The Right Stuff

In 1995, while clerking for Chief Justice William Rehnquist, I and my two fellow law clerks asked the chief whom he thought was the best Supreme Court lawyer currently practicing. The chief replied, with a twinkle in his eye, that he thought he could probably get a majority of his colleagues to agree that John Roberts was the best Supreme Court advocate in the nation.

This week, the president announced his intention to nominate John Roberts to be a Supreme Court justice.

His nomination has been met with widespread praise, from left and right. Nevertheless, there are some who have raised complaints that his two years on the bench provide insufficient record for them to assess (and attack) his jurisprudence.

That complaint misses the mark for three reasons. First, his judicial record would have stretched 14 years, had Senate Democrats not delayed its consideration twice, in 1991 and again in 2001. When his nomination did finally make it to the Senate floor, in 2003, he was confirmed by unanimous consent.

Second, many distinguished jurists, such as Chief Justices William Rehnquist and Earl Warren and Justices O'Connor, Souter, and Thomas, similarly had very limited experience on the federal bench prior to ascending to the Court.

And third, although two years on the bench provides a limited number of opinions, he has a far longer record that is relevant: his professional career as a Supreme Court litigator.

At the outset, Judge Roberts is brilliant. A summa cum laude Harvard graduate, Roberts began by clerking for two giants of the bench, Judge Henry Friendly, and Chief Justice Rehnquist.

He then argued 39 cases before the Court, more than all but a handful of lawyers ever. And he has earned a reputation as a balanced, scholarly advocate.

When he stood at the podium, he was never oratorical or flashy, not given to waxing rhetorical. Instead, he was unflappable. His preparation was so extensive that — unlike many lawyers, who try to dodge tough questions from justices — he would simply stand and answer the hard questions one after the other, calmly and coolly addressing the most difficult obstacles to his case.

He didn't always prevail; but, even in loss, his quick wit remained. As he observed to one unsuccessful client, aghast and asking why they had lost their case 9-0, he replied, "well, there are only nine justices."

In November of 2000, I had spent the past year and half as domestic-policy adviser on the Bush campaign, and was part of the team assembling the lawyers to help litigate Bush v. Gore. We needed the very best lawyers in the country, and I called John and asked him to help. Within hours, he was on a plane to Florida.

Humble and soft-spoken, he was happy to be behind the scenes, writing and editing the president's Supreme Court briefs. Midway through the recount, on November 28, John started heading out to return to D.C. Distraught, I asked where he was going — we were in the middle of enormous legal battle. Quickly, he replied, "I know, but I've got a Supreme Court argument tomorrow morning."

He flew back to D.C. Tuesday night, argued a complicated trademark case Wednesday morning, and returned immediately to Florida to continue helping us represent the president.

Judge Roberts is a lawyers' lawyer. And that matters immensely, especially for the U.S. Supreme Court.

Some of the most storied justices in history, including William Howard Taft, Charles Evans Hughes, Thurgood Marshall, and Robert Jackson, came from similar experiences as experienced advocates at the highest Court.

The mainstay of Supreme Court justices' work consists of complex, non-ideological cases, where rigorous analysis of precedent is at a premium.

With judicial nominees, the charge of "judicial activism" is much bandied about. Depending upon one's perspective, what precisely constitutes activism is subject to debate. The simplest definition is whether a judge will substitute his own personal policy views for the clear dictates of the law.

But, figuring out the dictates of law requires diligent study of legal precedent — no easy task. And for that enterprise, decades of litigating experience, at the highest levels, is invaluable — because it trains the judge to read precedent exactingly, and because it engenders an approach that looks to law and not to personal predilection.

For that reason, Roberts's particular personal views, which will no doubt be subject to extensive hermeneutic effort, matter far less than his judicial methodology.

Those trying to divine his personal views will likely look to his judicial service on the D.C. Circuit, often referred to as "the second-highest Court in the nation." Three current Supreme Court Justices, Scalia, Thomas and Ginsburg, previously served on the D.C. Circuit.

One notable opinion was in Rancho Viejo v. Norton, where he would have granted rehearing to reconsider whether a panel decision was consistent with the Supreme Court's federalism cases. In that case, a panel concluded that Congress had the constitutional authority to regulate California "arroyo toads," deeming them within "interstate commerce."

As Judge Roberts wrote in dissent, "[t]he panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating 'Commerce . . . among the several States.'" "[T]o be fair," he added, "the panel [had] faithfully applied" D.C. Circuit precedent, but not Supreme Court precedent, which is why he felt en banc review appropriate.

Another opinion is Hedgepeth v. WMATA, a unanimous decision rejecting a constitutional challenge to the unfortunate arrest of a 12-year-old girl for eating a French fry in a Washington Metro station:

No one is very happy about the events that led to this litigation. . . . The district court described the policies that led to her arrest as ''foolish,'' and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution.

What is most notable about the opinion is not the result — all four judges who considered the case agreed on that — but rather the methodology whereby he arrived at that result.

As he did as a litigator, his opinion eschews his own policy preferences and instead rigorously reviews and applies the relevant legal precedents.

Nevertheless, some activists have chosen to vilify Judge Roberts. The principal reed upon which they rely consists of fifteen words in a 1991 brief for the United States in Rust v. Sullivan: "[W]e continue to believe that Roe v. Wade was wrongly decided and should be overruled."

Of course, Roberts was writing that brief for the administration of former President Bush, and, as deputy solicitor general he was obliged to faithfully represent the position of his client. And, he won the case, 5-4, at the Supreme Court.

As his opposing counsel, Harvard Law Professor Larry Tribe, observed, "I like [John Roberts] a lot. I even liked him when he defeated me in [Rust], 5-4."

As an individual, John Roberts is undoubtedly a principled conservative, as is the president who appointed him. He clerked for Chief Justice Rehnquist, worked in the Reagan White House, and served as the principal deputy solicitor general in President George H.W. Bush's Justice Department.

But, as a jurist, Judge Roberts's approach will be that of his entire career: carefully, faithfully applying the Constitution and legal precedent.

He is a mainstream judge, respected across the ideological spectrum. Thus, he's earned praise from liberal icons such as Harvard Law Professor Larry Tribe, and Chicago Law Professor Cass Sunstein, as well as from Clinton Solicitors General Walter Dellinger and Seth Waxman, and Carter and Clinton Counsel Lloyd Cutler, the latter two of whom both described Roberts as a man of "unquestioned integrity and fair-mindedness."

As Professor Tribe observed Tuesday night, "[i]t is clear that in the absence of some serious objection that is not now visible . . . he is very likely to be confirmed." The Senate should confirm him swiftly.

Sigh....where to start with this? First off, this article is rather silly in many points. We shouldn't complain about his lack of a record because it should have been a 14 year record but wasn't because he wasn't confirmed? What does that do to address the problem about the paucity of the record? Nothing. Instead we are being asked to trust "people in the know" that Judge Roberts is a "solid" conservative. We've been down that road before and it's name is Souter. Secondly, he mentions that several distinguised jurists have not had extensive records. He names 5: Rehnquist, Thomas, Earl Warren, Souter, and O'Connor. So, from this we can conclude we have a 2 out of 5 chance of getting an originalist? I think we could do better than that for a lifetime appointment. I don't know of anyone saying he's not qualified to be on the Court for lack of experience or intelligence. The reservations of those of us on the Right stems from the fact that we can't tell for certain his judicial philosophy because of the lack of a paper trail.And this article also mentions, very selectively, Judge Roberts' opinion in Rancho Viejo v. Norton. Yes, it is true that he disagreed with the majority that the Endangered Species Act because it affects interstate commerce....but he urged them to use other means to find it Constitutional.
He is also enamored of the fact that Roberts experience as a lawyer makes him qualified and makes the rather ridiculous assertion that this fact makes up for his lack of a judicial record. The opinions expressed by a lawyer do not necessarily reflect his personal opinion or philosophy. Indeed, training as a lawyer teaches you to present viewpoints with which you may disagree. And Judge Roberts has made efforts to distance himself from briefs he has prepared, citing just this rationale. The author mentions the need to respect precedent. This is true at the Appelate level in that they do not have the authority to over-ride the Supreme Court, but it does not apply nearly as strong at the Supreme Court level. Indeed, several of the most controversial decisions of the past two terms were ones that overturned centuries of Supreme Court precedent (Lawrence v. Texas and the Kelo case jump to mind). I tend to agree with Thomas Jefferson that it is through stare decisis that the Republic has been so undermined. Just because something is precedential doesn't mean it is correct. I expect of any Bush nominee that when precedent conflicts with an originalist interpretation of the Constitution, the precedent always loses.

"He is also enamored of the fact that Roberts experience as a lawyer makes him qualified and makes the rather ridiculous assertion that this fact makes up for his lack of a judicial record."

US Supreme Court Justices agree that he is the best litigator that appears before him.

Scalia has said it. Cruz notes that Rehnquist said it.
O'Connor calls him first rate.

This should count for something.

"What does that do to address the problem about the paucity of the record? Nothing. Instead we are being asked to trust "people in the know" that Judge Roberts is a "solid" conservative."

He clerked for Rehnquist and worked in the Reagan and Bush administrations. He's been a Federal judge for 2 years. He's got enough of a record to know him.

"We've been down that road before and it's name is Souter."

Souter wasnt in the Federalist society.

"US Supreme Court Justices agree that he is the best litigator that appears before him. Scalia has said it. Cruz notes that Rehnquist said it. O'Connor calls him first rate. This should count for something."

Being a good litigator does not translate into how he will decide cases, but only speaks to his competence, which I do not dispute. It does not even tell us his judicial philosophy since, very often, the opinions that he is arguing are designed to achieve victory for his client and are not necessarily reflective of his own opinions or philosophy.

"He clerked for Rehnquist and worked in the Reagan and Bush administrations. He's been a Federal judge for 2 years. He's got enough of a record to know him."

I beg to differ. Again, his clerking for Rehnquist is good, but still does not indicate his personal philosophy. His work in the Reagan and Bush administrations reflects the advancement of their policies, not necessarily his own. He has, in fact, been quite careful to make that distinction, in testimony and as a footnote in a law review article. His record as a Federal Judge for the last 2 year is indeed sparse, and while showing a temperament indicative of an originalist, there is still room for doubt - and my point has been that there were other choices with a less disputable record that could have been nominated, thereby avoiding a stealth nominee situation like we had with Souter.

"Souter wasnt in the Federalist society."

Alberto Gonzales, who has made statements that the Constitution is what the Supreme Court says it is, and who is not an originalist, is also in the Federalist Society, demonstrating that one's memberships may be more reflective of political expediency rather than true beliefs or philosophy.

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