Bush's advisors are clever. (It goes without saying that the alleged President did not pick the nominee.) In nominating Judge John G. Roberts of the U.S. Court of Appeals for the D.C. Circuit, they have picked someone it will be very hard to oppose in a way that would be explicable to the "man on the street," or even "the lawyer on the street." (Professor Balkin's comments are apt.) Judge Roberts has excellent academic credentials. He has excellent practice experience, and is, by all accounts, a gifted oral advocate. He was confirmed overwhelmingly to the Court of Appeals not long ago, which means that many current Senators have voted for him already and, at the same time, he has very little paper record since he has not been a judge very long. Most of the purportedly tangible evidence of his far right ideology (and here) consists of positions he took as an advocate for others, not as a judge or a scholar or a commentator on legal affairs, where he would have clearly been speaking in his own voice.
Yet the somewhat less tangible evidence that this is a quite conservative nominee is rather powerful, far more powerful than any of the evidence on Associate Justice David Souter of the Supreme Court, who has turned out to be far more liberal than many on the right had hoped at the time of his nomination nearly fifteen years ago. Roberts's work as an attorney in both the Reagan and Bush I Administrations, his involvement with the Federalist Society and the right-wing National Center for Law and the Public Interest, are all part of the pedigree of a real conservative lawyer these days, and Justice Souter had nothing comparable in his past (at least not that I can recall, perhaps someone will correct me). Perhaps this is why the Christian Coalition quickly jumped on board the nomination the night it was announced? Contrary to the nonsense we will hear over and over again in the coming weeks, any judge on the highest court of the land will be called upon to make moral and political judgments; and someone as skilled an appellate advocate as Judge Roberts will be able to find the legal arguments to support the moral and political conclusions he wants to reach in those instances. His professional background strongly suggests those conclusions will be "conservative" in some sense of that term.
I'm skeptical, then, that Judge Roberts will turn out to be a Justice Souter, as some on the far right fear with respect to any nominee whose ideological bona fides have not been vetted by the secret police. The best hope--and this tells us a lot about the condition of America today--may be that he will be a Justice Scalia and not a Justice Thomas. (This informed observer, though, thinks he will be more like Chief Justice Rehnquist, for whom he clerked. [This equally informed observer agrees.] And this article compares him, even more alarmingly, to Judge Luttig of the reactionary Fourth Circuit.) Justice Scalia is a smart ideologue, as opposed to a dull-witted one, and he does not carry the heavy psychological baggage of profound self-doubt and seething resentment. One suspects Judge Roberts is similar, though we do not know whether he is quite the purist about constitutional interpretation and judicial role (a purist without a justification for the purism, alas) that Justice Scalia has proven to be, traits that usually explain Justice Scalia's "liberal" decisions in some cases.
Right now in America, abortion must rank as one of the lesser issues of constitutional moment, which says more about what is at stake in America today than about the importance of abortion rights to hundreds of thousands of women facing unwanted pregnancies. When the President of the United States claims the authority to spirit citizens away to military brigs without judicial oversight of his conduct--an authority dear to the heart of every authoritarian history--it is not trivial that Justice Thomas was willing to uphold that authority while Justice Scalia took a more sensible and assertive position than several of the liberals and moderates. If Roberts is a Scalia rather than a Thomas, that may mean there will still be a judicial bulwark against the closted (and not-so-closeted) authoritarians in our midst. (Judge Roberts, though, did recently join a unanimous opinion finding that Guantanamo detainees have no rights under the Geneva Convention, but the legal issues there were rather different than in the Hamdi case.)
I have an anecdotal sense that judges and justices of lesser intellectual ability are more inclined to do the bidding of those who appointed them. Like all hypotheses based on anecdotes, this may prove to be nonsense. The respective performances of Justices Scalia and Thomas on the U.S. Supreme Court are among the relevant anecdotes; so too the performances of, for example, Judges Easterbrook and Posner on the Seventh Circuit compared to some of the right-wing mediocrities on the Fourth and Fifth Circuits, who shall remain nameless. But if, on the off chance my anecdotal sense is correct, then an Associate Justice Roberts of the U.S. Supreme Court may still sometimes side with the values of freedom and democracy against the encroachments of grinning apologists for tyranny. That is about the most optimistic diagnosis I can muster, though I can not, on the evidence before us, offer it with confidence.
Of course, he should not be confirmed. He should not be confirmed because on a range of issues the U.S. Supreme Court is unavoidably a super-legislature, and one should not vote to confirm someone whose moral and political views are, on many of these issues, likely to be depraved and repellent. (If we had meaningful confirmation hearings, we would find out what those moral and political views actually are in some detail. Recall the remarks of Judge Posner.) But this honest discussion will not be had in America in the year 2005, so there is no point in dwelling on it.
UPDATE: This is also informative as to Judge Roberts's work on the D.C. Circuit.
AND ANOTHER: Robert Gordon (Law, Yale) also has apt observations on the nominee and the nomination.
AND ONE MORE: More thoughts and predictions from Jack Balkin (Law, Yale)--plausible, and worrisome--especially his assessment of Judge Roberts's approach to questions of executive power.
AND YET ANOTHER: This commentary makes some points worth quoting:
The United States long ago ceased to be anything like a living, thriving republic. But it retained the legal form of a republic, and that counted for something: as long as the legal form still existed, even as a gutted shell, there was hope it might be filled again one day with substance.
But now the very legal structures of the Republic are being dismantled. The principle of arbitrary rule by an autocratic leader is being openly established, through a series of unchallenged executive orders, perverse Justice Department rulings and court decisions by sycophantic judges who defer to power - not law - in their determinations. What we are witnessing is the creation of a "Commander-in-Chief State," where the form and pressure of law no longer apply to the president and his designated agents. The rights of individuals are no longer inalienable, nor are their persons inviolable; all depends on the good will of the Commander, the military autocrat.
George W. Bush has granted himself the power to declare anyone on earth - including any American citizen - an "enemy combatant," for any reason he sees fit. He can render them up to torture, he can imprison them for life, he can even have them killed, all without charges, with no burden of proof, no standards of evidence, no legislative oversight, no appeal, no judicial process whatsoever except those that he himself deigns to construct, with whatever limitations he cares to impose. Nor can he ever be prosecuted for any order he issues, however criminal; in the new American system laid out by Bush's legal minions, the Commander is sacrosanct, beyond the reach of any law or constitution.
This is not hyperbole. It is simply the reality of the United States today. The principle of unrestricted presidential power is now being codified into law and incorporated into the institutional structures of the state, as Deep Blade Journal reports in an excellent compendium of recent outrages against liberty.
For example, on July 15, a panel of federal appellate court judges upheld Bush's sovereign right to dispose of [non-citizen] "enemy combatants" any way he pleases, the Washington Post reports. In a chilling decision, the judges ruled that the Commander's arbitrarily designated "enemies" are non-persons: neither the Geneva Conventions nor American military and domestic law apply to such garbage. Bush is now free to subject any [non-citizen] he likes to the "military tribunal" system he has concocted - a brutal sham that some top retired military officials have denounced as a "kangaroo court" that will be used by tyrants around the world to "hide their oppression under U.S. precedent."
One of the kowtowing jurists on the appeals panel was none other than John G. Roberts. Four days after he affirmed Bush's autocratic powers, Roberts was duly awarded with a nomination to the Supreme Court. Now he will be sitting in final judgment on this case - and any other challenges to Bush's peremptory commands. This is what is known, in the tyrant trade, as "a safe pair of hands."
AND YET ANOTHER UPDATE/CORRECTION: Despite the initial press reports, it turns out Judge Roberts is not, and has not been, a member of the Federalist Society. Now, of course, we can all breathe easy...or maybe not.
AND ANOTHER: This is informative on the subject of Justice Roberts's moral sensibility.