Balkinization: Roberts and Rehnquist

Roberts and Rehnquist

Anonymous

I listened to a few hours' worth of the Roberts confirmation hearings on Tuesday, and was left with the impression that John Roberts will be less conservative than William Rehnquist. Roberts positioned himself as a more of a Legal Process craftsman than a Federalist Society conservative; his views echoed more Henry Friendly and Robert Jackson than Antonin Scalia and Clarence Thomas. He declined to answer a lot of questions, but I had the feeling that he did that more to help out the next nominee than to hide any particularly controversial positions.

Did others have the same impression?

Posted 12:46 AM by Anonymous [link]

Comments:

Orin, I've been assuming that Chief Justice Roberts will be remarkably similar to Justice Rehnquist, his former boss -- indeed, that there's hardly a doctrinal area in which one could reasonably identify any distinction -- and that such a Justice is (because of method, tactics, skills, and temperament) far *more* effective than a Scalia/Thomas/Brown/Jones at advancing a conservative agenda.

I didn't catch the full hearing yesterday, but nothing that I did see led me to think otherwise. What did I miss?

# posted by

Marty Lederman : 6:57 AM

call me cynical, but after years of working in court, the mere fact that somebody swears to tell the truth doesn't mean that they are going to. i don't mean to imply that roberts is lying to the senators, and i fully believe that he respects precedent and the right to privacy; however, he knows what he is at the hearings for. he knows what he needs to say, and considering the majority in the senate, what he needs to avoid saying in order to be confirmed.

i do like judge roberts temperament. i fully believe he is qualified to do this job, even if i disagree with his politics. i don't believe for an instant that he has no agenda, as he said in his opening statement. while the agenda may not be to overule roe v. wade, everyone has some kind of an agenda. his memos and positions taken in past administrations trouble me. he may take the position that he was merely representing a client; however, those of us in the field know that on issues such as this, your clients generally do not hire people who do not at some fundamental level agree with them. after all, you never saw reagan or bush I hire ramsey clark to push their positions, or did i miss something...

# posted by

phg : 8:17 AM

Roberts sounded like an extremely bright, informed and reasonable man, who would enjoy learning from as well as teaching fellow judges. However, in the Tuesday passages I watched, despite a gentle, humble demeanor, there seemed extreme reluctance to admit he had ever been mistaken in his opinions.

Prof. Lederman may well be right, that "there's hardly a doctrinal area in which one could reasonably identify any distinction" between Roberts' political values and Rehnquist's.

I think phg reasonably states the political constraints operating in Roberts' testimony. Before this description, phg denies accusing Roberts of lying to the senators. But when Roberts paints the kind of judge he claims to be, a wholly disinterested, impartial interpreter and upholder of the law, he is painting a false and impossible portrait. If he knows this, he is indeed lying. If he does not, he is cardinally deceived. People differ immensely in the nature and power of their moral and political predilections, but no one is as free from them as the self Roberts presents.

# posted by

Curtis Crawford : 11:37 PM