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Tuesday, July 19, 2005

Why I'm not worried that Judge John G. Roberts will become "another Souter"

Conventional wisdom is that all other things being equal, the single best predictor for how a SCOTUS nominee will behave as a Justice is that nominee's written opinions as an appellate judge on a lower court. Even then, because those lower courts lack the full range of powers that SCOTUS has, there are limits to how confidently such predictions can be made. But many conservatives had hoped that Dubya would pick a nominee (e.g., the Fifth Circuit's Edith Jones) with a long, deep record of writing on controversial issues from, for example, a seat on one of the federal courts of appeals.

John G. Roberts doesn't have that kind of long, deep written record as a judge on the DC Circuit — and that may leave some conservatives uncomfortable about the possibility that he'll become "another Souter." But for reasons that, oddly enough, are closely related to the attacks that Judge Roberts' opponents are certain to make, I think that conservatives ought not be concerned about this.


The flip side of Judge Roberts having a thin public record as a judge, of course, is that there's less of a paper trail for Judge Roberts' opponents to pick through and distort; indeed, this was the "stealth candidate" rationale advanced by the Bush-41 Administration for the Souter nomination that, in hindsight, backfired so badly. Lacking a long paper trail of prior judicial opinions, Judge Roberts' opponents will instantly flip to alternative strategies.

First, they may decry the nominee's "lack of judicial experience." This is singularly unpersuasive with Judge Roberts, though, because his two years on the DC Circuit are nontrivial, he'd have been there since 1993 had not Bush-41 lost, and his other academic and career credentials are so varied in type but extraordinary in quality. Indeed, if his only credential were the extraordinary number of cases he's personally argued and won in the Supreme Court as an advocate, that alone would probably be enough to qualify him for a seat on that bench! So this strategy is unlikely to be very appealing or effective.

A second alternative strategy is available to the Dems precisely because Judge Roberts has spent much of his career as a public servant — first, as a lawyer whose clients have most frequently been the President and the United States, and more recently as a judge. Using this fact, I guarantee you that opponents of this nomination will (as they did with Miguel Estrada) manufacture a bogus dispute by demanding executive-privileged documents that Dubya won't and can't turn over, and nor could any President without forever damaging our federal separation of powers system. Senators are no more entitled to seize, publish, and dissect John Roberts' privileged advice to the Executive Branch than they are entitled to seize, publish, and dissect his correspondence with other judges on the DC Circuit; but that won't stop them from trying. And — again as with Estrada — no matter what he says during his confirmation hearings, they'll contend that Judge Roberts has been "insufficiently candid" based on his refusal to let them put words into his mouth, or to answer "stopped beating your wife?" questions, or to pre-commit on or address the merits of "pending or impending" cases that a judge may not ethically discuss.

Third, Judge Roberts' opponents will try to tag him with public positions he's taken on behalf of clients, either governmental or private-party, before he became a judge. As a high-profile and active appellate advocate, John Roberts has, of course, advanced many arguments and taken many positions on behalf of the Reagan and Bush-41 Administrations and on behalf of Hogan & Hartson's private clients in what have been, by definition, high-stakes and hugely controversial cases. His name is on, and he's been personally involved in writing, a great many briefs, and he's also orally argued many of those cases. Opponents of his nomination will therefore impute arguments and positions to him, personally and in full, whenever it fits their goal of portraying him as "extremist." (Indeed, they've already started). This may be a somewhat effective strategy, but it's extremely cynical and unfair, and it will ultimately fail because it ignores what even the general public understands to be the most basic truth of lawyering: Whenever John Roberts has appeared in courts as an advocate, he's been expressing views as an agent on behalf of his principals, not on his own behalf. That is his and every advocate's fundamental duty — both when the advocate personally agrees with his principal and when the advocate personally disagrees (and has privately argued against that argument or position). The fact of the matter is that you can tell something about how clever and competent a lawyer is by observing his oral and written advocacy, but you can't really tell what's behind the mask, what's inside the advocate's heart. This might actually end up briefly troubling conservatives: Just as liberals can't conclusively assert that everything Principal Deputy Solicitor General Roberts wrote and argued as a public advocate for the Bush-41 Administration reflects his personal beliefs, neither can conservatives necessarily rely upon that either!


But worry not, my conservative friends, because this actually gets me back around to why I'm not terribly worried that Judge Roberts will turn out to be "another Souter."

Through documents and through first-hand opinions of solid and reliable conservatives who've worked closely with John G. Roberts — in his capacity as a private counselor, and not just a public advocate — Dubya does have full access to what Judge Roberts has thought and said when he's been at his most candid, under pressure and entirely outside the public spotlight.

Hugh Hewitt pointed out on his radio show tonight, entirely correctly, that when John Roberts was a lawyer for the Reagan Administration, that Administration was under legal siege: times were tough, stakes were high, and wise, private legal judgments were desperately needed. Seeing from a client's viewpoint how a lawyer functions as a counselor — how he privately answers key questions like "Is this wise? Is this principled? What are the downsides? What do we really think, public façade aside?" — is extremely revealing. Quite arguably, this sort of information can tell one even more about how a nominee will perform in the future than what he's written — always for publication and usually after compromise with others on the bench — as a judge on a lower appellate court.

Thus, through people like former Solicitor General Ken Starr (and, perhaps, Chief Justice Rehnquist?) with whom John Roberts has worked very closely, and through privileged documents that Judge Roberts must have written himself while a government lawyer, Dubya and his staff certainly know vastly more about Judge Roberts' character and core beliefs than, for example, Poppy Bush ever could have known about David Souter or than the Gipper ever could have known about Sandra Day O'Connor and Anthony Kennedy. Instead, Dubya and his staff have the same kind of first-hand, pertinent, and highly reliable knowledge about John Roberts that Richard Nixon and his staff had about William Rehnquist. And that worked out pretty well over time, didn't it?

Again, for reasons of precedent and preservation of executive privilege, Dubya won't and can't share those private, confidential documents, nor those private, confidential personal assessments, with you, me, or the Senate. But he has them; they're incredibly meaningful; and we have every reason to believe that Dubya has made very, very good use of them. Don't misunderestimate your president, my conservative friends. Rejoice and have faith!


[This post has been substantially edited for clarity after a decent night's sleep. — Beldar.]

Posted by Beldar at 10:50 PM in Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Why I'm not worried that Judge John G. Roberts will become "another Souter" and sent a trackback ping are listed here:

» LAW: Privileged Documents from Baseball Crank

Tracked on Jul 20, 2005 12:16:01 PM

» All Roberts, all the time from The Irish Trojan's Blog

Tracked on Jul 20, 2005 12:28:32 PM

» The Kirkendall endorsement from PointOfLaw Forum

Tracked on Jul 20, 2005 12:46:11 PM

» Midday roundup from JoshBritton.com

Tracked on Jul 20, 2005 1:59:28 PM

» The Morning After from Hard Starboard

Tracked on Jul 20, 2005 6:17:04 PM

» Roberts = Souter, Kennedy, Rehnquist or Scalia? from The Key Monk

Tracked on Jul 20, 2005 6:24:42 PM

» Breathe deeply. from What Attitude Problem?

Tracked on Jul 20, 2005 7:07:42 PM

» Coulter Going “Nuts” on SCOTUS Nominee from Opinion Times

Tracked on Jul 20, 2005 8:08:17 PM

» John Roberts: The Political Contribution Record. from WILLisms.com

Tracked on Jul 21, 2005 5:02:52 PM


(1) slickdpdx made the following comment | Jul 19, 2005 11:07:53 PM | Permalink

Thoughtful comment and good readin'!

(2) Old Coot made the following comment | Jul 19, 2005 11:17:03 PM | Permalink

I'm gonna trust W.

(3) brandon davis made the following comment | Jul 20, 2005 12:03:28 AM | Permalink

...better and better. Thnx again, Beldar.

(4) Al made the following comment | Jul 20, 2005 1:55:21 AM | Permalink

"every public position he's ever taken on behalf of any client, governmental or private-party"

MSNBC's Scarborough Country ran a (seemingly endless) segment with the banner set to:

Exemplary fairness. ;)

(5) kevin whited made the following comment | Jul 20, 2005 8:10:37 AM | Permalink

So many conservatives always seem worried that the President might not be "one of us" despite his being the most conservative president of our lifetimes.

For those who get squeamish during times like this, I tend to tell most folks to trust our conservative President, because he rarely lets us down. What you've done is provide nice ammo as to WHY we should trust him on this one (which I think is a slam dunk). Thanks for the good work!

(6) Kathy made the following comment | Jul 20, 2005 9:11:51 AM | Permalink

Excellent post. I agree. Roberts is an idealist, an altruist. He has brought his best gifts to the table, and we, as a country, are fortunate for his willingness to serve.

(7) vnjagvet made the following comment | Jul 20, 2005 11:13:59 AM | Permalink

From all I've read the past few days, Judge Roberts has the intellect and advocacy talents of a Brandeis, the philosophy of a Rehnquist the people skills of a Jackson, the collegial esteem of a Scalia and the respect of a Frankfurter. I'd say that is a pretty good start for a Justice.

(8) ed made the following comment | Jul 20, 2005 11:19:46 AM | Permalink


@ Kevin Whited

"For those who get squeamish during times like this, I tend to tell most folks to trust our conservative President, because he rarely lets us down. "


So that trillion dollar prescription drug plan never got signed into law then eh?

McCain-Feingold's attack on the First Amendment? That wasn't signed either?

How about border control? We don't have to worry about the borders because Bush has put enough officers there right?

How about the massive cost imposed on federal, state and local governments to support illegal aliens? You know, the people who don't pay taxes? But whose kids are eligible for $14,000/year free educations? Yeah that's a positive economic bonus. One illegal alien makes an untaxed income of $15,000 a year. His three kids cost local government $42,000 a year to educate. And that's just to educate, that doesn't include Medicaid, welfare, food stamps or disability. Or any of the other myriad government programs to take money from me and give it to illegals.

So Bush has done something about that then? Right?

Shall I continue?

@ Beldar

Sooooo. You are going to GUARANTEE me that Roberts isn't going to shift leftward over the next 35 years he'll be on the bench?

I'd like to see it in writing. Because if you're not confident enough to put it in writing, then maybe you should explain why conservatives should be happy about this. 25 years of supporting the GOP, for what? A rock solid conservative with a long history of supporting constitutionalism and conservatism? Well I guess not.

How about this. When Democrats are in power, they appoint LIBERALS. But when Republicans in power do they appoint conservatives? I guess that's a "maybe" and a "we'll find out" and quite definitely a "we hope so".

I am absolutely unimpressed. Right now I'm pleased as hell that I've abandoned the GOP.

Screw the Republicans.

(9) Eric R. Ashley made the following comment | Jul 20, 2005 11:34:11 AM | Permalink

Well I HOPE you're right.

First thing I thought of when I saw this name and his record was "Souter".

And then I wonder if the strain is breaking Bush down. After all, his Dad was not very reliable in a lot of ways.

And I would have thought we'd have bombed Iran by now. So I'm getting a touch cynical here.

(10) Eric Soderlund made the following comment | Jul 20, 2005 11:42:45 AM | Permalink

"The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm."

This quote alone, from the Hedgepeth case (386 F.3d 1148), gives me great hope. The case had terrible facts--a 12-year-old girl had been arrested for eating a french fry in a transit station. But despite a very sympathetic plaintiff Judge Roberts followed the law and the Constitution and found in favor of the defendants. Judicial restraint.

(11) Eric Soderlund made the following comment | Jul 20, 2005 11:46:58 AM | Permalink

Sorry, I didn't read before posting your earlier entry where you discuss the Hedgepeth case and use this quote.

(12) R. Scott Pennington made the following comment | Jul 20, 2005 12:27:59 PM | Permalink

I hope you're right. However, for those who actually do think overturning Roe is vital both practically and as a symbol, I suggest the following wait and see attitude: Bush is gambling with someone who's not a demonstrable Scalia in order to have a cushier confirmation. Maybe he's right. But he could have nominated a real slam dunk Scalia/Thomas type and avoid the risk of a Souter, however slight. If the guy's solid, hail Bush. If he turns out not to be, then unload the scorn on Bush and sit out the next election or two. Only then will they know there's a price to be paid for getting it wrong.

(13) Jeff G made the following comment | Jul 20, 2005 12:30:56 PM | Permalink

Wondering what you make of this, in the context of the horrendous Kelo decision.

(14) Ralphy made the following comment | Jul 20, 2005 1:41:02 PM | Permalink

Notwithstanding George Bush is a mental lightweight, John Roberts was an excellent choice. Bush was told to select well.

(15) RogerA made the following comment | Jul 20, 2005 1:53:55 PM | Permalink

No President is sure how his nominee will behave once on the court--there is SOMETHING about life time tenure that gives justices an exceeding amount of independence--and Ralphy: : mental lightweight?" that is such a jejeune comment.

(16) Matthew made the following comment | Jul 20, 2005 2:36:08 PM | Permalink

"Wondering what you make of this, in the context of the horrendous Kelo decision."

The reference you made to the Railroad decision involved a case where Judge Roberts was AN ADVOCATE for the Government. Would you expect Judge Roberts to not put forward his best argument on behalf of his client? Further, the Kelo decision took the decision you cited quite a bit further. While in the case you cited, there was at least a hint of a public purpose for the taking (upkeep of a right of way) the recent Kelo decision involved a taking that had no public purpose.

(17) Allan Yackey made the following comment | Jul 20, 2005 3:10:50 PM | Permalink

I have three general comments about appointments to the Supreme Court. First my personal observations over the last three decades of appointments to the Federal Bench at levels below the Supreme Court cause me to think that it is the best source of candidates for the Supreme Court. Appointment to a high status job with a life time guarantee of a job does funny things to some people. A stint on the lower Federal Bench is helpful in allowing those kind of personalities to demonstrate themselves.

Second, appointments to the Supreme Court appear in many respects to work like sending your children away to college. You send them hoping that they will make a positive mark on the world by the work that the do at college and after. Unfortunately however, when some get away from the moderating influence of home, and are in an environment where there is no effective control on their activities, short of violations of law, some of them go hog wild.
Often times the only way to find out if they are going to do that is to send them.

The third thing has to do with the suggestion that a candidate for the Supreme Court who is a recent appointee to the Court of Appeals needs to be run through a different and more rigorous process than for his appointment to the Court of Appeals.
The Supreme Court decides very few cases. For most litigants the last stop is the Court of Appeals. A petition to the Supreme Court for review is for most cases a futile effort. Using a substantially different and looser process for Courts of Appeal than the Supreme Court is an insult to most citizens and suggests that their final appeal is not all that important in the life of a Senator.
I am not particularly happy with a process that gives a more cursory review to the District Court where the initial decisions are made. But I can accept that logically if the work of the District Court is subject to review at the Court of Appeals, I might have to live with a less than thorough review of candidates for the District Court. But that is where it ought to stop. I see no reason for a different standard of review for the Court of Appeals than for the Supreme Court.
Of course the reality is that those proposing this different review standard are in all probability just looking for a way to stall this process.

(18) megpotamus made the following comment | Jul 20, 2005 3:18:56 PM | Permalink

I'm not really a conservative myself, more of an anti-collectivist, and while, as folks point out above, there has been too much collectivization on Bush's watch for my taste, those have been more pallatable by far than what the Democrats would give us. Same thing with Roberts. Politics is ever a game of persuasion, false moves and blind leaps. Bush has done well to date, overall. Roberts may well come acropper but I'll back Bush on this and other picks until I see some SERIOUS and well documented reason to do otherwise. Haven't read Coulter yet... can't get it to load.

(19) Orson made the following comment | Jul 20, 2005 3:43:10 PM | Permalink

Call me singularly unpersuaded.

If all you care about is getting a qualified candidate through, Roger it right. But if you care about the principles that animate the Constituion - a document listing, taking on collectivist water, going down into the asheap of historical irrelevance - then Bush blew it.

As Randy Barnett argues convincingly over at www.volokh.com, it takes a great deal of effort to enunciate a coherent judicial philosophy and merely studious indecision to avoid it.

A commenter posted THE relevent quote from Roberts that nails him:

[remark from Judge Roberts' COA confirmation hearings]:

"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."

[The poster conclued;] Apparently, not only does Judge Roberts not have a grand overarching interpretive theory for constitutional adjudication, he doesn't think it's a good idea to have one, either.

Meet the new boss - same as the old boss: Robert's is O'Conner with a penis! And Bush blows a chance the strike a blow for a constitution for liberty.

We are all the poorer for that.

(20) Jeff G made the following comment | Jul 20, 2005 3:48:39 PM | Permalink

Yes, Matthew, I realize he was an advocate and so, y'know, advocating for his client's position. Which is why I didn't make any strong claim against Roberts (and in fact, supported his selection on my site).

My concern (such as it is) is that had the Solicitor General's office intervened in in Kelo it would have done so on behalf of New London. And I'm wondering if Bush got a sense for where Roberts might go on this -- and it ain't toward private property rights.

(21) -wayne made the following comment | Jul 20, 2005 3:53:48 PM | Permalink

Of all the commentary I've seen on Roberts, the most interesting is that he is the Court's favorite appellant. I think this could be his best, and most overlooked, attribute for the job. While I would have originally hoped for a Luttig or Janice Rodgers Brown, I think this pick could possibly give us two votes rather than one, and that's a gamble worth taking.
The reason I believe this is because I think Poppy Bush put someone on the Court who was not a closet liberal, but a milquetoast. So far Souter has been pulled to the left because he's dominated by his clerks and the culture of the Court. If Roberts is as persuasive a leader as has been reported, it could turn out that he takes Souter under his wing the way Brennan did with Marshall, eventually practically getting his proxy to vote how he wanted. Just a chance, but worth the marginal risk, in my opinion.

(22) Jeff G made the following comment | Jul 20, 2005 4:44:59 PM | Permalink

Sorry, just playing devil's advocate here. But this is also a bit worrying.

(23) Jeff G made the following comment | Jul 20, 2005 5:10:39 PM | Permalink

Oops. I see Orson has already posted it.

(24) alfonso made the following comment | Jul 20, 2005 10:43:21 PM | Permalink

Will Roberts be a Souter? Very unlikely.
Will he be an O'Conner? Maybe.

His every ruling is being parsed by conservatives as "See, he is nowhere as bad as the Liberals claim." Which means in the same breath, he may well not be as good as the conservatives claim.

For example, Hugh Hewitt has been citing the "Rancho Frog" case as proof that Roberts is not as conservative as liberals fear. He makes the point that Roberts' dissent was welcome, but was dissapointingly "not as strong" as he and his team would have liked.

Isn't that the story of O'Conner? She is considered conservative, but a dissapointment in that she is not a strong one.

"Rancho Frog" may prove too typical with Roberts leaning the right way (yes, a pun), but in a rather weak way.

(25) Feldar made the following comment | Jul 20, 2005 10:43:39 PM | Permalink

I don't think you abandoned the Republicans, Ed. I think they kicked your sorry ass out.

(26) Jim in Chicago made the following comment | Jul 21, 2005 12:11:17 AM | Permalink

After reading Ed's routine on virtually every right of center blog -- including Instapundit, since Ed was his source for his "convservatives hate Roberts" post last night -- I'm beginning to think he's a big-time Moby.

As for Roberts, those who are afraid of his lack of a written track record keep bringing up Souter, but isn't Clarence Thomas a better example?

After all, Souter was an unknown in DC, having served on courts in NH. He had only Sununu and Rudman to vouch for him. No one in the federal gvt knew him.

But CT like Rbts served in the Reagan administration, worked for a Senator, etc for 10 + years in DC before getting named to the DC circuit, on which like Rbts he spent little time. Like RBts any work he did could be dismissed as "just acting on the President's orders".

The pt is, neither CT nor Rbts were/are unknowns to the people who matter in DC, and any # of true blue conservatives who worked for Reagan, or the Bushes can vouch for his views.

(27) Paul Deignan made the following comment | Jul 21, 2005 12:16:42 AM | Permalink

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.

Oh pleeeeeeease.

It's not that hard -- if you want to get it right.

How to interpret the US Constitution

30 min max with editing.

(28) Chaz706 made the following comment | Jul 21, 2005 8:41:49 AM | Permalink

Don't worry about Roberts. What no one has mentioned is that Roberts is and has been a member of the Federalists Society. And seeings that Federalists view the Constitution as nearly sacred (if not so), then we haven't gotten the shaft.

Robert's Record is longer than one may think at first glance. Just would like to inform of another good mark on his record.

(29) Chaz706 made the following comment | Jul 21, 2005 8:46:27 AM | Permalink

On a second note, some are not comforted about his statements to the NRO about not having an 'all-encompassing philosophy' in the court. Sometimes having such a philosophy is akin to making a decision on a case before it's brought to you. As much as I like federalism, we don't need anything like that. Let's argue the facts and circumstances, then come to a conclusion like real judges.

(30) Jim in Chicago made the following comment | Jul 21, 2005 10:02:24 AM | Permalink


According to Powerline he's not a member of the FedSoc. There was some confusion b/c he's delivered speeches at their mtgs in the past.

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