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?
Schadenfreud only applies when you're happy at the misery of others. This appointment doesn't allow me to judge whether I got the SCOTUS nominee I expected from Bush, and I can't feel happy about that.
"FFL has emerged as the link between the pro-life and pro-choice worlds, working on efforts such as the enforcement of child support and, the Violence Against Women Act."
"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?"
Your recollection is incorrect. Here is Bush's statement on Grutter:
"I applaud the Supreme Court for recognizing the value of diversity on our Nation's campuses. Diversity is one of America's greatest strengths. Today's decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.
My Administration will continue to promote policies that expand educational opportunities for Americans from all racial, ethnic, and economic backgrounds. There are innovative and proven ways for colleges and universities to reflect our diversity without using racial quotas. The Court has made clear that colleges and universities must engage in a serious, good faith consideration of workable race-neutral alternatives. I agree that we must look first to these race-neutral approaches to make campuses more welcoming for all students.
Race is a reality in American life. Yet like the Court, I look forward to the day when America will truly be a color-blind society. My Administration will continue to work toward this important goal."
Sounds strikingly like O'Connor in his language.
The Federalist Society is not necessarily an accurate indicator of judicial philosophy. Alberto Gonzales is listed as a member on their web page and we know he's not an originalist.
To all the pubbie sheep, I guess we're one and the same. Funny how we can make exactly the same arguments on actions by two different politicians and when its the Democrat we're talking about we're "spot on," but when its the Republican, and especially when it's Bush, we're "Doom and Gloom Unappeasables."
His apellate opinions are very sparse, mundane and dispositive of nothing. I have high hopes for him but would have preferred a rock ribbed conservative with a long and conservative/originalist apellate record in the mode of Edith Jones or Luttig and let the battle begin.
Bush hating, self proclaimed "only true conservatives", doom & gloom unappeasables.
That is the value of being an originalist....you don't have to question people on a case by case basis. If he believes that the Constitution should be interpreted as written and as was understood by the people of the time that ratified it, then whether he is personally a liberal or a conservative doesn't matter. The result, however, is that decisions like Kelo, Roe and various others are reversed, because they do not fit that criteria. It is against the canon of judicial ethics to question a potential judge on cases that may come before him. (And in fact, if the President had stated that he's gotten satisfactory answers from a judicial candidate on specific issues, it would have two results: first, the candidate would be called upon to recuse himself from those cases and second, the Democrats would be screaming blue murder for a transcript of that interview). It is not, however, uncalled for to have the nominee explain his judicial philosophy. Does he believe in originalism or in an evolving Constitution. If he is an originalist, it is a happy coincidence that the great majority of "conservative" hot button issues will be decided in a manner satisfactory to us - not because the judge is a conservative judicial activist, but because he or she cannot find a legal justification in the words or understood meaning of the Constitution at the time it was ratified. For example, Judge Roy Moore would be a conservative activist and not an originalist. In my opinion, judicial activism, on either side is not to be tolerated. If you can't find justification for your position in the Constitution, be it liberal or conservative, then you have to persuade your fellow citizens to pass laws and amendments to enact your position. To expect a judge to rule a certain way because he or she is conservative is to pervert the concept of what a judge is to do. And, as this article and several others have pointed out, we have only the assurances of people close to Judge Roberts regarding judicial philosophy. There is not enough of a record for people to judge for themselves. The reason that this pick is disappointing is not Judge Roberts specifically, but the fact that there were other judges clearly in the Scalia and Thomas molds, with records to back up their philosophy of originalism, that could have been nominated instead. What we have now is someone that we need to cross our fingers and hope that he believes in a particular way. If we're wrong, given his age, it will be a long time before that situation can be remedied.
We are lurching toward socialism, this judge is further proof that Bush isnt going to close the borders, Bush will
continue to send money to the Palestinians, and has no intention of stomping the Arab world into the ground. No hes going to welcome every disease riddled Mexican into our country to do the jobs we wont do.Hes going to let CAIR and the Islamic brotherhood piss all over us and our troops.Hes going to put moderate liberal commies on the supreme court (lawyers arent Americans, they are as Jesus said whitewashed tombs) Bush is into appeasement. Why not
have a show down with the communists in the Senate if
Bush was serious hed put Bork up again. My assesment is we are lurching toward socialism and a multicutural mess
and the supreme court will legislate more liberalism
Our constitution was fine until unaccountable jerks( lawyers) started screwing it up!
His law partner said...he'd definitely reverse Roe...said he's the smartest guy around, brilliant but EXTREMELY conservative and also very humble.
I read that...in fact, I think I POSTED that...in a different thread. But I find that only somewhat convincing (which is why I put that evidence as showing he 'leans' constitutionalist instead of showing Roberts IS conservative). After all, the Sununus were pushing Souter. I don't know what his law partners' politics are, after all. Sandy Burglar said Roberts was 'very conservative' too, but I don't know that I'd consider anything that liberal puke said indicative of how conservative Roberts really is.
"Republicans have named seven of the last nine Supreme Court appointees.
GWB didn't appoint any of them so the point is moot."
Not only that. Remember that 5 of these 7 justices (all except Sclia and O'Connor) were appointed at the times when Democrats controlled the Senate.
Frooma whatshername's opinion is irrelevant.
Um, that IS the law partner they were quoting. Michael Medved and Sandy Berger were together when they heard the announcement of Roberts and Medved related that story. So, the big endorsement of how conservative Roberts is comes from Sandy Berger, who probably thinks Karl Marx is rather conservative....compared to Hillary, that is!
"President Bush had the once-in-a-presidency opportunity to nominate a clear originalist."
Can anyone give me a list of names of candidates who would have been considered "clear originalists"? Probably with some explanation why the people deserve to be called originalists.
We can start with Janice Rogers Brown.
Google for "Whiter Shade of Pale" and her name. Don't forget to include her name or you'll be hunting through Procol Harum fan sites.
Of course it's moot to cite what other people did at another time involving different people as indicative of anything. None of the cast of characters, not one, is the same, and it certainly isn't fair to insinuate that GWB had anything at all to do with justices he did not nominate.
Yep, I knew he should've picked Ann Coulter. She's not only a lawyer, she's a historian. And Mrs. Bush would've approved. :-)
"He is a stealth canidate and that is very worrisome , I agree 100% with the author ."
Plus the DemonRATS seem to like him...another reason for being suspicious of him.
Gee, looks like that would have been right around June 23, 2003, when he said "I applaud the Supreme Court...ad nauseum".
It is not man hating and anti-family to expect men to support their children and to refrain from beating their wives.
It is in fact anti-family for men to beat their wives and neglect their children.
But don't miss out on the even "classier" Spanish-language version:
DECLARACIÓN DEL PRESIDENTE
Felicito a la Corte Suprema por reconocer el valor de la diversidad en las universidades de nuestra nación. La diversidad es uno de los mejores puntos fuertes de los Estados Unidos. Las decisiones de la actualidad requieren un equilibrio prudente entre el objetivo de la diversidad en los recintos universitarios y el principio fundamental de igual trato ante la ley.
Mi Administración continuará promoviendo las políticas que aumentan las oportunidades educativas para los estadounidenses de todos los orígenes raciales, étnicos y económicos.
Hay maneras innovadoras y comprobadas en que las universidades e instituciones de educación superior pueden reflejar nuestra diversidad sin utilizar cuotas raciales. La corte ha aclarado que las universidades e instituciones de educación superior deben considerar seriamente y de buena fe las alternativas factibles que no toman en cuenta la raza. Concuerdo que primero debemos considerar estas estrategias que no toman en consideración la raza para hacer que los recintos universitarios sean más acogedores para todos los estudiantes.
La raza es una realidad de la vida estadounidense. Sin embargo, al igual que la corte, aguardo ansiosamente el día en que Estados Unidos realmente sea una sociedad que no tome la raza en cuenta. Mi Administración continuará dedicándose a este importante objetivo.