Roberts Nomination For Chief Justice

President Bush said, "I'm certain that Chief Justice Rehnquist was hoping to welcome John Roberts as a colleague, and we're all sorry that day didn't come." It would have been the first time a Supreme Court Justice and his one-time law clerk served together on the Supreme Court. Now, it will be the first time a Justice's clerk succeeds him on the Court. Provided Roberts is confirmed.

There's been a lot of discussion and speculation about John G. Roberts' nomination to the Supreme Court, including on this blog (here, here, here, here, here, here, here, here, and here), and now his opponents are ramping up the dialog after President Bush nominated Roberts for the Chief Justice position. According to the AP, "Democrats, however, said bumping Roberts up to chief justice instead of having him replace O'Connor means tougher scrutiny of Rehnquist's former Supreme Court clerk."

Out of respect for Chief Justice Rehnquist's funeral, the rhetoric was toned down. But by tomorrow, I expect the verbal and written blasts against Roberts to escalate.

When the White House released the boxes of documents related to Roberts' tenure in the White House Legal Counsel's office, people scoured the documents for evidence of how Roberts will perform as a judge. What they found were often amusing documents, recommending that President Reagan not endorse Michael Jackson or recommending that Reagan's name shouldn't be used in a way that appeared to endorse unattractive dinnerware. Not really much that indicated how he would decide cases that might come before the Supreme Court.

The best test of how Roberts will decide cases is to look at the way he has already decided cases during his two-year tenure on the D.C. Circuit Court of Appeals. The United States Justice Foundation--a nonprofit public interest, legal action organization seeking to advance the conservative viewpoint in the judicial arena--has done that analysis. D. Colette Willson, Staff Attorney at USJF has written "A Brief Analysis of Judge John G. Roberts’ Written Opinions During His Two-Year Tenure on the D.C. Circuit Court of Appeals," and it is posted on the USJF website.

By and large, [Roberts' decisions] tend to deal with fairly technical questions of federal law that were undoubtedly intensely interesting to the corporations and individuals coming before the court, but rather mind-numbing for the rest of us. Oddly, however, I kept finding myself getting drawn into the discussion. Who would think the copper smelting process could be so interesting (Sierra Club v. EPA, 353 F.3d 976 (D.C. Cir. 2004)) or stop to consider why we should have a law requiring all television sets on the market to receive digital signals (Consumer Electronics Ass’n v. FCC, 347 F.3d 291 (D.C. Cir. 2003))? Judge Roberts’ opinions are easy to follow, thorough, well-reasoned, and often make for a good read besides. Quite frequently, the opening paragraph of his opinions summarizes the case more succinctly than the synopsis provided by the commercial publisher. And he’s witty.

Willson goes on to give examples of Roberts' wit and his reasoning on cases that show his judicial temperament. She provides plenty of detail, but I found myself reading every bit of it, drawn in just as Willson indicated she was with these cases. Her conclusion:

In the two years he spent on the D.C. Circuit Court of Appeals, Judge Roberts’ opinions have not involved the types of cases raising issues of great concern to fundamental conservatives and people of faith, such as abortion, euthanasia, same-sex marriage, and religious liberty. Nevertheless, based on a review of the manner in which Judge Roberts has approached other types of cases, we believe that if Judge Roberts is confirmed to serve on the United States Supreme Court, he will prove to be a strict constructionist, not a judicial activist, fair-minded and reasonable, with due deference for the separation of powers accorded by the U.S. Constitution. If he is confirmed, we may not always agree with his decisions, but we rest assured he will bring with him neither a conservative nor a liberal bias but, rather, will judge according to the words etched in stone as one enters those halls of justice: Equal Justice Under the Law.


Update:

This article in the Village Voice has me slightly apoplectic. It's based on the same premise as the USJF article, above, in that it looks at Roberts' decisions on the DC Circuit Court.

But it looks at only one case, and the logic in their assessment of Roberts' decisions is so faulty that even I (a mainframe computer programmer, not an attorney) can see the obvious biases and distortions.

The author, Nat Hentoff, uses as his source of analysis of the Hamdan v Rumsfeld case Professor Neal Katyal. This sounds like an impressive, credentialed source, until you read that Katyal is actually the attorney for Gitmo detainee Salim Ahmed Hamdan, who brought the case before the DC Circuit Court and lost. Not surprisingly, Katyal believes this was a bad decision.

Hentoff says of this decision:

The Hamdan decision gave the president (and by precedent, his successors) the unreviewable power—outside the jurisdiction of civilian courts, and what have been up to now the due process protections of military courts—to strip U.S. detainees of the humane Geneva Conventions on the treatment of prisoners. This is an international treaty the United States has ratified—as is the international treaty Covenant Against Torture, which the Bush administration has also violated.

What Hentoff fails to point out is that the Geneva Conventions relate to prisoners of war--people who wear uniforms and/or fight for nations. The detainees are neither, so Geneva doesn't apply. In spite of that, we are treating the detainees humanely.

Hentoff then takes his arguments farther into fever swamp territory, suggesting that Roberts wants to "erase the word 'Treaties' from our Constitution and laws" (Hentoff quotes Jonathan Freiman of Yale Law School here).

Moreover, Katyal told the Supreme Court—quoting a Neil Lewis report in the August 1, 2005, New York Times—that some military prosecutors involved in Hamdan's trial were so concerned it be fair that they have charged that "the chief prosecutor had told his subordinates that members of the military commission that would try the first four defendants (which include Hamdan) would be 'handpicked' to ensure that all would be convicted." (Emphasis added.) But John Roberts has said nothing about that.

Pardon my ignorance, but don't prosecutors choose cases they believe they can win? Yet Katyal and Hentoff see this as sinister, and Hentoff concludes that a Justice John Roberts would seek to establish "unilateral presidential powers."

With arguments like these on the Left, it's a wonder anyone but the moveon.org crowd takes them seriously.