most desired in a judicial clerk who needs to anticipate and articulate the views if his judge, a Deputy SG who needs to voice the views of the administration, a Supreme Court advocate who needs to figure out what the justices want to hear while making his client's case, and an appellate judge who is trying faithfully to anticipate and follow Congress and the Supreme Court. Add to this what appears to be an admirable personal character and you have the "best qualified" person to sit on the highest court. But what may be missing is a judicial philosophy that will withstand the rigors of decades on the Court.

Am I being too hard on Judge Roberts? Perhaps. But I do know this. 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.

In contrast, Judge Michael McConnell, to name another conservative, has been through this ordeal. As a law professor, he has had to make such a commitment about judicial philosophy and defend it. When it comes to originalism, he has practiced it himself, and the fruits of his analysis have been subjected to severe academic scrutiny. In doing so, he has earned the respect of his academic adversaries. But because he has a paper trail, McConnell would have had a much tougher confirmation fight, which I imagine entered into the decision to pick Judge Roberts instead.

So we are still ducking and hiding from a debate over how the Constitution should be interpreted, beyond "not legislate from the bench." Will these questions be asked by the Senators? Maybe, but not likely. Will they be answered by the nominee? Only if asked, and then I expect to get answers that the Senators want to hear, delivered in a calm, cool, articulate and thoughtful manner. In a word, "boring." I predict no gavel-to-gavel network coverage. Even CNN and Fox News will cut away. C*SPAN will end up having this one all to itself.

Should Judge Roberts be confirmed? From what I now know, absolutely. He is well within the range of Presidential picks that are entitled to Senate confirmation. This was the President's choice to make, after all, not mine. But with someone like Judge McConnell we would have known what we were getting, for better or worse. With Judge Roberts, we can only sit and wait...and hope for the best.


#18

More thoughts from a law prof on the confirmation. On the minus side, its an academic talking about politics, and he's a big Roberts' fan, so I'm sure his preference is for a quick confirm. On the plus side, he's in DC, and plugged in.

http://volokh.com/archives/archive_2005_07_17-2005_07_23.shtml#1121870916

[Orin Kerr, July 20, 2005 at 10:48am] 1 Trackbacks / Possibly More Trackbacks

My Sense of the Roberts Confirmation Picture:

It's less than a day since President Bush nominated John Roberts to be an Associate Justice of the Supreme Court, but I wanted to offer some thoughts on how the nomination is playing out so far based both on my reading of the press and blog reactions and my own discussions about these issues with folks in DC.

1) My sense is that most people expect Roberts to sail through. Roberts is widely liked and respected, and there are no obvious red flags. More importantly, from the perspective of many Democrats, Roberts was one of the two or three least objectionable names on the list of a dozen or so possible picks floated by the Bush Administration. The big question had been whether Bush would nominate someone with some Democratic support (which mostly meant McConnell, Roberts, or Gonzales), or someone Democrats saw as a lunatic or Republican hack (Janice Rogers Brown, etc.). Bush has answered that question by picking a safe nominee, someone with considerable Democratic support. And most expect Bush will be rewarded with a fairly straightforward nomination.

2) The interest groups have to make a lot of noise right now, but it's mostly because they see that as their job regardless of who is the candidate. Lots of groups have been given lots of money to fight or support whoever Bush nominates, and that money has to be spent somehow. The spring has been wound very tight, and now we have to let it unwind a bit. But most people I've talked to aren't taking it very seriously, or seeing it as very specific to Roberts.

Of course, all of this may change. These sorts of things are very fluid. But at least the initial sense seems to be that Roberts is in pretty good shape.


#19

When Rehnquist quits after Roberts is confirmed, will any Democrat have the nerve to oppose the first black, female chief justice?


#20

Marmadogg wrote:

"Specter is one of the few Republicans I respect.

Following Uncle Ronnie's 11th commandment is for sissies."

Spoken like a true democrat.

What a surprise.

Hillary in 2004-2008-2012....Forever!!!

JeffR