Wednesday, September 07, 2005


The Nomination of John Roberts

I’ve had a difficult time trying to get a handle on Judge John Roberts, President Bush’s nomination for the Chief Justice of the Supreme Court of the United States. His limited record as an appellate judge, disturbing patterns in case participation while a practicing attorney, and essentially worthless answers to the questioning of the Senate Committee on the Judiciary create worry. In fact, coupled with the nearly word-for-word spiel of the conservative groups that were touting David Souter as Bush-41’s pick to the Court in 1990, I have trended toward other non-reactionary conservatives who are at most against the Roberts nomination and at least remaining neutral in the whole debate. It’s not that I am against Roberts per se, but I am against someone – anyone - whom I can’t get a read on being nominated to the highest court in the land. Some say that we shouldn’t know how they will act on the bench, and I suppose those same people would support a national lottery for the vacant positions on SCOTUS. Others say that we should take Bush and his advisors at their word. As Ann Coulter wrote early on in the process, the powers that be in the GOP lost their right to the benefit of the doubt with the nomination of Souter (and they should have lost it before then, as Ann points out, with their previous nominations who turned out to be closet liberals).

After reading more on John Roberts and his caseload than I ever thought I would, I have come to the conclusion that he is probably not ideologically aligned with Justice Souter. For those not familiar with the Supreme Court alignment, here is a brief charting of the justices, as I would rate them after consultation with my Constitutional Law professor at UT, from most liberal to most conservative with the spacing showing how close the judges are aligned:

John Paul Stevens

Stephen G. Breyer – Ruth Bader Ginsburg

David Souter

(Sandra Day O’Connor)

Anthony M. Kennedy

(William Rehnquist)

Antonin Scalia

Clarence Thomas

So, where do I think Roberts fits? Probably (and I admit that this is a mere guess, even after all of the research) to the right of Justice O’Connor, the woman who he is still replacing (even with the alteration of the nomination to the Chief Justice’s position). So, if you have been satisfied with Justice Kennedy’s jurisprudence, then you should expect to be satisfied with Chief Justice Roberts. If not, well, get used to it, because there is nothing – not even criticism from conservative sources – that is going to derail this nomination. I do admit that Roberts’ road to the Court became rockier with the untimely death of Chief Justice Rehnquist and Bush’s subsequent nomination of Roberts as the new Chief Justice, but I still don’t see any way that Roberts isn’t confirmed before the new term starts in October (barring some unforeseen bombshell). Given that I don’t know who President Bush will nominate to fill the second vacancy (although several sources are tabbing Alberto Gonzales as the frontrunner, with Owens, Clement, and Brown as a second tier leading the proven conservatives of Luttig, Jones, and Wilkinson), I guess I have to be OK with Roberts.

But this whole process has made me angry. I agree with Ann Coulter – I’m angry that I even have to interpret this Rorschach blot of a nominee with a GOP POTUS and GOP-controlled Senate. I’m angry that a President that I begrudgingly assisted to win a second term stated that he was set to nominate justices that were in the mould of Scalia and Thomas but by all indications did not do so, nor did he feel comfortable with elevating either of the two benchmark justices to the position of Chief Justice. I’m angry that so many senators – including Senate Majority Leader Bill Frist – were delivering ringing endorsements of Roberts before they and their staffs could have possibly reviewed his complete record, even given its abbreviated stature. Yes, I’m angry.

Maybe it’s all of the Toby Keith that I’m listening to right now, but I feel that someone in Washington owes me and everyone who voted Republican in 2004 based on the issue of judicial nominations an explanation.

You should be happy because some of Robert's quips read like LGF comments!
"Maybe it’s all of the Toby Keith that I’m listening to right now"

I think that says everything.
As a sidebar, Toby Keith is a Democrat. A conservative Democrat..but a Democrat.
We won't hold that against him Sharon. So is Billy Graham, but we don't hold that agains him either.

Seriously though Rob, you really think he is to the left of Kennedy? Geez, I hope not.
Several thoughts,
1. I'd have O'Connor to the right of Kennedy
2. The system is screwed to the point that an honest conservative is considered an extremist
3. I think Roberts will be a lot closer to matching Rehnquist than Kennedy.
4. I don't think the sitting justices will have a problem with an outsider being named Chief. Only 3 of the previous 17 chief have been sitting justices.
5. Scalia and Thomas would be only two worth elevating and Scalia is 66 and Thomas' hearings would be ugly. No sense putting Thomas through that crap again. Remember how it went for Fortas. Nominated by LBJ as Chief and the result was he not only wasn't confirmed but ended up resigning from the bench altogether.
If you know of and like Hugh Hewitt - Talk show radio host and sometimes law professor at Chapman University - - he worked with Roberts years ago and believes he is a good nomination. -

re: ariadne - quote - Won't the rest of the judiciaries resent the hell outta Roberts if he bypasses sitting on the bench to become the chief justice? - end quote -

If they allow this to affect their decisions THEY should not be allowed the position!
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