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Why Roberts?

Why did the President decide to nominate Roberts for Chief? The first reason is obvious--the way things are shaping up, he seems like an easy confirmation.

But allow me to propose a second, more speculative possibility. A distinguishing characteristic of this President seems to be the faith he puts in his own personal judgements and assessment of people. Perhaps it is arrogance, perhaps it is that he truly is a better judge of character and ability than the rest of us, but he truly seems to believe that he has better judgment about others than anyone else around him. Or perhaps he wants someone who he thinks will be loyal to him and no one else (such as outside interests). It is similarly my impression that far more than most Presidents he relies on his personal assessments of people who he chooses for his inner circle, rather than their resumes or experience. Indeed, he chose Roberts notwithstanding his relatively short time on the bench. Roberts, of course, was selected by him as well. Let me suggest that Roberts therefore has the one necessary (but not sufficient condition) for being Chief--he had previously won the President's trust the first time around.

Recall, for instance, when he claimed to have seen into Putin's soul so as to be able to judge the man? It is also my impression (based in part on my time in the Administration) that when vacancies occur, this White House has tended to promote internally more than most administrations, even to the extent of promoting relatively junior people to relatively senior positions. When Roberts was appointed, it truly was a utter surprise, even to those very close to the White House who were reported to be closely involved in the selection process.

If I am correct in this assessment of the President's decision-making style, this would suggest that his next nomination would likely be from the crop of judges that he has appointed since becoming President. This would include Brown, Clement, or McConnell, but not more experienced luminaries such as Luttig, Jones, or Wilkinson.

WB:
"When Roberts was appointed, it truly was a utter surprise, even to those very close to the White House who were reported to be closely involved in the selection process."

Do you refer here to his nomination to the DC Circuit? I am a bit skeptical of this... I thought Roberts' name was floated in the early 90s when Bush Sr. was president. Given Roberts' credentials, renown, service to Republican administrations, etc., his nomination seems hardly surprising.

Bush's reliance on personal judgment is unique and noteworthy, but I don't think that it's his sole criterion in this process. Recall that Wilkinson and Luttig were on Bush's short list before (Wilkinson had that interview where Bush asked him about his health), and that while he may not have put them on the bench himself, it may still be the case that he trusts them or holds them as high in his personal judgment as those he picked himself. He didn't appoint Wilkinson or Luttig to the bench not because he didn't trust them, but because they were already there.

Clement is probably high on the list for political (demographics, views, age, confirmability) reasons. Trust is probably at issue here, but I doubt that trust differentiates Brown, Clement and McConnell from Luttig, Jones and Wilkinson.

I think Wilkinson may be out at this point because he would have been a more natural fit for the Chief position than Roberts.
9.5.2005 3:18pm
Jam (mail):
It seems to me that the conditional "resignation" of O'Connor was a way to start the nomination process of the next Chief Justice to the SCOTUS.

It was a waiting game.

I wonder what all those "conservatives" that backed POTUS for reelection think of this - neither Scalia nor Thomas for Chief?

It smells like Robert's nomination was a morbid, wait and see, plan to replace Rehnquist.
9.5.2005 3:23pm
Goober (mail):
Insightful post, the rigor which is only improved for offering a disproveable hypothesis. Meaning, of course, me and my friends are going to take bets on it, and taking bets is fun.

Would caveat that McConnell belongs in the same group as Wilkinson more than with Clement and Brown on the "luminar[y]" half of the scale, if not the "measurement" part.
9.5.2005 3:24pm
Goober (mail):
"experienced" part, rather. Grr.
9.5.2005 3:24pm
Zywicki (mail):
WB: Sorry, no I meant to the Supreme Court.
9.5.2005 3:28pm
Justin Kee (mail):
From the parent post," A distinguishing characteristic of this President seems to be the faith he puts in his own personal judgements and assessment of people. [..] It is similarly my impression that far more than most Presidents he relies on his personal assessments of people who he chooses for his inner circle, rather than their resumes or experience."

I would argue that this characteristic is more of a liability than an asset for the American people. Given the performance of the Directors of both DHS and FEMA, I would have preferred that the President had chosen persons based on their resumes and experience.

This characteristic has also been demonstrated by the President in choosing people who are willing to disregard the overwhelming preponderence of scientific evidence in matters such as global climate change, effective prevention of sexually transmitted diseases and new techniques in medical research.

Maybe I am being too idealistic, but I want a President who is not so selectively biased as to his own opinions on persons that report to him and on topics that he has demonstrated a poor understanding.
9.5.2005 3:31pm
Zywicki (mail):
Justin: I specifically left open the normative question in order to try to focus on the purely positive question.
9.5.2005 3:40pm
Eli Rabett (mail):
Occam's razor says because that way the court is completed in the minimum possible time. Thus their rulings become binding.
9.5.2005 3:43pm
Justin Kee (mail):
In response to your question, I agree that I would be surprised if the President nominated someone who was not previously appointed by him (or perhaps his father). That said, I suspect he would also try to select a woman, say Janice Brown, to replace O'Connor. Whether this nomination would be politically expedient for the President, balancing a female nominee with his interest as to her future "loyalty" is difficult to reckon.
9.5.2005 3:55pm
DrewSil (mail):

I specifically left open the normative question

You did specifically leave open this question

Perhaps it is arrogance, perhaps it is that he truly is a better judge of character and ability than the rest of us,

However I would not characterize the second part of this question (ie that he is a better judge of ability) as normative. One could easily consider an objective test to confirm this. Further if one is positing that Bush is a better judge of ability than past performance (possibly embodied in a resume) I would be exceedingly skeptical. I can't really imagine that this assumption would be true of anyone but I suppose its not beyond the pale of possiblity.

If you had just stuck with the truly normative question of character then your presentation was accurate, but including the objective question of ability and treating it as normative invites rebbutal as there is some evidence on which one could base a conclusion.
9.5.2005 3:59pm
llamasex (mail) (www):
From what I've read is that Christian=good was Bush's mindset on looking into Putin's soul


President Vladimir Putin hints that Russia wants to join NATO, and U.S. President George W. Bush thinks, "Why not?" Putin tells Bush about losing then finding a cross his mother gave him, and Bush takes at as sign that Putin believes in a "higher power."....

Bush asked Putin about previous comments he had made about a cross, which was given to him by his mother, that he had had specially blessed in Jerusalem.

Noonan quotes Bush: "I said to him, 'You know, I found that story very interesting. You see, President Putin, I think you judge a person on something other than just politics. I think it's important for me and for you to look for the depth of a person's soul and character. I was touched by the fact your mother gave you the cross.'"

Bush says that Putin in turn told him a story about coming close to losing the cross in a house that burned down.

"Putin said to me, 'The thing I was most worried about was I lost my cross that my mother had given me. And a worker came.' He wanted to tell the worker, 'Go find the cross.'"

Putin told Bush that when the worker walked up to him, put out his hand and opened it to reveal the cross, "It was as if something meant for me to have the cross."

"Basically it seemed he was saying there was a higher power," Bush recalls. "I said, 'Mr. Putin, President Putin, that's what it's all about -- that's the story of the cross.'"


I always thought that was a pretty idiotic way to judge a person.
9.5.2005 4:30pm
David Hecht (mail):
At the levels the President is picking personnel, of course it makes sense for him to rely on his judgment rather than "resumes and experience".

The higher you are in the organizational food chain, the more experience you have, and--once you've eliminated all the obvious losers--everyone has essentially equivalent experience.

Anyone who does not understand this has clearly never done hands-on personnel management at the highest levels of a hierarchical organization.

And--before all you lawprofs go bananas--what's "collegiality" if not a placeholder for "people I would feel comfortable working with"?
9.5.2005 4:40pm
david blue (mail) (www):
To me, Bush's faith in his own judgment of people coupled with his obvious lack of political capital at this particular time suggests that Alberto Gonzales will be the nominee. Obviously the Dobsonites don't like Gonzales, but they don't get to vote, and Gonzales will have a relatively easy ride through the Senate. Brown (or Priscilla Owen, who you didn't mention but who seems to fit your criteria) would be a huge battle that Bush can't afford; McConnell is a white guy and I doubt Bush will nominate two of those in a row; and Clement just seems unlikely for reasons I can't really articulate.
9.5.2005 4:44pm
AF:
Interesting post, but there's a logical error in your ultimate prediction. You say that Bush's emphasis on trust implies he will choose someone he nominated. There's no reason, however, that Bush should NOT trust someone he did NOT nominate.
9.5.2005 4:57pm
Dylan Alexander (mail) (www):
Bush's lack of political capital is why he will not nominate Gonzales. Doins so would undermine his support with the only group of hardcore supporters he has left.
9.5.2005 5:21pm
Zywicki (mail):
DrewSil: You are right--I misphrased it. What I meant to say was similar to the question prompted by Justin, which is that if the President is wrong that is bad for the country (Justin's point) and if he is right for some reason, then that is good for the country. I just failed to expressly close the logical loop.
9.5.2005 5:23pm
Lab:
But is Janice Brown even politically dependable?

She sounds like a pure libertarian.
9.5.2005 5:24pm
Anonymous Jim (mail):
Let's hope he is better at divining what is in his nominee's soul than he was with Putin.
9.5.2005 5:30pm
Richard McEnroe (mail):
I think it's time to give David Duke his Court seat.

Think about it; with his endorsement of Cindy Sheehan he has truly proven he can "reach across the aisle," a quality the Democrats value very highly...
9.5.2005 5:32pm
M. Lederman (mail):
Roberts's appointment in July "truly was an utter surprise"? Well, I, for one, publicly predicted it — see comments to http://makeashorterlink.com/?M2D621DBB. I wish I could say this was great foresight or acumen on my part — but truly, once Gonzales became Attorney General, Roberts was the logical and obvious choice for this Administration. Thus, even those who were predicting other candidates concurred that Roberts would be on the short list.
9.5.2005 5:39pm
Sophocles:
Roberts was nominated to succeed Rehnquist because Stevens is in charge while there is no Chief. I doubt the White House has missed the purported effect of the Chief's absence last year.
9.5.2005 7:49pm
Bruce Hayden (mail) (www):
In addition to the Stevens as CJ problem, I would also suggest that the President doubled down here. He knew what cards he had in Roberts, and bet accordingly. After a lot of scrutiny, little of substance has come out against the guy. So, the Democrats are going to be faced with the decision of whether or not to fillibuster him. If they do, they will be seen as obstructionists to the max - after all, this is the #1 judgship in the country. And fillibustering to keep the President's nominee out at that level looks very bad. But on the other hand, they have to do something for their base. But if they really do, this is the level at which the Republicans would love to invoke the Nuclear Option.

Unfortunately for the Democrats, this isn't the end of their problems. They know that the President will have another nominee coming right down the pike after Roberts. And if they don't fillibuster Roberts, they will have a hard time doing so against a nominee who is not notably more to the right.

I think that the Democrats may have been thinking about drawing some sort of line in the sand with Roberts. But because of the way this is going down, it is the Republicans who are going to be able to do that.

All in all, I think quite a shrewd maneuver.
9.5.2005 11:25pm
Bruce Hayden (mail) (www):
Being somewhat conservative, I think that President Bush has done a much better than average job of appointing people than did his successors. With the possible exception of Treasury, I think that his cabinet appointments are better and cleaner than were Clintons, and even those of his father. Indeed, (knock on wood), it is amazing that we are 4 1/2 years into his presidency, and his administration has yet to have a real scandal. A lot of MSM fanned smoke, but, invariably, when the smoke clears, there is nothing but smoke there, usually generated by the left to start with.

Sure, he makes mistakes. But, arguably, many fewer when it comes to appointments than have his predecessors.
9.5.2005 11:31pm
Jeremy (mail):
I think Bruce Hayden is absolutely right.

I also see nothing wrong with the President's use of intuition when it comes to judging whether someone will be fit for a job or not. Let's be honest: nearly every federal appellate judge have the resumes to be Supremes. Many law professors and state supreme court justices are in the same boat. At that point, then, what's left? The intuition of the fellow who nominates, and that's George W. Bush. There's nothing wrong with that, and it's how the Framers set things up, along with the backstop of a Senate confirmation process.

The criticisms levelled at George Bush seem to be that he's perpetuating a sort of good old boy system. Bush seems less concerned with helping good old boys than with finding people who have good character. I fail to see the problem.
9.6.2005 2:17am
Patrick (mail):
Just back on the 'completely unexpected' thing, the only reason I thought Roberts would not be nominated was because I thought Bush might wait to nominate him as Chief!

And I'm observing from the other side of the world, so he must have been a slightly obvious candidate over there. Just because only Washington people knew who he was didn't count against him, au contraire.

But I agree that the second nominee will be one of those originally floated, and would not be suprised if it was McConnell.
9.6.2005 8:01am
Patrick (mail):
Just back on the 'completely unexpected' thing, the only reason I thought Roberts would not be nominated was because I thought Bush might wait to nominate him as Chief!

And I'm observing from the other side of the world, so he must have been a slightly obvious candidate over there. Just because only Washington people knew who he was didn't count against him, au contraire.

But I agree that the second nominee will be one of those originally floated, and would not be suprised if it was McConnell.
9.6.2005 8:01am
WHerndon (mail):

Todd is wrong about the selection of Roberts being utter surprise. The best reporter on the nomination process, Jan Crawford Greenberg of the Tribune, wrote repeatedly that Roberts was one of the top candidates in the weeks leading up to his selection. She cited a White House source for the info.

I also think Bush intended to select Roberts to replace Rehnquist eventually. I told my wife, a White House reporter, exactly that several times in the past month. After Rehnquist died, she agreed that the president was likely to elavate Roberts to chief justice. He did so a day later.

The reason is obvious. Roberts is one of the smartest conservatves judges in the country, a man with impeccable credentials, extensive political experience and an easy-going personality. While I am partial to Richard Posner, I thought Roberts was clearly the best choice among the candidates that Bush was looking at. You want someone who is persuasive and personable in the top spot.

As others here have noted, Bush was looking at some pretty impressive resumes after O'Connor announced her resignation. At that point, personal interviews clearly hold sway. I and many here have hired people. Naturally, we look for people with suitable personalities for the particular task at hand. I can get all the glowing recommendations in the world, but I have to believe I can trust and rely on that person. If I am not comfortable with them -- if my gut is unsettled -- I am not going to hire them.

As such, I guess I trust my judgment more than those of others. I don't think the president is any different in that regard.

As for predictions, I would like to see Michael McConnel chosen next, but I suspect the president will bow to pressure to name a woman. Edith Clement will raise the fewest political objections. I saw John Breaux and Bob Livingston both recommend her yesterday as a solid, respectable conservative.

I'd be curious to know, in this post or another created by the moderators, who they think is the most talented female conservative available. I assume she'd have to be under 60 years old and easily confirmable. That seems to rule out Jones and Brown. I like Mary Ann Glendon, but she would probably be considered too old and not conservative enough.
9.6.2005 3:28pm
Adam (mail) (www):
Indeed, (knock on wood), it is amazing that we are 4 1/2 years into his presidency, and his administration has yet to have a real scandal. A lot of MSM fanned smoke, but, invariably, when the smoke clears, there is nothing but smoke there, usually generated by the left to start with.

Some would regard our entering war in Iraq based upon alleged intelligence which was later proven to be wrong as being scandalous.
9.6.2005 4:25pm
WHerndon (mail):
"Some" -- on left and right -- will believe anything that suits their idealogy.

If it could be proven that the administration knew U.S. - as well as British and German and French and Russian -- "intelligence" was untrue, then you have "scandalalous" behavior. Indeed, even impeachable behavior. I'd entirely agree.

If the administration believed that intelligence, however, you merely have an action taken based on inaccurate information. That is not a scandal, at least to reasonable people. Unless the definition of scandal has shifted somewhat ... left.
9.6.2005 4:43pm
Richard Cook (mail):
You know there are some precedence for trusting your own judgement. Ronald Reagan trusted his own against the advice of long term Russia analysts in CIA and elsewhere about the tactics he took against the Soviet Union. Nixon also on China trusted his own judgement against (again) long time China analysts and the result was pretty good. When you trust your own judgement your "arrogant". When you trust the judgement of a process your "indecisive". Po-ta-to, po-tah-to.....
9.7.2005 5:07pm
stealthlawprof (mail) (www):
Very interesting. By the way, I do not think George W. Bush is alone in this trait. His father did the same thing. That, by the way, is how we got David Souter on the Supreme Court. Bush 41 had interviewed him only a few months earlier with regard to Souter's appointment to the First Circuit, and he liked him. We can only hope that 43 has done a better job of both figuring out his base and looking into judges' souls.
9.8.2005 12:40am
Jam (mail):
http://www.theamericanview.com/index.php?id=383

Interview With A Bush/GOP/Roberts Cheerleader: It Did Not Go Well Once Austin Ruse Realized I Was Not Also Cheering
By John Lofton, Editor

Mr. Austin Ruse, president of the "Culture Of Life Foundation," is one of the more enthusiastic cheerleaders for Bush Supreme Court nominee John Roberts. So, I was eager to interview him thinking he might know something about Judge Roberts that I had missed. Here's that interview in its entirety. It did not go well once he realized I was not joining in his cheers for the nominee:

Q: I just got an email from you, Mr. Ruse, saying that next week you will begin asking people to call their Senators in support of John Roberts. Would you tell me, why should a Christian conservative support John Roberts?

A: John Roberts is a solid conservative. He's a believing and practicing Catholic. We believe he's an "originalist," in terms of the Constitution, and we look upon him as a terrific addition to the Court, and eventually steering the Court back to some sense.

Q: Are you aware that in 2003 in his confirmation hearing to be an Appeals Court Judge he was asked very specifically if he was an originalist, and he said he was not and he had no over-arching method of interpreting the Constitution, that the situation determined how he interpreted The Constitution?

A: I haven't seen that interview.

Q: Ok, I'm telling you what he said. So what do you think?

A: I would have to see that for myself.

Q: Where did you get the idea that he was an originalist?

A: Because I trust the President. The President said that he will select people for the Supreme Court who view themselves as judges and not legislators. I trust the people that are working around the President, both in the government and outside the government, who are working on John Robert's nomination. I know people that know John Roberts. I believe he's going to be terrific.

(snip)
9.9.2005 10:10am