Balkinization  

Tuesday, July 19, 2005

It's Roberts

JB

The most important thing to say about the Roberts nomination is that it is a safe choice. Roberts has excellent credentials, he is well respected, and he is likely to be reliably conservative. Indeed, he will probably be far more conservative than Justice O'Connor. Nevertheless, he comes across as nonconfrontational, and thus he is far less likely to raise a storm of protest than some of the other potential nominees that Bush could have picked.

Indeed, one way of looking at this nomination is that Roberts is the most conservative person Bush could get while still securing a relatively smooth appointments process.

Barring some scandal as yet unforeseen, I think he will be confirmed.


UPDATE: I see that Roberts has also passed Bush's reverse litmus test on Roe v. Wade. Roberts regards it as "the settled law of the land" but of course, that would not stop him from voting to chip away at it slowly. This from his April 2003 confirmation hearings.

Senator Durbin. . . . I am asking you today
what is your position on Roe v. Wade?

Mr. Roberts. I don't--Roe v. Wade is the settled law of the
land. It is not--it's a little more than settled. It was
reaffirmed in the face of a challenge that it should be
overruled in the Casey decision. Accordingly, it's the settled
law of the land. There's nothing in my personal views that
would prevent me from fully and faithfully applying that
precedent, as well as Casey.

Senator Durbin. Then, let me ask you this question. You
make a painful analogy, from my point of view, when you suggest
that calling for the overturn of Roe v. Wade was not any
different than the Government calling for overturning Plessy v.
Ferguson and Brown v. Board of Education. Plessy v. Ferguson,
separate, but equal, was really the basis for racial
discrimination and segregation in America for decades.
I hope that that is just a strict legal analogy and does
not reflect your opinion of Roe v. Wade policy compared to
Plessy v. Ferguson policy.

Mr. Roberts. Senator, the question I was asked, were there
other occasions in which the Department--if I am remembering
correctly--if there were other occasions in which the Solicitor
General had urged that a Supreme Court precedent be overturned,
and that is just--Brown v. Board of Education is the most
prominent one. The answer wasn't meant to draw a particular
substantive analogy.

Senator Durbin. And I will not push any further because I
was hoping that is what your response would be.


Comments:

"the settled law of the land" would be an appropriate response for Roberts to make, given the position he was taking at the time (in 2003). But as a Supreme Court justice, I wouldn't expect him to take such a subordinate view. I agree, the next step after his probable confirmation will be that the Republicans will put a challenge to Roe v. Wade before the high court, and see if Roberts lets his personal views (clearly anti abortion rights) affect his judgement.

I wonder, if Roberts were to make a pro-choice leaning opinion in such a case, there could be trouble at home, as his wife is a leader in a pro-life organization.

If there's one thing divisive about Roberts, it's the abortion issue, hands-down. I wouldn't say anything is "settled" by any stretch.
 

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