Roberts Reviewed

A Grand Slam for Bush
An email conversation about the news of the day.
July 21 2005 10:17 AM

Roberts Reviewed

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Viet and Dahlia:

Your posts are thoughtful and interesting, but I have to take issue with points in both. Viet, you say that the 1990s seem like the "good old days" on judicial nominations. Maybe good old days are in the eye of the beholder, but this nostalgia strikes me as revisionist history. According to an analysis by American University law professor Herman Schwartz, for example, between 1996 and 2000 the Republican-controlled Senate refused even to hold hearings for 20 of President Clinton's appeals court nominees, including such distinguished choices as Elena Kagan, now dean of Harvard Law School. Three appeals court nominees who received hearings were not allowed to have a committee vote, including Allen Snyder, John Roberts' law partner and a fellow law clerk to William Rehnquist. Forty-five of President Clinton's district court nominees likewise never received a hearing, and two more who did get hearings never got a vote.

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I also don't think the blame for the current environment can simply be laid at the feet of interest groups. Senators and representatives must be held responsible for their own contributions, including the recent poisonous attacks on an independent federal judiciary by Sen. John Cornyn (suggesting that violence against judges may be linked to judicial opinions), House Majority Leader Tom DeLay (warning that judges will have to "answer" for their actions in the Terri Schiavo case), and House Judiciary Committee Chairman F. James Sensenbrenner (writing a letter to a federal appeals court in an attempt to direct the outcome of the appeal of a pending criminal case).

Dahlia, you also suggest that the Roberts appointment may signal the triumph of pragmatism over ideology for President Bush. I think, instead, that it's the triumph of effective ideology over clumsy ideology. John Roberts may deserve all of the praise heaped on him by Viet and others. He clearly is a legal superstar. But I also think it's very likely that he's going to be a very solid conservative, shoring up the Scalia/Thomas/Rehnquist bloc on the court. In fact, Bush has pulled off a grand slam with the Roberts appointment. The president has appointed a reliable conservative; the nominee is very confirmable; Roberts probably will be on the court for decades; and because he is personable, he will be a powerful force within the court. This last point is especially important. The hard edges of Scalia and Thomas, and the diminishing role of Rehnquist (even before his illness), apparently have tended to drive away from the conservative-bloc justices like Kennedy and O'Connor. It will be interesting to see if somebody like Roberts turns out to be much more effective in reaching out to Kennedy. It's a smart bet for Bush that he will.

I want to bring up one additional point. Could there possibly be any emptier phrases than "legislating from the bench" and "judicial activism"? I don't think so, but we're doomed to hear them repeatedly. Is it "legislating from the bench" and "judicial activism" when the Supreme Court strikes down a criminal prohibition on gay sex (as in Lawrence v. Texas) but not when the Supreme Court strikes down congressional laws on guns near schools (as in United States v. Lopez) and violence against women (as in United States v. Morrison)? The court's conservative majority handed down Lopez and Morrison in 5-4 votes. Isn't it "legislating from the bench" or "judicial activism" when the Rehnquist court strikes down more acts of Congress than any Supreme Court in history? We can argue about the merits of these individual decisions, but in light of them, the myth that those two constantly repeated phrases have any meaningful content explodes. It's a sign of the state of our political dialogue over judicial issues that despite all this, both phrases continue to have such currency and apparent political benefit.

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.

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