by Charles
He is Bush’s nominee to the US Supreme Court according to Reuters. Confirmthem.com (a site sponsored by Redstate.org) has a section on Roberts with various links. Via Bench Memos, Jonathan Adler has some thoughts:
John Roberts was confirmed to the D.C. Circuit court of Appeals in the last few years, though he was first nominated in 1991 by Bush 41. He is a "middle-aged white guy," but he is universally regarded as among the best Supreme Court advocate in the nation, bar none. He clerked for Rehnquist, was deputy SG, is a remarkable oral advocate and a sharp legal mind. He is liked and admired by all of the current justices, who regularly look forward to cases in which he is representing one of the parties because of the quality of his work. If a case is winnable, he will win it. It is a travesty he was not confirmed to the D.C. Circuit in the 1990s when first nominated. Setting aside ideology — and he has a sterling conservative reputation despite the relative lack of a paper trail — he is close to the Platonic ideal of what a Supreme Court nominee should be.
It’s hard to know how strenuous the objections will be from the Democrats. Harry Reid says Roberts has "suitable legal credentials" but must prove his commitment to "freedom, equality and fairness", whatever that means. Call this a Supreme Court thread. Update: SCOTUSblog has a profile of Roberts here. Juan Non-Volokh writes that, just because Roberts co-wrote the 1991 administration brief in Rust v. Sullivan, does not automatically mean he will overturn Roe v. Wade since Roberts was zealously advocating his "client’s" position. Nevertheless, it’s hard to imagine how NARAL could be happy with the nomination.
Harry Reid says Roberts has “suitable legal credentials” but must prove his commitment to “freedom, equality and fairness”, whatever that means.
I think that, of all the things I like about you, Charles, your utter un-self-consciousness is at the very top. And I am not being even a little sarcastic.
Unless something unknown shows up I expect him to get a thorough grilling and then a confirmation without a filibuster or threat of one.
I’m inclined to believe that anyone chosen by Bush is almost necessarily evil, but, based on what little I’ve heard of him, I say we let him go through with minimum fuss. Our questions should be setting up the framework for the argument over the next one.
Interesting: not a woman, not a racial/ethnic minority, not (SFAICT) a Catholic.
A down-the-line conservative: anti-choice, anti-civil rights, anti-worker protection, anti-ESA; anti-FMLA; in favor of harassing women, in favor of school-sponsored religious practices, in favor of letting defense attorneys sleep through trials.
At least this one won’t be able to say he’s never expressed any opinions about anything.
He is young though. Democrats assume he’s very conservative. 25 years or more is a long time so there are probably alot of conservatives who are praying he stays that way.
CaseyL, they’ll argue that at least the cases he’s argued before the court reflect zealous advocacy, not personal views.
posting just to get the ‘remember personal info’ to stop doubling my name.
My opinion is give him a once over regarding his credentials and views and then send it to a vote. It could have been much worse (i.e. Brown). This isn’t the time to draw a line in the sand, but it is time to clearly delineate what his nomination is going to mean for the country.
As much as it sucks for the progressive agenda, the people spoke during the last election and now we’re seeing the “fruits” of that victory. I think that when people start to see the results of Bush’s opportunity to pack the court, it’s going to cause a leftward shift in balance of power in congress. Of course, for that to play out, the Democrats will have to be savvy in the way they handle the confirmation hearings…
…uhm, I’m not so optimistic after all.
Why does George Bush hate women? Just kidding, Janice will get Rehnquist’s seat, unless Rehnquist somehow manages to serve via Ouija board. Just kidding, I have liked Rehnquist as a person for about twenty years.
Funny that, I have tolerated disagreeable decisions from Rehnquist that I never would from Scalia…I have sensed a reverence, respect, and humility in Rehnquist that Scalia lacks. Scalia wants what he wants, knows what is right for himself and the rest of us, and doesn’t care what contortions are required to achieve it.
Roberts is supposed to be most like Rehnquist. I don’t know that anything will be served by opposing him or making a scene. I would have Democrats unanimously vote against him, but simply because I would have Democrats unanimously oppose everything. Failing that past pattern, making a stink about Roberts would be counter-productive.
Call for the suspension of hearings, a vote next week, and let’s get back to the lying President supporting his buddies at the expense of American security.
BTW, I’ve already seen it posited on Redstate that this, due to Roberts clerking for Rehnquist, is supposed to be a “salve” for Rehnquist’s concerns about retiring early to deal with his health issues. Interesting theory…
I will be surprised if evangelical conservatives are ecstatic. Business conservatives are probably happy.
Admittedly, I think Bush surprised me with this choice. Maybe he remembers that he is his father’s son on occassion. That or Rove didn’t have a say in this one considering Rove’s possible doghouse status for the current headlines.
Well, if Juan non-Volokh likes him, he must be a monster…
Hmmm…opens a seat on the 2nd most important panel in the land. Is it possible for Bush to find someone more conservative than Roberts as a replacement on the DC Circuit?
Roe is toast. Reading the RedStaters on how the end of Roe would have no effect on the actual availability of abortions, I am reminded of Sebastian’s firm committment to ensuring that first term abortions remain legal nationwide, easily accessible with very few restrictions or hindrances. I am sure he will be in the forefront of any such fight.
I’ll be curious to read hilzoy’s opinion. She has issues with Roe yet is a supporter of the pro-choice precedent or movement.
From early reports, Roberts has argued over the precedent but maybe for the same reasons hilzoy has.
Hmmm. Curious choice.
What I’ve read so far seems to indicate that he’s a terrific advocate and a knowledgeable attorney. He is conservative but does not pre-judge cases. I’m inclined to let this one go.
But two of the opinions we know about bother me — a lot. One is the recent support for President Bush’s power to deny due process and the Geneva Conventions for bin Laden’s driver. The other is his support for President Bush’s ability to deny the pilots who won awards after being tortured in Iraq during the first Gulf War any further legal action or their damages.
In other words, in a time of war, he apparently confers enormous discretionary power on the President, and when your President can use this power for war that has no discernable end (WoT), that’s way more discretion than I’m willing to give him or her.
His opinions on interstate commerce regulation by Congress seem to be negative, too, but I don’t know enough about that subject to have it keep me up nights. I’m sure someone here will explain it to me. 🙂
In other words, in a time of war, he apparently confers enormous discretionary power on the President, and when your President can use this power for war that has no discernable end (WoT), that’s way more discretion than I’m willing to give him or her.
Given that he’s young and has had a first hand look at how badly that can all turn out, I wouldn’t be so sure he’ll be a hardliner in the future. Definitely something he should be grilled on in the hearings though. Find out his current view and underline many of the failings of current policy.
In other words, in a time of war, he apparently confers enormous discretionary power on the President, and when your President can use this power for war that has no discernable end (WoT), that’s way more discretion than I’m willing to give him or her.
Given that he’s young and has had a first hand look at how badly that can all turn out, I wouldn’t be so sure he’ll be a hardliner in the future. Definitely something he should be grilled on in the hearings though. Find out his current view and underline many of the failings of current policy.
damn the double post!
Harry Reid says Roberts has “suitable legal credentials” but must prove his commitment to “freedom, equality and fairness”, whatever that means.
You are such a patisan, that you seem to think these words are ambiguous coming from a Democrat, but believe that when Republicans use such language (“Freedom is on the March”), you are certain its all good.
Or do you agree that Freedom is on the March is also an empty slogan?
You are such a patisan, that you seem to think these words are ambiguous coming from a Democrat,
Reid could’ve meant FE&F from a legal, constitutional standpoint, or he could be referencing a litmus test for liberalism, dm. Schumer is clearly proponent of the concept that the proper political ideology is a primary qualification for judgeship. I don’t know if Reid holds those same views or not, hence my comment.
I have no idea what you mean by “Freedom on the March”.
Harry Reid says Roberts has “suitable legal credentials” but must prove his commitment to “freedom, equality and fairness”, whatever that means.
I think that, of all the things I like about you, Charles, your utter un-self-consciousness is at the very top…
As usual after CB’s post we have to open with a personal attack.
Would anyone here take offense to me asking you to prove your commitment to freedom, equality and fairness?
Many of you certainly weren’t as committed as Bush to freedom for Iraqis. Their freedom was something that could be sacrificed as long as we had Hussein cornerned.
It leads me to question some posters committment to freedom in general.
Anyone desire to prove to me that they are committed to freedom?
I also notice that Charles and Sebastion don’t get treated with the same amount of respect as Hilzoy. This makes me wonder about your commitment to equality.
Anyone desire to prove to me that they are truly commited to equality.
It’s nice to know that I can post this and no one will find it the least bit offensive that I might question your commitments to freedom and equality.
Remember I’m the one judging whether you “prove” yourself to me.
Don’t feed the trolls
I’d bet he was vetted, numero uno, on the executive war powers issue. That matters more to Bush than abortion.
Of course, since the capitulation to the executive is the scariest legal development of the last 4 years, this is a really good reason for the Dems to oppose him. He should have to answer some tough questions on Youngstown, Korematsu, etc.
I’ve just re-read Judge Roberts’ separate opinion in Acree (pdf), referred to by Opus above. (It begins at p. 32 of 40 of the pdf). It’s probably a pretty fair look at his interpretative methodology, certainly more useful than looking at some brief he wrote.
I think that the thinking behind 28 U.S.C. section 1605(a)(7) was shallow — that’s the kindest way I can think of to put it — and I don’t share Opus’ view that cutting off Acree’s claim is some great injustice.* On policy grounds, at the uppermost level anyway, I agree that letting the plaintiffs have a billion dollars that belongs to Iraqi people would have been a very bad idea.
Disclaimer: I’m litigating a case in which I argue that Acree means that I win.
To respond a little more directly to Opus’ points, I think it’s clear enough from Judge Roberts’ concurring opinion in Acree that he was analyzing an exercise of congressional authority, not Executive. The question was whether Congress had authorized the President to suspend section 1605(a)(7), not whether he had some kind of inherent authority to suspend it.
Judge Randolph’s opinion in Hamdan looks at both Legislative and Executive action — and while I do not agree with most of the opinion, I am not sure what we can draw from it about Judge Roberts.* I agree that a thorough examination of Judge Roberts’ views of Youngstown is called for, and I expect we’ll see it.
* Does anyone know if Judge Roberts will be required to recuse himself from Hamdan at the SC? If so, I view his nomination as a good thing, on this front at least — any nominee would be selected, as Opus says, to rule for the government in the case. Getting the one who can’t vote is a net gain of one.
To respond a little more directly to Opus’ points, I think it’s clear enough from Judge Roberts’ concurring opinion in Acree that he was analyzing an exercise of congressional authority, not Executive. The question was whether Congress had authorized the President to suspend section 1605(a)(7), not whether he had some kind of inherent authority to suspend it.
Judge Randolph’s opinion in Hamdan looks at both Legislative and Executive action — and while I do not agree with most of the opinion, I am not sure what we can draw from it about Judge Roberts.* I agree that a thorough examination of Judge Roberts’ views of Youngstown is called for, and I expect we’ll see it.
* Does anyone know if Judge Roberts will be required to recuse himself from Hamdan at the SC? If so, I view his nomination as a good thing, on this front at least — any nominee would be selected, as Opus says, to rule for the government in the case. Getting the one who can’t vote is a net gain of one.
OK, double posting means it’s time to sign off. Cheerio!
“I also notice that Charles and Sebastion don’t get treated with the same amount of respect as Hilzoy.”
That’s Walter “hilzoy” Duranty to you.
Can we not repeat that smear, even in jest?
Charlie, thank you for getting me started on understanding Roberts’ positions on those two cases. I appreciate that Acree turned on a narrower point of law than I had assumed.
I look forward to more interesting discussion and less carping about posters and commenters.
I was not attacking Charles at all. I was utterly serious.
Otherwise, what 2shoes said.
I can’t hear the name Roberts without thinking of a certain movie.
Agreed, Roberts deserves the courtesy of not being slimed and vilified. He should get his hearing and a fair process of evaluation. But neither should the President expect a rubber stamp. Thats to both conservatives’ and liberas’ interest – one side doesn’t want a Souter, the other doesn’t want a Scalia.
Here’s what I don’t get about the fight over SC nominees. Each side takes great pains to point out how their opinion of a given nominee isn’t based on ideology. Opponents say they have “legitimate questions” about their jurisprudence, and supporters say the nomination is based purely on the nominee’s qualifications and accuse the other side of an ideological litmus test.
Well, of /course/ ideology is a factor. Of /course/ there are litmus tests. Both sides do it. Anyone claiming otherwise is full of shit.
Ideology is not only a factor, it is a legitimate concern. The people who blather on about giving candidates up-or-down votes based on qualifications instead of ideology are living in a fantasy world where judges do not bring their personal beliefs and agendas to the bench. Determining the degree to which they do so, and how extreme those beliefs are, is a legitimate line of questioning.
Where’s hilzoy?
Right on, Catsy. You just saved me the effort of writing the same thing.
I can’t stand Bush so much that it is very hard for me to look at Roberts in anything close to an objective way.
Having said that I think Roberts nomination process is going to be a relatively smooth one. It is hard to get excited about his paper trail because he doesn’t really have one. Also, from what I have read he seems to be more of a Renquist type than a Scalia type which is really the only no compromise issue for me. If he does turn out to be a Scalia carbon copy the Dems should Filibuster him.
I still have the suspicion that Bush is snookering us in same way with this guy. I will never trust the President again.
carsick: Where’s hilzoy?
On vacation, presumably incommunicado.
I think Roberts is as good a candidate as we could have hoped for from Bush. At least he’s smart. We can always hope that wins out over his conservative leanings when it comes to the big issues. 😉
Schumer is clearly proponent of the concept that the proper political ideology is a primary qualification for judgeship.
Since the proper political ideology is a primary qualification for nomination in the first place, I can’t see how the opposition is supposed to ignore that as a factor in a review of the candidate’s qualifications.
We’ve all seen ideology trump reason, wisdom and experience. Trust in reason is not sufficient.
CS
I think Roberts is as good a candidate as we could have hoped for from Bush. At least he’s smart. We can always hope that wins out over his conservative leanings when it comes to the big issues.
I tend to agree with Edward on this. My greatest fear was that someone like Jones would be nominated – a not very bright ideologue who I think is morally unfit to be a judge.
While I’m agreeing, let me agree with catsy and Bruce on the ideology issue. Yes, yes, I know. It’s about “interpreting the law, blah blah blah.” Spare me.
I do have a point of my own to make. Another fiction I am tired of is that it is somehow unfair to judge a lawyer’s views by those of the clients she represents. Sure, if I’m involved in some sort of ordinary contract dispute, say, my lawyer can represent me vigorously even if she thinks my argument is weak.
But many of the cases we talk about when judicial appointments are under discussion involve matters of national policy, politics, and often, as in the case of abortion, heavily emotionally charged issues. It is plain ridiculous to pretend that there is no correlation between a lawyer’s personal views and the positions she argues. If nothing else, the clients and employers lawyers seek out will tend to be those they have some sympathy with. Would a pro-choice lawyer seek to represent the National Right to Life Committee? Would a lawyer who thinks environmentalists are foolish alarmists who endanger our economy work for the NRDC or the like. Low probability.
This polite fiction may have its purposes in some contexts, but evaluating judicial appointees is not one of them.
This is a link to Roberts’ Judiciary Committee testimony.
It’s pretty reassuring, on the whole. Based on what I know about him now I wouldn’t vote to filibuster. Based on what little I know, better than expected, and to me a sign that Reid et. al played their cards right on the nuclear option.
It’s pretty reassuring, on the whole. Based on what I know about him now I wouldn’t vote to filibuster.
I wouldn’t filibuster Roberts myself. I don’t think it’s a good idea politically, but I won’t look askance at anyone who refuses to vote for cloture.
I do, however, think he’s too ideologically extreme to sit on the highest court in the land, and will have harsh words for any so-called Democrat who votes to confirm him. The president is entitled to nominate whoever he likes, but he is not entitled to have them confirmed. There are many other better and less extreme conservatives Bush could’ve picked who would’ve sailed through the Senate. But instead of going with someone moderate who had broad bipartisan support, Bush chose to pick a fight in order to get Rove off the front pages.
Not that putting political gamemanship ahead of what’s best for the country is anything new for these clowns, but it’s still disappointing.
Catsy
No matter what Bush was not going to nominate a non-conservative and given his track record he wasn’t going to go with a moderate so… I think, unless something really unusual comes up, the best we can expect out of this is a strong grilling on the guy’s views and if nothing extraordinary comes out of it then we save the horsepower and credibility for the next nominee who will more than likely be a nut of some sort.
Since the proper political ideology is a primary qualification for nomination in the first place…
Well, no CS. Schumer has broken new historical ground, since the qualifications for USSC judges had previously been about judicial ideology, smarts and temperament. Note the treatment of Ginsburg (96-3 vote), a judge whom most agree is furthest left politically. She was confirmed not because of her politics, but because of her judicial record. Schumer’s tack has been to take mainstream conservatives (both judicially and politically) and paint them as extremists, a disengenuous and fringe practice.
Charles,
CS said that “proper political ideology is a primary qualification for nomination.”
I think that’s accurate. The rhetoric about judicial ideology is mostly smokescreen. It amounts to saying, “The only reason I support judges who agree with me ideologically is that no judge who interprets the Constitution correctly could possibly disagree with me.” As I said above, spare me.
And why then shouldn’t ideology play a role in the confirmation process?
CB — You do know that Ginsberg was pre-approved by Senator Hatch as a potential nominee he was fairly certain the Republicans would be willing to approve, right? While I think she’s great, and am proud to consider her a liberal, she wasn’t a terribly aggressive nomination.
I’ve read that Clinton wanted Babbitt. Hatch is the one who recommended Ginsberg.
Well, no CS. Schumer has broken new historical ground, since the qualifications for USSC judges had previously been about judicial ideology, smarts and temperament.
Do you consider there to be a bright line between judicial ideology and political ideology?
Well, no CS. Schumer has broken new historical ground, since the qualifications for USSC judges had previously been about judicial ideology, smarts and temperament. Note the treatment of Ginsburg (96-3 vote), a judge whom most agree is furthest left politically. She was confirmed not because of her politics, but because of her judicial record.
This is largely nonsense. I guarantee you Roberts was selected by Bush not because of judicial ideology — since he has almost no record on such, but based on political ideology. But the advise and consent role of the Senate cannot also delve into political ideology? That is such blather. Do you really believe that?
Others have pointed out how you don’t know the Ginsburg story — a moderate suggested by the Republicans as a consensus choice. Politics were behind that — not concerns re judicial ideology. It is naive to suggest otherwise.
If Ginsburg is, in your view, some edgy liberal, then you are just way to far to the right to know the difference. She is the further to the left on a court already very far to the right, but so what.
As for new historical ground, the Repubs are the modern architects of highly political appointments of judges since they have the agenda to remake the courts in a radically conservative image (and the laws they hate were largely the product of Republican judges and Republican appointments — Warren and Blackman for example). Ginsburg reflects the contrasting Dem tradition — making consensus picks. The last Dem clearly liberal appointment was Douglas in 1939. Maybe Fortas, too, but he was not confirmed.
Do you consider there to be a bright line between judicial ideology and political ideology?
Not necessarily, but I recall clearly statements from at least one liberal here about Tribe (or was it Sunstein?) being a moderate judicially and liberal politically. The point is that Ginsburg wasn’t challenged on the grounds of her politics but it looks like Kennedy-Schumer-et al will for Roberts. It looks like Schumer will be making the phony “he won’t answer all of my questions” objection.
From what I’m reading, there’s not much more than obligatory barking (with little to no biting) behind the Dem’s posturing. Seems wise to me, actually. Rove is the fish they want to catch, not Roberts. He’ll get through and all the fighting in the world will only make the Dem’s look foolish.
Of course, I write that assuming he’s not the anti-Christ behind that very boring veneer.
Whee!:
Orrin Hatch gets a little testy, I guess.
Oh, and if you’re…ahem…centrist enough to see humor in a little poke-funnage leftwards (without taking it too seriously), behold. I’m not sure that a lot wouldn’t be lost in excerpting, so go read.
“Of course, I write that assuming he’s not the anti-Christ behind that very boring veneer.”
He will be confirmed, but I think he will be very, very bad. Very effective, smart, he will make friends and alliances, swing waverers much better than any conservative on the court in our lifetimes.
And he will be most statist, corporatist, conservative Justice since, well, maybe Rehnquist, but I am thinking back to the pre-FDR courts. Scalia and Thomas have occasional libertarian twinges. Roberts will defer to authority in unspeakable ways, and never meet an individual right worth shaking hands with. “You want rights, win elections.”
A monster, I am not sure Rogers-Brown wouldn’t be preferable. But I imagine we will find out when she gets confirmed.
Which I am now convinced is the plan.
If you want evidence, it has been little discussed, but last week’s DC Circuit decision on tribunals might be the most horrifying judgement in my lifetime.
Charles:
Just a thought about judicial vs. political ideology.
There is a distinction, but at the Supreme Court level, it frequently is blurred beyond all recognition.
When learning the constitutional law and history of judicial review (doctrine of declaring laws unconstitutional), one of the notable things are all of the doctrines the judges have created to restrain use of the tool. I could dig the list out of one of my Con Law books — one of the justices (Frankfurther?) summarized them rather succintly at one point in time.
The point is that judical review, though clothed in legal lingo, is a profoundly political act. The judges know that, and know that the Marbury v. Madison tradition always carries a smack of illegitimacy. So they use it sparingly precisely because they know how political it is.
The point is that on many levels, so much of what the Supreme Court does is “political” even if it is legal analysis of a type. And the judges know that.
slarti – that started to clunk a bit at the end, but the top half was definitely funny.
Does anyone think Roberts is a likely candidate for Chief Justice? From the point of view of personality he seems to be better suited for the job than either Thomas or Scalia.
Public Opinion
“So, I looking at some of the decisions handed down by Roberts. Besides being well written, and occasionally funny, they are, as Michael Green notes, often characterized by unanimous support from the bench.”
The blogger concludes from this that Roberts is just so in touch with public concensus. I conclude from this that Roberts is just damn good. Everyone is so pleased that it isn’t an obvious firebrand. Well, I’ll tell ya Janice Rogers Brown (or Thomas or Scalia) couldn’t talk Kennedy or Souter into anything, and in fact might just piss them off or scare them enough into opposing her out of spite. Roberts will find a calm compromise that will move the “moderates” 10-20% to the right.
I am thinking Bush got 1 1/2 to 2 votes out of this nomination, based on sheer persuasiveness.