# What's Wrong/Right With Judge Roberts? **URL:** \ **Category:** Great Debates\ **Created:** [July 20, 2005, 5:47pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322 "2005-07-20T17:47:50Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [July 20, 2005, 8:04pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/21 "2005-07-20T20:04:23Z")
> [@rjung](#): > > Have to disagree with **jayjay,** though – IMO, Thomas is a clear example of how a right-wing extremist can disguise himself as a “moderate”, then show his true beliefs after he gets confirmed. I wasn’t in the least saying that Thomas is a moderate. All I’m saying is that from my viewpoint at the time, he was going to be much worse than he’s turned out to be. Even Scalia isn’t a raving rightwing lunatic. I really do think that actually sitting on the Court does have a moderating influence in itself, as the new justice soaks in the history and tradition of this independent institution and learns to take his responsibilities to act as the check on the possible runaway ideology of the Congress and White House seriously. Don’t think I’m necessarily defending Roberts on his political ideology or his personality. I don’t know him from Adam and I had never heard of him before the nomination. But what I’ve heard since ,and my experience watching Supreme Court nominees mellow once they’re confirmed and start working with the Court, makes me think he’ll be less an ideologue and more a Justice once everything shakes down. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 8:04pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/22 "2005-07-20T20:04:35Z")
> [@](#): > > And lastly, even if Roberts voted to overturn or weaken Roe v. Wade, for foam-flecked ideological reasons or well thought out constitutional reasons, that doesn’t follow that the will of the American people will therefore be thwarted. If the American people really don’t want to criminalize abortion all they have to do is not vote for politicians who try to criminalize abortion. Of course, the trouble here comes if the people who want to preserve their choice to have an abortion are a political minority in a given jurisdiction and are thus bound by the will of the majorty. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 20, 2005, 8:09pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/23 "2005-07-20T20:09:46Z")
I don’t usually quote other people’s arguments rather than their facts, but regarding the argument that Roberts’ true personal views can’t be judged by his private sector history because he was “only representing his client,” labor blogger [Nathan Newman says](http://www.nathannewman.org/laborblog/archive/003236.shtml#more): > [@](#): > > Of course, deciding to spend years working for this particular client, the Reagan administration, says a lot about Roberts’ personal views, but Juan is right in one sense: Roberts has spent his career as a mind-for-hire on behalf of the rightwing Republican agenda. Whatever he said was done to advance his career with no intellectual integrity, since according to his defenders, he didn’t believe a word he said. > > So if his career is one of years of political hack partisanship, sprinkled with a few years acting as a well-paid hack on behalf of corporate interests, why should we believe Roberts has the temperment to be an independent Justice? > > ``` > *** > > ``` > > If the words Roberts wrote for all his clients don’t reflect work upon which he should be evaluated, then the two years on the bench is too little experience to be confirmed. > > And if all John Roberts can say is, sorry, I’ve been a partisan hack for twenty-five years, so I don’t have any vision that I can talk about – well, that’s not good enough either and he should be rejected. Let’s face it - within the legal world, there are many different opportunities for employment. And while the post of assistant solicitor general (to name one) is certainly a plum, how does it work out that one gets such a job? Does an Administration look for the best legal mind available, regardless of his/her views, and expect that person to write topnotch arguments reflecting the administration’s position? Or does an Administration try to find the best legal mind available _whose legal philosophy is already pretty much in harmony with the Administration’s_? I think we know the answer to this one. I don’t think there’s anything wrong with that; it simply makes sense. It’s gonna be a damned sight easier for you to write a strong anti-_Roe_ brief, or a pro-Operation Rescue _amicus_ brief, if you’re already leaning that way. Newman (same link) quotes the Center for Investigative Reporting: > [@](#): > > In April 2000, Washington DC lawyer John Roberts filed an amicus brief on behalf of the National Mining Association in the federal 4th Circuit Court to block a lawsuit filed by West Virginia citizens opposed to the coal industry’s destructive “mountaintop removal” practice. Two years later, Roberts was nominated by President Bush and confirmed to the powerful DC Circuit Court of Appeals. In April 2004, as a judge on that court, Roberts ruled against environmentalists who were pushing for more restrictive government regulations over copper smelters–many of whose owners are members of the National Mining Association–that emit toxic lead and arsenic pollutants. He may have just been doing his employers’ bidding, but he usually seemed to wind up working for employers who wanted the wrong thing. At some point you’ve got to come to the conclusion that this is what the man stands for. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [July 20, 2005, 8:18pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/24 "2005-07-20T20:18:33Z")
Well, of course we know that Roberts is a conservative Republican. I don’t think anyone is arguing that he isn’t a conservative Republican. Obviously he worked for the Reagan and Bush administrations because he was in broad agreement with their views. So he probably agreed with the vast majority of arguments he made on their behalf, otherwise he would have quit or been replaced. But it doesn’t follow that he agreed with each and every arguement he made on behalf of the Bush or Reagan adminstrations or that he’s a political hack with no principles of his own. False dilemna. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 8:21pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/25 "2005-07-20T20:21:21Z")
I don’t understand your argument, **RT**. I’m not saying the guy’s not conservative – I’m just saying that people should stop quoting his brief in _Rust v. Sullivan_ as if it was a deep-into-the-soul reflection of his true beliefs. Look, I’ll give the same example here as I gave in the other thread. I’m going to be clerking for a fairly conservative federal judge this fall. In the course of that clerkship, I’ll be drafting a bunch of opinions. It’s my understanding that the opinions will be assigned randomly and proportionally as between myself and my fellow clerk: he’ll get half, I’ll get half. Are you saying that you can hold up the opinions that I draft as fair representation of my personal legal perspective and beliefs if I’m nominated for a judgeship in twenty years? You can tell from the Deputy SG briefs the quality of Roberts’s writing and the clarity of his thought. Beyond a broad-bore ideological consonance, you can’t tell what he thinks based on what he advocated in the course of his job. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 20, 2005, 8:25pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/26 "2005-07-20T20:25:35Z")
> [@This Year's Model](#): > > I think **jayjay** nailed it. There could have been worse choices than Roberts. Go ahead and give him his grilling, confirm him, and gird our loins for the battle that counts. First of all, this is a “battle that counts.” This is one of the handful of places where last November’s loss becomes all too real. This guy is fifty years old, looks to be quite fit for his age, and will likely be on the Supreme Court for about three decades. And I just don’t see how you could get _that_ much worse than this guy. Unless he’s “just been following orders” his whole adult life, he’s very much on the side of both the religious and the corporate right. And if he’s spent all his life following orders, then he wouldn’t have much practice exercising the sort of judgment and thinking on his own that one would expect of a Supreme Court justice, would he? ---
**Author:** ![Camus](https://avatars.discourse-cdn.com/v4/letter/c/ba8739/32.png) [@Camus](https://boards.straightdope.com/u/Camus)\ **Post date:** [July 20, 2005, 8:27pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/27 "2005-07-20T20:27:49Z")
> [@Lemur866](#): > > Huh? You mean that if a politician is pro-life, he should keep those opinions to himself since it is merely a personal opinion? > > Anyway, a politician does have a responsiblity to reflect the views of his constituents, since they’re the ones who hire and fire him. Judges have no such duty. Judges are bound to follow the constitution and the law, they have no constituents. And what makes you sure that Roberts–since it is clear he is pro-life–will therefore throw out the law and the constitution and precedent and the will of the American people when he makes decisions? > > … Roe v. Wade didn’t make abortion legal, it forbade making abortion illegal, and overturning Roe v. Wade won’t make abortion illegal. It’s not really clear what the responsibilities of a politician are, really. They have to follow the law, but does that mean they have to cater to every whim of their constituents or can they exercise their own moral/political judgment? Supreme Court justices are quite a bit different than any other sort of judge. They essentially can decide what the law **is**. They can toss it out, limit it, interpret it as far as their reasoning can take them, or rubber stamp it. Ordinary judges have some power in this area too, but they’re much more constrained in both their subject matter jurisdiction and higher courts’ power to overturn their decisions. I also know that overturning _Roe_ wouldn’t make abortion illegal, which is why I said I would personally find it acceptable (conditionally) if it were overturned and abortion would no longer be considered a U.S. Consitutional right (and thus it would go back to the states to decide for themselves). ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [July 20, 2005, 8:29pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/28 "2005-07-20T20:29:40Z")
I do not believe that anyone is saying that _Rust v. Sullivan_ is a unique window into Roberts’ soul. Roberts has established a consistent pattern of politically right-wing legal thought for over thirty years. _Rust v. Sullivan_ is an exemplar, not a proof of his ideology. It would be particularly informative, **Gad** , if we could find examples in which Roberts drafted opinions or amicus curiae briefs when the government was not party to a suit in which ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [July 20, 2005, 8:31pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/29 "2005-07-20T20:31:25Z")
For Cthulu’s sake. …he expresses ideology and reasoning that run contrary to our expectations. If so, then I would find your argument more persuasive. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [July 20, 2005, 8:36pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/30 "2005-07-20T20:36:21Z")
> [@RTFirefly](#): > > And I just don’t see how you could get _that_ much worse than this guy. Unless he’s “just been following orders” his whole adult life, he’s very much on the side of both the religious and the corporate right. I agree completely that he is a staunch conservative. Pending further information, I don’t see that he is a rabid conservative. I’m convinced we will get no one more acceptable from the White House than Roberts is. Also, as has been mentioned in one or more of these threads, it is extremely difficult to predict how a judge will act once he is on the court. He could turn out to be another O’Connor, for all we know. Someone who appears to be the next Earl Warren could turn out to be the next Thomas instead. We just don’t know. Roberts has the smarts, the knowledge, and the intellectual honesty, and that is as best we can expect. In my opinion. Question him, certainly. But unless something egregious comes up, confirm him. Save our energies and the public attention for Rove, and for the next appointment when Rehnquist inevevitably keels over. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 20, 2005, 8:46pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/31 "2005-07-20T20:46:46Z")
I imagine unless something egregious does turn up, Roberts is as good as approved. Given that he is quite probably the _best_ we can expect out of Bush, I also imagine Rehnquist’s replacement will seal the deal for **Roe v Wade**. I’d say, if there’s planning to be done now, that issue is effectively past-tense on the Judiciary end of things, and reproductive choice advocates need to start worrying this minute about a Federal abortion ban law. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 8:49pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/32 "2005-07-20T20:49:01Z")
**RTFirefly:** > [@](#): > > And I just don’t see how you could get that much worse than this guy. Unless he’s “just been following orders” his whole adult life, he’s very much on the side of both the religious and the corporate right. **Maeglin:** > [@](#): > > Roberts has established a consistent pattern of politically right-wing legal thought for over thirty years. I’m really not trying to be obtuse: are you guys saying that the Democrats should oppose this nomination simply because Roberts is “on the side of both the religious and the corporate right” and is “politically right-wing”? If not, what can you point to that shows that his personal ideology and judicial philosophy are such that he would make a bad – intemperate, unobjective, unconscionably activist – judge? His intellect itself isn’t in question, I take it, as it (justifiably) was with Thomas. Why should the burden of proof be on Roberts to dredge up something in which “he expresses ideology and reasoning that run contrary to our expectations”? I dunno, maybe I’m alone among the liberals, but I believe that another Justice Rehnquist wouldn’t be an objectionable thing at all. My beef with Thomas and Scalia is their ideological and jurisprudential rigidity and how it influences their legal reasoning. I’ve disagreed with Rehnquist both on process and outcome on many occasions, but I don’t doubt his integrity or his commitment to justice over ideology. I haven’t seen anything one way or the other about Roberts in this regard, and I’m curious why people seem so opposed just because he’s a conservative Republican. If you weren’t expecting Bush to nominate a conservative Republican… ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 8:50pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/33 "2005-07-20T20:50:33Z")
Oh, and **Maeg** , don’t think I don’t remember where you used to work… 😉 ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [July 20, 2005, 9:11pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/34 "2005-07-20T21:11:25Z")
Does anyone know what kind of positions Roberts has on SOCAS issues? If he’s reasonable on that, I think the Dems should confirm him and not waste the time, the political capital or the media distraction from Rove on this process. We weren’t going to get Mario Cuomo and it could have been a lot worse than Roberts. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [July 20, 2005, 9:11pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/35 "2005-07-20T21:11:54Z")
> [@Gadarene](#): > > Oh, and **Maeg** , don’t think I don’t remember where you used to work… 😉 Oh, I know, I know. I chuckled when **Jonathan Chance** mentioned that a friend of his is a campaign manager at PFAW. Speaking politically, yes, he should be opposed, and swiftly. He can and should be tarred as a fanatic (his actual views and personality nonwithstanding), and any extra expenditure of presidential political capital would be welcome. Philosophically, I see no reason why he should be opposed, barring any unrevealed issues. ---
**Author:** ![Lemur866](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lemur866/32/434_2.png) [@Lemur866](https://boards.straightdope.com/u/Lemur866)\ **Post date:** [July 20, 2005, 9:13pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/36 "2005-07-20T21:13:16Z")
Nother thing. Clearly Roberts can be confirmed (pending background check) once the confirmation goes to a vote. Presumably some Democrats would vote against confirmation since Roberts is a conservative. However, I simply can’t imagine the Democrats could muster up enough votes to filibuster the confirmation which is the only way the nomination could be scuttled (again, assuming no skeletons uncovered during background check). You’re not going to get enough moderate Democrats onboard for a filibuster, even if those moderate Democrats decide to vote against Roberts. So, given that, what purpose will an ugly fight against Roberts serve? Is it going to galvanize the public against Bush? Would that really help the Democrats? ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [July 20, 2005, 9:18pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/37 "2005-07-20T21:18:07Z")
It doesn’t have to be an ugly fight, especially if the conclusion is foregone. It just needs to be a lengthy process, in which every aspect of Roberts’ judicial analysis and personal ideology is scrutinized. This would give the American public the chance to decide just how well it is represented by modern conservatism. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 20, 2005, 9:30pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/38 "2005-07-20T21:30:18Z")
> [@Gadarene](#): > > I don’t understand your argument, **RT**. I’m not saying the guy’s not conservative – I’m just saying that people should stop quoting his brief in _Rust v. Sullivan_ as if it was a deep-into-the-soul reflection of his true beliefs. > > Look, I’ll give the same example here as I gave in the other thread. I’m going to be clerking for a fairly conservative federal judge this fall. In the course of that clerkship, I’ll be drafting a bunch of opinions. It’s my understanding that the opinions will be assigned randomly and proportionally as between myself and my fellow clerk: he’ll get half, I’ll get half. Are you saying that you can hold up the opinions that I draft as fair representation of my personal legal perspective and beliefs if I’m nominated for a judgeship in twenty years? I’m saying that if I can’t tell what _you_ think from the work you do, from the briefs you draft, over the next twenty years, then there certainly isn’t enough ‘there’ there for you to be deserving of a position requiring demonstrated ability to make judgments. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [July 20, 2005, 9:30pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/39 "2005-07-20T21:30:20Z")
> [@](#): > > It just needs to be a lengthy process, in which every aspect of Roberts’ judicial analysis and personal ideology is scrutinized. I advise you to brush up on the transcripts from the Estrada confirmation hearing. More than likely Roberts will be at least as unresponsive to questions as Estrada was. **Q:** Judge Roberts, do you think that _Roe v. Wade_ was correctly decided according to your personal jurisprudential philosophy? **A:** I can’t say one way or the other. I was not present at the oral arguments for _Roe_; I didn’t read the briefs; I am not familiar with the specific issues presented. **Q:** Judge Roberts, what is your view of the extent to which a separation between church and state is mandated by the Constitution? **A:** I’m afraid I can’t answer that. The likelihood is that issues similar to this will be before the Supreme Court in the future, and it would not be appropriate for me to prejudge. Good luck getting any real sense of his judicial analysis and personal ideology. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 20, 2005, 9:30pm UTC](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322/40 "2005-07-20T21:30:33Z")
> [@Diogenes the Cynic](#): > > Does anyone know what kind of positions Roberts has on SOCAS issues? If he’s reasonable on that, I think the Dems should confirm him and not waste the time, the political capital or the media distraction from Rove on this process. We weren’t going to get Mario Cuomo and it could have been a lot worse than Roberts. The only thing I know of is the _amicus_ for **Lee v Weisman** he helped author for Bush 41, arguing religious ceremonies in public high school graduations were constitutional. The SCOTUS voted against 5-4 in '92. That, again, can be dismissed by the employee argument cited above, if one is feeling optimistic. Even still, this is a pretty minor issue in the spectrum of potential violations of the Establishment Clause of the 1st Amendment, and doesn’t provide much insight, even if he did completely support the position represented in the _amicus_. [Previous page](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322.md?page=1) [Next page](https://boards.straightdope.com/t/whats-wrong-right-with-judge-roberts/313322.md?page=3)