Roberts the Technocrat

Roberts is certainly very impressive. He’s bright, articulate, appropriately humbled by his role, and seems to understand the constitutional structure. But I think conservatives may be too gleeful in their enthusiasm for Roberts. Most seem to think he’s a Trojan Horse who betrayed his real conservative ideas through the penumbras of his Reagan White House memos. But this is no measure of a man.

The atmosphere of the Reagan White House encouraged such expressions of conservatism in everything one did; it was not an act of great courage to knock Title IX, Roe v. Wade, or Congressional prerogatives in the Regan White House's Office of Legal Counsel. Roberts himself admitted as much in his answers yesterday, pointing to the likelihood that he'd be as strong an advocate of legislative rights if he were on a legislative staff.

I don't mean to say he's not qualified.

If the Supreme Court were a purely technical job, he certainly would be. But what he really thinks and how'd really proceed is very much a mystery, and there is no longer a technocratic ideal of a good justice that is completely beyond politics. That is, to adopt the older, technocratic ideal of judicial restraint is to mark onself as an extreme conservative. At best, such indifference to the raging debates on judicial philosophy suggests that Roberts has sat by idly in the face of sustained conservative criticisms of the Court's ever-expanding role. It's one thing to advocate for the humble judiciary when you're an appellate judge; that's their ordained role by virtue of their subordinate relation to the Supreme Court. But armed with life tenure, and a technocrat's failure to develop a coherent judicial philosophy, conservatives should the fear that the natural jealousy of the judicial branch will fill the void to the detriment of conservative concerns for the separation of powers.

This is a phenomenon we've seen with judges appointed by both political parties, with the notable exceptions of Rhenquist, Scalia, and Thomas.

Roberts is the technocrat par excellence, a lawyer's lawyer, who can advocate for anything and anybody. He has risen to great heights by being bright and checking off all of the appropriate boxes, e.g., Harvard, the right clerkships, stints in the Republican administartions. But who is he? What is his philosophy? Is he nothing more than a chamelon, propelled by laser-like ambition. I do not begrudge the Democrats for asking what he thinks about different judicial principles, and I think the post-Bork refusal of nominees to defend the conservative judicial philosophy forthrightly is a shame. Roberts' inscruitable answers exemplify this trend of "hide the ball." What is there to be ashamed of? Conservatives are crudely portrayed to be "results oriented" in elections and in the media. In the controlled atmosphere of a confirmation hearing, are we worried that our true selves explained in detail will not be accepted by the American people and its elected delegates? The conservative judicial philosophy, properly explained, likely would have many adherents especially in the middle, as it is ultimately a philosophy of judicial restraint. Restraint for judges means power for the political branches of government and empowerment of the people. It means a deliberate refusal by the Court to involve itself in many matters. Stating this restrained philosophy means infuriating liberals, most of whom have little regard for institutional division as an important consideration under their "realist" philosophy. It means a Justice must give up individual power. It seems strange that unless one were somehow corrupted by the prevailing liberal ethos, that one would not have earlier expressed this philosophy to the rage of liberals simply by dint of honesty.

While conservatives watch Roberts the technocrat do circles around the dullards on the Senate Judiciary Committee, they should be concerned that they do not know how Roberts will rule when he's faced with the Machiavellian moments that come before the Court. Only then, with this farcical process having failed to accomplish anything of substance, will we know who Robert is. To our delight or regret, we cannot now say.

Posted by at September 14, 2005 6:44 PM
Comment #80588

I have to agree with those who see these types of hearings as a sham.

We have this bunch of Senators (and I blame members of both parties for this) who know that they’re on television, and preening narcissists that they are, refuse to give up any their questioning time to actually ask questions. After all, if they did, then camera might pan away from THEM. Members of all parties should find this display embarrassing.

And then we’ve got an appointee who can’t answer questions because doing so would get him crucified by either one side or the other. Who of us, whether liberal or conservative, wouldn’t do the same as Roberts in such an unwinnable position?

Having said that, I have to disagree with Chris’s assessement that Roberts is not a known quantity. Unlike other conservative appointees who’ve drifted left or even flipped once on the court, Roberts has very deep and personal ties to successive Republican administrations. They know him very very well. And as for the topic of abortion, I find it telling that his own wife is an outspoken pro-life activist.

A major reason that so many left-wingers sense that Roberts may not be really that conservative derives from their own stereotypes about conservatives. They see a well-spoken, highly intelligent man and think that he can’t really be conservative.

As I see it, every time Roberts says that a judge’s duty is to interpret the law and not make it, he is taking a HIGHLY conservative position, one radically different from what the left sees as the function of the courts.

Posted by: sanger at September 14, 2005 10:57 PM
Comment #80591

Putting aside the absolute mind numbing abuse of phrases like “Judicial activism”, “legislating from the bench”, or the word “borking”, let me ask you guys a question: what kind of country do you think you live in?

We have years worth of legal precedent, and many laws covering certain subjects in many jurisdictions, all of which have their tendencies to come into conflict with one another from time to time. You guys think this is simple? You think you can just read the law and make a good decision? There’s too much interaction, too much conflict, too much precedent to decide between, and your wonderful legislatures aren’t doing crap to make that any easier.

There’s a reason why we call the ability to make good decisions on complex matters “judgment” There is a such thing as excessive interpretation. But there is also a such thing as excessive determinism and legalism.

The damn shame of it is that Republicans are so intent on legislating the liberalism out of America that they’re becoming like the worst stereotype of their political rivals. They don’t know when to stop. Power is an addictive drug, and the past few years, they’ve been taking an overdose.

Posted by: Stephen Daugherty at September 14, 2005 11:53 PM
Comment #80593

Stephen, we see Senators like Feinstein, Schumer and Kennedy repeatedly trying to draw Roberts AWAY from his strict reliance on legal precedent and the cold hard facts of law and get him talking instead about his EMOTIONAL reactions to various topics. This speaks volumes about how they regard the role of the courts.

Look at Feinstein telling him to stop talking legal mumbo jumbo and start emoting on how he would “feel” about an end-of-life experience within his family. This represents typical liberal thinking about the courts—they want judges who will ignore the law in service of personal judgement about a “higher good” (which to them, means a liberal agenda).

I grant that some of the Republicans tried to do the same thing on at least one occasion—and they were equally wrong to do so.

Now, I would agree that there is such a thing as a higher good that’s not always enshrined in law. But it’s not the judiciary’s role to decide when that’s happening. It is the role of the people to decide what that higher goal is, directly or through their elected representatives.

The left’s continued failure to win elections is exactly why the courts are so important to them. The courts, on a host of issues (see the recent property rights case as just on example), are the left’s last remaining means of overruling the popular will.

Posted by: sanger at September 15, 2005 12:22 AM
Comment #80596

Finally an article with conservative backing that isn’t BS good job

Posted by: Rhonda at September 15, 2005 12:45 AM
Comment #80597

Chris said: ” But what he really thinks and how’d really proceed is very much a mystery…”

Not a mystery to GW Bush and Republican leadership. Anyone who thinks Bush did not vet this candidate indirectly through minions, does not understand how politics in D.C. works. Want to know what Robert’s values and beliefs are, simply look to GW Bush. Roberts may not agree with Bush on every issue, but it is a sure bet, what they do agree on far outnumbers the items they don’t agree on.

Posted by: David R. Remer at September 15, 2005 12:54 AM
Comment #80598

As for the dullards in the Senate remark, it was an absurd remark. There is a tremendous amount of intelligence and experience at work on the Judiciary committee and I was enlightened by the questions and soliloquies proferred by Senators both right and left.

I do agree with Chris, the hearings are a waste of time for the public as they will not learn from the hearings how Roberts will rule on any given case before him. But, the confirmation hearings do serve the Constituiton as to the advice and consent role of the Senate, and adherence to our Constituiton is NEVER a waste of time.

Posted by: David R. Remer at September 15, 2005 12:59 AM
Comment #80601

This is a good time for everyone to see there elected officials in action. The average citizen will probably see them all as big windbags.
Biden has been especially entertaining.

Posted by: dawn at September 15, 2005 8:37 AM
Comment #80605

This is a satire on the Supreme Court.

Is this SCROTUS?
My name is Ian Bob. I’m the new head honcho here. Get the alien johns around and bring out the first case. We’ll drink it and move on.

OK. The first case is Smith v. Jones
Set the timer and I’ll drop the puck. We’ll skate around on this one and come up with something.

Alright the next one is US v. THEM.
We’ll punt, pass and kick this one around for awhile. Someone will come up with something.

And last is Roe v. Egg.
There will be a jump ball, then some dribbling around until someone takes a shot.

OK! The results are in!

In Smith v. Jones the arguments were pretty much a toss-up. So there was a series of coin flips. Smith got 5 out of 9 and declared the winner.

In US v. THEM, the THEMS had all their ducks in a row and pretty much said and did the right thing. But just for the heck of it the US won 9-0.

Now in Roe v. Egg everything was pretty much the same on both sides. Was it Roe? or Was it Egg? This one was sent back to the minor leagues for somebody to get it right.

Well, that’s the end of this session.
We’ll be back sometime soon. We’ll drink from some new cases.
Wow, this stuff is intoxicating!

Posted by: tom at September 15, 2005 9:01 AM
Comment #80608

Chris, excellent post. Thanks for the insight.

Posted by: Dennis at September 15, 2005 9:22 AM
Comment #80613

Judgment in a court is about more than than simply interpreting the law, or making logical cases. It’s about applying the law to real life, which is complicated and unpredictable.

I just watched this guy explain to Patrick Leahy that a person wronged in a medicare case should not be able to sue the state or federal government, because the law didn’t explicitly say they could. Watching him, and listening to him argue, it seemed to me that he had no care for whether the contract between the people and their government was honored. He had no care for what came of that decision (he was overruled 9-0) His only care was playing the game.

We don’t put judges on there to read out some kind of napoleonic code where anything not explicitly said is out of the question. We have a common law system where legislation interacts with legal precedent and judicial review. The law is not some dead set of regulations that we can reprogram like a malfunctioning computer. It is a living system meant to deal with a living society.

More than that, it is geared to serve the welfare and the wellbeing of society. If the only thing the courts seek is to argue the logics of legalese, without a sense of justice or compassion attached to decisions, then we will get…

…much what we have now. Today’s legal system is the result of law interpreted without concern for common sense or social consequence. The fact of the matter is, by appointing Roberts, we are essentially appointing a bureaucrat little different than the one turning away supplies on the Gulf Coast, a person more concerned about the letter of the law than its meaning and import. This is not the kind of person we need leading the court.

Posted by: Stephen Daugherty at September 15, 2005 9:45 AM
Comment #80688

Daugherty, the idea that we need a justice who will promote his own vague ideas about justice is silly and undemocratic.

Take your medicare point. There are good reasons to have sovereign immunity in this context and others, not least because the rest of us foot the bill when people sue the government in a manner that’s impossible ex ante to figure out exposure. That’s why there is an ideal of “blind justice,” considerations of human sympathy should not get in the way of good policy, any more than considerations of other matters like race, birth, etc.

Finally, your common law point is wrong. There is no federal common law and, unlike common law courts, the supreme court is a court of limited jurisdiction concernd with statutes and the mega-statute, the Constitution. The words define the meaning of these documents and the limits of the judicial role. Unlike common law courts, they cannot imagine a new cause of action or read in a new right to the constitution. Unlike common law courts, and for good reason, they’re limited in this regard because bad common law decisions can be easily undone by statute unlike bad constitutional law decisions.

Roberts, for all his faults, betrays very little of the sentimentalism or sense of individual superiority that aggrnadizes court power under the aegis of “doing justice.”

Posted by: Roach at September 15, 2005 2:57 PM
Comment #80841


Daugherty, the idea that we need a justice who will promote his own vague ideas about justice is silly and undemocratic.

You’ll have to point out where I wrote about wanting judges to have vague ideas about justice. My thoughts were that they have quite a strong sense of justice, wisdom and compassion, enacted consistent with the law under reasonable interpretations.

I don’t buy the strict interpretation notion as the Republicans offer it.

My reasons are as follows:

1)Laws conflict and interact. Disputes must be settled, and if we’re too literal about it, we’ll be cooking up some serious trouble as the lawyers turn the mixer on and switch it to high. The interpretations must bridge those laws, and operate in a space of jurisprudence that goes beyond what the laws by themselves would create.

2)Law is language, and language is malleable. This doesn’t merely mean that people can stretch what a “strict” interpretation is, it also means they can come up with their own meaning for what strict interpretation is, and be entirely sincere and honest in selling it as strict. In short, you can’t guarantee any sort of hermetic sealing of the law against interpretations that move past what was originally intended.

3)Even if you can establish the intentions of those putting forward a law, those intentions can be counter or irrelevant to the laws current application, made so by time and change of context for other laws and policies.

4)Sticking strictly to the letter of the law does not always produce the most ideal circumstances. Interpretation needs some range, some breathing room, because the real world is not necessarily going to let whatever legislation is passed be carried out in its ideal fashion.

It’s important to note here how sparse and vague most of the Constitution’s arrangements of things. Aside from a few structural specifics, so many issues are either kicked out of contention altogether, or simply left vague. The court system as we know it, in fact, is the result of legislation as provided for by the constitution, not anything spelled out in the text.

It’s important to note that so many other countries make the mistake of going into specifics on their constitution.

The intent of the constitution is to act as a sort of meta-law, a legal code about how laws are made and carried out. Those meta-laws are supposed to be then in turned tied to higher values, values you would have us ignore in trying to make the constitution and other laws airtight, an impossible task, as I’ve said.

Posted by: Stephen Daugherty at September 16, 2005 12:05 AM
Comment #80872


Rule of law serves commerce, the relationship between citizen and government, and freedoms/rights which are not to be violated. A strict constructionist regard for the Constitution would result in many areas of our nation operating lawlessly. Racial civil and voting rights, and laws targeting organized crime could never have come to pass under a strict constructionist view of the Constitution which says if it wasn’t there in the first place, it should never be there, let each state deal with it.

Organized crime and corruption would love nothing better than each state being left to their own jurisdictions to try to prosecute a mobile crime organization. And the KKK would love nothing better than an all white state from which to launch their terrorism into other states, safe from the federal government’s reach due to a strict constructionist view of the Constitution. The end result of strict constructionist Sup. Ct.s would be many areas of our society operating lawlessly and rendering authorities impotent against forces which would capitalize on the weakness of strict constructionist rule.

Posted by: David R. Remer at September 16, 2005 6:49 AM
Comment #80893

Daugherty ignores that each branch has a separate role, and it is the legislature’s role to adjust to the times, take the pulse of the people, deal with new and changing circumstance, and address lacunae and other shortcomings of statutes and the Constitution.

David, I disagree with your interpretaton. To the extent corruption crosses state lines and interstate commerce, it can be addressed by federal criminal law. This is the essence of federal criminal law, going back to the Mann Act. As for racial discrimination, Congress is explicitly authorized to address that under Section 5 of the 14th and 15th Amendments and has done so since the Civil Rights Act of 1866. On the other hand, Congress is not authorized to legislate for every good policy that pops into its collective head. Our national government is one of limited powers, and the Court is the most limited of the bunch.

I find it interesting that the most vociferous proponents of democracy—every vote should count—routinely knock the American people and want the wise justices to save us from ourselves by moving society along the right path to counterbalance the putative shortcomings of the people, even without a textual mandate.

Interpreting laws as written and limiting the judicial role to the text of the laws is the primary way to limit judicial power. It prevents them from going off into unknown forays based on idiosyncratic and ever-changing notions of progressive justice. Look at cases like Lochner or Buck v. Bell, the Court has shown itself just as willing to entertain “progressive” views that are now considered reactionary as it is to entertain ideas more to your liking.

Ideally the Court would fade into the background, as it did from say 1866 to 1905, and these issues would be returned to the political branches and the people where they could debate their pros and cons, as we do on so many other areas.

Posted by: Roach at September 16, 2005 10:20 AM
Comment #80918

Roach said: “To the extent corruption crosses state lines and interstate commerce, it can be addressed by federal criminal law.”

Not according to the original Constitution by constructionist interpretation, Roach. Your argument fails utterly on this point since you want to have it both ways. We have a whole range of laws that you would rather live under today because Strict Constructionist interpretation by Sup. Ct. was NOT followed for almost the entire last century. But you now want to sing its praises. That is trying to have it both ways.

Just a tidbit. Did you know the original Constitution was printed up for distribution to the people in two languages? German and English? So much for the founding fathers intent that the U.S. be an English speaking nation.

Are you aware that strict constructionist interpretation of the Constitution must acknowledge that inalienable rights extend only to citizens of the United States born here, born of parents who are citizens here, or born elsewhere and naturalized as citizens here. Hence, fetuses have no inalienable rights under the Constitution since they are not yet born. There are a host of such examples that would send strict constructionists screaming mad, but, I will spare you the agony.

Posted by: David R. Remer at September 16, 2005 12:00 PM
Comment #80959

As an elder citizen I must note that anyone who wishes to “interpret” the Bible or the Constitution is being dishonest.

Words mean what they say, read it as it is and apply it. We need more appliers and fewer interpreters.

Posted by: chris at September 16, 2005 3:34 PM
Comment #80993

Another vote against Roberts, given Roberts insists in the hearings that interpretation is a vital role of any Justice.

Posted by: David R. Remer at September 16, 2005 5:43 PM
Comment #81009

As a writer and a person with a strong interest in linguistics and cognitive sciences, I can tell you that there is no such exactness in any language. It’s very value to us intelligent creatures is the near-infinite malleability of meaning as conveyed by them.

We interpret words from the instant we hear or read them, our brains already crunching through the linguistic information and running things past memory and the other centers of our brains. These give us the conscious impressions many of us mistake for the unmistakeable meaning.

Words are not fixed in stone, but the rather more malleable medium of our minds. Our minds, are subsequently shaped by our experience of language, and by the reality of the world around us. Point is, it is wisdom, intelligence, and attention to the details of the world around us that gives us the best perspective on the world, and those things are determined not by the closeness of the real world to words, but the words to the real world.

Interpretation ties the sense of what is written to the rest of the world as we see it. That is why nearly all religious services include not only rites and readings, but also sermons and homilies. That is why in almost every complex society, there is somebody or some group of people whose job it is to arbitrate the law, and interpret it for others. Otherwise, it’s just dead characters on the page.

Posted by: Stephen Daugherty at September 16, 2005 6:25 PM
Comment #81094
As a writer and a person with a strong interest in linguistics and cognitive sciences, I can tell you that there is no such exactness in any language.

That’s a good point, Stephen. I mean, look at our Constitution. One example:

“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President”

Does that mean the Vice President becomes President, or merely that the Vice President discharges the powers and duties of the President? If the latter, do you hold another Presidential election immediately?

Two hundred years later, Congress had to add an amendment to make things clear:

“In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.”

It’s almost impossible to literally interpret every aspect of the Constitution. Our founding fathers deliberately made it vague.

Posted by: American Pundit at September 17, 2005 10:01 AM
Comment #81096

Chris, good post.

I think the post-Bork refusal of nominees to defend the conservative judicial philosophy forthrightly is a shame… In the controlled atmosphere of a confirmation hearing, are we worried that our true selves explained in detail will not be accepted by the American people and its elected delegates?

I totally agree. I think it’s pretty damaging that the Republican leadership is always hiding what they do — and usually saying the opposite of what they do.

The American people expected genuine debate. Yet Republicans limited floor discussion on one of the most dramatic changes to Medicare in its history to a mere two hours. Two hours. And this behavior was not limited and confined to the vote on Medicare. For some reason, and I think it should be obvious what it is, the Republicans insist on having votes that are of great import to the American people, where they are clearly on the wrong side of the issue, taken in the middle of the night.

On a Friday in March at 2:54 a.m., the House cut veterans benefits by three votes. At 2:39 a.m. on a Friday in April, House Republicans slashed education and health care by five votes. At 1:56 a.m. on a Friday in May, the House passed a leave no millionaire behind tax cut bill by a handful of votes. And at 3:38 a.m. on a Friday in June, the House GOP passed a Medicare privatization and prescription drug bill by one vote. At 12:57 a.m. on a Friday in July, the House passed a Head Start bill by one single vote, and that Head Start bill was to undermine and unravel a very successful Head Start initiative. And then after returning from a summer recess, at 12:12 a.m. on Friday in October, the House voted $87 billion for Iraq, an issue that Democrats and Republicans were on both sides of the issue, as were the American people. They deserve to hear the debate in the light of day.

Posted by: American Pundit at September 17, 2005 10:06 AM
Comment #81227

Open Letter in response to Howard Dean Op-Ed:

He’s the wrong man at the wrong time for our country.
Really? Why?

John Roberts may have a sharp legal mind, but his record shows that he lacks a sense of justice.
Really? Thought you complained that you don’t know his record. You – Howard Dean – say that Judge Roberts lacks a sense of justice. That’s it? No facts?

Roberts has spent a career using the law to protect corporate interests and roll back the rights that protect us all.
Really? A lawyer - using the law – image that. Thank heaven for those corporate interests because people own/work for corporations, ya know. Don’t know exactly what rights he rolled back – could it be the rights of criminals over victims?

Roberts, Rove, DeLay and the rest of the extremist Republican leadership all have the same problem. They abuse their power by pursuing ideological crusades —
…Hold it – stop the tape and precisely explain how Frank Lautenberg got into office…Continue..-

And they ignore the real problems we face as a country and as a community.
Yeah, Right – let’s edit to read – Dean, Pulosi, Kennedy, Biden, Reed and the rest of the extremist Democratic leadership all have the same problem. They abuse their power by pursuing ideological crusades — and they ignore the real problems we face as a country and as a community.

Our rights — and the rights of the most vulnerable in our society — are in danger. They are in danger from those who actively seek to roll them back, and they are in danger from those in positions of leadership who don’t understand how important it is to protect the rights of every American.
Really? Sorry, a general statement with no substance or proof is simply verbosity.

We have learned enough from the files on Roberts at the Reagan Library to make it clear that he should be rejected.
I (simply) doubt that 100%.

The consistent mark of Roberts’ career is a lack of commitment to making the Constitution’s promise of equal protection a reality for all Americans, particularly the most vulnerable in our society. He has opposed laws protecting the rights of girls and young women to have the same opportunities in sports as boys and young men. He has argued that politicians, not individual women themselves, ought to control women’s reproductive health care. He has opposed various remedies for the racial injustices which have occurred in America since slavery and which persist today. He has consistently joined the radical right in seeking to weaken voting rights protections, in essence attacking the rights of black and Hispanic voters to cast their ballot without paying poll taxes or being subjected to intimidation or gerrymandering. He fought against protecting all Americans from workplace discrimination. Most worrisome, he refused to answer questions on his limited view of the right to personal privacy that most Americans take for granted.
Really? It is my bet that Judge Roberts would make you eat those words in a debate on each item.

Now is not the time for a Chief Justice who is bent on turning back the progress we have made in moving America forward. This is a time for justice tempered with mercy and understanding. There is no evidence of either in Judge Roberts’s career.
“Bent on turning back the progress”… Howard Dean is FOS.

Posted by: kitstopher at September 18, 2005 6:59 AM
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