Dispatches from the Creation Wars

John Roberts?

Fox News is reporting that the nominee is not Clement, but rather John Roberts of the D.C. Circuit. SCOTUSblog’s profile of him can be found here. If Roberts is indeed the choice, then it’s obvious that the White House has likely been sending out fake trial balloons to keep people guessing. Roberts was thought to be on the short list of potential nominees (along with McConnell, Alito, Luttig and a couple others) from the very start until all the recent speculation that they were looking at a woman. You can find the SCOTUSblog’s profile of Roberts here. Pro-choice groups will undoubtely be focusing on briefs written by Roberts when he worked in the DOJ in two abortion cases where he took a hard line against Roe v Wade during the Reagan and first Bush administrations, but that doesn’t really indicate anything. As a deputy solicitor general, his job was to represent the position of the President, not give his own independent analysis. Roberts is widely considered a brilliant legal mind, which is not a term I toss around lightly. And there’s really nothing in his record to prompt any particular opposition other than someone’s objections to conservative judges in general.

Update: Yep, it’s Roberts. The only thing in Bush’s nomination speech that grated on me was when he said that Roberts would “not legislate from the bench.” I’d take great delight in asking Bush to explain the precise difference between “legislating from the bench” and “judging from the bench” and watching him babble incoherently. The same delight I took in watching Harry Reid babble like an idiot when he was challenged to give an example of a Clarence Thomas decision that was “embarrassing to the court.” Both are just perfect examples of why, despite horrible decisions like Raich and Kelo, I have far more faith in the judiciary – where men and women of actual intellect and education reside – than in the elected branches, which seem to be inhabited primarily by halfwits mindlessly repeating empty catchphrases.

Update #2: Interesting to see the decision that three major networks made in terms of who would analyze the pick. Fox News had their normal political pundits on – Fred Barnes, Mort Kondracke and Bill Kristol; CNN had two members of the Senate Judiciary Committee, one from each party; only MSNBC, of the ones I watched immediately after the announcement, had legal scholars on – Jonathan Turley and Lawrence Tribe. Tribe was quite conciliatory toward Roberts, calling him brilliant, decent and a man of integrity. He did, however, bring up the one decision that really concerns me, which was Roberts’ opinion in the Hamdi case where he argued for giving the President virtually unchecked authority in terms of treating American citizens as prisoners of war. That’s the one thing I’ve read from Roberts that really raises a red flag for me, but I haven’t read the full decision.

Comments

  1. #1 decrepitoldfool
    July 19, 2005

    Since you’re a Fox watcher maybe you are amused as I was by Bill O’Reilly’s frequent references to “Harvard pinheads.” But I assume that despite the handicap of a Harvard education, Roberts will still find favor in the court of O’Reilly ;-)

  2. #2 Kele
    July 20, 2005

    What’s his views related to the seperation of church and state?

  3. #3 Ginger Yellow
    July 20, 2005

    Ed, have you got a link for the Hamdi decision?

  4. #4 Ed Brayton
    July 20, 2005

    Kele wrote:

    What’s his views related to the seperation of church and state?

    As far as I know, he has not ruled on any case in this area in his 2 years on the court. While in the Solicitor General’s office, he did write an amicus brief in Lee v Weisman, involving prayer at graduation ceremonies, that apparently took a standard accomodationist position. I have not read the brief.

  5. #5 Ed Brayton
    July 20, 2005

    Ginger Yellow wrote:

    Ed, have you got a link for the Hamdi decision?

    I do not, and if anyone else does I would like to see it.

  6. #6 Corey
    July 21, 2005

    I just did a Lexis-Nexis search on Hamdi v. Rumsfeld and searching the text of the opinions, Robert’s name never appears. Further that case was heard by the 4th Circuit Court of Appeals in Virginia, Roberts sat on the DC Circuit Court of Appeals. Where did you get that? I don’t believe it’s right.

  7. #7 Ed Brayton
    July 21, 2005

    Corey-

    I realized that myself and posted a mea culpa. I had Roberts mixed up with Harvie Wilkinson.