Balkinization: Tea Leaves

Tea Leaves

Mark Graber

Today's Washington Post urges Senators to confirm Judge Roberts on the ground that he is unlikely to be an "activist." Exactly why the Post (and David Broder in his oped) make that judgment is not clear. My sense is that the Post and Broder really hate anything that smells of politics and are desperate for anything that smells, however, faintly, as nonpartisan. There is a script all judicial nominees without much of a record follow and Roberts demonstrated a very good capacity to follow that script. Outside of the question, "what is your name," I think I could have answered 95% of the questions Roberts was asked as he did without perjuring myself. For what it is worth, I think we are likely to get Mr. Justice Scalia with a smile. And this means extensive judicial activism for conservative causes (or because the phrase "judicial activism" is contested, at least that Roberts is likely to declare unconstitutional lots of federal and state laws, as many as anyone else--there will be no reduction in the judicial presence in our lives--only a change in the direction). Roberts has spend his entire life serving movement Republican causes. Do not see any reason for him to change. But I'm reading very unclear tea leaves, making very random guesses only justified by the informal nature of this medium. At the end of the day, if Democrats want a judge whose future they can predict better (and Republicans have the informational advantage on Roberts), they need to win more elections.

Posted 3:48 PM by Mark Graber [link]

Comments:

Mark, he's explicitly endorsed the living constitution and substantive due process. He has disavowed originalism in as many words. He has given very strong indications that he believes in stare decisis even when a case was wrongly decided. The only positive note in an otherwise gloomy week was his outright rejection of foreign law, which was marginally comforting.

Where on Earth do you get this insane optimism that he might be another Scalia? Please let me know so that I might share it.

# posted by

Simon : 7:47 PM

"And this means extensive judicial activism for conservative causes (or because the phrase "judicial activism" is contested, at least that Roberts is likely to declare unconstitutional lots of federal and state laws, as many as anyone else--there will be no reduction in the judicial presence in our lives--only a change in the direction)."

From a certain, to my mind strange perspective, there's no real difference between a traffic cop who tickets cars at random, and one who tickets cars that are going really fast. They're both ticketing cars, right?

Some laws ARE unconstitutional. Way too many of them, after 70 years of the New Deal. Any Justice who simply approached the Constitution and the law with an honest attitude and no ideological ax to grind would be striking down laws left and right.

# posted by

Brett : 7:54 PM

Simon, when Democrats controlled Congress, it was sufficient that judges be willing to simply permit the liberal agenda to proceed, even where it conflicted with the Constitution. Judicial usurpations to advance it, like Roe, were gravy, nice to have, but not necessary.

But now that Republicans control Congress, (Even if conservatives don't yet.) if the liberal agenda is to continue advancing, it's up to the judges to impose it from the bench. Democratic loss of control of the legislature makes affirmative control of the Judiciary more important.

So even as their leverage declines, their demands increase.

# posted by

Brett : 8:03 PM

Yawn. You mean aside from the cases which liberals like Alan Spector don't want the Supreme Court to overrule legislative decisions?

But, as you note, many governmental acts are unconstitutional. One might say in various areas, the current bunch only makes matters worse (a true conservative Congress might bring forth lesser gov't, but it isn't, so it doesn't really help in that dept.), so yeah, "liberal" things like due process and equality might require judicial review.

I do disagree that the outright rejection of foreign law is much cause for optimism. You know, since Atkins et. al. was not decided on foreign law, and citations of foreign law in relavent areas has been found to be useful since the times of John Marshall.

But, disagreement with his views on the 11A apparently suggests he really is not worth mentioning, even if he did vote to ratify the Constitution and 'was there' so to speak when the first twelve amendments were passed.

As to the rest, since the alt. would be the overturning of chunks of current law, I don't see how he can say otherwise. Anyway, Thomas' approach to affirmative action is pretty "living Constitution" and his stance on the privileges and immunities clause is kinds substantive due process by another name. Ditto re property rights.

I go with the guy has done for his professional life. He has supported, quite well apparently, conservative jurisprudence. Some comments in a few days of hearings really doesn't change this.

# posted by

Joe : 11:45 PM

Spector didn't get a rep as "the Senator from Scotland" by being a conservative, you know, even if he isn't a Chomskyite. Incumbant Senators do not come within a hair of losing a primary challenge when they well represent their own party.

Republicans certainly aren't innocent when it comes to constitutional violations, but I would argue that the liberal agenda of activist government is far more at odds with our constitutional scheme of limited, enumerated powers. In large measure, conservatives don't need to violate the Constitution to the extent liberals do, to pursue their aims.

Bush, not being a conservative, has little to do with this, by the way.

# posted by

Brett : 6:56 AM