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My Sense of the Roberts Confirmation Picture:
It's less than a day since President Bush nominated John Roberts to be an Associate Justice of the Supreme Court, but I wanted to offer some thoughts on how the nomination is playing out so far based both on my reading of the press and blog reactions and my own discussions about these issues with folks in DC.

  1) My sense is that most people expect Roberts to sail through. Roberts is widely liked and respected, and there are no obvious red flags. More importantly, from the perspective of many Democrats, Roberts was one of the two or three least objectionable names on the list of a dozen or so possible picks floated by the Bush Administration. The big question had been whether Bush would nominate someone with some Democratic support (which mostly meant McConnell, Roberts, or Gonzales), or someone Democrats saw as a lunatic or Republican hack (Janice Rogers Brown, etc.). Bush has answered that question by picking a safe nominee, someone with considerable Democratic support. And most expect Bush will be rewarded with a fairly straightforward nomination.

  2) The interest groups have to make a lot of noise right now, but it's mostly because they see that as their job regardless of who is the candidate. Lots of groups have been given lots of money to fight or support whoever Bush nominates, and that money has to be spent somehow. The spring has been wound very tight, and now we have to let it unwind a bit. But most people I've talked to aren't taking it very seriously, or seeing it as very specific to Roberts.

  Of course, all of this may change. These sorts of things are very fluid. But at least the initial sense seems to be that Roberts is in pretty good shape.
Justin Kee (mail):
I gave $15 to the People For the American Way last month....now I want it back. Hey, I have tuition to pay....
7.20.2005 12:32pm
Ulrich Bonnell Phillips:
Attacks on the Left, and Right.

On the Left MoveOn.Org: "In nominating John Roberts, the president has chosen a right wing corporate lawyer and ideologue for the nation's highest court instead of a judge who would protect the rights of the American people....That's why we believe: The Senate must not confirm right-wing corporate lawyer John Roberts to the Supreme Court."

http://political.moveon.org/roberts/

On the Right Ann Coulter: "Souter in Roberts Clothing" "From the theater of the absurd category, the Republican National Committee's "talking points" on Roberts provide this little tidbit: In the 1995 case of Barry v. Little, Judge Roberts argued—free of charge—before the D.C. Court of Appeals on behalf of a class of the neediest welfare recipients, challenging a termination of benefits under the District's Public Assistance Act of 1982."

Link: http://www.anncoulter.org
7.20.2005 12:42pm
Dorian (mail):
I agree with the analysis - I think it was CNN's legal analyist who called the opposition comments on Roberts expected but half-hearted. The question is whether Bush will use the same game plan if Rehnquist retires sometime in the next two years. That would suggest McConnell or Gonzalez would likely be considered again, with McConnell getting the largest support both from Congressional Dems and the conservative base (though NARAL would go ape). If it happens that Bush ends his term having added Roberts and McConnell to the SC, that could mean a tremendous (and in my opinion, positive) judicial legacy.
7.20.2005 12:48pm
Dubs:
Was anyone else surprised to learn that federalism is a "drive [by the far right] to resurrect ancient, and discredited, states' rights theories"?
7.20.2005 1:01pm
jurisprude:
Dubs,

link?
7.20.2005 2:30pm
Dubs:
NYT Editorial. No link handy...
7.20.2005 2:57pm
WB:
From the OP: "Roberts was one of the two or three least objectionable names on the list of a dozen or so possible picks floated by the Bush Administration."

I was under the impression that Bush didn't "float" any actual names. The only floaters of names of whom I'm aware are Schumer and the media.
7.20.2005 3:00pm
NOLA:
I don't personally know much about Judge Roberts, though I tend to think a good way to figure the philosophy of a judge is by the clerks he hires.

I clerked for a conservative/libertarian judge in a federal Circuit--my judge and Roberts ended up competing for, and hiring, roughly the same set of Fed Society, moderate conservative, and libertarian law students and recent grads.

In any event, my hope is that Roberts will be a fairly strong textualist and federalist.
7.20.2005 3:17pm
NR (mail):
Slightly off-point, but Randy Barnett never enables comments, and I wanted to comment on this.

One of the things I like best about Judge Roberts is that he doesn't have a grand overarching interpretive theory for constitutional adjudication and doesn't think it's a good idea to have one, either. Check out these comments from his Court of Appeals confirmation hearings (huge pdf file available here).



I don't know if that's a flaw for a judicial nominee or not, not to have a comprehensive philosophy about constitutional interpretation, to be able to say, "I'm an originalist, I'm a textualist, I'm a literalist or this or that." I just don't feel comfortable with any of those particular labels. One reason is that as the Constitution uses the term "inferior court judge," I'll be bound to follow the Supreme Court precedent regardless of what type of constructionist I, personally, might be. The other thing is, in my review over the years and looking at Supreme Court constitutional decisions, I don't necessarily think that it's the best approach to have an all-encompassing philosophy. The Supreme Court certainly doesn't. There are some areas where they apply what you might think of as a strict construction; there are other areas where they don't. And I don't accept the proposition that a strict constructionist is necessarily hostile to civil rights.


Sounds vaguely reminiscent of Farber &Sherry's Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations, a book that's probably none too popular with the contributors to this blog and which I thought was quite good.
7.20.2005 3:19pm
Splunge (mail):
I think Randy's just mad 'cause he lost his Supreme Court case, and from that perspective is wishing he had known more, ahead of time, about how best to appeal to each Supreme (a.k.a. their "judicial philosophy").

I tell you, the scariest part of this whole process so far was hearing Chuck Schumer, looking like a little mafia don, averring with passion in front of the C-SPAN cameras that nominations to the Supreme Court were "a whole new ball game" because Supreme Court justices make law. He said it several times. This guy very clearly believes he lives in an imperium and is electing a Caesar, or at least a nonumvir.

Both Jefferson and Hamilton rolled over in their graves, no doubt, although perhaps Hamilton more particularly, since Schumer and his regrettable junior lictor -- oops, I mean colleague of course -- represent forcefully the sad decline of republican self-respect in his own state of New York.
7.20.2005 4:31pm
Fishbane:
Ssh... don't say the word, "Wove". Ewewyone, come along! we're hunting... Suprweme Court Justices!
7.20.2005 10:29pm
Stevestillthepatentguy (mail) (www):
The Democrat/ProChoice/Alliance for Justice attack on Roberts will take the same track as that on Miguel Estrada. These groups will concentrate on Robert's actions in preparing the briefs for Rust v. Sullivan and demand that all briefs and notes be turned over to the Senate Judiciary Committee. Expect Shumer to near appoplexy on the question of did Johnson write "We continue to believe that Roe was wrongly decided and should be overruled." and does Roberts consider himself part of that "We" and whether the Senate should confirm a Supreme Court Justice who has formed an opinion on a matter which will clearly be before the Court.

I don't think this will work but it will make the hearings loud and messy and please Naral and the Alliance for Justice.
7.21.2005 9:44am