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.
I'm sure many people would have said the same thing about Goldwater...and their crystal ball was as unreliable as yours.