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Obligatory Roberts post

Posted by Richard on July 21, 2005

I understand that continued membership in the pajamahadeen requires me to say something about the nomination of John G. Roberts to the Supreme Court. Well, I’m disappointed, but not surprised, that Bush didn’t pick Janice Rogers Brown.

I’ve read umpteen opinions, analyses, recollections, etc., about Roberts, I’ve reviewed descriptions and discussions of a few of his opinions, and I’m still not sure what to think.

For more information and links on Roberts than anyone can possibly handle, just go to the Supreme Court Nomination Blog. Their recent post, Roberts’ Place On The Ideological Spectrum of the D.C. Circuit, was quite interesting. I like the fact that Roberts agrees with Ginsburg almost all the time. But the small sample size, modest variances, and amazing unanimity of D.C. Circuit decisions make it hard to draw any hard and fast conclusions. The preceding post provided nice summaries of Judge Roberts’ separate concurrences and dissents. But I’d really have to read Roberts’ arguments themselves, and I don’t have time.

Roberts is clearly an impressive candidate in terms of intellect, character, and work ethic. I suppose I share the misgivings Randy Barnett expressed so well at Volokh Conspiracy:

But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record–a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don’t know. Is he a majoritarian conservative like Robert Bork? We don’t know. Would he find any limits on the enumerated powers of Congress? We don’t know. Would he have ruled with the majority in Kelo? We don’t know.

… In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. …

Am I being too hard on Judge Roberts? Perhaps. But I do know this. Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted–taking a position, and defending it against all comers–is hard. … It requires a knowledge of one’s own principles and an ability to articulate them and defend them publicly against contrary views.

This is a type of trial by ordeal that hones one’s beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one’s judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.

Yeah, what he said. In fact, read the whole thing.

I’m not sounding an alarm like Ann Coulter. For one thing, I don’t share her social conservatism and rabid anti-abortion agenda, so I’m not looking for the same things she is. But the lack of any record of an articulated judicial philosophy, while certainly making Roberts easier to confirm, is cause for concern. Has he failed to form one, or has he deliberately concealed it for career reasons?

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One Response to “Obligatory Roberts post”

  1. Anonymous said

    I am inclined to believe that his utter lack of public stand on the great issues of the day makes him the ideal Bush-like phantom. The Neoconservative movement seems to recruit all these modest, accomodating, milquetoast kind of guys.

    I like stand-up, in-your-face, cranky originalists. Then again, I’m a simplistic moron that loves to reduce every argument into fact; I don’t do “nuance.” I think “nuance” is phony-baloney.

    But that’s just me. I’m an unrepentant Reductionist.

    Maybe it’s most Americans, too, ’cause Kerry didn’t win, even though most people sense the same behavior in Bush and his current administration.

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