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.
I know I wouldn't want to be critiqued on my legal positions that I wrote during my freshman year.
I would just like to know how he interprets the word militia.
My views on most public policy matters since law school have not changed much. Most of what I write now of FR, I would have written then. The did change a lot between graduating from high school, and by the end of my second year of law school (a span of 7 years, since one year was added for graduate business school). By then, I was very skeptical of grand unified theories, except the one about economic externalities, which is really one of the gleaming toys produced by social science.
I suspect if SCOTUS faces head on the 2nd amendment, you will not like the result. The amendment is too vague, and the intent frankly is too vague. Thus the will of the legislature will tend to be the trump card. That is my guess.
Those were transformational years for me, and it was only in hindsight that I could judge whether my professors were conservative or liberal. All I knew at the time was that they were all-powerful gods whom I needed to please.
An article written by a professor named Terrance Sandalow, did have a substantial impact on me regarding Consitutional interpretation. I took Sandalow in a municipal law class, but that was a coincidence.
President Bush, please make it so.
I could die reassured that America was on the right track.
I hope you are right however after reading your #19, I got a bit of an uneasy feeling.
Is it remotely possible that then law student Roberts was, even then, smart enough to figure out what those left wing professors at Harvard wanted to hear and spout it for them? I suspect so.
No. The law review is run by students. Professors have no say, at all. Exams are by number. The professor does not know who wrote them. So much is at stake concerning law school performance at the top schools, that the protocols are tighter than the CIA.
Even so, I do not doubt that someone as intellectually capable as Judge Roberts obviously is would not , even then, have been aware of his surroundings.
The exception was in civil procedure, in which I crashed and burned, because I was, inter alia, confused about the difference between jurisdiction and venue, and some other stuff. It was awful looking back, as to how obtuse I truly was. The professor created this fog about substance versus procedure and Erie Railroad v Tompkins, and we fixated on it for weeks and weeks, and I wasn't smart enough to buy the cliff notes, and get a handle on the basics. I still have nightmares about it.
My heads hurting again.
Youthful exuberance or Souter in Rehnquists clothing? Aching minds want to know.
I just ask questions, and sometimes like here (fairly rare for me actually), the questions are not of a Socratic nature. They are genuine questions. LOL.
Sex, Drugs and Rock & Roll?
I have, however, come to a conclusion. Roberts will be in the mold of Kennedy and O'Connor, he won't be able to resist saving the United States, his promises of judical restraint not withstanding.
Where have you gone Edith Jones, this nation cries it's lonely heart for you, Boo Hoo Hoo....
Look, I'm trying to forget those years, and you're not helping.
My suspicion is that Roberts will be more like Torie, except a bit less extreme. That is a point off in a third direction triangulated from Reinquist and Breyer, with a little bit of Scalia seasoning. Roberts will be nothing like Kennedy (spaceship liberty has left and he isn't a passenger), and he is too smart to do an arid, sloppy O'Conner thingy. It would offend the elegance of his mind. I hope I have now made it all perfectly clear.
What I mean, and you've said it, is that he may please you a lot of the time and he may please me some of the time but he will "grow" to the point where he will not be able to resist exerting a guiding hand over Americana where no guiding hand should exist.
I'm sure he'll do it quite splendidly but I am also pretty sure he will do it as a matter of course. That is my read on President Bush's first pick to the US Supreme Court.
Of course new issues come down, that none of us have thought about, that don't fit into the well developed boxes, and then, well, it does get interesting.
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