John Roberts is obviously a brilliant lawyer with a history of attachment to conservative administrations. On constitutional matters, however, he is a tabula rasa. He’s been an advocate advancing his clients’ opinions and interests. That tells us little. And in just two years as a circuit court judge he’s made no great, or even important, pronouncements. Nor does Roberts have significant speeches or law review articles to his name. If he has a judicial philosophy, we don’t know it. Nor does he…[quoting Roberts DCA hearing as I did above]

. . .

[Observing five paragraphs in the Aroyyo case, where Roberts appears to want to limit the commerce clause to interstate commerce alone, Krathammer continues:]

This is a thin reed on which to hang a constitutional philosophy. But it’s about all we’ve got. Does this portend a justice who will demolish the underpinnings of the regulatory state and seven decades of commerce clause precedent?

Who knows? But I doubt it. Remember, in the most recent commerce clause review, the California marijuana case, even Antonin Scalia, no enemy of the wrecking ball, refused to follow Clarence Thomas in using the case to undermine the very expansive modern interpretation of the commerce clause.

And Roberts is no Scalia. I think.

. . .

[But simultaneously, Roberts is unlikely to go on a pragmatist's odyssey like O'Conner.] My guess? He upholds Roe, purely for reasons of precedent. And very quietly.

http://www.washingtonpost.com/wp-dyn/content/article/2005/07/21/AR2005072102187.html?nav=hcmodule

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Neither a Scalia nor an O’Conner will Roberts be. Thus, to conservatives and libertarians alike, Roberts is no prize. He’s likely to be a technocratic conservative, more interested in the constitutional law as an end in itself than a bulwark for liberty.

This fits with the estimate of liberal historian at Emory University, David Garrow. No change: Roberts is neither a Thomas nor a Scalia, he averred.

He won’t take the 9th and 10th Amendmends seriously and prune back the commerce clause as any constiutional patriot would. Instead, he’ll simply uphold the statist status quo. No cause of broad principles will animate or ruffle him. Roberts will function as an indifference curve against securing our liberties – the ones the Founders envisioned – and thus cypher rationales for our further capitulation to overweening agressive statism of the past 70 years. (Yawn.)

And therfore even the Philosopher-King himself, an advocate for unlimited New Deal state powers (see Tom G Palmer’s review of his latest book http://www.nationalreview.com/books/palmer200503011045.asp) , University of Chicago Law’s Cass Sunstein, has endorsed Roberts for SCOTUS. When a “conservative” makes your enemies happy, you really ought to wonder.

What we have here is a serious, brilliant man lacking any serious vision for liberty. Bush seriously blew it.

1. ” In a perfect world you and I might have picked somebody other then Roberts.”

You mean when the Republican party has a majority in the Senate?

2. “Given that you rather vocally left the Republican party (several times now if I’m not mistaken) why should anyone care about whether you are assured or not?”

Actually I left the Republican party once. I joined once, about 25 or so years ago, and left it a few weeks ago. And quite frankly I’m much happier for it as I can view the impending implosion of the Republican party with a bit of detachment and quite a bit of amusement.

*shrug* frankly I couldn’t care less whether you care or not. I’m just pointing out that a great many people are going to look like complete a**holes if Roberts shifts leftward. And the current track record on Supreme Court nominees with no solid philosophy is pretty much 100% in the wrong.

GW’s Orin Kerr posted it thusly:

Everyone has reported that Roberts is one. Now, it runs out, he isn’t. THIS is bad news to those dismissing Coulter.

The Washington Post reports that John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been.

††This part of the story is particularly funny:

††Upon reflection, some Federalist Society members conceded that they had never actually seen Roberts at meet-and-greets such as the society’s annual black-tie dinner.

††“That’s a good question, let me think. Now that you mention it ó no,” was former Bush Justice Department official Viet Dinh’s response when asked if he had ever spotted Roberts at any Federalist events.

- – - – - -

SO where is everyone’s confidence in Roberts now?

†

As a pro-choice libertarian, Randy Barnett comes first. But I’m well aware of how removed from originalist roots Roe was! I’m very open to kicking it back to the states as pro-lifers would do. Thus, Edith Clement Jones (or have I screwed up her name?) from Lousiana would have pleased me, as would Janice Rogers Brown (see her Catholic University commencement address http://www.constitution.org/col/jrb/03524_jrb_cua.htm) – in fact, anyone in the Thomas mold.

Thomas is my favorite sitting Justice – but then, we knew what we were getting (see his interview http://reason.com/cthomasint.shtml). Scalia comes close – but again, like O’Conner, I’m convinced he’d rather conserve the warped statist prerogatives to our overlords and masters that the overweening progressives leave us, rather than stake out truely originalist legal grounds. Refusal to “legislate from the bench” without the Framers vision means forever upholding the 20th century socialism they never imagined. As Kelo showed, Scalia defers to legislators powers that the Founders found odious.

In short, ANYONE with a vision of the constitution as a bulwark for the people’s liberty and against unlimited government. Nily willy, Roberts just might have this. However, I have no reason except blind assurances to believe it.

As Ann Coulter and Randy Barnett put it, if you’ve got political control of three branches of government and you can’t confidently put a known partisan for American liberty to sit among its guardians, then what is leadership of the Republican relignment achieving? Rearranging the deck chair on the Titanic! – I’m underwhelmed by such pussies.

The Founders vision requires bravery that the Bushies now clearly lack. Perhaps we’re no longer worthy of their legacy and deserve to lose it.

Were you there, too? Damn, with all that covert stuff going on one cannot even recognize oneís friends!

This year I am going wear a fedora. If all Rogerís acolytes do the same we will not be able to miss one other, even in disguise.

“I’m not assured that Roberts won’t be another O’Connor or Souter or Stevens or Kennedy.”

Given that you rather vocally left the Republican party (several times now if I’m not mistaken) why should anyone care about whether you are assured or not?

You don’t get a say, ed. Bugger off.

In a perfect world you and I might have picked somebody other then Roberts. But from everything I can see, the way he has led his life, the staunch conservatives that are backing him, his family. and even the french fries case, I believe that Rogers is a conservative and a judge who will not succomb to the desire to legislate.

You poo poo the politics of the Roberts nomination but to think any President,right, left or middle, can ignore the reality of political considerations is to pretend that this is a perfect world with perfect people. Bush will have 1 to 3 more picks. The nature of his political power at this moment is a real factor that can not be ignored. The best and the most frustrating part of our political system is that we do not have a king who can just dictate what he wants. It’s great because dictatorships and monarchy’s are unstable and unjust. It’s frusrating because the ugly political dance that any leader has to go thru leads to less then perfect solutions sometimes.

It would do no good to put up someone that would not get approved. Bork was a dissaster. not because he was a bad judge. But because his nomination process was not looked at in a realistic way. it failed , and then led to an horrible substitute because the Presidents power was diminished in the atempt.

Ugly fact. The gang of 14 pulled limited what Bush could do. McCain and Graham screwed Bush and Frist bungled the first attempt to remove the filibuster. That sucked. Bush is just dealing with the facts, not what you and I might hope for.

Bush is not perfect. I don’t like his immigration policy and I hated the medicare medicine policy program.20/20 hindsight shows that there has been errors in the prosecution of the war. what a shock! a war with mistakes, that has never happened before. But I do admire how he has stayed the course with the Iraq war when he could pull out and score temporary political points. I don’t think Bush is a poll driven, finger to the wind Clinton clone. If Scalia was President with a filibuster proof majority then SCOTUS nominations would be easy. Bush does not have that. You could be right. But I believe that he wants the same type of judge that you do. Roberts is a well known by people who are close to him. Many of them are strict construtionists. Getting his first nomination thru is vital.

Kevin Peters

@ KarmiCommunist

1. “3) Roberts is currently a member of the Federalist Society…”

Actually, according to CaptainsQuartersBlog and the WAPO, he is NOT a member of the Federalist Society.

link

2. “Did you notice the list mentioned in that “club”? Obviously not, so i suggest that you stop holding yore breath whilst waiting. Also, in yore current condition, you should avoid eating fish and chicken.”

Man I feel for you KarmiCommunist. You must feel like a complete idiot. Don’t worry, in a few days nobody’ll ever remember.

That’s probably one of the best things about blogs. Then again there’s always Google, so everybody has to take their chances I guess.

I wouldn’t worry about it, but I’d suggest doing your own primary research. Newspapers are ok, but they’re not always reliable.

“What Bush and many conservatives have wanted from the Supreme Court is a court that would look to the Constitution and not legislate.”

Well I frankly agree with that statement. My primary issue with Roberts is that I’m not at all assured that this is what Roberts will do. I’m not assured that Roberts won’t be another O’Connor or Souter or Stevens or Kennedy.

The only thing that makes Roberts a candidate is that he’ll have an easier time getting through the minority Democrats in the senate.

Frankly that’s pretty pathetic for a majority party to value so highly.

What Bush and many conservatives have wanted from the Supreme Court is a court that would look to the Constitution and not legislate. What you seem to want is a court that legislates, just from a conservative point of view. By taking that attitude you create a court that will be in a constant legislative battle without being held up for eletion. That is exactly what many conservatives want to get away from because it is unstable and not democratic. That is what we have now with a liberal spin.

I am pro life. Any court case can be revisited. It should be done rarely but for anyone to argue otherwise would have to say that the slavery laws couldn’t be revisited. Roe v Wade was the classic case of legislating from the bench. Many pro-choice lawyers admit that it was poorly done. But I don’t want it overturned without proper legal and constitutional methods behind it. If we get into the I don’t like the law, I, as a supreme court member, will change it we are doing the same thing that conservatives accuse the left of doing. SCOTUS should not be a super legislator, right or left.

If Roe v Wade is overturned all it will do is give it back to the states. 90% of the states will keep abortion legal. I live in California and abortion was legal 3 years before RvW. If the court had not decided to impose abortion on the States more then likely the vast majority of the country would have voted it in and all this rancor would not have happened.

I am pro-life and I don’t think that my views should be shut out of the system anymore then someone who is for gay marriage should be told not to try to get their felow citizens to vote for what they believe in because they are in the minority today. But it should be done from the ballot box, not imposed by the SCOTUS.

Kevin Peters