I have been disappointed and deeply critical of Chief Justice Roberts' rulings on the Court so far, particularly in environmental cases, which I don't think comport with at all with the modest, umpire image he projected at his confirmation hearings. That said, I don't regret at all the piece I published in The Washington Post about Roberts. I described Roberts as a non-bombastic conservative. I think that's accurate and I would still prefer him as justice than Michael Luttig or Janice Rogers Brown, who I contrasted Roberts with in my piece. I hoped then that he would be open-minded. I continue to hope that, over time, he will evolve into the John Marshall-like unifying figure he says he aspires to, rather than a Chief presiding over a deeply polarized Court, as he is today.
More fundamentally, I disagree with the premise of your piece, which is that those progressives who expressed honest and qualifiedly positive things about Roberts have something to be sorry about. Underlying this premise there appears to be the dual assumptions that if folks like me held our tongue, 40 Democratic Senators would have risen up and filibustered Roberts and that this would have been a good thing. I disagree. Given the context – Roberts' sterling record, his conciliatory Senate testimony, the fact that he was replacing William Rehnquist, and the fact that Republican's controlled the Senate 55-45 – I don't think a filibuster was ever contemplated. If it had been used to block Roberts, it would have set a terrible precedent for the next Democratic president.
Disappointed in Chief Justice Roberts rulings: absolutely. Sorry for being honest and bucking the conventional wisdom on the left: absolutely not.
My response to Kendall:
My premise is not that the Democrats would have filibustered if Kendall and others hadn't spoken out on behalf of Roberts. There were a lot of other factors in play. My point is simply that a liberal lawyer need not spend his time and political capital going out of his way to back a judge with an extremely conservative (however "sterling," as a matter of prestige) record, which Roberts certainly had. His nomination was an opportunity to argue against the legal positions he'd taken and explain why we are the worse for them. I'm not moved by the Luttig and Brown comparisons: Presented with a terrible choice and a bad choice, liberals didn't have to opt for either. They could oppose both, or just say nothing.