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.
Ouch! Just when I was about to have a sip of kool aid, too.
Scalia in particular has a more confrontational writing style. He'll not only tell you why he's right, but why you're stupid. He sometimes even goes out of his way to make those kinds of points, even when they're not central to his opinion. I love the guy on the bench, but his opinions aren't always the most...judicious.
Thomas isn't as acerbic, but he also sometimes picks fights in his dissents that he doesn't really need to pick.
Roberts may share the same general judicial philosophy as Scalia and Thomas, but I think the manner in which he expresses it will be a bit more restrained. Same results, different language.
I most assuredly hope so. Good article by Kristol who always has something intelligent to say.
You really think Scalia could have stuck the knife in and twisted it any more elegantly than this?
I have at once elected self as president and put myself on SCOTUS. Walter Mitty is my hero. :)
When he does, you can remember that it was your blue collar pal who told you so. And when he does it the philosophy will tend a bit toward philosopher King. JMHO.
I assume in my spare time from SecDef, I'll be clerking for you once I graduate from law school in the Bahamas?
Of course he will exercise his intellectual muscle. So would I, so does Scalia. Perhaps you would revise and extend your remarks to me, to elucidate where you think I have missed the mark about Roberts, so that the friendly albeit speculative debate can be productively joined.
No Kool Aid for you Huck. Skepticism is healthy no matter what anybody tells you.
I am an snob about law schools. It really is a good sorting tool, frankly. I will be Prez and on SCOTUS at the same time. You will be in my executive branch.
The danger with a guy like Roberts is his intellectual capacity which far out paces O'Connor and Kennedy combined, given 20 or 30 years, can influence the court in a direction I don't want it to go.
It's happened before and the results have been crap.
Screw you Walter. Damn WASNAS.
It will be interesting. But I think Roberts has more self restrait and intellectual discipline than you do. He is inherently a modest man, more so than I. I think he will tend to defer in general to the legislative branch, and to a Federalist perspective (although he seems a bit less of a militant on the commerce clause than I am), ceteris paribus, ala Rehnquist, and just like I would do, except in cases where it involves process issues.
What should we glean from Roberts statement when Roe has been roundly criticized from all sides of the spectrum as dumdum law?
It will be an interesting October session. By December we won't need to speculate as much, the cases on the docket will give us a real good look at Justice Roberts' judicial philosophy.
Stay smart, stay cool. Adios.
Hey, its your league, I don't expect to shoot 72 every day. LOL
From that, what he apparently doesn't understand is that technology now affords us the opportunity to obviate that regulatory need. The judiciary may well need to acknowledge the constitutional mandate to recognize alternatives to regulatory takings when they appear else the regulatory monopoly will continue to erode the nations base in private property. IMNSHO, that's a matter of education.
I agree, but it is something that should be brought up during confirmation. On the other hand, it does worry me a bit because not many people change their core beliefs after law school.
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