Demagogue

A few random observations on Judge John Roberts, President Bush's nominee for the Supreme Court.

• Whatever else is said about him in coming weeks, you will not hear any knowledgeable person question his ability or intelligence. He is one of the outstanding appellate advocates of his generation.
• He is not a fire-breather, and he is ready for prime time. Bork was a disaster on television at his hearings. Michael Luttig of the Fourth Circuit would be a disaster on television. Roberts will be smooth, respectful, and not too pompous.
• His record regarding the social hot-button issues--abortion, church/state relationship, etc.--is quite sparse. He was a Deputy Solicitor General in the first Bush administration, which means that he argued many touchy issues on behalf of the government. But I would hesitate to ascribe to him personally the things that were written in the government's briefs in the cases he argued, or even the things that he said himself in oral argument. He was a lawyer acting for a client, arguing what the administration's policy was whether or not he agreed with it. He was not the Solicitor General, and he was not a policy-maker. If the administration chose in Rust v. Sullivan to argue that Roe should be overruled, that was a decision made above his pay grade.
• If Roberts is confirmed, four of the nine Justices--and three of the last four appointed--will have come from the D.C. Circuit (the others being Scalia, Thomas, and Ginsburg). That circuit also had two other failed nominees in the 1980s (Douglas Ginsburg and Robert Bork). I used to clerk there, and I generally think highly of the judges on that court, both liberal and conservative (with exactly two exceptions). But, historically, the D.C. Circuit was not a feeder of judges to the Supreme Court--it had a few, including two Chief Justices, but not a disproportionate number. The increased use of the D.C. Circuit as a farm team for the Supreme Court reflects, I think, the increased importance of administrative law cases and other cases that involve the inner workings of the federal government. The only nominee of the last four (including Roberts) who did not come from the D.C. Circuit was Breyer, and he had been a professor of administrative law and one of the country's leading scholars on the subject.
• One of the hottest issues regarding the operation of the federal government has been the extent to which the courts should limit the federal government's regulatory powers. And that is where I think liberals need to be worried about Roberts: would he vote to strike down federal laws, particularly those involving the environment, the regulation of corporate power, and civil rights? His dissent in the Rancho Viejo case a couple of years ago will become a focal point of efforts to stop the nomination, if liberal groups choose to make such an effort. In that case, he argued, or at least implied, that the Endangered Species Act was unconstitutional to the extent that it protected species whose habitat does not cross state boundaries. Although the religious right seems reasonably happy with Roberts, I think the big winner of the intra-GOP struggle over the nominee is the party's corporate/business wing. The U.S. Chamber of Commerce will be pleased with this nomination. Expect Justice Roberts (if he does become Justice Roberts) to tend to take the anti-regulatory view most of the time--which means using judicial power to strike down laws passed by Congress and regulations adopted by federal agencies.
• The view of federal authority taken by Roberts differs notably from that taken by his colleague Judge David Tatel, who also happens to be his former partner at the corporate law firm of Hogan & Hartson, and who also happens to be very smart and a very good judge. Personally, if I could exchange Tatel for Kennedy and Roberts for O'Connor, I'd be pretty happy with the resulting Supreme Court.
• But that's not going to happen. Let's imagine Bush gets to replace Rehnquist and Stevens before his term runs out. If he finds Roberts clones for both slots--50-ish pro-business lawyers who believe in flexing the judiciary's muscles--Congress will be in a straightjacket for decades when it comes to regulating corporate power. And that's the real threat I'm worried about. After the 2006 midterms, given historical patterns and current opinion polls, Bush may have a very tough time getting an overt social conservative through the Senate. But pro-corporate judges won't have much trouble.