Wednesday, July 20, 2005

John Roberts: The Reaction

Andrew Sullivan has some interesting viewpoints from others regarding the choice of John Roberts to the nation's highest court. Some on the right look on his lean record as a sign that he is a blank slate aka David Souter. Here is what conservative blogger Daniel Flynn writes:

Republicans have tried the blank slate route before. That's the Supreme Court pick whose opinions are unknown--perhaps even to himself. What did it get the GOP? David Souter, for one. President Bush has twice been elected president, and his party controls 55 Senate seats. If he really is a social conservative--let's face it, this is all about Roe v. Wade--why should he operate from a position of weakness and nominate a consensus candidate? While Roberts is neither the consensus candidate nor 2005's David Souter, his views on Roe v. Wade, at least, are unknown. Is a crapshoot the best conservatives can do? On the other hand, the Democrats refused to confirm him when George H.W. Bush nominated him to the bench, and took two years to confirm him when George W. Bush nominated him to the DC Court of Appeals. Perhaps the Democrats know something that we don't. Time will tell.

Polipundit isn't happy either. Then there is Ann Coulter who says:

Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.

It means nothing that Roberts wrote briefs arguing for the repeal of Roe v. Wade when he worked for Republican administrations. He was arguing on behalf of his client, the United States of America. Roberts has specifically disassociated himself from those cases, dropping a footnote to a 1994 law review article that said:

“In the interest of full disclosure, the author would like to point out that as Deputy Solicitor General for a portion of the 1992-93 Term, he was involved in many of the cases discussed below. In the interest of even fuller disclosure, he would also like to point out that his views as a commentator on those cases do not necessarily reflect his views as an advocate for his former client, the United States.”

And it makes no difference that conservatives in the White House are assuring us Roberts can be trusted. We got the exact same assurances from officials working for the last president Bush about David Hackett Souter. I believe their exact words were, "Read our lips; Souter's a reliable conservative."

Finally, lets ponder the fact that Roberts has gone through 50 years on this planet without ever saying anything controversial. That’s just unnatural.

If a smart and accomplished person goes this long without expressing an opinion, they'd better be pursuing the Miss America title.

Finally, a more saner view comes from Jeffrey Rosen. It's on the New Republic so it's subscription-only, but Sullivan does have some good money quotes that gives an insight into Roberts judicial temperment:

Top of his class at Harvard Law School and a former law clerk for Rehnquist, Roberts is one of the most impressive appellate lawyers around today. Liberal groups object to the fact that, in 1990, as a deputy solicitor general, Roberts signed a brief in a case involving abortion-financing that called, in a footnote, for Roe v. Wade to be overturned. But it would be absurd to Bork him for this: Overturning Roe was the Bush administration's position at the time, and Roberts, as an advocate, also represented liberal positions, arguing in favor of affirmative action, against broad protections for property rights, and on behalf of prisoners' rights. In little more than a year on the bench, he has won the respect of his liberal and conservative colleagues but has not had enough cases to develop a clear record on questions involving the Constitution in Exile.

On the positive side, Roberts joined Judge Merrick Garland's opinion allowing a former employee to sue the Washington Metropolitan Area Transit Authority for disability discrimination. He pointedly declined to join the unsettling dissent of Judge David Sentelle, a partisan of the Constitution in Exile, who argued that Congress had no power to condition the receipt of federal transportation funds on the Metro's willingness to waive its immunity from lawsuits. In another case, however, Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress's power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that "the hapless toad ... for reasons of its own, lives its entire life in California," and therefore could not affect interstate commerce. Nevertheless, Roberts appears willing to draw sensible lines: He said that he might be willing to sustain the constitutionality of the Endangered Species Act on other grounds. All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament.

Sullivan goes on to say that this is a shrewd choice and I agree. What we seem (and I stress, seem) is a person who is conservative, but is not a true believer. It's interesting that Rosen provides a view that makes Robert seem more moderate than what some on the left are saying.

Will this choice move the court to the Right? I think so, but the question to ask is what kind of right? If Roberts is a movement conservative whose vote we know before the case comes before the Court, then that's a bad sign in my view. If he is a conservative that takes a more mainstream approach without veering to the far left, then that is much better. Listen, despite all the talk about how conservative the Court has become compared to say, 40 years ago, this court has done some good things especially gay rights cases like striking down Colorado's Amendment Two and sodomy laws in Lawrence v. Texas. From the outset, I don;t see Roberts wanting to rollback gay rights or abortion rights for that matter.

Again, I'm witholding judgement until the hearings. But it does seem that Bush picked someone who is might be similar to Sandra Day O'Connor, conservative and pragmatic as well as keeping an open mind. Again, time will tell.


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