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Jewish World Review Sept. 15, 2005 / 11 Elul, 5765 Roberts the Elder: John Roberts has an understated personality, but his record will be all torpedo By Jonathan Turley
http://www.JewishWorldReview.com |
As John Roberts sits down before the Senate Judiciary
Committee this week, its members will be searching to better
understand the man who would become the 17th chief justice of
the United States. If history is any guide, they will learn
little about who John Roberts is and even less about who John
Roberts will become. The problem with confirmation hearings
is that, even with a forthcoming nominee, they offer only a
snapshot of a jurist before he or she enters the rarified and
mind-altering world of the country's highest court.
Senators have learned that a strange metamorphosis can occur
in the walk over the east Capitol lawn to the Supreme Court
building. In that short expanse, reliable conservatives have
been known to transform into raging liberals, and vice versa.
Senators will, therefore, struggle with the need to know the
unknowable: To paraphrase the Beatles, "Will you still need
me, will you still please me, when you are 64?"
Only 50, Roberts will be assuming the position of Chief
Justice as a relative puppy among his older colleagues. As a
result, Roberts could be on the court for decades. Oliver
Wendell Holmes served until he was 90; current associate
justice John Paul Stevens will be 86 in October. Indeed, if
Roberts stays on past 84, he could surpass the 34-year tenure
of the great John Marshall as chief justice.
Predicting what Roberts will look like as a jurist at 64 or
84 is no easy task. The usual bachelor's method for seeing
the future effects of aging-checking out the mother-is hardly
available here. Traditional forms of divination are equally
unavailing. Oneiromancy (the divination of dreams) requires
disclosure of Roberts's dreams, which would immediately be
claimed as privileged by the White House counsel's office.
Physiognomy (divination by the appearance of the face) would
also come up blank. Since he was nominated, Roberts has
adopted a perfectly Buddha-like appearance that denies any
hint of emotion or recognition. Even goat entrails would
trigger widespread protests from animal rights activists
before anyone could read them.
This leaves perhaps the most historically unreliable method:
predicting the future by studying the mosaic of past
statements, opinions, and memoranda from the nominee. Past
confirmations offer little assurance that any such prediction
would rate above a random selection. History, including
recent history, is replete with cases of mistaken identity.
Consider but a few:
Earl Warren: President Dwight D. Eisenhower appointed Warren
as a reliable conservative. After all, as the Republican
governor of California during World War II, Warren supported
the internment of Japanese Americans and maintained a tough-
on-crime posture. He went on to lead perhaps the most liberal
court in the history of the country.
William J. Brennan: Eisenhower appointed Brennan as a
conservative Democrat. After all, Brennan had worked as a
lawyer at the Pentagon, lobbied as a lawyer against pro-labor
laws and regulations, and been put on the New Jersey Supreme
Court by a fellow Republican. He became arguably the most
liberal justice of the 20th century-and the second of what
Eisenhower called his two biggest mistakes as president,
Warren being the other.
Byron White: President John F. Kennedy had only one
nomination during his presidency, and he picked his brother
Robert Kennedy's trusted deputy attorney general, Byron
White. White turned out conservative on most issues,
dissenting in Roe v. Wade and upholding anti-sodomy statutes
directed at homosexuals.
Harry Blackmun: President Richard Nixon thought he had
appointed a tough conservative from Minnesota in Harry
Blackmun, as did most commentators. Indeed, Blackmun was
called one-half of the Minnesota Twins with conservative
chief justice Warren Burger. He went on to write Roe v. Wade
and to join the left wing of the Court.
John Paul Stevens: President Ford looked to Court of Appeals
judge John Paul Stevens to move the Court to the right. After
all, Stevens was viewed as at least a moderate conservative
and his opinions seemed to confirm that view. But after his
more famous colleagues Brennan, Marshall, and Blackmun left
the bench, Stevens would become the patriarch of the Court's
left wing.
Sandra Day O'Connor: President Ronald Reagan wanted two
things in a nominee: a reliable conservative and a woman. His
aides identified a little-known former state legislator from
Arizona, Sandra Day O'Connor, as just the ticket. She became
a continual thorn in the side of conservatives, the swing
vote that repeatedly blocked her more conservative colleagues
in areas like abortion and affirmative action.
David Souter: When it came time for the first George Bush to
nominate a justice, his chief of staff, John Sununu, said he
had hit a "home run" for conservatives in a little-known New
Hampshire jurist named David Souter. It turned out to be a
foul ball for the right as Souter quickly assumed a position
on the Court's left wing.
When White House lawyers tell scary stories to their children
at night, these are the dark characters that fuel the horror.
Indeed, these experiences are so raw and so recent that it is
ludicrous to suggest the White House is taking another blind
leap of faith with John Roberts. To the contrary, Roberts is
only unknown by design.
Most of the cases of mistaken identity above have a fairly
common denominator: The nominee did not have a well-
articulated judicial philosophy before joining the bench.
Notably, justices like Blackmun, Brennan, White, Stevens, and
O'Connor moved only gradually to the opposite wing of the
Court, as they developed their own approaches to the law.
Indeed, Sandra Day O'Connor never truly found a consistent
philosophy and remained a legislator at heart, dictating the
outcome of cases without much concern for either consistency
or principle.
Roberts is no Sandra Day O'Connor — and that is to his credit.
Like many young lawyers in the Reagan years, he entered the
law with a clear conservative mission. He cut his teeth as a
clerk for William Rehnquist and then as a government attorney
in the Reagan administration. He has held consistent and
profoundly conservative views for decades. In this sense, he
is more like his mentor Rehnquist as well as Antonin Scalia
and Ruth Bader Ginsburg. They all came to the Court after
years of advocacy marked by well-articulated legal views.
Roberts is likely to change the Court, but the Court is
unlikely to change Roberts.
Reporters and commentators have been poring over 50,000 pages
of documents from Roberts's career-seeking to find the true
John Roberts. In the meantime, the White House has organized
a phalanx of conservative lawyers to pounce on anyone who
suggests they've found evidence of his actual views. This
version of Where's Waldo? has been the rage in Washington.
Whenever an extreme statement is found, like Roberts
dismissing the "so-called right to privacy," these advocates
insist that Roberts was merely representing a client or
voicing the view of the administration. Indeed, some
designated hitters make revealingly premature efforts to
squelch certain touchy subjects. For example, after I wrote a
column about Roberts's known views in various areas,
Professor Ron Rotunda published a scathing letter denouncing
me for stating that "Roberts must be against equal rights for
women." The only problem is that my column never referred to
equal rights for women. It was like a driver spontaneously
denying a murder when a cop pulls him over for speeding.
The hair-trigger responses from people like Rotunda reflect a
desire to keep Roberts an anonymous nominee. Rather than
declare what Roberts believes, the White House simply denies
that any given statement is proof of his views. So long as
Roberts does not answer questions, the Republican majority
will carry him to the Court. When he was nominated, Roberts
was virtually shown the chalk outline of the body of Robert
Bork on Capitol Hill for an example of what happens to those
who are open with senators about their views.
We do not need, however, to have an unscripted and cathartic
moment from Roberts during the hearing to understand his
philosophy. Unless Roberts abandons a lifetime of advocacy,
his record gives a good basis for predicting his future on
the Court. A review of major legal areas shows a jurist who
is likely to have few, if any, colleagues to his right on the
Court. Indeed, if you shave off Bob Bork's Mephistopheles
beard and give him a few Botox injections, you have John
Roberts. He is proof that politics remains primarily visual.
Roberts is a handsome, perfectly groomed man who looks like
he was raised hydroponically by Karl Rove in the White House
basement.
Roberts, I believe, is superbly qualified to be chief
justice. I do not want to see him "borked," and indeed favor
some of the doctrinal changes that he may bring. However, I
also believe that the attempt to field an anonymous nominee
is bad for the system and reduces confirmation to a pretense
of process. After decades of 5-4 decisions, a breathtaking
number of doctrines hang by a single vote. Roberts should be
confirmed in an open and deliberative process, not some
version of constitutional three-card monte.
I happen to like much about Roberts and, when I imagine the
future, I expect to like him even more in the role of chief
justice.
Roberts the Elder could well become a lasting icon for the
Court, much respected by his colleagues and the public for
his demeanor and style. Where Rehnquist could be slightly
prickly in public, Roberts is engaging and open. He lacks the
pomposity of Warren Burger and yet holds an obvious and deep
affection for the Court as an institution.
The elder John Roberts — say, in 25 years — should be much like
the younger John Roberts today, just as Rehnquist, Scalia,
and Ginsburg remained largely unchanged with time. He is
unlikely to transform as did O'Connor or Blackmun.
As for his voting record, I doubt it will be as understated
as his personality. He will be Bill Rehnquist with the stable
conservative majority that Rehnquist always wanted but failed
to achieve. In this sense, I expect liberals will come to
loathe Roberts for his views while liking him for his
personality. Roberts should be able to finish the revolutions
started by Rehnquist and bring the Court back to a more
narrow view of the Constitution and the role of the federal
government. For example, on abortion, Roberts will vote to
narrow Roe v. Wade and might even vote to overturn the
decision entirely. The only reason he would not vote to upend
Roe would be out of a sense of judicial restraint, and only
after the doctrine had been pruned to its barest essentials.
This is precisely what Rehnquist did with Miranda: By the
time Rehnquist preserved Miranda as a constitutional rule he
had created so many exceptions that it was a mere shadow of
its former self.
If Roberts is true to his past, Roe might not be around when
he turns 64. During the Reagan administration, Roberts argued
for the appointment of pro-life judges and supported a
memorial service for aborted fetuses as "an entirely
appropriate means of calling attention to the abortion
tragedy." He has referred to Roe as "wrongly decided" and
based on "the so-called right to privacy."
Roberts the Elder will likely be known as the chief justice
who curtailed affirmative action and narrowed the scope of
anti-discrimination laws. He has repeatedly and consistently
railed against racial and gender preferences. As an attorney,
Roberts co-authored briefs against court desegregation plans
and opposed set-aside programs for minority contractors. In
1995 he said, "You don't overcome racism by engaging in it
yourself." He has also criticized efforts to
require "comparable worth" wages for women as a "radical
redistributive concept." He criticized congressional women
seeking such language as adopting a view of "From each
according to his ability, to each according to her gender."
Roberts also made controversial statements in 1985 (which he
is likely to retract in his hearings) that "some might
question whether encouraging homemakers to become lawyers
contributes to the common good, but I suppose that is for the
judges to decide."
He is also likely to be known as a chief who held the line on
citizen and prisoner lawsuits. In 1981, he advocated greater
challenges on standing to keep some groups out of court and
more recently praised opinions that barred environmentalists
from suing to protect animals outside of the country. The
true Roberts was probably captured in a 1993 law review
article when he denounced past public interest litigation as
demanding judicial review "at the behest of any John Q.
Public who happens to be interested."
And Roberts the Elder will likely maintain, if not expand,
the federalism revolution led by Rehnquist, striking down any
statutes that encroach on states' rights or usurp state
authority. This is likely to include a fairly harsh record on
environmental statutes. His past litigation, writings, and
opinions reveal a fairly antagonistic view of environmental
interests, including a strident dissent in an Endangered
Species Act case that questioned the very application of such
environmental laws to the states.
Finally, in 25 years, the Roberts Court is likely to
refashion the meaning of the religion clauses in favor of a
greater accommodation of religion. On issues like school
prayer and the Ten Commandments, Roberts may have the voting
bloc to rewrite and clarify the rules for the separation of
church and state. Indeed, Roberts has described the courts as
hostile to religion in school cases and has stated that the
position of the courts that the Constitution prohibits a
moment of silence "or even silent prayer" is "indefensible."
Roberts wasn't nominated to be passive or deferential. Since
his earliest years as a clerk, he was almost engineered for
this moment. Once O'Connor has been replaced by a reliable
conservative, Roberts could become a live torpedo in a harbor
crowded with 5-4 doctrines — the result of decades of stagnant
division that may now be coming to an end. Anywhere Roberts
turns as chief justice, he will find cases that can now be
reshaped in a more conservative image. Even with a respect
for precedent, Roberts was not trained, groomed, and
nominated to let this moment pass.
Of course, the fun thing about predicting how things will be
in 25 years is that few people will remember to look me up
when Roberts receives the ACLU award for lifetime
achievement. What should be clear is that the senators have
about as much chance of uncovering the true John Roberts as
they do of digging up the true Jimmy Hoffa. Short of Congress
passing out totem animals and divining rods, John Roberts
will be confirmed as a jurist known only to G-d and the White
House counsel.
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JWR contributor Jonathan Turley is a law professor at George Washington University. Click here to visit his website. Comment by clicking here. © 2005, Jonathan Turley |
Arnold Ahlert | |||||||||||
