The first thread on the new Supreme Court nomination seems to have gone a little off the rails, so here's another attempt to shine a light on Judge Roberts' legal thinking: These remarks are from his April 30, 2003 confirmation hearing (for the DC Circuit bench) before the Senate Judiciary Committee (taken from the Wednesday July 20 SF Chronicle): On judicial philosophy: "I don't feel that I bring a coherent, universal approach that applies across the board to all provisions of the Constitution. Again, I don't know if you regard that as a flaw or as a positive thing, but that is the case... The other thing is, in my review over the years, and looking at the 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" On judicial activism: "My definition of judicial activism is when the court moves beyond the role of deciding a concrete case or controversy and begins to either legislate or execute the laws rather than decide the case and say what the law is." On Roe vs Wade: "Roe vs Wade is an interpretation of the court's prior precidents. You can read the opinion beginning not just with Griswold, which is the case everybody begins with, but going even further back in other areas involving the right to privacy, Meyer vs Nebraska, Pierce vs Society of Sisters, cases involving education. And what the court explained in that case was the basis for the recognition of that right... Roe vs Wade is the settled law of the land... There's nothing in my personal views that would prevent me from fully and faithfully applying that precident" On being ideological: "I do have a history of litigating cases, and when you talk about the ability to set aside personal views and apply precident wihout regard to personal ideology or personal views, that's something that I've been able to do in my practice. My clients and their positions are liberal and conservative across the board. I have argued in favor of environmental restrictions and against takings claims. I've argued in favor of affirmative action. I've argued in favor of prisoner's rights under the Eighth Amendment. I've argued in favor of anti-trust enforcement. At the same time I've represented defendents charged with anti-trust cases. I've argued cases against affirmative action."
Okay, okay. I'll increase my rating to "one thumb up and one thumb horizontal". Satisfied? Actually, the more I hear of this guy the better I like him!
I didn't cut-and-paste the quotes, but copied them manually from an antiquated ink and woodpulp format. So I deserve the credit for all the imaginative spelling originalities. The Chronicle spelled it 'precedent'.
Nope. But he said: ""Roe vs Wade is an interpretation of the court's prior precidents. You can read the opinion beginning not just with Griswold, which is the case everybody begins with, but going even further back in other areas involving the right to privacy, Meyer vs Nebraska, Pierce vs Society of Sisters, cases involving education. And what the court explained in that case was the basis for the recognition of that right." That suggests to me that he might see the law as historical, developing out of the real-life decisions and reasonings that define its precedents. If there's any truth to that, it sounds more like legal positivism than natural law.
I agree with that. However, positivism ALSO comes in flavors. One of the most obnoxious is judicial pragmatism. If Judge Roberts has a visible fault, that may be it, judging by the quotes. His take on Roe is factually correct. It comforts me that he is able to READ it without immediately taking sides.
Dos centavos Judge Roberts seems like a thoughtful man who isn't "eaten up" by political philosophy. President Bush seems to have made a good choice. So if you add this to his other good choices, that makes a total of 1 (one);-)
What I think may be worrying both the Right and the Left is that Judge Roberts seems to think for himself. This makes him "dangerously unpredictable", I think they are thinking. My take is a little different: -He's actually probably quite predictable once you realize that his personal committment is to the integrity of the law itself instead of one ideology or another. This is a common and quite proper judicial attitude, IMHO. -He will therefore follow wherever his legal reasoning leads him regardless of popularity. (I would have said, "Regardless of political consequences" except that once you're on the Supreme Court, there aren't any political consequences. Ask Justice Scalia, who should have been sanctioned for his duck hunting trip with a party.) This means, I'd guess, that he WILL maintain that the constitution expresses a right to privacy. It also means, I'd guess, that he will extend that right to restrict federal involvement in private lives. He might, for example, vote to overrule Roe but also declare any federal right-to-life legislation to be unconstitutional. (Example only; I have no idea what he'll REALLY do). Expect him to follow a consistent LEGAL philosophy which will result in an apparently INCONSISTANT social or political view.
Political delay? The more I see the better I like Judge Roberts. But NOW I'm afraid that the Senate is going to play games with his confirmation because some of them, even some GOP Senators, resent President Bush's recess appointment of John Bolton as Ambassador to the U.N. Tit for tat. Too bad! Oh, too bad!
THOUGHFUL ANALYSIS Here is an interesting view of the Roberts nomination in an historic context (meaning Bork): http://writ.news.findlaw.com/lazarus/20050805.html
Nothing scares political Washington more than thinking for one's self. Dangerous. Very dangerous. I think that I like it. That's why we have judges, isn't it? It's what makes them something more than politicians in fancy robes. Any consequences would clearly be unconstitutional. But that raises a more general question: Can the rest of the supremes vote to censure one of their own members who might be going off the rails? Can the majority of the supremes vote another Supreme Court justice off the court? (There must be a huge body of precedent on censuring judges and removing them from the bench. But the Supreme Court has no higher judicial authority.) Again, I think that I like it. But to the ideologues of either party, he's going to be dangerous, very dangerous.
Far as I know, the only avenue is the standard impeachment followed by conviction and removal, same as you'd do with other federal officials. It happens rarely, I believe the number of federal judges so removed is less than 10 in our nation's history. I don't think it's ever happened on the Supreme Court, though Fortas would likely have faced such proceedings had he not gone the Nixonian resignation route.
Hey, what about the Alabama Supreme Court? Didn't they vote to suspend their Chief Justice for defying a Court order? I don't remember his name...the Ten Commandments monument? Two tons of carved granite?
I see where the National Abortion Rights League has pulled its anti-Roberts ads. Meanwhile, there's a right wing group in Colorado opposing Judge Roberts because he fought against that state's anti-gay rights initiative. Interesting. Is it possible that the light is beginning to dawn? Are people beginning to realize that the President actually picked a well qualified nominee who thinks for himself and is dedicated to the rule of law?
