A Tough Nut
For a sneak preview of the kinds of answers we’ll be likely to hear during John Roberts’ upcoming confirmation hearings, read pages 44 to 79 in this transcript (warning: massive pdf) to see how he held up under questioning for his nomination to the Court of Appeals. During that go-around, which ended with Senator Hatch chastising Chuck Schumer for asking “dumb-ass” questions, Roberts’ armor was pretty impenetrable. A few snippets:
“My practice has not been ideological in any sense. My clients and their positions are liberal and conservative across the board. I have argued in favor of environmental restrictions and against takings claims. I’ve argued in favor of affirmative action. I’ve argued in favor of prisoners’ rights under the Eighth Amendment. I’ve argued in favor of antitrust enforcement. At the same time, I’ve represented defendants charged with antitrust cases. I’ve argued cases against affirmative action. And what I’ve been able to do in each of those cases is set aside any personal views and discharge the professional obligation of an advocate. And I would urge you to look at cases on both sides. Look at the brief, look at the argument where I was arguing the pro environmental position. Take a brief and an argument where I was arguing against environmental enforcement on behalf of a client. See if the professional skills applied, the zealous advocacy is any different in either of those cases. I would respectfully submit that you’ll find that it was not. Now, that’s not judging, I understand that, but it is the same skill, setting aside personal views, taking the precedents and applying them either as an advocate or as a judge.”
And:
“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.”
He also repeatedly refers to Justice Ginsburg's rationales for dodging questions about particular past decisions (Schumer's line of questioning that so rankled Hatch). By the way, inexplicably no one asked him about Bush v. Gore, not that he would have provided an answer.
In any case, this guy ain't Bork.
In any case, this guy ain't Bork.
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July 20, 2005 9:58 AM | Reply | Permalink
You wrote ... "In any case, this guy ain't Bork."
That may be, but I still want to know how much he is GW Bush!
July 20, 2005 10:01 AM | Reply | Permalink
A couple of points that suggest this guy ain't Bork in a good sense.
First, not to be a zealous advocate is an ethical violation, and also one that's easy to detect. To take a case and then take a dive will result in your not being a lawyer any more. If witnesses don't get called and arguments don't get made, that's pretty easy to prove. So there's no reason to think Roberts wasn't a zealous advocate in the "liberal" cases he describes.
Second, it's hard to be a zealous advocate when you are utterly repelled by the client and his cause -- that's why many lawyers won't do criminal defense -- but also if you have really deep-seated ideological objections to the client's cause. If you have such objections, you find a way not to take the case.
Third, it's pretty easy for an elite lawyer such as Roberts not to take cases where he can't be a zealous advocate.
The sum is that Roberts isn't an ideologue if he was a zealous advocate in "liberal" cases that he could have passed on. So there's good reason to think he's not an ideologue. Not certain or perfectly clear, but good reason to give him the benefit of the doubt.
I'd prefer to do that on this round, and save the money and energy for the possible replacement of Rehnquist or Stevens.
July 20, 2005 10:24 AM | Reply | Permalink
I don't know much about this process, but why are a nominee's arguments as a *lawyer* relevant? A lawyer is paid to be an advocate of the client, so their arguments on the client's behalf are not indicative of what they themselves believe is right--or how they might choose to decide the case as a judge.
Presumably what he's trying to say is that he didn't limit himself to a particular brand of client or attach himself to some ideological vehicle/political machine of a law firm.
But we all know that people on all sides of the ideological spectrum can fall on the wrong side and end up needing to take advantage of laws or positions they normally decry (Bush v Gore is an excellent example). So it doesn't seem too surprising to me that even a lawyer with an ultra-conservative clientele might find himself arguing for affirmative action or antitrust regulations.
At the very least someone might want to go back and dig up the details of the affirmative action et al arguments and ask some questions about whether as a judge he would agree with them.
July 20, 2005 10:52 AM | Reply | Permalink
I think Ais has some good points about "zeolous" advocacy, although a lot of his/her assumptions, such as Roberts' ability to choose those cases, should be checked out for specifics rather than simply giving the benefit of the doubt. I mean, it sounds good, but it is really an accurate picture?
Another point is that an "elite" lawyer such as Roberts might have his eye on a federal appointment from way back, and be savvy enough to stipple his record with a few off-the-reservation cases. It would be relevant to ask--since his point apparently *is* that he did get to choose his cases--what was it about those cases that prompted him to choose them?
July 20, 2005 11:05 AM | Reply | Permalink
Roberts was appointed by Bush because he is dependably conservative and has no record that can be used against him. Also, and very importantly so, because he is very young, and would be on the court for thirty years if confirmed. If Bush can get a couple more such conservatives on the court it will be very difficult for Democrats to change the philosophy of that court before 2030 at the earliest.
July 20, 2005 11:56 AM | Reply | Permalink
July 20, 2005 12:57 PM | Reply | Permalink
So it doesn't seem too surprising to me that even a lawyer with an ultra-conservative clientele might find himself arguing for affirmative action or antitrust regulations.
I concur.
Plus, J. Roberts argued against Microsoft in the antitrust trial in 2001, before the DC supreme Court, in which he eventually was appointed two years later, by the way.
Which is certainly not significant, I must admit.
July 20, 2005 2:48 PM | Reply | Permalink
All of Bush's appointments to the court will be accepted by the Senate, unless we win back the Senate next year. So, it doesn't matter which ones we find unacceptable. Our only real question is what type of appointee we should filibuster. I don't think Roberts is one of those. But, very, very few Democrats should vote for, and none should speak favorably about Roberts or any other similar Bush appointees. Otherwise, the public will once again see us as the wimpy party.
July 20, 2005 3:41 PM | Reply | Permalink
In tems of Roberts' view of Stare Decisis does anybody think it is significant that he said he thought Roe was "settled law"?
I am not saying that Roberts doesn't have to face very serious questioning. But if he is consistent with his previous positions, and seeing that he was sent to the DC Circuit on unanimous consent in 2003, I think it will be very difficult to mount an effective offense against him.
July 20, 2005 9:54 PM | Reply | Permalink
Per Sully, conservative David Flynn writes: "While Roberts is neither the consensus candidate nor 2005's David Souter, his views on Roe v. Wade, at least, are unknown. Is a crapshoot the best conservatives can do?"
I just don't buy this current argument that Bush is taking a big gamble. So Roberts doesn't have a paper trail on Roe.. does anyone think Bush hasn't taken him aside and asked if he's pro-life or not? Bush supporters have been saying there's no litmus test, but knowingly or not, they're saying it with a wink. There's a litmus test and it's been administered, which is why Roberts is where he is right now.
July 21, 2005 12:33 AM | Reply | Permalink
I absolutely hate to say this but Bush won the election in 2004 and it's the fault of every person who either didn't vote or voted for Bush or someone other than Kerry because the SCOTUS "didn't matter" that we now have this nominee and 1-2 more perhaps. I agree with those who say (1) search his background and views, ask good Q and demand meaningful answers - at least educate the citizenry as to the results of its actions or inactions, (2) garner what votes you can against him, (3) don't waste your time and resources filibustering (it won't work, will anger moderates and it'll allow Frist to nuke the option for the next go around (when it might really be needed), and (4) get back on a topic that has some traction, Rove's leak as helping the terrorists and damaging the necessary development of human intelligence, as well as others. This is a diversion and while he can and will be there for many years and do much damage, perhaps, unless there is something in his background that is going to garner 51 votes against him, it's time to move on to meaningful battles.
Maybe the 2006 elections will help out a bit (we can dream)...and while we're at it, it now becomes crucial to prevent yet another theft of an election (I still wonder about 2004 in Ohio) because if progressives cannot reliably win elections they'll be the ones 'in exile'.
July 21, 2005 2:46 AM | Reply | Permalink