July 19, 2005

The Roberts Nomination

President Bush announced a few minutes ago that he is nominating Judge John G. Roberts, currently sitting on the D.C. Circuit Court of Appeals, to fill the vacancy left on the Supreme Court by the resignation of Justice Sandra Day O'Connor. To be honest, I was a bit surprised by this nomination -- I had already prepared press releases for the nomination of either Judge Edith Brown Clement or Judge Edith Hollan Jones. I guess what they say about "the best laid plans" is true.

My attitude toward Judge Roberts, at the moment, is somewhat ambivalent. On the one hand, we know from his history as a political appointee that he seems to be opposed to affirmative action, that he favors restrictions on the Voting Rights Act, and that he does not favor reproductive choice. On the other hand, Judge Roberts was unanimously confirmed to the D.C. Circuit Court of Appeals, and he was not questioned extensively by the Democratic minority. This implies that while he is conservative -- we could not have expected anything less from President Bush -- he is not quite as conservative as some of President Bush's more controversial appointees, like Judge Janice Rogers Brown and Judge William Pryor. Given Judge Roberts' miniscule paper trail, and given the ambiguous nature of his conservatism, I'm finding it difficult to oppose his nomination at this time.

Put simply, I need to know more. Is he an originalist conservative like Justice Scalia and Justice Thomas? If so, that could be devastating. Is he a "Constitution in Exile" conservative like Judges Brown and Pryor? If so, President Bush can keep it. But is he a traditionalist conservative, like Justice Souter, with respect for judicial precedent? If so, then that's a conservative I can live with. Is he perhaps a bit of a pragmatic conservative, like Justice O'Connor? If so, then this too is a conservative I can live with. The problem in this instance is that he doesn't have a paper trail that one can look at and say, "There you go! He's an originalist" or "Aha! He's a traditionalist." Until I know what his judicial philosophy is, I can't really either support or oppose his nomination to the Supreme Court.

That is, of course, where the confirmation hearings come in. That's why it's so important for both the Republican majority and the Democratic minority to get to ask him questions, and receive his honest answers. It helps them -- and therefore, us -- know what exactly his judicial philosophy is. If he's an originalist, he's probably going to want to overturn Roe v. Wade and other important civil rights precedents, not to mention actual civil rights laws passed by Congress. On the other hand, if he's a traditionalist, we can be confident that rulings like Roe v. Wade and Lawrence v. Texas, and a plethora of others, will probably have his judicial respect even if he doesn't like them personally. This is what we must find out, and that's why he must fully cooperate with the confirmation process. Until that process is underway, I will reserve my judgement.

Update: According to the Associated Press, Judge Roberts' position on reproductive choice is a bit more ambiguous than I thought. As a lawyer for the George H.W. Bush administration, Roberts did help write a brief for a Supreme Court case that said: "We continue to believe that Roe was wrongly decided and should be overruled." However, during his 2003 confirmation hearing for the D.C. District Court of Appeals, when asked about Roe v. Wade, he replied: "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." The way he referred to the Roe precedent, combined with Supreme Court historian David Garrow's statement that Roberts is not a conservative in the mold of Scalia or Thomas and that Garrow doesn't "think it moves the court at all," I'm inclined to believe at this early date that Judge Roberts is a traditionalist conservative with respect for judicial precedent rather than an originalist conservative. Hopefully we'll find out more during the confirmation hearings. (Found this tidbit via David Schrader at Catholics in the Public Square).

For more on the different types of judicial conservatism, I recommend a fascinating post by Lynn Sax (Noli Irritare Leones) on conservative judicial philosophies.