John G. Roberts: Unlikely To Be 'Borked'

Some opinion writers and interest groups here and there are railing against John Roberts, but as the Los Angeles Times writes, "few he has encountered have anything bad to say about him." That seems to be the fairly broad consensus on Bush's nominee for Chief Justice of the Supreme Court -- his views are conservative, yes, but it's tough to find anything really awful to pin on him.

In short, it doesn't look like we've got another Bork on our hands, much to the disappointment of many on the right and on the left who were spoiling for a fight. It seems that, very much to his credit, Bush chose well on this one. Again, that's an impression that could change over the next week or two, but for now it looks like Democrats would be wise to hold their fire for the nominee to O'Connor's seat. In the meantime, this week's confirmation hearings are a chance to hear Roberts' views -- insofar as he is willing to share them -- on some of the most divisive issues of our time, from abortion to executive power to poverty.

I try to stay out of the prediction game, largely because it's always far easier to guess wrong than to guess right. But one thing we can count on is that senators will throw many probing questions at Roberts to get him to reveal his views, and Roberts, in turn, will do his best to give the least revealing answers. It's also safe to say that Roberts is a conservative, through and through. But he is nonetheless likely to act with "judicial restraint," argues Edward Whelan in the Los Angeles Times.

There are some concerns over some of the views Roberts is believed to hold, most notably on privacy and civil rights matters (explored in this editorial in the St. Louis Post-Dispatch) and we'll see how those play over the coming days. Environmental protection is another worry, says North Carolina's News and Observer, imploring the Senate to "get at the core of Roberts' convictions" on cornerstones of environmental policy, like the Endangered Species Act. One thing I'll be watching for is his attitude toward separation of powers, specifically regarding the executive branch. (More on each of these questions in future posts.)

USA Today asks in a July editorial, "Does Roberts Represent mainstream law, values?" The answer the paper comes up with is similar to what has been written many papers, including the Post, about how to judge this nominee: "Mainstream law is the settled judgments of the Supreme Court. Roberts should be judged on whether or not he accepts the doctrines behind those judgments. To reject them would less conservative than radical."

In spite of Roberts' image as a thoughtful legal scholar who would not be an "activist judge" -- over turning precedent at will -- Washington Post syndicated columnist E.J. Dionne writes that the fight for the Chief Justice position will be a much harder one than it would have been for associate justice. "By proposing that Roberts lead the court, Bush has given liberal groups a chance to regroup and argue that this battle is no longer a practice session for the next round. It is the next round." The Chicago Tribune maintains that Roberts is "perhaps the closest to a consensus candidate for chief justice that this politically polarized nation can produce" and that he is "a jurist of talent and decency."

Some say this image has been carefully cultivated over the years as part of Roberts' ambition to reach the Supreme Court. He was the classic "all American boy": he grew up in the Midwest where his dad worked for Bethlehem Steel and his mom stayed home with Roberts and his three sisters; he played football and wrestled in high school; he graduated summa cum laude from Harvard in three years. According to a Newsweek article from July, he's even taught a class called "Introduction to Reasoning" to economically disadvantaged students. Roberts and his wife, Jane, have two adopted children, Jack and Josephine. (You might remember Jack from his when he was boogeying down while his dad stood by Bush as the original nomination was announced.) Jane Roberts is a member of Feminists for Life, but it's not a hard-core right-wing anti-abortion group; rather, it advocates services for pregnant women, which is really much more productive than just blindly opposing abortion without helping the people who might be considering it.

If Roberts' squeaky clean image makes it difficult for critics to find fault with him, the fact that he hasn't written much as far as judicial opinions go -- he's only served on the circuit court since 2003 -- makes it even more difficult. He has argued before the Supreme Court numerous times, and he clerked for Rehnquist early in his career. Beyond that, he's spent much of his time in private practice and in White House legal offices. Biographical profiles and op-eds (like this one from Andres Martinez) paint a portrait of a man who reveres the law. That reverence suggests -- though cannot absolutely confirm -- that the political ramifications of specific laws would not particularly sway Roberts. Like another renowned judge he once clerked for -- Henry Friendly of the 2nd Circuit -- he considers his opinions and arguments quite deliberately, looking at all sides before deciding an issue. His dedication is important; George Will's op-ed on Rehnquist's long career suggests Roberts would have some pretty big shoes to fill.

The Roberts confirmation hearings begin today. In an editorial in this morning's paper, the Post cautions that "the hearings should not be expected to produce a detailed road map to how a Chief Justice Roberts would decide the many controversial matters about which the court must rule," but we should be able to expect "to gain a better sense of how Judge Roberts would approach cases, and the extent to which he has a strongly ideological bent." Will those expectations be met? And how will the confirmation process play politically? What do you think will be at the heart of the debate over the Roberts nomination? Privacy? Civil rights? Roe? Something else entirely?

By Emily Messner |  September 12, 2005; 9:00 AM ET  | Category:  This Week's Issue
Previous: The Facts: Roberts Nomination | Next: The Hearings: Party-Line Differences Without Partisan Rancor


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Hold their fire for the O'Connor seat?

They have no ammo to fire at anything. They couldn't hit a barn with a shoe at 3 feet!

They have no backbone for a fight. Their leader is a Screamer, who's finesse is losing a chance to become President with his lungs!

[I welcome the Dems to fight it out. But they won't. They put the tombstone on their party years ago, and even enjoy dancing on their party's grave, too].


Posted by: SandyK | September 12, 2005 12:16 PM

Emily, where have you been for the past week and a half? Roberts is now replacing Rehnquist, not O'Connor.

Posted by: Chucktown | September 12, 2005 01:07 PM


Emily clearly knows that. She said that Roberts seems so innoccuous that the dems should hold their fire for the O'Connor seat, i.e., wait until the next nominee is named to really fight. And she quotes Dionne to point out that Roberts might have a tougher road now that he is up to replace Rehnquist as Chief rather than O'Connor as associate. You should pay more careful attention before you call someone out.

Posted by: Sonny | September 12, 2005 02:09 PM

Has anyone else noticed that the Post & other media outlets have cultivated a great reverence for stare decisis? Do they recognize that reverence (not informed criticism) of existing law, including case law, would have preserved racial segregation by forbidding the SC from overturning segregationist precedents? How it would have forbidden the Court from imposing Roe v Wade?

Posted by: Jimmy | September 12, 2005 02:36 PM


Next time, how about you bother reading the post properly before criticizing someone. In your case, better that people think you are foolish than you add a comment to this blog to prove it.

Posted by: Derek | September 12, 2005 03:47 PM

I don't think Roberts will be a "conservative, through and through."

He doesn't seem very ideological at all.

Back in the 1980s, when he worked for Reagan, he echoed some of Reagan's positions, but that's not a surprise, is it? Employees tend to carry out their boss's wishes.

Anyway, that was two decades ago. Back then, Justice O'Connor was quite conservative, too. And in the late 1980's she said that the Supreme Court's abortion decisions had made up a right out of "nothing."

She sings a very different tune today.

Who knows, maybe Roberts has gotten more liberal, too.

About all we really know about Roberts is that he's mildly conservative on a handful of issues (like standing to sue under Article III) and that he has an extremely successful record of winning Supreme Court cases (two-thirds of his 39 cases).

But having a good win-loss record doesn't show ideology. All it shows is the ability to see all sides of an issue and anticipate how different justices may react to the same issue.

That's a sign of open-mindedness, not ideology.

Posted by: Ho-hum | September 12, 2005 04:24 PM

I object to the constant reference to Bork as a precedent as in the headline in this article. The Republicans started all this when they went after Abe Fortas when President Johnson nominated him to be Chief Justice. Mr. Fortas was too proud to put up with the abuse and withdrew. Unlike Roberts, O'Connor, and most of the justices on the Court, Fortas had a distinguished record before being put on the Court. He did a lot of pro bono work including winning the famous Gideon case, which requires defendants to have legal counsel.

Posted by: Sidney | September 12, 2005 04:26 PM


He's not conservative through-and-through. So much so the Religious Right won't endorse him. He does hold the Neo-Conservative viewpoint through-and-through.

When he claims to come to court with no agenda, he's lying flat out. That "judicial activism" idea (and that he's just a umpire) is one solely floating around Republican circles -- it's a coined term to boot.

No, he's not impartial and without an agenda, when he follows the talking points and beliefs of a POLITICAL party.

[Oh, how I will love the Religious Right to squirm, as their political capital wanes each passing month. The Romans didn't wear their religion on their sleeve in daily life, and Americans have no need, either. And one would think Christians would know of the "sins" of throwing other believers to the lions!].


Posted by: SandyK | September 12, 2005 05:43 PM


I am far from an expert on the USSC but I do have fun watching it and reading decisions.

Do you know Judge Roberts that well to be able to claim he's "lying flat out." If you do, could you tell me what his agenda is?

Posted by: JoAnn | September 12, 2005 09:49 PM

Sydney, do you really believe that Kennedy and the rest of his gang, including the liberal interest groups, were motivated by the Fortas nomination result when they attacked Judge Bork? Please! Fortas was associating with mafia types, that weas his problem. You probably were waiting all this time to float that bit of fantasy.

Posted by: john f hernandez | September 12, 2005 09:55 PM


No one gets to the top of the heap without playing politics. In the law/political world more so, as it's a stiff club to rise to the top (you are promoted from within).

So in fact he's lying flat out to claim he comes to the hearing without an agenda. His agenda has been in the making for over 20 years.

Furthermore, what is that bunk that he never dreamed of getting that high up the echelon? He groomed himself well for the job, and even much so that he was one of the few lawyers to debate before SCOTUS AS A PROFESSION.

[Talking about a different form of padding his resume].

I don't trust him. A man who is that secretative about his own views (to skirt a critique of them) usually has something to hide.


Posted by: SandyK | September 12, 2005 10:35 PM

Two ideas seem to stand out quite prominently in John Robert's Remarks: that he will confront every case with an open mind; that he will be more like an umpire than a player. These are generalities, of course, but the more radical and decisive question is whether he embraces an expansive vision ("Living Constitution" approach) or a restrictive one ("Originalism" approach with all its variants). Again, the juridical principle of "stare decisis" could cut both ways - favoring a more conservative or liberal approach. Further, Robert's rejection of "judicial activism" does not reveal much about the man because this is a term used pejoratively by both conservatives and liberals.

So, how Roberts will turn out to be will remain an unanswered question at least for now.

Posted by: Lea | September 12, 2005 10:45 PM

Judicial activism seems to be for the "losers" yes? On the Right and Left, there's folks who impatient to win victories in legislatures who look instead to the courts for drive-through service.

For the past 50 years or so, the Supreme Court has seemed to have a charter to manage to our TV drama, fast food era appetite for a quick fix. Liberal ideologues have used the court more often than Conservative ones, however, they are both like-minded.

This is basically unsound. It creates another fulcrum of politics that destroys judicial independence and federalism.

We need judicial restraint from Judges. It does not matter if their personal views are liberal or conservative. They just need to "be umpires" as Roberts suggests.

Posted by: Ted from CT | September 12, 2005 10:55 PM

"There are some concerns over some of the views Roberts is believed to hold, most notably on privacy and civil rights matters."

"Environmental protection is another worry,"

Funny how your definition of the "worries" only look at things from a left-of-center point of view.

There are also "worries" that he will turn into another Souter. But this sort of "worries" is apparently no worth discussing when you look at the world through "blue-state" tinted glasses.

Also find it amusing that the Wall Street Journal is "staunchly" conservative while the LA Times is only "generally" liberal.

Haven't read your commnets on abortion but let me guess from your point of view there's a "pro-choice" side and an "anti-choice" side.

It would be so refreshing for the Post to describe abortion views more directly and accuratley as opposed to using the preferred slogans of one side of the debate. How about using "pro-abortion" and "anti-abortion." seems much clearer to me and not expressing an opinion in the news page.

NARAL is not "pro-choice" they are "pro-abortion" and are directly supported by the abortion industry. "pro-life" is equally misleading and self-serving but the post doesn't use that phrase.

A little more neutrality of language would make the Post more readable.

Posted by: Filbert | September 14, 2005 02:43 AM

Ah, even TR Traditional conservatives are worried about the rape and blunder of our natural resources (we are stuanch defenders of conservation practices. If you take something, you must return something of equal value (i.e., go fishing, pay to have the area restocked). If TR were alive today, he'd be ashamed of what filth is being deemed "an American right". Neo-Conservatives are like anarcho-capitalists, they careless about society, only what $$$$$$$ they can gain.

How they can even be in the conservative spectrum IS the disgrace. They don't abeit by the Founders' and Framers' intentions; they believe in making this country a theocracy; they would bulldoze Yellowstone National Park if there were just 1000 barrels of oil there (and pollute it with all the trash too); and are globalists -- when everyone knows you can't please anyone but your own! They brought us the horrors of another "Manifest Destiny", this time without the natural resource gains, or the ease of enslaving the natives.

What abortion views? Either side is a copy of the other -- the only difference is: who'd throw the fetus or baby in the trash can? The pro-choice element thinks fetuses aren't human until they're born (which is my sentiment, since if a fetus is not independent to live on their own, they are but dependents on the mom for their very survival. Their identity is their mom's, not their own. And indentity is what humans consider what makes us humans. Furthermore, Mother Nature will kill a large share of them herself, and there's nothing mankind can do to stop it); to the pro-DEATH element that thinks just a 1/1000th of an embryo is human, yet does nothing to stop the RISE of infant mortality (come on if you'd care about those babies and life, you could at least HALF their mortality rate).

If it wasn't so serious, all of this would be a bad black comedy (with even worse satire).


Posted by: SandyK | September 14, 2005 11:51 PM

Another exercise in tedium and irrelevancy as the Senate goes through its posturing and pontificating while accomplishing little if anything. Since Roberts is not a raving lunatic, which is what was feared from Bush, he is a cinch to be confirmed. The next nomination may be more interesting. JH

Posted by: James Hood | September 20, 2005 03:22 PM

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