Skip to comments.President Bush's Roberts pick disappoints
Posted on 07/21/2005 4:30:51 PM PDT by LibertarianInExile
On Tuesday evening, President Bush nominated Judge John G. Roberts Jr. to the Supreme Court of the United States. "He will strictly apply the Constitution and laws, not legislate from the bench," Bush stated of Roberts. Conservatives immediately leapt on the Roberts bandwagon, echoing Bush's sentiments. Talk radio commentator Hugh Hewitt labeled Roberts "a home run." The Heritage Foundation's legal experts cited Roberts' "proven fidelity to the Constitution and the rule of law" in backing his nomination. Bill Kristol of The Weekly Standard called Roberts "a quality pick."
Perhaps Roberts is a safe pick. He's politically conservative and undoubtedly brilliant. He will sail through the Senate without much hassle. But it is shocking to watch many constitutional originalists and textualists abandon their philosophies in favor of cheap politics.
Roberts is not an originalist. There is nothing in his very short jurisprudential record to indicate that his judicial philosophy involves strict fidelity to the original meaning of the Constitution. He is not Antonin Scalia, nor is he Clarence Thomas. At best, he is William Rehnquist, for whom he once clerked. While Rehnquist has been a steady political conservative on the bench, the bench should not be about political persuasion: It should be about upholding the explicit words of our Founding Fathers. There is nothing to indicate that Roberts prioritizes the words of the Constitution above other, more immediate political concerns.
Roberts made his most eloquent statement of his judicial philosophy during his 2003 confirmation hearings for the D.C. Circuit Court of Appeals. He repeatedly emphasized "judicial restraint" and referred to the framers' desire that judges "[discern] the law, not [shape] policy. That means the judges should not look to their own personal views or preferences in deciding the cases before them. Their commission is no license to impose those preferences from the bench." There is something conspicuously absent from this description of the judicial role: an appeal to the original meaning of the Constitution. Roberts rails against "personal views" and advocates judicial neutrality, but he does not suggest an alternative source of values. No judge truly believes that he is imposing personal views on statutes; every judge appeals to some higher set of values, be they moral or legal. Some worship doctrine. Others worship "evolving standards of morality." But there is no substitute for the higher authority of the Constitution itself -- and this, Roberts does not say.
Unfortunately, we have no choice but to closely examine Roberts' words, because he has virtually no judicial record. No one knows where he stands on key cases like Roe v. Wade. Any originalist, whether politically liberal or conservative, would overturn Roe in a heartbeat. It is, quite simply, one of the worst decisions in constitutional history. Yet Fred Barnes of The Weekly Standard writes, "Is Roberts likely to join an anti-Roe bloc on the court? Probably not."
Meanwhile, speculation about Roberts' role on the court runs rampant. Some claim that Roberts will be another Rehnquist; others claim he will form a "dynamic center" with Justices Anthony Kennedy and Stephen Breyer. When the Supreme Court wields as much clout as it does, why should originalists sit by while a new 30-year swing-bloc is formed?
To this, some may answer that originalists should simply trust President Bush. I ask: Based on what track record? Republicans have named seven of the last nine Supreme Court appointees. Those justices include anti-originalists Kennedy, John Paul Stevens, Sandra Day O'Connor and David Souter. Originalists, take note: President George H.W. Bush believed that Souter would be faithful to the Constitution. In fact, H.W.'s nominating description of Souter sounds virtually identical to his son's in favor of Roberts: "I have selected a person who will interpret the Constitution and, in my view, not legislate from the Federal bench." After a decade of legislating from the bench, it is eminently clear that Souter's stealth candidacy and subsequent decisions have undermined the Constitution and the American system of government as a whole.
Yes, Roberts is a political conservative. His track record amply demonstrates that. But politics is no guarantee of jurisprudence: Just ask Earl Warren. Politics is no guarantee that the Constitution will be upheld: Just ask Warren Burger. Perhaps Roberts will turn out to be a Rehnquist. That will be satisfactory, politically if not constitutionally. But President Bush had the once-in-a-presidency opportunity to nominate a clear originalist. Instead, he abandoned absolute adherence to the Constitution in favor of political expedience.
1) He's a member of the Federalist Society (WaPo has an article now disputing this) 2) His wife is/was a member of Feminists for Life 3) He worked for Reagan and H.W. 4) Various personal opinions from those who know him in an article by Legal Times.
Here's what I have that strongly indicates a constitutionalist bent (at least on that issue): 1) He's written law review articles on environmental 'takings' that were strongly against that use of takings law.
I would like to hear more, as Ms. Coulter and Mr. Shapiro would, that demonstrates his likelihood of ruling the way Constitutionalists would like. Please ping me if you find more, or if there is something I have missed.
NOTE: I have specifically not included ANY writings he has produced that were at the behest of a client or while an appellate judge on settled issues. I would like to see dicta or personal opinion in those writings if you find it, but I found most of that previously brought up to be fairly dismissed as the product of zealous lawyering or commitment to stare decisis. And that is on both sides of the Roberts' debate--the 'abortion is settled law' and the 'police can search car trunks' statements are all not necessarily reflections of his personal opinion.
His track record of judicial nominations, of course.
Republicans have named seven of the last nine Supreme Court appointees.
GWB didn't appoint any of them so the point is moot.
To this, some may answer that originalists should simply trust President Bush. I ask: Based on what track record?
I agree. We're talking about the president's track record here, which as far as conservatism goes is SEVERELY lacking. He's a globalist, not a conservative.
We're talking about his track record regarding his judicial picks.
You mean the way he wouldn't go into Iraq without the approval of the UN? Wait, he DID go into Iraq without the UN approval. Never mind.
Other discussion over here on this article, if anyone is interested....
Plus, he has to keep the base motivated yet not have Roe overturned according to logic expressed at Real Clear Politics:
RealClearPolitics ^ | July 21, 2005 | By Froma Harrop
The Republicans' ideal Supreme Court nominee is someone who might overturn Roe v. Wade, but won't. That makes President Bush's choice of John G. Roberts pure genius. If defenders of abortion rights condemn the pick, so much the better. Social conservatives will think they won. And when a court ruling later proves they haven't, Republican leaders can comfort them. So far, all is according to plan.
My understanding is that the initial word that Roberts was a member of the Federalist Society is false, and that he has denied it.
I think the point is hardly moot. But you may back your stealth nominee on the basis of trust in Bush. I understand why you trust the President. I have trusted Bush on issues where if Clinton were in office I would certainly not have trusted the White House. I voted for the man and said so, while defending him against attacks on this board and elsewhere. But this appointment is one of the two issues why I voted for Bush, and I expected more than a stealth nominee.
If you don't like him then join in with NARAL, NOW, Moveon.org and all the other left wing crazies and get him voted down. I'm sure that will advance the conservative cause...
Who were you expecting, then?
I will let you know in a few years if Dubya screwed up.
I can't say I was 'expecting' anyone. I didn't know who Bush would nominate. But I was expecting the nominee to be a proven, paper-trailed conservative. Roberts doesn't have that going for him.
The reason that he has very little paper trail is because for 12 years the democrats blocked his appointments. That is their bad and his good. Bet they did not expect him to come back to haunt them. This is schadenfreude!!!!
Why do you Bush lemmings always play that game? It's nothing but pointless bombast and adds nothing to the debate.
I've got some news for you Sparky, not everyone who mistrusts or disagrees with Bush is some left-wing nutball. In fact, conservatives have far more cause through empirical evidence to mistrust Bush than do liberals. If conservatives stood up on their hind legs and said, "No, we don't think so. You promised us an originalist, not an unknown, try again," the conservative cause would definitely move forward. In more ways than one.
"If you don't like him then join in with NARAL, NOW, Moveon.org and all the other left wing crazies and get him voted down. I'm sure that will advance the conservative cause..."
I'm sure blindly accepting a beltway, country-club Republican will advance the conservative cause, too, and who can tell if that is what Roberts is or isn't, from his record? I doubt a GOP that has appointed 7 SCOTUS justices and not been able to get a majority of conservatives. Go figure.
People WILL leave the GOP over this in 2006 if Roberts turns out to be a lefty. And your smartass comments taunting people to leave and join the left will seem very foolish then.
Applauded? As I recall, he didn't believe in Affirmative Action and was hoping for SCOTUS to do the right thing. When did he "applaud" it? Or, was it just his normal way of not badmouthing something he didn't like because he has too much class?