“That’s fabulous!” – Justice Sandra Day O’Connor, responding to the news of her possible replacement.
IN GENERAL: The one person I go to for reliable and sound information on judicial matters is my old friend, Jeffrey Rosen. His instincts are more geared toward liberal judicial restraint than mine are, but his judgment is almost always reliable. Here’s his full take on John Roberts:
Top of his class at Harvard Law School and a former law clerk for Rehnquist, Roberts is one of the most impressive appellate lawyers around today. Liberal groups object to the fact that, in 1990, as a deputy solicitor general, Roberts signed a brief in a case involving abortion-financing that called, in a footnote, for Roe v. Wade to be overturned. But it would be absurd to Bork him for this: Overturning Roe was the Bush administration’s position at the time, and Roberts, as an advocate, also represented liberal positions, arguing in favor of affirmative action, against broad protections for property rights, and on behalf of prisoners’ rights. In little more than a year on the bench, he has won the respect of his liberal and conservative colleagues but has not had enough cases to develop a clear record on questions involving the Constitution in Exile.
On the positive side, Roberts joined Judge Merrick Garland’s opinion allowing a former employee to sue the Washington Metropolitan Area Transit Authority for disability discrimination. He pointedly declined to join the unsettling dissent of Judge David Sentelle, a partisan of the Constitution in Exile, who argued that Congress had no power to condition the receipt of federal transportation funds on the Metro’s willingness to waive its immunity from lawsuits. In another case, however, Roberts joined Sentelle in questioning whether the Endangered Species Act is constitutional under Congress’s power to regulate interstate commerce. The regulation in question prevented developers from building on private lands in order to protect a rare species of toad, and Roberts noted with deadpan wit that “the hapless toad … for reasons of its own, lives its entire life in California,” and therefore could not affect interstate commerce. Nevertheless, Roberts appears willing to draw sensible lines: He said that he might be willing to sustain the constitutionality of the Endangered Species Act on other grounds. All in all, an extremely able lawyer whose committed conservatism seems to be leavened by a judicious temperament.
Right now, Roberts seems to me to be an extremely shrewd and defensible pick: federalist in instinct, prosaic in judgment, factually-astute, a conservative defender of judicial restraint. If a re-elected Republican president cannot get such a man confirmed, something has gone terribly wrong with the system. Obviously, we all have to wait for the hearings and any new revelations before making up our minds definitively. But I’d say it’s inspired for being so uninspired, which is a pretty good definition of political conservatism at its best.
The Dish 