(Over)thinking about Judge Roberts

Ann Coulter is not the only smart conservative who wonders whether John Roberts is “one of us.” As Scott noted below, Charles Krauthammmer has called Roberts a blank slate. And the astute blogger PoliPundit fears that President Bush has blown the pick.
There are two issues here: (1) is Roberts a conservative and (2) if so, what kind (and how solid) of a conservative jurist will he be. The first issue corresponds to the question, might Roberts be another Souter. The second corresponds roughly to the question, might he be another Powell/O’Connor/Kennedy. The answers, I will argue, are “no” and “probably not.”
I’m not aware of any one thing (for example, a ten-year judicial track record) that conclusively demonstrates Roberts’ conservatism. But many indicators point that way, and none points to a contrary conclusion. Some examples: Roberts’ law school contemporaries (two of whom I know) say he was a conservative at that time. He went on to clerk for a conservative Justice, William Rehnquist. Then he served in two Republican administrations. Why would an attorney spurn high paying opportunities in private practice to work for conservative presidents alongside folks like Ted Olson, Ken Starr, and Hugh Hewitt if he were not conservative? And if he were not conservative, wouldn’t his colleagues figure this out? It is correct to say that Roberts did not necessarily agree with a given position he took in a given legal brief on behalf of the government. However, he must have agreed with most of them or he wouldn’t have stayed. And, as the Washington Post reported on Thursday, some of the memos he wrote while in government take solidly conservative positions (in one case a more conservative position than Olson had taken). Excerpts from the memos clearly show a conservative turn of mind. So do a number of his judicial opinions. If John Roberts is another David Souter, he should have been a con artist, not a lawyer.
But what kind of conservative is he? More specifically, does he hold a conservative theory of law? One can be a conservative and not hold such a theory — instinct, character, and a mixture of various strands of conservative thinking can be sufficient. For example, I doubt that I possess a single, coherent theory of law. It’s difficult to develop and hold one as an ordinary practitioner focused entirely on finding the argument that wins the case. Roberts was not an ordinary practitioner; he dealt with the type of issues that can serve as the springboard to a unified theory of law. But he was still a litigator concerned about getting the win. And, if I recall correctly, he testified at his appeals court confirmation hearing that he lacked a single theory of constitutional interpretation.
Is it desirable for a conservative to have a theory of law? I think so, which is why Michael Luttig was my first choice. For one thing, a theory of law probably increases the likelihood of voting to overturn bad precedent (unless the theory holds precedent in particularly high regard). In addition, a theory of the law can be a defense against “growing in office.” As one ages, instincts and predispositions often change. It can become more difficult, as a grandparent, to vote against the french fry girl. Holding a firm theory of law — an ideology, as some would have it — increases the likelihood of resisting mushy thinking as one ages.
But this hardly means that, in the event that Roberts lacks a theory of law, he will become O’Connor or Kennedy. The Chief Justice doesn’t seem to have held any such single theory and he has remained conservative. And, like Rehnquist, Roberts is an intellectual. If his conservatism is well-rooted intellectually, then it probably can be counted on for the duration even if it’s based on a mixture of strands of thought. The decisions and memos we know about don’t show him to be any more sentimental, at this point anyway, than if he were an avowed originalist. Finally, to the extent that Justices grow in office due to the allure of social Washington, there seems to be little danger that Roberts will fall victim. As we have seen this week, he’s already established his status here.
In sum: Is Roberts a conservative? Yes, surely. Does he hold a single theory of law that is conservative? Maybe. Would it be better if we knew that he held such a theory? Yes. If it turns out that he doesn’t, does that mean he will not be a reliable conservative Justice over the long haul. Not necessarily, and in Roberts’ case probably not.
SCOTT adds: Two articles in the new Weekly Standard in turn address the questions Paul has laid out. For more on (1), see Fred Barnes’s article: “Souter-phobia.” For more on (2), see Terry Eastland’s article: “Reading Roberts’s mind.”


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