Roberts Comes Off As No Conservative in Scalia-Thomas Mold

Posted September 14, 2005 at 4:31pm

It’s about as certain as anything that John Roberts will be the next chief justice of the United States, but it’s anything but certain where he’ll come out ideologically.

That should be encouraging to moderates and liberals and discouraging to conservatives, who expected President Bush to appoint a justice in the mold of Justices Antonin Scalia and Clarence Thomas, whose views are seldom in doubt.[IMGCAP(1)]

Liberal interest groups and Democratic Senators ought to be using the standard Sen. Charles Schumer (D-N.Y.) applied to Roberts: If he’s not an “extremist” conservative and “out of the mainstream,” he ought to be confirmed.

If that’s the test, Roberts surely passed it, judging by his early performance before the Senate Judiciary Committee. But the interest groups and, apparently, the main body of committee Democrats, still seem set to oppose him.

If a majority of Senate Democrats follow their lead, assuming no damning evidence surfaces before a confirmation vote, it will brand the party as ideologically driven and out of the mainstream itself.

Polls show that Roberts has made a highly favorable impression with the public. And both his history and performance more than fulfill the traditional requirements of a Supreme Court justice: intelligence, fair-mindedness, a judicial temperament and the respect of his professional colleagues.

Roberts specifically declared that he would not bring an “overarching philosophy” to the court and would “look at cases from the ground up rather than the top down.”

He said he is a “modest judge” who will interpret law and not make it, who values precedent, who respects the views of his colleagues and who will not allow his personal opinions to sway his judgments.

Roberts may be a conservative, but he’s not a rigid, big-C conservative ideologue. And, assuming he’s being honest, he’s not going to be the activist hoped for by the right and feared by the left.

Roberts’ memos from the Reagan era do suggest a smart-alecky conservative possibly on his way to big-C status, as in his reference to a “so-called right of privacy” in the Constitution.

But Roberts is now 20-plus years older, and he went out of his way to inform the committee that he admires the late Justice Robert H. Jackson, once Franklin D. Roosevelt’s attorney general, who changed his mind as he changed his job.

It’s also a good sign of Roberts’ maturity and open-mindedness that he told students at Wake Forest Law School in February that he’s found being a federal appeals court judge far harder than he had anticipated.

“I kind of thought that in most of the cases, it would be pretty obvious … that this person should lose, this person should win and you’d spend most of your time writing opinions,” he said.

“I’ve found that I have to spend more time than I thought just getting to the first step — what the right answer should be,” he said. “It’s not at all unusual to have one view when you finish reading the briefs, a different view when you sit down with your clerks, another after oral arguments and you’re back to a different view after the conference [with other judges].

“Then as you go through the writing process, you come up with either the original view, a third view or the second view.” Can anyone imagine Justices Thomas or Scalia not knowing from the get-go how he’ll rule?

When asked by a student several months before he was nominated who his favorite justices were, he did not name Scalia and Thomas — Bush’s favorites — but rather Jackson, Felix Frankfurter, John Marshall Harlan, William Brennan and his mentor, William Rehnquist.

And it’s just conceivable that Roberts might end up a justice ideologically more in the mold of Anthony Kennedy, a swing conservative, than even Rehnquist.

Kennedy wrote the court’s plurality opinion in the 1992 Planned Parenthood v. Casey case, upholding Roe v. Wade, and sided with liberals in striking down state laws discriminating against gays.

Kennedy also voted with conservatives on some states’ rights and capital punishment cases and on Bush v. Gore after the 2000 election. Roberts disagrees with Kennedy’s frequent crediting of foreign precedents, but he seems to share Kennedy’s open-mindedness.

Roberts rigorously refused to forecast his views on possibly pending cases, but he did indicate strongly that he’s no automatic vote to overturn Roe, as right-wingers expect from a Bush appointee.

In answer to searching questions from Judiciary Chairman Arlen Specter (R-Pa.), Roberts demonstrated strong respect for the doctrine of stare decisis — that is, following precedent. Specter said that Roe had been revisited by the court in 38 cases since 1972 without being reversed.

Roberts concurred that breaking precedent constitutes “a jolt to the legal system” and that “it’s not enough that you might think the precedent is flawed to justify revisiting it.”

He certainly cited theoretical grounds for revisiting precedents — such as unworkability or erosion of the precedent — but right-wingers are expecting a reversal on the mere grounds that the case was “wrongly decided” to begin with.

Roberts also departed from the right-wing line by saying that “the right to privacy is protected under the Constitution in various ways” and that “the court — in a series of decisions going back 80 years — has recognized that personal privacy is a component of the liberty protected by the due process clause.”

A right of privacy was a key basis for the Roe decision, and big-C conservatives routinely say it’s nowhere to be found in the Constitution, much as Roberts did back in 1981.

In response to Roberts’ first-day testimony, a coalition of liberal groups, Independentcourt.org, put out a press release accusing him of moving “from dodging to dishonest.”

Judiciary Committee Democrats issued a joint statement saying that Roberts “didn’t answer questions.” Sen. Joseph Biden (D-Del.) practically shouted, “You’ve told us nothing,” because Roberts wouldn’t disclose his personal feelings about life and death.

But, assuming he’s not dissembling, Roberts has in fact told Congress a lot: that he’s fully qualified to be chief justice, that he’ll look at cases fairly and without prejudgment and that he’s no ideologue.

Democrats have no way to block him, since the “Gang of 14” agreement takes the filibuster out of play. They have a decision: Let him through and concentrate on Bush’s next appointee, or oppose him and brand themselves as mere agents of their interest groups.