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.
There is? I wouldn't think so. A moderate to moderate liberal choosing a moderate to moderate liberal to sit on the court. And 'conservatives' cheer nonetheless
You took the words right out of my mouth(or off my keyboard). The Left knows they have NO CHANCE of stopping Roberts with their traditional slime tactics so this is Plan B. Say so many nice things about him, squeamish conservatives will lose their nerve and waver.
I don't apologise to fools and trolls who get their rocks off by bad-mouthing their President and his "decision-making" in a public forum. Your back-biting infantile comments are a disgrace and contribute nothing to conservatism. We have a good solid conservative nominee to the supreme court and none of your baseless drivel will change that one iota.
Here Kitty Kitty! You are only fooling a few on this thread troll. You have outed yourself by your key democrap words and over the top commentary. We do not call George W Bush Junior because he is not a Junior and that is what Molly Ivins and the rest of the DUmmies call him. It is insulting,better go back to DU with the rest of the DUmmies.
Exactly!
Heaven knows I'm no Bushbot, but my hope is that Roberts is the jab that sets the Dims up for the Janice Rogers Brown haymaker.
I looked more closly at McConnell. Wow, he is just right. He has academic support, nice guy, but read this from alliance for justice:
http://www.allianceforjustice.org/judicial/research_publications/research_documents/McConnell_%20Report_web.pdf
"In his numerous writings, Professor McConnell has articulated an extreme philosophy originalism and federalism. This philosophy leads him to reject such groundbreaking Supreme Court decisions as Roe v. Wade, Bob Jones University v. United States, Baker v. Carr, Reynolds
Sims, South Dakota v. Dole, Lemon v. Kurtzman and the ruling in Bolling v. Sharpe that federal government is bound by the equal protection doctrine. Legal academics should be free explore new and provocative constitutional theories and to disagree with Supreme Court decisions in strong terms. But Professor McConnell’s writings clearly delineate a jurisprudential philosophy that compels results hostile to fundamental rights and liberties. Despite acknowledging these consequences, he remains adamantly committed to his extremist interpretation of the Constitution. He offers no reason for senators to believe that he could set his personal views when deciding cases. His writings are therefore proper grounds for
deciding that he should not be appointed to a lifetime seat on the court of appeals."
If the loon liberals would right things like that about Roberts, I'd be very happy.
Go away troll.
Maybe they are preparing the ground for going ballistic on the Chief Justice appointment when that comes up. They can say, see? we let a conservative get through because he was a good judge even though he is rightwing foaming-at-the-mouth scum so now we get to block this NAZI you are trying to put up for CJ, and you owe us one, anyway.
>There are quite a few fellow conservatives that think like trolls: Ann Coulter, Fred Barnes, NR editorial staff, (etc.)- all of whom are deeply disturbed by Bush's uncertain selection.<
Really? "Deeply disturbed?"
Here is the N.R. Online editorial about Judge Roberts:
*****
"Trading Up"
President Bush’s nomination of John Roberts to replace Justice Sandra Day O’Connor presents an opportunity to bring the Supreme Court’s “constitutional law” closer to the Constitution, and to bring power closer to the sovereign people who ratified it.
Roberts’s views on the hot-button issues that come before the Supreme Court are unknown. But by all accounts, he has a brilliant legal mind, a judicious temperament, and generally conservative views. He will, almost certainly, be an improvement on his predecessor.
Prior to his appointment, Democrats were urging the president to pick a “consensus” nominee. This was always a trap. Whether a nominee counts as a consensual choice depends, after all, on whether the Democrats choose to accept him. Senator Richard Durbin of Illinois has already declared that Roberts is “controversial.” Translation: If Durbin rejects Bush’s choice of Roberts, Bush and Roberts are the divisive ones. In truth, Roberts is as well-respected a nominee — with as much support from Democratic legal heavyweights — as a Republican president could possibly pick. He was confirmed by unanimous consent to his current position on the D.C. Circuit Court of Appeals. But if Bush is not spoiling for a fight, neither is he shrinking from one.
Other Democrats pledged to conduct thorough hearings on Roberts. By all means. It would be useful to hear Judge Roberts explain his judicial philosophy. Our own view is that the chief qualification for a justice is a commitment to the rule of law. The rule of law entails predictable, because rule-bound, judicial decisions. It entails respect for the intentions of the sovereign people who ratified the Constitution and who ratified the amendments to it: If what they ratified needs to be changed, change should occur through a lawful process of amendment rather than judicial revision. It entails some respect for precedent, but does not confuse the stability of the Court’s jurisprudence with fidelity to the Constitution.
“Progressives have been telling us
for more than a century that
the original Constitution
was inadequate.”
Originalism will not always yield conservative policy victories, but it will do so more often than not. This predictable pattern should not be considered scandalous, or evidence of bad faith on the part of conservative advocates of originalism. Progressives have been telling us for more than a century that the original Constitution was inadequate and devising theories to justify judicial departures from it, and most of those departures have been in the direction of liberalism. Rolling back those departures will tend to advance the relatively conservative political ideas that the Founders put in place, if only by returning to the people control over issues that the judiciary now decides in favor of liberalism.
Roberts’s sterling professional qualifications are not in question. If he holds and defends a philosophy like the one briefly sketched above, the Senate should confirm him.
*****
sounds like a group you claimed was sympatico with your frets and fears about Judge Roberts ... isn't.
-George
"...its conceivable especially if he has been groomed for a SCOTUS position since his outstanding at Harvard. See this post...." - Archon of the East
How can those posts give you any confidence? Because a patent attorney is conservative but not a Federalist Society member, you figure that the same would hold true for an ambitious DC constitutional practitioner like Roberts?
I've been here for years, and I agree with him.
We had a chance to get someone like a Scalia, and we went for the safe choice...I'm disappointed.
Ed
I agree about McConnell. He is almost originalist to a fualt. He has disagreed with some Republican cases over the years, but there's no doubting were he stands: on the side of the Constitution. He has just enough support from some colleagues on the left that he should get through confirmation. He would form a block with Roberts, Scalia, and Thomas that could shake things up for years. The Republic would be strengthened with him on the SC. He's an originalist's originalist.
So you now admit it, anyone who "bad-mouths" their Presidents decision-making 'in public' must be 'fools and trolls'.
This kind of dogmatic loyality is common on the left, where every leftist who every questioned leaders were labeled as 'traitors' and, even if the criticism was warranted, was unacceptable because 'the evil rightists' would use it against them.
This kind of suppression for 'party discipline' belongs in the dark ages. And many dissenting leftists became conservatives precisely because we allowed diverse thought and were more loyal to a cause than to a man.
Fine, carry on your 'cult of personality' of uberleader. My loyality is to conservative/libertarian ideals. And to the extent Bush fights like a junk yard dog for those ideals I will support him (e.g. in his appointing Bolton, we hope). When he gives in because of personal weakeness or misguided emotions I will express my displeasure.
If you really believe in something other than toadyism, it is your duty to let leadership know...even when the news is not good.
PS I noticed you still havn't checked out FREE CONSERVATIVES... want to prove you're honest and do so?
If you've been following me, you'll know that I'm the last person to genuflect before GWB or the GOP, or before any establishment for that matter.
I was skeptical at first too, but I can't find anything about Roberts that I don't like. He's certainly at least somewhat conservative, and from what he has spoken of his judicial philosophy he is non-activist and originalist as well. So unless you have an actual substantial objection, all your protests will only strengthen NARAL and their ilk.
"Libertarian" that explains everything.
Perhaps 'deeply disturbed' as a group was unfair, however one can fairly say Coulter is very disturbed, Barnes damns by faint praise and tepid endorsement, and NR is uncertain.
Read it again (excerpts follow):
"Roberts’s views on the hot-button issues that come before the Supreme Court are unknown. But by all accounts, he has a brilliant legal mind, a judicious temperament, and generally conservative views. He will, almost certainly, be an improvement on his predecessor...
Originalism will not always yield conservative policy victories, but it will do so more often than not. This predictable pattern should not be considered scandalous, or evidence of bad faith on the part of conservative advocates of originalism....Rolling back those departures (from the original constitution) will tend to advance the relatively conservative political ideas that the Founders put in place, if only by returning to the people control over issues that the judiciary now decides in favor of liberalism.
Roberts’s sterling professional qualifications are not in question. If he holds and defends a philosophy like the one briefly sketched above, the Senate should confirm him."
I very much doubt Roberts would be a Souter, and much like NR I am 'almost' certain he is an improvement over O'Connor - which is not saying much.
NR then explains originalism and says "IF he holds and defends" this philosophy, he should be confirmed. "If" is the operative word...NR does not really know (nor do we).
The almost uniform disturbance on the right is not so much that he is a Souter, or even an O'Connor, it is that he is NOT a reliable Rehnquist/Scalia/Thomas on pivotal issues. And given our limited opportunity to change the direction of this country, many of us are "deeply disturbed" over the long run affects of appointing a member of the B team.
Anything less than what Bush promised to the right, we have suffered a tactical defeat.
I apologize for the genuflection remark.
My problem is that we were in this exact same position with O'Connor, Kennedy, and Souter. The only GOP nominees who did not eventually betray originalism were outspoken, ideological conservatives before coming to the Court - Rehnquist, Scalia, and Thomas. So far, Roberts just does not fit the specification.
It's more hope than confidence. I am "hoping" that he has laid low from strict Conservative organiztions knowing it would impede his chances with Communists...Err I mean Democrats. When I take all the info I have read, my hunch is he will be a bump to good from O'Conner. But it is a hunch only and no use getting our shorts in knot at this time, he has been nominated.
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