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.
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.
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