Roberts Reviewed

The Ineffable Arroyo Toad
An email conversation about the news of the day.
July 21 2005 8:33 AM

Roberts Reviewed

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Dear Cliff and Viet:

I don't know if either of you are on the mailing lists for the many, many D.C. advocacy groups seeking to influence the outcome of the John Roberts confirmation, but if an inbox could shiver, mine would. Roberts has been the nominee for less than 24 hours, and scores of interns at dozens of organizations have already been set to work mining every opinion this man ever wrote, every brief he ever authored, and every law-school paper he ever touched. All this in order to prove that Roberts is the worst thing that's happened to women/the environment/the Commerce Clause/the Guantanamo detainees, and yes, to the ineffable arroyo toad, since Robert Bork.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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I agree with you, Cliff, that the very fact that Roberts is nothing at all like Bork—he's affable, charming, and humble—makes him a likely candidate for confirmation. And Viet, I don't doubt for a moment your affirmation that he is as warm, temperate, and honest as has been widely reported. I do worry, though, because while being likable and collegial and genuinely kind may be important for the relationships among the nine justices, I'm not convinced that it matters a whole lot for preserving fundamental constitutional stability in a country as polarized as this one.

You ask, Cliff, what to make of the fact that, since Roberts' brief two-year history as a judge gives so little insight into his views on hot-button issues, his writings in legal briefs—specifically when he was acting as deputy solicitor general during the Bush I administration—might fairly be used to gauge his personal beliefs. Specifically, we need to decide how much weight to give legal claims, including the infamous footnote in a brief he wrote in the 1991 gag-rule case Rust v. Sullivan, suggesting that Roe v. Wade was "wrongly decided and should be overturned."

In general, I tend to agree with Roberts, who—in consummate lawyerly fashion—has defended his footnote with a subsequent footnote, in a 1994 law review article. There Roberts said that "[the author's] views as a commentator … do not necessarily reflect his views as an advocate for his former client, the United States." If every lawyer were held to defend every appalling statement she makes on behalf of a client, the profession would be a mass of schizophrenic head-cases. Lawyers argue for clients, not themselves, and lawyers' views evolve over time. Roberts noted in his last confirmation hearing that Roe is still the law of the land. That statement should not be dismissed lightly.

But there is still something creepy about the zealousness of that Roberts footnote. His call to go so far as to overturn Roe leaps beyond the question in the case and well into the realm of ideological advocacy.

More compelling is the consistency of Roberts' ideas, throughout his various jobs and writings. That consistency suggests that he wasn't merely representing a single client when he worked for Bush I and that he has, in fact, worked pretty tirelessly to advance the Federalist agenda. He wanted to tear down the wall between church and state (in a brief in Lee v. Weisman); he had it in—big time—for the Commerce Clause; he can't find a limitation to presidential power in creating wartime tribunals. In other words, when you look at his writings and at the causes he has adopted in the aggregate, a picture of his judicial philosophy does emerge. Roberts' abortion footnote may not in itself be dispositive, but it's pretty darn probative.

That is why the same right-wing groups who nearly torched the White House over the possibility of a Justice Alberto Gonzales are so tickled by a Justice John Roberts. This nominee has the twin charms of being eminently confirmable and very, very reliably conservative. The conservative groups are fired up in a No-More-Souters way that is hard for those of us who kind of liked the old Rehnquist Court to comprehend. They wouldn't be celebrating Roberts if he weren't a man for them to celebrate.

All of which begs the real question, a question implied by both of you: If a nominee can't be held accountable for what he has written or said in the past, and can't be asked to opine upon issues that may come before the court in future, what can possibly be learned from a confirmation hearing? I await your thoughts.

Finally, I am with Ryan Lizza in that I am pretty sure the most interesting aspect of the whole Roberts nomination is in the window it offered into What Really Happens in Bush's Head. From the outset, this nomination has been the ultimate litmus test for ferreting out what Bush truly is and what he most wants to be remembered for. By deciding not to choose someone blatantly and unapologetically ideological, and by refusing to name someone who has made a judicial career of what I've previously dubbed aggressive "re-activism"—ignoring existing law under the pretense that it's wrongly decided—Bush has revealed that he's in fact more pragmatist than ideologue. He's not, in short, quite the single-minded moral zealot he's been selling. Thank God.

No irony intended.

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