Much has been made during the hearings about whether Roberts is an "ideologue" or not, but I don't think that tells us much either way. Roberts himself said bluntly that he is not an ideologue and has no single ideology or judicial philosophy, and that he doesn't think ideologues should be on the court. Several of the Democratic senators have said or implied that they will vote for Roberts if they believe he will be like Rehnquist but not if they think he'll be like Scalia or Thomas, the implication being that the latter two are "ideologues" and the former is not. In a sense that's true, but probably not in the sense that they intend.
I have a problem with the casual grouping of Thomas and Scalia to begin with. It's too easy to just call them both "conservatives" as though that told us all we needed to know about them, as though the label itself contained all necessary information. But there are different types of judicial conservatives, some more acceptable than others. I suppose one could make a distinction between those who are politically conservative and those who adhere to one of the popular conservative judicial theories (original intent, strict constructionism, etc). In that sense, it's reasonable to place Rehnquist on one side (as well as Kennedy and O'Connor) and Scalia and Thomas on the other side.
Both Scalia and Thomas do adhere, or at least claim to adhere, to a consistent and conservative judicial philosophy. But even that doesn't tell us all that much because there are major differences between them in this regard. The most obvious difference lies in Thomas' insistence on using the Declaration of Independence as a tool of constitutional interpretation and Scalia's insistence not to do so. So even among conservative judicial philosophies, there are fundamental distinctions that really do matter. In this regard, I think it's more accurate to group Scalia with Robert Bork and leave Thomas on his own to some extent (there are many others who share his views on this, like Harry Jaffa, but none as prominent in the public eye as Bork).
So where do I think Roberts will fall in these taxonomic categories? I frankly think that he will end up being much closer to Kennedy or O'Connor than he is to any of the others. He certainly appears to be a political conservative. He is conservative in temperament, in the sense that he does not believe in judicial revolutions but in slow, steady, deliberative changes. But he also has admitted that he does not hold to any particular theory of interpretation.
As I wrote earlier, the biggest thing to come out of his testimony, to me, was his endorsement of substantive due process, an idea that is anathema to Bork, Scalia and Thomas (though I think the latter is inconsistent in this regard since the Declaration, which he endorses to prominently, strongly supports this idea). Accepting substantive due process means, essentially, that Roberts will not be a Borkian, he will not read the 9th amendment out of the Constitution or argue that only those rights specifically enumerated deserve judicial protection. And that alone, in my view, makes him the right kind of conservative, the kind I can support for the court.
I predict that when we look back in 10 years, we will find that John Roberts' record as a justice is closer to Kennedy or O'Connor than it is to Thomas or Scalia. In some ways, particularly when it comes to questions of individual rights, this will be a good thing. When it comes to economic rights, it won't be. But on balance, I can live with him. We aren't getting a Randy Barnett on the court any time soon, but in the meantime I can live with John Roberts.
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What I find interesting is that I have read analyses of the hearings from both left and right which say the same thing. Basically, that Roberts is being less than honest.
It seems the left doesn't believe him because they don't trust him (because Bush nominated him), but the right doesn't want to believe him either because they see it as a betrayal.
I have nothing to judge him on other than what I heard at the hearings. He came across to me as honest about who he is and what he is.
I have no reason to disbielve him.
John at September 16, 2005 04:34 PM
I have no reason to disbielve him.
I have no reason to believe him, either. As any lawyer would tell you, the truth comes out in cross-examination. Roberts refused to answer any question that might have been considered cross-examination.
Roberts will be confirmed. But it would be nice if the Senate would actually take their advise and consent power seriously. They don't.
Some of us have other options. And we are preparing to exercise them.
I've said it before and I'll say it again. I like Roberts. I think the guy is a real pro. Handled the hearings like a champ, and seems completely level headed at all times.
Besides, anybody that has the Dems and Republicans this nervous can't be all that bad.
And Ed, I'm glad you can live with him. The alternative (with his becoming CJ a "bank on it" sure thing) certainly doesn't seem to have much appeal!
Randy Barnett?
Smart guy, good philosophy. But that ego....
He's perceptive, though. I did a half-assed job on my seminar cert. paper and he knew it. He knew it was enough to pass/graduate, so he passed it, but he told me he was disappointed. Perceptive, accurate, and fair. We could do a lot worse.
But good luck. A libertarian on the court? Ha.
ideOlogue.
Thanks Ralph. And now that Movable Type has a search and replace feature, easy to fix.
I hope you're right about Roberts. I don't mind a judicial conservative in the sense of "resistant to change" - that's necessary.
I do mind a judicial conservative in the sense of a "conservative" Republican partisan who happens to be a judge - which is what I was worried we'd see from any Bush appointees.
I think that Kennedy appears to be a good comparison. I could see how Roberts could turn out like Kennedy, appointed by a conservative Republican, and have generally conservative views and opinions, until a few cases come along, like Lawrence was for Kennedy, that differentiate him from the social conservatives.
There are really only two ways to figure his questioning aside from just a general post-Bork closemouthedness that we're going to see from a lot of nominees:
One possibility is that he's an arch-conservative appointed by Bush in some plot to overturn Roe, Lawrence, Johnson, etc. While I don't doubt that Bush, or at least some of his advisors and backers would want to do this, I highly doubt that they could pull it off, especially since the original plan wasn't for Roberts to be CJ.
The second option is more likely. There are many instances of supposedly conservative nominees becoming more liberal once on the court. Sometimes it's immediate, like Warren or Souter, but sometimes justices just get more liberal over time, like Kennedy. Either way, I've long felt that the issue is not that the justices change their opinions once on the bench, but that much of the so-called "social conservative" stances are often more political than policy based. Lawrence is an excellent example...anyone with half a brain can recognize that anti-sodomy laws are pointless, even Thomas's dissent mentioned that he would have voted against these laws were he a legislator. And yet many politicians, while privately agreeing, took public stances against this ruling, because they were afraid of public backlash.
Actually, Brown is an even better example of this. Politicians in the south had to make public stances in support of segregation, even ones who were probably smart enough to recognize the stupidity of that peculiar institution, because it was necessary to get elected. For the Court, however, what mattered was making the legally correct ruling, regardless of its popularity.
In short, I think that oftentimes many conservatives don't necessarily believe a lot of the social conservative tripe, just as many fiscally conservative voters have generally ignored the religious right and held their nose while voting. Roberts is clearly intelligent enough that he doesn't actually believe a lot of the social crap that the Republican party puts out, although he is a generally conservative guy, and that when a situation comes before him where he has a choice between what's legally correct and what's politically correct, he'll choose legally, which would explain his answers regarding Roe and stare decisis.
Roberts might actually turn out to be a decent CJ.
I have another issue. This regards Thomas. Apparently he is up there on the bench like a bump-on-a-log, rarely participating in oral argument. He is not dumb, and he is not inarticulate, so I do not understand why he doesn't participate more on the oral argument. When I was younger, I would often judge moot court arguments, and it was fun to question the "litigating" attorneys (who were actually students).
On the subject matter of the post, I would be ecstatic if Roberts (who will be confirmed) will surprise everyone and be an Earl Warren. Barring that, a Kennedy lookalike will do. I haven't read any of Roberts's opinions from the appeals court bench so I don't know what his judicial philosophy is. If he has the managerial ability to protect the federal judiciary from interference from the political branches (which is one thing the CJ has to do, and I'm referring to threats from Congress to withdraw appellate jurisdiction) over the next couple of decades, he will have succeeded in his job.
Going back a bit...
Robert Madison at September 16, 2005 06:23 PM
I've said it before and I'll say it again. I like Roberts. I think the guy is a real pro. Handled the hearings like a champ...
Apparently you misunderstand what the purpose of a hearing is. A hearing is not a jousting match. It is an exercise to enable the Congress to exercise its Constitutional obligation under the "advise and consent" provision.
As I have said elsewhere, it is the case that the truth usually comes out during cross-examination, not under direct. You may interpret the cross as a "jousting match," but that's the case. Unfortunately, unlike in a trial, the Congress doesn't have the power to compell a nominee to answer a question, but if the nominee refuses to answer a question, a Senator can use that refusal to vote to reject the nomination.
I listened a lot and watched a bit. I got the distinct impression that he wasn't revealing himself to anybody -- not to Feinstein, not to Hatch, not to Kennedy, not to Specter. Kennedy and Biden and Feinstein understood that, and issued lectures on where he has to be careful. There was no quiz -- we can't know whether he listened.
I was troubled that no one but Biden took up the challenge of the baseball umpire analogy. In baseball, no umpire gets to the big leagues except those who have paid their dues and demonstrated, in Little League, Pony League, American Legion, Texas League (and equivalents), AA and AAA levels that they call a fair game. An umpire in the big leagues is a known quantity, one who has already made thousands of calls correctly -- and demonstrated that, if they call one incorrectly, they can take the heat and move on to call the rest of the game fairly.
Analogizing judges to umpires fails at all of those levels.
I remain bothered by the complaints about foreing precedents. Roberts said he thought it was foolish for judges to look to courts overseas. What a crock.
All of our tort law and all of our contract law is based on foreign precedents. Many of our concepts of fairness in military justice after World War II are based on the procedures and processes used at the Nuremburg trials. Our ideas about what is fair in consumer law in international air travel is based on purely foreign conventions (to which the U.S. was a party, true -- but last time I looked Warsaw and Montreal are still not part of the U.S.).
A hard and fast "no foreign precedent rule" would mean that we could not look at the errors of other nations, either.
So "no foreign precedents" cannot be a rationally-based standard. It is code for conservatives. But code for what?
When the issue of same sex marriage gets to the Supreme Court, you can rest assured that it will be the Social Conservatives who will base much of their argument on Foreign Law They will point to what they see as the disaster caused by Scandavian countries' acceptance of same sex unions.
Will Roberts discount their testimony as irrelevnt?
John at September 17, 2005 11:14 AM
I can only assume that this is tongue in cheek. Stanley Kurtz's spin in National Review Online (!) that same-sex marriage in Scandinavia (which doesn't actually exist there) has caused a reduction in opposite sex marriage in Scandinavia, has been roundly debunked by Lee Badget in a Slate article over a year ago.
Recognize that one of Kurtz's first spin on the same-sex marriage issue in NRO was that gay men should not be able to marry because straight boys don't want to watch movies in which openly gay men were leading characters. Many of us scratched our heads wondering what he was writing about. Before we rolled on the floor laughing.
For someone who is presumably straight, he seems to be perversely interested in gay people.
I have heard the argument made that Scandanavia's expermintation has ruined marriage there, many times. I fully expect an argument to that extent to made in court.
I know the claim is foolish, I would expect any reasonable individual to dismiss it out of hand.
The practices of other countries is evaluated by the courts routinely, and I don't see anything wrong with that, and I doubt that that is what Roberts was talking about when he said foreign law should not be used as precedent.
Kurtz' absurd claims about gay marriage in Northern Europe will be shot down in court so fast his head will spin.
Just to remind you all, American law is a part of the "western legal tradition" that began (possibly) with the Hammurabi code and the Greek codes, continued with the Roman code (on which much of Common Law is based), continued through the British Common law, and which was imported into the US even before the US Constitution was ratified. The idea that the US courts should ignore opinions of other courts in other countries that stemmed from the same legal tradition--which is virtually all of western Europe, the UK, Ireland, Scandinavia (although less so), and Canada, is idiotic in the extreme.
Raj Writes:
Apparently you misunderstand what the purpose of a hearing is. A hearing is not a jousting match. It is an exercise to enable the Congress to exercise its Constitutional obligation under the "advise and consent" provision.
As I have said elsewhere, it is the case that the truth usually comes out during cross-examination, not under direct. You may interpret the cross as a "jousting match," but that's not the case. Unfortunately, unlike in a trial, the Congress doesn't have the power to compell a nominee to answer a question, but if the nominee refuses to answer a question, a Senator can use that refusal to vote to reject the nomination.
Right. That's exactly what I understand the process to be.
Again, I think Roberts did a fine job. He clearly sent a message to the senators that he wasn't going to answer any questions he didn't want to, and I believe it is his right to take that position. The senators don't have to like it. I say, if the senators wanted better answers, they should have asked better questions. And, if they're not happy with the answers they got, then they shouldn't vote for him.
Additionally, he did clarify how he views the constitution, and I liked his answer:
"The Founding Fathers intended the Constitution "to apply to changing conditions. And I think that in that sense, it is alive ... and applies down through the ages,"
I think he's going to be a damn good CJ!
Robert Madison at September 20, 2005 01:41 PM
The second paragraph of your post was mine as well.
Roberts may very well make a fine CJ, and I hope he does, because he is virtually certain to be confirmed. The primary issue regarding a CJ is that he (or she--although there haven't been any "shes" yet) is the manager of the entire federal judicial system, and over the next few years the CJ will have a difficult time protecting its independence from the political branches. Rehnquist actually performed that task relatively decently.
My only concern about Roberts is his lack of experience on the bench. I know little of his previous record as a lawyer, except for reports from some who say he was a fairly decent one. But, as we have seen from the recent problems on the Gulf Coast, being a decent lawyer does not equate to being a decent manager. Michael Chertoff, director of the Department of Homeland Security, and his deputy Michael Brown, director of FEMA, are perfect examples of that.