John G. Roberts

The John Roberts hearings concluded last week, and Roberts gave a very impressive performance. He is demonstrating that he is not an ideologue, and he has a modest judicial philosophy that respects precedent and the rule of law. Liberals listening to this should be reassured, while movement conservatives should instead be worried. Roberts sounds like he'll be more like a Justice O'Connor or Justice Kennedy as opposed to a Justice Scalia or Thomas. The Democratic Senators like Kennedy and Biden are not landing any punches. Roberts will and should be confirmed.

Jeffrey Rosen has written a great column explaining why liberals should support the Roberts nomination.

The Washington Post explains why Roberts is not a Scalia or Thomas.

(Updated 9/16/05 by G. Orlando)

Biography and Background

John G. Roberts, age 50, was nominated by George W. Bush replace Sandra Day O'Connor on the Supreme Court. He is described by many as a brilliant lawyer and was considered the most talented advocate before the court before he was appointed to the Federal bench. This seems to be a very shrewd choice by President Bush.

Roberts sits on the U.S. Court of Appeals for the D.C. Circuit. He was nominated in 2003 by President George W. Bush. He was also nominated by the first President Bush, but he never received a Senate vote.

He has been a prominent GOP attorney in private practice in Washington and between 1989 and 1993 he was the Principal Deputy Solicitor General in the first Bush administration. Roberts attended Harvard College and Harvard Law School, clerked for Justice Rehnquist on the Supreme Court and has argued frequently before the court.

Roberts' nomination to the appellate bench attracted support from both ends of the ideological spectrum.

Some 146 members of the D.C. Bar signed a letter urging his confirmation, including officials from the Clinton administration. The letter stated: "He is one of the very best and most highly respected appellate lawyers in the nation, with a deserved reputation as a brilliant writer and oral advocate. He is also a wonderful professional colleague both because of his enormous skills and because of his unquestioned integrity and fair-mindedness."

Walter E. Dellinger III, who served as solicitor general under former President Bill Clinton, told the Judiciary Committee that, �In my view . . . there is no better appellate advocate than John Roberts.�

Commentary:

Alan Dershowitz predicts how Roberts will rule on various issues after listening to his testimony.

Thomas Oliphant doesn't see a reason for liberals to vote against Roberts. Mort Kondracke agrees.

Roberts' testimony alarms conservatives.

E. J. Dionne argues that Democrats should vote against Roberts because he was too evasive and the White House withheld documents.

David Broder praises Roberts' performance and wonders how any Democrat can justify voting against him.

The Washington Post argues in favor of his confirmation as Chief Justice, while the New York Times is opposed. The LA Times strongly endorsed his confirmation.

Robert Novak explains how Roberts got the better of the Democrats on the Judiciary Committee.

Key Decisions and Writings:

Roberts is seen as a GOP heavyweight, but he's not seen as a "movement conservative" so some right-wing Republicans are skeptical of Roberts. That said, he is seen as more conservative that than Justice O'Connor, so liberals are concerned that his nomination will tip the delicate balance on the court.

Roberts has a thin paper record, with few decisions on controversial issues that excite interest groups on the right and the left. He hasn't been on the Appeals Court very long, so there are very few decisions that shed light on his judicial philosophy. Jonathan Turley has called him the leading "blank slate candidate."

Abortion - Roberts has generally avoided weighing in on disputed social issues. Abortion rights groups, however, have pointed out that Roberts tried during his days as a lawyer in the first Bush administration to overturn Roe v. Wade. Roberts did help write a brief that stated "we continue to believe that Roe was wrongly decided and should be overruled." Yet when pressed during his 2003 confirmation hearing for his own views on the matter, Roberts said: "Roe v. 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 precedent." Some liberals will argue that he now can vote to overturn that decision if confirmed. Naturally, this issue and his views on the broader right to privacy will be examined in the confirmation process, but Roberts is not one of those candidates who have been openly hostile to the Roe decision, and it's doubtful he would give many clues in the hearings on this issue. That said, RedState.org notes that Roberts is married to the Executive Vice President of Feminists for Life, giving us some indication of his own personal views on the matter.

States Rights - As a judge on the D.C. Circuit, Roberts wrote a dissenting opinion that suggested Congress might lack the power under the Constitution's Commerce Clause to regulate the treatment of a certain species of wildlife.

Basically, Roberts sides with many conservatives in ruling that the Commerce Clause does not give Congress free reign to regulate everything, regardless of how tenuous its connection to interstate commerce. This and similar decisions from the Rehnquist court have alarmed liberals, but the Commerce Clause has been stretched so far by the Supreme Court that it's hard to get too excited about some reasonable limitations placed on this power. Frankly, the recent medical marijuana decision by the Supreme Court demonstrates how far the Court will go sometimes to uphold Federal power, even in a case where individuals grow their own supply for medicinal purposes. Here, Roberts' approach seems more practical and consistent with the Constitution.

Separation of Church and State - Arguing for the first Bush administration, Roberts co-authored a friend-of-the-court brief arguing that public high-school graduation programs could include religious ceremonies. The Supreme Court disagreed by a vote of 5-4.

Military Tribunals - In a recent decision on July 15, 2005, Roberts joined with two other judges of the U.S. Circuit Court of Appeals for the District of Columbia to rule that the Bush administration's plan to convene military tribunals to try terrorist detainees at the U.S. Naval Base on Guantanamo Bay is constitutional. The Supreme Court last year ruled that detainees should be given some kind of due process, but was vague about what type. The decision reversed a lower court's ruling that the tribunals violated the Geneva Convention and concluded instead that the Bush administration has the authority to bring detainees before tribunals, or military commissions, on war crimes charges. Many liberals are concerned about these military tribunals, but they seem like a logical compromise. The Supreme Court was correct to rule that some due process was necessary, as opposed to holding the detainees indefinitely. Yet it seems like a mistake to open our court system to every terrorist we pick up on enemy soil. These tribunals will need more scrutiny, but this decision does not seem to be unreasonable.

Get more summaries of opinions at The Supreme Court Nomination Blog

CONFIRMATION PROCESS:

Judge Roberts got out of the Judiciary Committee in 2003 on a 16-3 vote. Only Kennedy, Schumer and Durbin voted against him. He was confirmed to the Court of Appeals by the Senate on May 8, 2003 in a voice vote without Democrat opposition after he made it to the floor.

Larry Tribe has said that Roberts is brilliant and is a man of integrity, though he also said that Roberts will be examined by the Senate and he would not make a prediction on his confirmation. On CNN, Tribe said that he is clearly more conservative than O'Connor, but he is also not a red-meat conservative.

Profiles:

Jeffrey Rosen has written a great column explaining why liberals should support the Roberts nomination.

Washington Post profile

Slate profile

New York Times profile

Harvard Crimson profile

Law.com profile

Jeffrey Rosen has described Roberts as a "principled conservative" who seems to respect and apply precedent, as opposed to a conservative activist who wants to impose a specific constitutional theory. Rosen says, "All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament."

Alliance for Justice profile opposing the nomination of Roberts to the appeals court

Townhall.com - Liberals might take comfort in this poll on this conservative web site in which John Roberts only received 1% of the votes, while right-wing darling Janice Rogers Brown pulled 49%.

Reactions to the Selection:

Bill Kristol praises the pick, particularly Bush's willingness to ignore political correctness and identity politics by picking a white male. Kristol also states, "It's true that Roberts is a Rehnquist, not a Scalia or a Thomas. He'll be a little more incremental, a little more cautious, than some of us rabid constitutionalists will sometimes like."

Fred Barnes explains why Roberts was a safe pick that satisfied social conservatives but didn't leave them jumping for joy. Barnes argues there's little chance of Barnes becoming another Souter, but Roberts appears to be a "cautious" and "establishment" conservative as opposed to a "bold" judicial conservative with a "streak of daring."

"He's the type of person that business conservatives and judicial-restraint conservatives will like but the social conservatives may not like. What the social conservatives want is someone who will overturn Roe. v. Wade and change the court's direction on privacy. But he represents the Washington establishment. These Washington establishment people are not revolutionaries, and they're not out to shake up constitutional law. They might make course corrections, but they're not trying to sail the boat to a different port." - John C. Yoo, a conservative professor of law at University of California at Berkeley who served in the Justice Department in the current administration

Liberals might be happy to hear that right wing loudmouth Ann Coulter is not happy with the selection of Roberts. As expected, Coulter's rant includes some obnoxious blasts, some funny, some not. She also ridicules Bush and the conservatives expressing support for Roberts, so for a change she's taking shots at everyone.

INTEREST GROUPS:

JudgeRoberts.com - Pro Roberts web site by conservative group.

MoveOn.org - This liberal group already has a petition opposing his nomination. This is probably not a great idea for Dems - the choice could have been much worse.

Comments, questions and suggestions can be sent to Gerardo Orlando at editor@orlandoreport.com.

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