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' opinion 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 -- having told the Senate Judiciary Committee in 2003 ``I think I'd have to say that I don't have an overarching, uniform philosophy."Randy Barnett, Boston University law professor:
...My guess? He upholds Roe, purely for reasons of precedent. And very quietly.
But what sort of Justice will Judge Roberts make? I have no idea. I have never met him, so all I have to go on is his public record--a record of enormous accomplishment. But so far as I know, we know nothing about what he stands for apart from the fact that he is undoubtedly politically conservative. Is he an originalist? We don't know. Is he a majoritarian conservative like Robert Bork? We don't know. Would he find any limits on the enumerated powers of Congress? We don't know. Would he have ruled with the majority in Kelo? We don't know.He who has ears, let him hear. Because conservative (and evangelical leaders) were stepping over each other in their rush to proclaim Roberts the Best Nominee in the History of Civilization, it's not likely you are going to get an honest reappraisal of him now that we've had a few days for the silly euphoria to wear off. They committed themselves to him based on nothing more than a few years of service to Ronald Reagan and some assurances that Roberts is smart and nice, and would look foolish backtracking now.
What is important is not that we don't know, but why we don't know any of this or anything else about the sort of justice that John Roberts will be, other than a very smart one. I am not concerned with his policy preferences, which I assume, from all accounts, are generally conservative, but with how he thinks a Supreme Court justice should go about interpreting a written constitution. In his distinguished career, he has somehow managed not to give a speech or write an article that reveals the core of his judicial philosophy. As a result, we simply have no idea what to expect from him other than "well-crafted" opinions, and are unlikely to find out. Perhaps some previously expressed view will emerge from the confirmation process. If so, I very much look forward to reading it.
...Should Judge Roberts be confirmed? From what I now know, absolutely. He is well within the range of Presidential picks that are entitled to Senate confirmation. This was the President's choice to make, after all, not mine. But with someone like Judge McConnell we would have known what we were getting, for better or worse. With Judge Roberts, we can only sit and wait...and hope for the best.
But when they tell you that Roberts is just the kind of nominee we've been waiting for, a strict constructionist who will not legislate from the bench, ask them one simple question: "Oh really? How do you know that? What makes you say that?"
The disturbing thing is--they have no answer. Seriously. Try it yourself. All they're doing is keeping their fingers crossed, just like you and I.