Posted on 07/22/2005 4:27:41 PM PDT by Max_Parrish
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.
"He's qualified, and he's the President's choice.... he should be confirmed." - thoughtomator
Why should this ever be so? There is nothing in the Constitution to support your postion.
After O'Connor, Kennedy, and Souter, conservatives should closely examine and probably reject ANY judicial nominee who is reticent about his legal philosophy.
"His commitment to the social causes that animate the religious right is shrouded in mystery...some of the more rabid conservatives have started to point this out."
This guy has been reading my posts.
I believe this turned out to be false, he is not and was never a member of the Federalist society from what I have read.
Guess the base won't 'slavisly' be bringing them to the dance anymore either..since they can't necessarily be trusted to leave with those what brung them....
imo
Although, again, this isn't a great indicator. Alberto Gonzales is listed as a member on their webpage and I'd guess that Roberts is closer to an originalist then Gonzales.
You are right. The Bushbots are shooting in the air, whooping it up. Yet, as a guest on Hannity is putting it (who supports Gore and Roberts): "I don't think he will overturn Roe v. Wade, just narrow the margins a bit".
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?
He has spoken at their functions but never (he now says) paid memebership dues.
Oh great, not a member - then we are screwed.
Our side?
...say what?
/ACLU's DNC?
No not necessarily, lets wait and see. I really don't think he is another Souter.
Anyone that uses the old "he's qualified" so he should be confirmed wears 50's vintage clothing and views B & W TV. THAT ERA IS OVER SPORT!
What winnie Republicans still don't get it, even after Bork. This is a fk'n WAR! It's a WAR over politics, over the destiny of America. The court appointment process is NOW politics. The liberals woke up to that in 1987 and crushed the conservatives, whipped their ass.
Who controls the courts control the Republic. Democracy is now under the control of the Supreme Imperium..5 justices have said your property is not yours, that free speech can be eliminated before elections, that white/males can lose their jobs or denied promotions because of the color of their skin or gender.
And then some winnie says "but he's qualified, we must not ask rude questions". SHHEEEEESHHH.
I'm shocked to learn that Roberts is not a member of the Federalist Society, although he has given presentations before it.
Is it conceivable that a hotshot conservative lawyer from DC would NOT belong to the Federalist Society?
Ya, I was under the mistaken assumption (I suppose) that our side was conservative/libertarian...
As I've been saying since the nomination to people who can't understand why some have doubts about Roberts, because we have the President's word that he "won't legislate from the bench" and from friends and coworkers that he's a "solid" conservative, that this is just too important and too permanent a position to take a risk with someone you're not absolutely certain fits the bill as an originalist. There were multiple candidates about whome we could have had no doubt. And, whether or not he's conservative shouldn't matter. It's as wrong for a judge to let his conservative viewpoint influence his decisions at law as it is for a liberal to do. What must guide him is what the Constitution or relevant law actually says, what the crafters of it intended (as much as can be discerned) AND (in the case of the Constitution) what it was understood to mean by the PEOPLE who voted to ratify it. (Justice Scalia's dissent in the 10 Commandments case [McCreary County v. ACLU] this term is a classic example of trying to discover original intent and meaning.)
This is very much a PR appointment - that is, someone who was picked precisely because he had little record to dissect. He has been very careful NOT to say anything about his judicial philosophy, and where he has, he has subsequently tried to distance himself from those claims. If you are an originalist or a "living Constitutionalist" or anti-Constitutionalist as Mark Levin calls them, you should be able to logically and clearly defend your position. But this is a strategy to make a nominee the smallest possible target in hopes of forstalling a filibuster. I don't necessarily know whether it's totally the fault of the President. After all, we've got a Republican majority in the Senate, which, if you combined all of the vertebrae they all possess, you'd still be a few short of a complete spine (excepting one or two Senators, of course, who have been very vocal on the issue, like Allen.)
Sure Max, of course.
Why should it not be? It is the procedure spelled out in the Constitution for confirming judges to the Supreme Court. If he fails to uphold the Constitution as is his duty, impeach him.
Your opaque point being?
Perhaps not at the start, but he also shows troubling indications that he could "grow". He is active in the social circuit in D.C. and his reticence in staking out a philosophical position might indicate quite a bit of ambition. He may actually be very close to an O'Connor, or, horrors, an Anthony Kennedy. As a total aside from the topic of this thread, I was reading Senator Schumer's questions for Roberts. I don't really find any of them outrageous, but I doubt Schumer would like any of the answers he's liable to get. I did notice one glaring omission, though.....nowhere in those questions is Judge Roberts asked what importance foreign law should have in deciding Supreme Court cases not involving treaties with other nations. Hopefully Cornyn or someone will think to ask that of him. Of course, Specter would be all for using foreign law. The fact that Specter seems ok with this pick is extremely troubling as well to me. He loathes originalists and the fact that he's not upset is another very large red flag for me.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.