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September 15, 2005
Day 3 Analysis: Who Is That Masked Man?

One of the ethical mandates that any nominee to a judicial appointment must meet is to answer questions in such a way as to avoid any appearance of making commitments to rule in a certain way on any one issue. That preserves the independence of the judiciary as well as the individual jurists, who must approach their cases free of political encumbrances. The founders gave lifetime appointments to federal jurists with this latitude and political independence in mind; otherwise, the bench would fill up with political hacks, and the positions then would require votes and preset terms. The fact that we have calls for that now indeed shows that our politicians have succeeded in their attempts to pervert the process by demanding answers to such questions and openly asking about partisan leanings during hearings.

Have they succeeded in transforming Roberts into a known political quantity? Not according to these competing analyses from the New York Times and Washington Post. The Times editorial today follows Chuck Schumer's idiotic question about where Roberts saw himself on a political spectrum and answers the question that Roberts demurred:

Judge Roberts's record, on the bench and off, puts him well to the right end of the ideological spectrum. As a Reagan administration lawyer, he argued for a very narrow interpretation of the Voting Rights Act. As an appeals court judge, he wrote an opinion in an Endangered Species Act case that suggests he may have a very cramped view of Congress's power. The documents about his past legal work that have become public contain some troubling passages, notably his assertion that abortion rights are based on a "so-called 'right to privacy.'" ...

He did not say he agrees with Roe, for instance, only that it is entitled to deference. That is a truism: all of the court's decisions are entitled to such deference, but some are reversed anyway. Judge Roberts waved away questions about troubling statements in his older legal memos, saying he was just a staff lawyer in his 20's when he wrote them. But he and the White House have refused to release more recent memos, from his time in the Solicitor General's Office, which might give a better picture of his views as a mature lawyer.

In other words, Roberts refused to commit to any particular course of action -- the proper role for a judicial nominee. He talked about process and deliberation, which gives great insight into how he thinks and approaches his responsibilities as a jurist, but he may have just as well talked to a brick wall as far as the Times editorial board goes. They want outcome-based jurisprudence rather than the rule of law -- which Roberts repeatedly denounced over the past two days. The Times makes this clear in their summation, where they endorse the notion that Democrats should fight to ensure that the next nominee comes from a more moderate background to replace the vacillating Sandra Day O'Connor.

Speaking of which, for anyone listening to the hearings yesterday, O'Connor's inconsistencies got a lot of criticism yesterday without being assigned to her specifically. Both Leahy and Kennedy, who have spoken of O'Connor in beatific tones since she announced her resignation this summer, decried the competing 5-4 decisions on similar issues and used them as an excuse for attempting to get Roberts to commit to prejudicial positions on issues. At least some of those competing precedents came from O'Connor's inconsistent application of the law.

The Washington Post, meanwhile, gives a different analysis of what it sees in Roberts. Instead of a right-wing idealogue, Charles Lane sees more of a Rehnquist than a Scalia:

Still blurry at the edges, thanks to Roberts's refusal to declare how he would rule on abortion rights and other specific issues, it is nevertheless a picture of a conservative different in important respects from the two members of the Supreme Court whom Bush has said he most admires, Justices Antonin Scalia and Clarence Thomas.

Scalia has said that courts should avoid basing their interpretations of laws on the history behind them; Roberts said there is a role for legislative history. Thomas has embraced an approach to constitutional interpretation that relies heavily on his view of the original intent of the framers; Roberts said that is not always possible.

Concretely, Roberts said he believes the Constitution creates a right to privacy. Such a right was recognized by the Supreme Court in modern cases protecting the use of contraception, abortion and consensual homosexual conduct, but which Scalia and Thomas have sharply criticized.

Asked by Sen. Charles E. Schumer (D-N.Y.) if he considered himself "in the mold" of Scalia and Thomas, Roberts replied, "I will be my own man on the Supreme Court."

It would seem that people see what they want to see in Roberts. Moderates see moderation and idealogues see idealogues. In that small way, Roberts may present a perfect candidate for the court, one that reflects society back onto itself while focusing on the Constitution and its application within the law. The fact that he keeps all of us guessing to some extent shows his commitment to judicial ethics and his talent at debate, two key elements for any successful appellate post, including the Supreme Court. He has kept all his options open and made no commitment to anyone for his post, which in the end is all we can ask.

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Posted by Ed Morrissey at September 15, 2005 7:00 AM

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