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It Takes an Establishment - (President Bush shrewdly beginning to shape SCOTUS for decades!)
WEEKLY STANDARD.COM ^ | AUGUST 1, 2005 | BILL KRISTOL

Posted on 07/22/2005 9:10:07 PM PDT by CHARLITE

IT TAKES AN INSURRECTION TO change a country. It takes an establishment to govern one. Conservatives want both to change and to govern America. Thus we need our dissatisfied, troublemaking, occasionally splenetic, sometimes raffish anti-establishmentarians. After all, without brave resistance and bold insurrection on the part of conservatives, liberal orthodoxy and institutions would still dominate American life.

But insurrection isn't enough. At some point, the radicals need assistance, support, and reinforcement from establishment conservatives--individuals ill-suited to insurrection but well-suited to rising through the institutions and moving them gradually but meaningfully in a conservative direction. Thus, we need our sober, calm, and respectable establishmentarians. Conservatives also need to be able to put together majorities--in public opinion, in Congress, and on the courts. The conservative tent therefore has to be a big one. As a Supreme Court justice, John Roberts will be an important (and, we trust, happy) camper in that tent.

Roberts is no Bork, no Scalia, and no Thomas. He's probably more like the man for whom he clerked, Chief Justice Rehnquist--or the man Rehnquist replaced, John Marshall Harlan. A court with, so to speak, five Scalias would be fun. But it won't happen. A court with a majority made up of some Scalia-Thomas types and some Rehnquist-Harlan types is possible. Indeed, with his choice of John Roberts, President Bush has begun to create such a court, one heading towards a constitutionalist majority.

When he nominated Roberts, Bush said that Roberts will "strictly apply the Constitution and laws--not legislate from the bench." Despite its

boilerplate nature, this one-sentence description actually seems to be a pretty good summary of how Roberts approaches judging. And in practice, this kind of precise judicial legalism, grounded in real respect for the Constitution and the law, will tend to move in the same direction as a more ambitious and more theoretical constitutional originalism: After all, how often on big cases did Rehnquist differ from Scalia or Thomas?

The early assaults on Roberts from the left could barely disguise the fear lurking in the breasts of the attackers. Democrats are on the spot. If most Democratic senators vote to confirm Roberts, yielding to his stellar credentials, then they will have established the precedent that a conservative who neither commits himself to upholding Roe nor endorses its underlying rationale ought to be confirmed. If they vote against Roberts, then their opposition to the next appointee will be discounted--they're simply against anyone likely to be nominated by this president.

Let's not lose sight of this, either: Merit is a conservative principle. Selecting a first-class nominee, and refusing to bend to political expediency, is a conservative act. In this respect, the nomination of Roberts sends a signal that Bush understands the Court matters, and that on things that matter, he will rise to the occasion and scorn identity politics.

Bush is also taking the long view. According to the White House account of Tuesday's events, President Bush ducked out of a lunch for Australian prime minister John Howard to call Roberts to offer him the job. When Bush stepped back in, he said, "I just offered the job to a great, smart, 50-year-old lawyer who has agreed to serve on the bench." Notice the "50-year-old." Roberts's youth was on Bush's mind. He wanted an appointment that could help mold constitutional law for a long time to come.

There's been a lot of intelligent commentary on Roberts--some in newspapers, more on the web. One of the most interesting comments came from a lawyer in his mid-30s, Brad Joondeph, on the liberal website thinkprogress.org. Joondeph describes his experience as a summer associate at Hogan & Hartson 12 years ago, when John Roberts was his official "mentor." He recalls of Roberts that "he could not have been nicer, more gracious, more encouraging. He offered mentoring advice to a snot-nosed, 24-year-old law student as if it were the most important part of his job." Then Joondeph tells this anecdote:

"After returning to Stanford that fall, I was lucky enough to have my student note published in the Stanford Law Review. It was a rather presumptuous and self-righteous critique of the Supreme Court's decision in Freeman v. Pitts, a school desegregation case from DeKalb County, Georgia. I argued that the Court was pulling the rug out from under Brown v. Board of Education by prematurely ending court-ordered desegregation remedies. As deputy solicitor general in the first Bush administration, Roberts had actually argued the Freeman case as amicus in support of the school district. I therefore (again, fairly presumptuously) sent him my note, in which I contended that, well, Roberts had been all wrong.

"A few weeks later, I received a two-page letter in response. Roberts wrote that the note was well researched and well written. (I was thrilled at the time, but I would now strongly disagree.) But he also offered a thoughtful critique of my

analysis that was several paragraphs in length. This was more feedback than I had received from my professors in law school.

"So I have nothing but a profound sense of respect for John Roberts: for his integrity, his intelligence, his humility, and his genuine human decency.

"All of that said, my best guess is that he would be a very conservative justice. And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive's worst case scenario."

Joondeph concludes, "So all of this leaves me quite conflicted."

Not us. It leaves us pleased by the Roberts nomination, proud of President Bush, and looking forward both to the nomination fight and to John Roberts's joining the Supreme Court.


TOPICS: Constitution/Conservatism; Editorial; Government; Politics/Elections
KEYWORDS: bush43; choices; conservative; future; influence; johngroberts; johnroberts; kristol; nominee; presidentbush; principles; rulings; scotus; selections; supremecourt; term2; thought
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1 posted on 07/22/2005 9:10:11 PM PDT by CHARLITE
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To: CHARLITE
a constitutionalist majority

To think I might live to see the day...

2 posted on 07/22/2005 9:23:48 PM PDT by GVnana
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To: CHARLITE

Useful anecdote. I would enjoy seeing more. Thank you for posting Kristol's article.


3 posted on 07/22/2005 9:50:47 PM PDT by LibertarianInExile (Kelo, Grutter, and Roe all have to go. Will Roberts get us there--don't know. No more Souters.)
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To: CHARLITE
"All of that said, my best guess is that he would be a very conservative justice. And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive's worst case scenario."

My sentiments as well. Reassuring to hear it from the horse's mouth, so to speak.

4 posted on 07/22/2005 9:55:45 PM PDT by Kryptonite
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To: CHARLITE

This Roberts guy might be the real deal. A real heavyweight thinking of extraordinary intellect. He may not always rule the way we die hard conservatives want him to rule, but I think he will at least be intelligent and thoughtful in his rulings, which is a big improvement over Sandra Day O'Connor. She was a nitwit. I read her ruling in the affirmative action case and it was nothing but wishful thinking. She was pitiful. But please Lord, do not let this guy turn out to be another Souter.


5 posted on 07/22/2005 9:57:01 PM PDT by Shawndell Green
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To: CHARLITE

This is a very reassuring post - thank-you.


6 posted on 07/22/2005 10:00:27 PM PDT by ThePythonicCow (To err is human; to moo is bovine.)
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To: CHARLITE

"Roberts is no Bork, no Scalia, and no Thomas." Kristol

Bush promised conservatives Scalia/Thomas types. He hasn't delivered.


7 posted on 07/22/2005 10:07:09 PM PDT by Spirited
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To: CHARLITE

well, he seems a good fellow.
here's hoping appearances do not deceive...


8 posted on 07/22/2005 10:08:13 PM PDT by King Prout (and the Clinton Legacy continues: like Herpes, it is a gift that keeps on giving.)
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To: ThePythonicCow
"This is a very reassuring post - thank-you."

And I thank YOU for the comment. I was also reassured. I find Bill Kristol a most "reassuring" and likeable man. He adds a lot of warmth to Brit Hume's afternoon show on Fox Cable News.

Thanks again!

Char :)

9 posted on 07/22/2005 10:09:59 PM PDT by CHARLITE (I propose a co-Clinton team as permanent reps to Pyonyang, w/out possibility of repatriation....)
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To: Spirited

Bush meant no disrespect to Rhenquist by mentioning younger conservatives. Thomas is no Scalia and Scalia is no Thomas, and so forth.


10 posted on 07/22/2005 10:22:47 PM PDT by Kryptonite
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To: arnoldpalmerfan
The article is flawed, because Kristol fails to point out how Reinquist's judicial philosophy is different than Scalia's. I am not sure either, although if I had to guess, Reinquist is more political, and more attuned to deciding on a result pleasing to the establishment right, and then reverse engineering, and a bit more respectful of stare decisis. I have read on the net, that Reinquist doesn't bother to give reasons much at all, he just rules. That sounds like a bit much.

But I don't know either. There is too much vague loose talk about this matter; too much intellectual laziness. Awareness of ignorance is the first step to knowledge.

Kristols article for the above reasons sucks.

11 posted on 07/22/2005 10:25:25 PM PDT by Torie
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To: Torie

Reinquist eh?


12 posted on 07/22/2005 10:27:21 PM PDT by Kryptonite
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To: Kryptonite

Rehnquist. I just want to spell it wrong, each and every time, apparently.


13 posted on 07/22/2005 10:32:24 PM PDT by Torie
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To: Torie

Hey, I spelled it Rhenquist.

Rehnquist it is I guess.....:)


14 posted on 07/22/2005 10:35:29 PM PDT by Kryptonite
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To: CHARLITE

A couple of months ago I defended the "Gang of 14" filabuster deal by saying "Touchdowns are rarely one long run from across the field. They usually come from a series of short gains."

The Roberts nomination appears as just one more example of such a play. The Gloom and Doom types should chill.


15 posted on 07/23/2005 2:19:09 AM PDT by tlb
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To: CHARLITE

bttt


16 posted on 07/23/2005 2:20:53 AM PDT by nopardons
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To: CHARLITE; All
Joondeph concludes, "So all of this leaves me quite conflicted."

A very telling anecdote and an even more telling response to it. Why should Mr. Joondeph be conflicted?

He has just stated the Roberts possesses all of the qualifications to be an excellent AJOTSC, yet apparently, he still would be in favor of the Democrats voting against him. Why?

Because the Democrats could care less about fairness, civility, reason and being open minded to those who disagree with them.

17 posted on 07/23/2005 9:21:13 AM PDT by Michael.SF. ("Rommel, you magnificent son of bitch.....I READ YOUR BOOK!! - Gen. Patton)
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To: Torie

Rehnquist has a greater reluctance to overturn precedent.


18 posted on 07/23/2005 9:24:18 AM PDT by Texas Federalist (No matter what my work/play ratio is, I am never a dull boy.)
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To: Texas Federalist; Carry_Okie; jwalsh07; Dog Gone; Bigun; x; Nonstatist
The yin and the yang of Roberts from Jeff Rosen in a new article in the New Republic:

"At Harvard Law School, Roberts wrote a student note on the Takings Clause, in which he rejected a rigidly literal interpretation of the Fifth Amendment's guarantee that private property shall not be taken for public use without just compensation. "The very phrase 'just compensation' suggests that the language of the clause must be informed by changing norms of justice," Roberts wrote in a passage that should gladden liberal hearts. Rejecting as too subjective and vague a series of tests that courts had applied over the years, Roberts endorsed a "constrained utility model" for identifying unconstitutional takings. [ying] Building on the work of the great liberal constitutionalist Frank Michaelman, Roberts said that people made "insecure" by regulation should be compensated accordingly. [yang]More significant than the details of Roberts's youthful effort is the fact that he was not drawn to the rigidly libertarian, historically based vision of the Takings Clause that Thomas has embraced. Nothing in Roberts's note suggested a desire to resurrect what some libertarian activists call the Constitution in Exile--limitations on federal power that have been dormant since the New Deal.

"In another student comment, Roberts rejected a literal interpretation of the Contracts Clause, which provides that "No state shall ... pass any ... law impairing the obligation of contracts." As in his earlier article, Roberts criticized Justice William Brennan's textualist approach, arguing that "constitutional protections ... should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.'" [ying again] Although liberal interest groups have attacked Roberts's youthful writings as a sign of his willingness to ignore the text of the Constitution in an effort to side with corporations and wealthy property owners, these writings are more illuminating as evidence of the fact that he has never been drawn, from his earliest days, to top-down ideologies."

What does it all mean? Is constrained utility and being made to feel insecure by regulation, different than the concept that the fair market value of the land has been reduced by regulation? How is it different? Is utility a concept different than productivity? Did Roberts take an economics class somewhere along the way?

19 posted on 07/23/2005 10:04:18 AM PDT by Torie
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To: All

Please sign Roberts petition:
http://www.townhall.com/action/ProtectOurConstitution2.html


20 posted on 07/23/2005 10:12:15 AM PDT by AliVeritas (Ignorance is a condition. Stupidity is a strategy.)
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