Dispatches from the Creation Wars

Randy Barnett, my favorite legal scholar, has written an interesting essay on John Roberts and what his nomination says about the entire process. His take:

But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record–a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don’t know. Is he a majoritarian conservative like Robert Bork? We don’t know. Would he find any limits on the enumerated powers of Congress? We don’t know. Would he have ruled with the majority in Kelo? We don’t know.

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.

This is a type of trial by ordeal that hones one’s beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one’s judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.

He’s making a larger point that I agree with, which is that the entire confirmation process avoids the one issue that matters – how will he interpret the constitution? Oh, I know we’ll hear empty platitudes about how he won’t “legislate from the bench” and that he’ll be “faithful to the true meaning of the Constitution.” But those phrases don’t mean anything. Any nominee could say them with equal justification. And we’ll hear lots of blather about “judicial temperament” without giving any definition of what that means.

I just watched part of Scott McClellan’s press briefing, where he claimed repeatedly that the President “isn’t the one who has a litmus test.” Over and over he insisted that the President had no interest at all in how the nominee would vote on any particular issue, only that he have the right “temperament”. Well sorry, but that’s a load of crap. It’s the sort of crap that all press secretaries are paid to shovel out on a daily basis, and no one in their right mind actually believes it (which leaves out all of the partisans of both parties who mindlessly repeat whatever talking points they’re given by the higher ups). Roberts may not have a long track record of writing or ruling, but there is no way he would have gotten a sniff of that nomination if he was not well established in the conservative legal community in Washington and his views on the key subjects were not well known, relatively predictable, and easy to sell to their followers. And all pretense to the contrary should be dismissed as empty platitude.

So the Democrats are right, in a sense, to oppose his nomination. Yes, he will in all likelihood vote to weaken Roe v Wade or overturn it if the opportunity arises. Some Democrats will at least be more honest about it and say that they think he will do so and they don’t like that and therefore they’ll oppose him. Except for Chuck Schumer, of course, who will pretend that the real reason is because he wasn’t “forthcoming” in his answers, which only means that he wouldn’t admit to what we already know. The political machinations are just one big dishonest game by both parties. And the real issue – how he will actually interpret the constitution – will be ignored.


  1. #1 Sherman Dorn
    July 20, 2005

    Maybe we should brainstorm on some good questions to ask in hearings. We won’t be able to ask them (or at least those of us who aren’t U.S. senators can’t), but I’m sure there are ways of eliciting some genuine revelations. My nominations:

    1. General principles questions
      • What’s the difference between a textual and originalist interpretation of the Constitution?
      • What do you think of the originalist arguments?
      • Please give us two opinions you can think of regarding stare decisis—one where the court made a correct application of stare decisis and one where it didn’t—and please explain to us the difference.
    2. The historical-opinion questions:
      • Was Meyer v. Nebraska (1922) decided correctly?
      • Why or why not?
      • Was the reasoning about liberty in Meyer reasonably well-rooted?
      • Were the substantive questions about Pierce v. Society of Sisters (1925) decided correctly? (Why or why not?)
      • Was it legitimate to take a case about property rights (the position of Society of Sisters) and extend it to parental rights? (Why or why not?)
    3. The recent-but-low-stakes case discussion: this would require asking the nominee enough questions about recusals or stare decisis to find a recent case that either the nominee would recuse herself or himself from or that the nominee would be reluctant to overturn because of stare decisis—and then probing the nominee’s views about the case, from the questions likely to be asked at hearings to an opinion. That way, you get a close look at the nominee’s views in a case where the nominee doesn’t need to say, “I’m sorry. I can’t discuss that.”
  2. #2 ACW
    July 20, 2005

    Mr. Dorn: those questions are good, and the strategy for getting the nominee to comment on a case (by first immunizing him against prejudice) is brilliant. I predict we will hear no such questions in the confirmation hearings. Instead, Republicans will lob underhand pitches directly over the plate at sternum-level, and the Democrats will hammer on Roe and howl when the nominee quite properly refuses to commit himself.

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