Last night, Adam at Red State wrote the following:
It must be said: There is nothing extraordinary about John Roberts, Jr. He is a long serving judge on a Circuit Court. His legal reasoning skills seem to be unassailable. His demeanor is unremarkable. And his judicial philosophy is well within today’s mainstream. Roy Moore is extraordinary. Micahel Moore is extraordinary. Roberts is ordinary.
The NY Times appears to agree:
Standing at the president’s side Tuesday night, Judge John G. Roberts, a veteran of 39 arguments before the Supreme Court, spoke of his “profound appreciation” and “deep regard” for it.
“I always got a lump in my throat whenever I walked up those marble steps,” he said.
Carefully chosen as they undoubtedly were, these were the words of someone deeply anchored in the trajectory of modern constitutional law, not of someone who felt himself on the sidelines throwing brickbats, nor of someone who felt called to a mission to change the status quo.
There are others, potential nominees whom the president might have chosen, who probably also feel a lump in the throat when they think about the Supreme Court, but it is caused by anger rather than reverence. That is not to say that Justices Antonin Scalia and Clarence Thomas, whom President Bush had offered as his models for a Supreme Court selection, do not respect the institution, but their stance is one of opposition to many currents of modern legal thought that the court’s decisions reflect.
Now the question is whether Judge Roberts, if confirmed, will, like those two justices, commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers or whether, like the justice he would succeed, he finds himself comfortably in the middle rather than at the margin.
His résumé suggests the latter, as does his almost complete lack of a paper trail. There are no flame-throwing articles or speeches, no judicial opinions that threaten established precedent, no visible hard edges.
Via Sullivan, this Jeff Rosen piece:
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.
On the other hand, Randy Barnett seems concerned:
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.
Make of it all what you will.
Hokiw
“Long serving”? Wasn’t he confirmed in May 2003?
Doug
Yup. Just over 2 years on the bench. “Long serving.” It doesn’t disqualify him, by any means, but he seems to have sufficient credentials without having to make some up. Awfully reality-based of me, I know.
Mr Furious
Is there a reason you called him “Rogers” that I’m missing?
John Cole
Freudian slip. He reminds me of Mr. Rogers. Or, this guy.
KC
I just heard on the radio that NARAL or some other organization is already protesting Roberts. Certainly they have a right to do so, but I wonder what the hell they are trying to accomplish? Frankly, I wish they’d shut up right now and let the guy have a hearing before going into protest mode.
M. Scott Eiland
The guy is married to a pro-life activist–if he’s going to “evolve,” he’s going to be seriously swimming against the stream to do it. Given the history of Republican presidents making, er, questionable Supreme Court choices, the paranoia from some on the right is understandable, but I suspect that Roberts is going to be a solid Rehnquist/Scalia type vote right down the line.
DougJ
Roberts seems like just the man to help reverse the activist rulings that have turned this country upside down and corroded its moral fiber. Here’s to future rulings that overturn Roe v. Wade and let prayer back into the classroom again.
M. Scott Eiland
Iowahawk has apparently been peeking into the Moonbat Brigade’s inbox. . .]:-)
Sojourner
“Roberts seems like just the man to help reverse the activist rulings that have turned this country upside down and corroded its moral fiber. Here’s to future rulings that overturn Roe v. Wade and let prayer back into the classroom again.”
Absolutely. Screw the Constitution and the Bill of Rights. Let’s also bring back stoning of adulterers and burning of witches.
DougJ
“Screw the Constitution and the Bill of Rights.”
No, but interpret them STRICTLY as they are WRITTEN instead of substituting your liberal OPINIONS about them.
matt
eh, I’m still a little surprised that the right was apparently bluffing Bush regarding the hell he would pay if he didn’t nominate one of their own.
Even reading the blogs this morning, it’s like the Twilight Zone, Kos seems as happy with the nom as Red State (ect), go figure.
matt
damn, every time I post here I use “happy” when it’s completely the wrong word. Whenever you see me say happy, switch it to “content” or “not outraged.”
Rick
Let’s also bring back stoning of adulterers and burning of witches.
Was that part of our legal heritage before Earl Warren? Just axing.
Cordially…
DougJ
Those liberal blogs are always outraged about something. They should all be shut down if you ask me. We’re at war and we don’t need that kind of ankle-biting from the lefty puppies right now. Their anti-Bush jiahd makes us look weak to our enemies. Thank God the insurgents aren’t half as determined and hateful as the left-wing blogs.
Rick
M. Scott,
Clearly, some of the sinister-wing commentariat here have received Iowahawk’s action alert, and failed to recognize the lampoon.
Cordially…
p.lukasiak
A question for John….
given Robert’s record, how do you think he would have ruled on a Presidential authorization of torture under the “Gonzales theory” that acting as Commander-in-Chief, a President is literally above all laws prohibiting torture?
(here, of course, is my opinion— my general impression is that Roberts would support the use of torture authorized by a President acting under “CIC” authority — more importantly, I could not support any Supreme Court nominee that I thought would possibly interpret the Constitution in that manner. Can you? )
MI
No, but interpret them STRICTLY as they are WRITTEN instead of substituting your liberal OPINIONS about them.
Take an issue like prayer in school that you mentioned. If you completely strip ideology, philosophy and politics from the equation and strictly focus on the constitution, it makes sense that there’s no prayer in school..or more accurately, no school lead prayer, since obviously anyone is allowed to pray any prayer there choose in school.
I don’t mean this in a jerk way, but why don’t you just admit that what you want is exactly an activist judge, you just want them to be activist for your personal beliefs. It’s probably how we all feel to some extent or another.
Mike S
DougJ loves America so much that he wants to get rid of the first Amendment. There’s a term for people like him but it violates Godwin’s Law, although jackass fits him as well.
DougJ
“I don’t mean this in a jerk way, but why don’t you just admit that what you want is exactly an activist judge, you just want them to be activist for your personal beliefs. It’s probably how we all feel to some extent or another.”
Fair enough.
Steve
Remember, it is fine for Republicans to come out and say what a great pick he is, but if any Democrats say they will oppose him, they’re kneejerk partisan obstructionists. Only Republicans are allowed to make up their mind before all the evidence is in.
Mr Furious
John-
I don’t know if anyone else clicked that link to the Otto shot. I did–very funny.
p.lukasiak
Only Republicans are allowed to make up their mind before all the evidence is in.
What nonsense. Democrats are allowed to make up their minds too, if they agree with the GOP. :)
eileen from OH
DougJ is RIGHT! Those hateful liberal bloggers need to be shut down. There ARE limits to free speech, you know. You can’t yell “fire” in a crowded theater and you can’t yell “Bush is a Dickwad” on the internets when there’s a war going on! Why can’t the stoopid liberals take a lesson from the right and treat Bush At War with the same respect that we gave Clintoon when he sent troops to Bosnia while at the same time getting a bj! (Now THAT’S what I call “multi-tasking”!) And in 2008, when the war is still going on, and Hildebeest is inaugurated, I am going to stand tall and proud with her and support her – even though she killed Vince Foster. Because otherwise those who hate freedom in (insert name of country here)will have WON! Let’s all take that pledge, right here, right now! Let’s show those traitorous despicable treasonous vermin scum-sucking toilet-licking liberals who’s REALLY compassionate!
eileen from OH
Ann Coulter for SCOTUS! (She’s a lawyer, right?)
Sojourner
Eileen from OH has done herself proud! Definitely the best post of the day/week/month.