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.
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.
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:
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:
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.
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.
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.
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?
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).
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
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.
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.
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…
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.
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.
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?
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.
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.
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.
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.
