Jonathan Adler says John Roberts is the “best available” nominee. John Podhoretz says he is a “boring choice.” So which is it? . . . .
Sorry, I seemed to have fallen asleep. I guess that means Podhoretz is right. John Roberts is who you get when the President finally nominates the “best qualified” candidate. I mean truly best qualified as measured by college and law school degrees (both Harvard), grades (summa, Harvard; Magna, Harvard Law School), clerkships (Friendly, Rehquist), post law school job (Chief Deputy SG), big prestigious law firm job. He is widely reputed to be considered by the Justices themselves as among the very best Supreme Court oral advocates around today. And no one dislikes him.
But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record–a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don’t know. Is he a majoritarian conservative like Robert Bork? We don’t know. Would he find any limits on the enumerated powers of Congress? We don’t know. Would he have ruled with the majority in Kelo? We don’t know.
What is important is not that we don’t know, but why we don’t know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than “well-crafted” opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.
John Roberts appears to be the quintessential A+ student. That means being very smart, working very hard, and generally scoping out what the teacher wants to hear–which includes just the right amount of intellectual disagreement. Indeed, these would seem to be the qualities most desired in a judicial clerk who needs to anticipate and articulate the views if his judge, a Deputy SG who needs to voice the views of the administration, a Supreme Court advocate who needs to figure out what the justices want to hear while making his client’s case, and an appellate judge who is trying faithfully to anticipate and follow Congress and the Supreme Court. Add to this what appears to be an admirable personal character and you have the “best qualified” person to sit on the highest court. But what may be missing is a judicial philosophy that will withstand the rigors of decades on the Court.
Am I being too hard on Judge Roberts? Perhaps. But I do know this. Writing an article, giving a speech, or even writing a column or blog about how the Constitution should be interpreted–taking a position, and defending it against all comers–is hard. Not the same kind of hard as standing up to judicial questioning in oral argument, to be sure. Almost completely different, actually. It requires a knowledge of one’s own principles and an ability to articulate them and defend them publicly against contrary views.
This is a type of trial by ordeal that hones one’s beliefs and commitments. Consider it the academic equivalent of briefing and oral argument about one’s judicial philosophy. Even engaging in private debate is no substitute for public disclosure and scrutiny by other scholars. John Roberts has been able somehow to avoid this ordeal throughout a long and distinguished career. This degree of avoidance would seem to have taken effort and discipline.
In contrast, Judge Michael McConnell, to name another conservative, has been through this ordeal. As a law professor, he has had to make such a commitment about judicial philosophy and defend it. When it comes to originalism, he has practiced it himself, and the fruits of his analysis have been subjected to severe academic scrutiny. In doing so, he has earned the respect of his academic adversaries. But because he has a paper trail, McConnell would have had a much tougher confirmation fight, which I imagine entered into the decision to pick Judge Roberts instead.
So we are still ducking and hiding from a debate over how the Constitution should be interpreted, beyond “not legislate from the bench.” Will these questions be asked by the Senators? Maybe, but not likely. Will they be answered by the nominee? Only if asked, and then I expect to get answers that the Senators want to hear, delivered in a calm, cool, articulate and thoughtful manner. In a word, “boring.” I predict no gavel-to-gavel network coverage. Even CNN and Fox News will cut away. C*SPAN will end up having this one all to itself.
Should Judge Roberts be confirmed? From what I now know, absolutely. He is well within the range of Presidential picks that are entitled to Senate confirmation. This was the President’s choice to make, after all, not mine. But with someone like Judge McConnell we would have known what we were getting, for better or worse. With Judge Roberts, we can only sit and wait…and hope for the best.
Update: This post mde the blog round up on MSNBC. You can see it on Political Teen. Thanks!
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