New Republic Liberals Happy with Bush Choice of Roberts

WHITE HOUSE WATCH Legal Theory by Ryan Lizza Printer friendly Post date 07.21.05 | Issue date 08.01.05 E-mail this article

The question this week is: Why did George W. Bush make such a seemingly responsible choice? There is little in the history of Bush's decision-making that would have predicted the president would settle on someone like John G. Roberts Jr. for the Supreme Court...

Finally, Bush did not slavishly reward his base of evangelical conservatives. Some conservatives are describing Roberts as a "bold" choice. He is clearly not. His commitment to the social causes that animate the religious right is shrouded in mystery compared with that of other potential nominees, such as Priscilla Owen, Edith Jones, Michael McConnell, or J. Michael Luttig. Some of the more rabid conservatives have started to point this out. On the fringes, there was Ann Coulter,... "We don't know much about John Roberts," she sputtered. "Stealth nominees have never turned out to be a pleasant surprise for conservatives." Over at The Weekly Standard, Fred Barnes, perhaps the most pro-Bush columnist in America, posted some morning-after regrets, noting that Bush had made a "safe" choice rather than pick a true ideological conservative. National Review's endorsement of Roberts was notably tepid. "He will, almost certainly," the magazine announced with some trepidation, "be an improvement on his predecessor."

These conservatives had reason to expect more...Considering the importance of the high Court to his most rabid supporters, there was every reason to believe that Bush would choose a more ideological conservative than Roberts. ...The more brass-knuckle and base-pleasing Luttig apparently made it to the end of the sweepstakes but was passed over for the more moderate, more even-tempered, and more easily confirmable Roberts. After 15 years of crying, "No more Souters!" religious conservatives have been presented with someone whose views on many social issues are as unknown to them as those of their judicial bête noire were in 1990.

Why, then, did George W. Bush break with all of his known habits and instincts Tuesday night? For one, the Democrats' strategy of unified opposition and obstruction may finally have chastened the White House. Democrats have recently made life miserable for Bush. They have killed Social Security privatization and ground the rest of Bush's domestic agenda to a halt. They have eaten up weeks of valuable time in the Senate with their opposition to lower-court nominees. They buried John Bolton's nomination to be ambassador to the United Nations. Republicans warn Democrats that their obstructionism will cost them at the polls. Perhaps. But it also appears to have forced Bush into choosing a more conciliatory nominee. Bush seems to have calculated that, with the Iraq war, his failed domestic agenda, and even the Karl Rove scandal, he cannot afford a contentious confirmation battle. He seems to have been genuinely spooked by the Democrats' threat of a filibuster....So, while Senate Republicans are hailing the Roberts pick for its boldness, it may actually be a sign of Bush's current weakness.

Another theory is that the nomination process may have been controlled by slightly more pragmatic elements within the administration. In Pursuit of Justices, David Alistair Yalof's excellent book on how presidents choose Supreme Court nominees, the author notes that internal champions are always the most important factor...Attorney General Gonzales and White House Counsel Harriet Miers are workmanlike Texans who owe their careers to the president. Everything we know about them suggests they value Bush's political standing over the pursuit of ideological crusades.

...Though not considered a real movement conservative, he is extremely well-liked by Washington's network of Republican lawyers, even, reportedly, by those who think his ideological credentials are a little suspect...The combination of Texas pragmatists, such as Gonzales and Miers, and Washington legal insiders may have been the perfect mix to vault Roberts to the top of Bush's list.

Finally, one can't dismiss the power of the personal when Bush makes a decision. Bush reportedly hit it off with Roberts, not an insignificant fact. In 1981, O'Connor charmed Reagan during her interview and cinched her nomination. Roberts is universally described as brilliant but modest, a characteristic Bush cherishes. Bush was also likely taken with the man's devout Catholicism and the fact that he has two adopted children. In the end, the politics of Bush's current dire situation, Roberts's internal champions, and his personal relationship with the president seem to have conspired to help Bush make one of the better and more atypical decisions of his administration.

...Bush seems to be getting most everything he wants. He is nudging the Supreme Court to the right. His nominee is likely to have a relatively smooth conformation process. His evangelical base won't revolt. Bush may even win some political capital to spend on the rest of his agenda. Perhaps he will learn that, sometimes, the politics of conciliation pay more dividends than the politics of confrontation. If so, John Roberts would truly be a historic choice.

This is absurd that we, once again, are 'wondering' what we are appointing to the supreme court. Do you think the democrats 'wondered' how Ginsburg would decide on Roe v. Wade or any other left wing issue?
What the hell is wrong with our side?

You're assuming that Bush is on our side. I'm wondering more every day whether he is on my side or not. If Roberts turns out to be another pro-abort, "living Constitution" interpreter like that little weasel Souter I have cast my last vote for any national level Repub candidate.

When Bush did nothing to pressure Senate Pubs to not let Specter chair the Judicial committee I began to suspect that he is not the conservative Christian president I once thought he was. If Roberts proves to be a bad choice I will know for sure that Bush isn't who I thought he was, and I will have no further interest in voting for any Republican in the future.

Again, I'm not disputing that people can change their opinions. Indeed, one of the red flags, in my mind, regarding Judge Roberts is that he is such a member of the D.C. social scene. You mention Goldwater, I'll add Justices O'Connor and Kennedy. All moved away from positions of differing conservatism to varying degrees of liberalism, or in the context of D.C. culture, they "grew". As I said in either this or another thread this evening, it is quite possible that, after joining in a few "conservative" opinions, he may find himself shunned at cocktail parties or perhaps encountering difficulties getting a squash partner....how long will it be before he "moderates" his views to conform to what is expected of him by his friends? Indeed, this is the danger and the difference between appointing a conservative justice and an originalist one. A conservative justice decides the issue on his or her beliefs or world view and then goes out to find law to support that position, whereas an originalist approaches it from the perspective the meaning of the document....if it doesn't agree with his personal beliefs, he doesn't feel free to impose them in his interpretation of the document. Justices O'Connor and Rehnquist are examples of conservative Justices....their decisions, while often pleasing to conservatives are not consistently so, because they each have their own worldviews that they feel free to impose, O'Connor more than Rehnquist. They use originalism when it suits their purpose, but also feel free to depart from it when it conflicts with their belief. Scalia and Thomas are originalists. For example, Scalia has voted to uphold flag-burning as a First Amendment expression of speech even though he finds the practice abhorrent. But he feels the correct remedy is that, since it is as present unConstitutional to prohibit it, we must work with our fellow citizens and persuade them to our view and take the steps necessary to amend the Constitution to reflect those beliefs. Yes, it's difficult, but it was also designed to be, to protect the document from passing whims of public opinion. Adherence to a judicial philosophy of originalism does not prevent personal opinion from intruding from time to time (e.g. Justice Thomas' dissent in the flag burning case of Virginia v. Brown), but it does tend to make it less likely. In 2003, at the Senate confirmation hearing for his current seat on the federal appeals court in Washington, Judge Roberts brushed aside attempts to label him with a specific school of constitutional thought. "I don't necessarily think that it's the best approach to have an all-encompassing philosophy," he said. From a Wall Street Journal article discussing this very topic with regard to Judge Roberts, they quote Edwin Meese as saying that everything he has done would seem to indicate that he's an originalist. However, "some observers say that rather than being a true originalist, Judge Roberts more resembles a traditional law-and-order conservative -- indeed, that he comes across much like Chief Justice Rehnquist, for whom Judge Roberts clerked in 1980-1981. The chief justice has applied different methods of constitutional interpretation to reach results that in general favor prosecutors over criminal defendants and limit federal regulatory authority over states." If true, then this nominee can be expected to morph into a judicial activist and is not an originalist in the mold of a Thomas or Scalia, as the President said his nominee would be. The biggest problem though, and it gets back to the point of this and several other articles is that we just don't know. It is now a crapshoot since we don't have a real record of judicial decisions to determine whether or not Judge Roberts is an originalist. Yes, he may "grow".....and so may move more toward a liberal viewpoint. With Barry Goldwater, we knew where on the gradient between conservatism and liberalism he started out....we don't have that same knowledge with Judge Roberts. Again, it's now just a gamble. We are supposed to cross our fingers and hope that he is what everyone says he is. If it were just a nomination to head up a government agency, that type of gamble could have been justified. For an appointment potentially lasting 30 years and with the power to create precendential law bearing on how the basic law of the land is to be interpreted, we should have had a higher standard applied, even if it meant a more difficult confirmation process. There were candidates available about whom these uncertainties wouldn't exist.

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