Are you now or have you ever been?
It is striking how little of John Roberts's thoughts on issues of concern to conservatives can fairly be deduced from his public commitments or comments. When President Bush named him on Tuesday night, the first thing I did was look at the news reports to ascertain whether he was a member of the Federalist Society or actively involved with it in any way. It was important to me as a kind of benchmark, and I knew it would be important to the McCarthyite left of the "are you now or have you ever been?" persuasion.
Several reports said that he was, but yesterday the Washington Post ran a correction quoting Judge Roberts saying he "doesn't recall" ever having been a member of the Federalist Society. Yesterday the Post followed up with a separate story on the subject reporting that Judge Roberts acknowledges having spoken at Federalist Society forums. The "don't recall" formulation seems odd, as does the lack of an affiliation with the organization. Today Charles Krauthammer characterizes Judge Roberts as a "tabula rasa."
I think the estimable Dr. Krauthammer goes too far. Reader Heather Thomas has kindly sent us this link to a PBS News Hour 1997 interview with Judge Roberts, Laurence Tribe and others on the Supreme Court's 1996-97 term. Read the interview for the full context, but here is a juicy tidbit. Margaret Warner asks Roberts if the Court's assisted-suicide decision reflected the Court's awareness of the limitations of the judicial branch:
MARGARET WARNER: Wouldn’t you say also that in the physician-assisted suicide they were acknowledging their own limitations--Take it for what it's worth, but this seems to me to suggest that Judge Roberts is far from a blank slate on the important constitutional issues that concern us and that will occupy him as a justice.JOHN ROBERTS: Well, they were acknowledging their limitations, but I think it’s important not to have too narrow a view of protecting personal rights. The right that was protected in the assisted suicide case was the right of the people through their legislatures to articulate their own views on the policies that should apply in those cases of terminating life and not to have the court interfering in those policy decisions. That’s an important right as well.
In his Daily Standard column today, Bill Kristol reports a powerful anecdote involving Roberts and an unusually introspective left-wing attorney who served as a summer clerk working for Roberts at Hogan and Hartson. Scouring the Web for comments on Roberts, Kristol reports:
One of the most interesting comments came from a lawyer in his mid-30s, Brad Joondeph, on the liberal website thinkprogress.org. Joondeph describes his experience as a summer associate at Hogan & Hartson 12 years ago, when John Roberts was his official "mentor." He recalls of Roberts that "he could not have been nicer, more gracious, more encouraging. He offered mentoring advice to a snot-nosed, 24-year-old law student as if it were the most important part of his job." Then Joondeph tells this anecdote:I wish we had more to go on, but I agree with Judge Roberts's former summer clerk. "My best guess" is that Judge Roberts is one of us."After returning to Stanford that fall, I was lucky enough to have my student note published in the Stanford Law Review. It was a rather presumptuous and self-righteous critique of the Supreme Court's decision in Freeman v. Pitts, a school desegregation case from DeKalb County, Georgia. I argued that the Court was pulling the rug out from under Brown v. Board of Education by prematurely ending court-ordered desegregation remedies. As deputy solicitor general in the first Bush administration, Roberts had actually argued the Freeman case as amicus in support of the school district. I therefore (again, fairly presumptuously) sent him my note, in which I contended that, well, Roberts had been all wrong.
"A few weeks later, I received a two-page letter in response. Roberts wrote that the note was well researched and well written. (I was thrilled at the time, but I would now strongly disagree.) But he also offered a thoughtful critique of my analysis that was several paragraphs in length. This was more feedback than I had received from my professors in law school.
"So I have nothing but a profound sense of respect for John Roberts: for his integrity, his intelligence, his humility, and his genuine human decency.
"All of that said, my best guess is that he would be a very conservative justice. And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive's worst case scenario."
Joondeph concludes, "So all of this leaves me quite conflicted."
Not us. It leaves us pleased by the Roberts nomination, proud of President Bush, and looking forward both to the nomination fight and to John Roberts's joining the Supreme Court.
DEACON adds: I agree, although to some extent this depends on what the meaning of "us" is.
SCOTT clarifies: In this context, I define "us" as meaning "likely to vote on constitutional issues in league with my ideal Supreme Court Justice -- Clarence Thomas -- more than 80 percent of the time."
