an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
"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.