Mister Stealth Congeniality wins the day
John Podhoretz has some interesting thoughts in today's NY Post:
BY making a spectacularly boring choice for the Supreme Court, President Bush has done something unexpectedly interesting.
John Roberts is (obviously) not a woman, not an African-American, not an African-American woman, not a Latino, not a Latina.
Roberts is a white guy, 50 years old, and you might say he's spent his life trying to get exactly where he is now. He's a conservative Republican version of a Stephen Breyer � the guy with the golden resume, who seems to have decided he wanted a seat on the high court when he was seven years old and methodically sought to make his way there.
A Harvard and Harvard Law grad who clerked for the chief justice of the Supreme Court right out of law school, Roberts then worked in the Reagan White House as a legal counsel before serving a few years as a key deputy to the Solicitor General of the United States during the administration of the first President Bush � which means he spent time arguing before the Supreme Court as a lawyer.
He would have become a federal judge in the 1990s had Bill Clinton not beaten the first President Bush, and instead went off to a law firm to make some money and practice his trade before finally making it to the bench in 2003.
He is really better known as a lawyer and not as a legal intellectual, because he has litigated cases rather than written extensively on the theoretical underpinnings of American jurisprudence. And that may have been the fact that tipped the scales in Roberts' favor.
Intellectuals, especially legal intellectuals, tend to be a bit prickly, in part because there's so much sophistry in legal argumentation that sarcasm and disbelief often become the stock in trade when thinkers have at it. The greatest example of this in our time, of course, is Justice Nino Scalia, whose outraged opinions are almost like Mort Sahl monologues.
That sort of temperament, which enlivens debate, can simply no longer make it through the grueling confirmation process. Because when you quote someone speaking sarcastically without indicating he's being sarcastic, he will tend to sound angry or unreasonable or even batso crazy.
Roberts has, by all accounts, an astonishingly mild demeanor. He's a churchgoing father of adopted children, personally well-liked on all sides of the political spectrum � evidently because he hasn't given anybody a reason to dislike him personally.
And here's some additional info from the Free Congress Foundation. One thing's for sure -- being an unknown quantity and having no paper trail seems to be the best qualification from the standpoint of getting Senate confirmation in these contentious times, but as we saw in the cases of Souter, O'Connor and Breyer, were not always the best predictors of incisive legal thinking a la Scalia, judicial restraint or Constitutional outlook. The most that can be said at this time is that this is a highly qualified and skilled lawyer who is like by everyone and has never said an offensive word.
He wins the Mister Congeniality award for sure and by all accounts is a fine and conservative fellow, a brilliant lawyer and upstanding citizen. As to his judicial philosophy -- we might as well consult the oracles and attempt to examine the entrails to divine the future. As Ann Coulter has said, as a lawyer, John Roberts was litigating cases before the Supreme Court as an advocate for his client, and even his own footnotes make note of the fact that the views expressed in his arguments do not necessarily reflect his own. While he argued in one case that Roe vs. Wade was decided incorrectly, he has stated in his previous confirmation hearing that he was reluctant to overturn "settled law".
John G. Roberts, Jr.: U.S. Court of Appeals for the District of Columbia
Date: June 8, 2001 � From the Free Congress Foundation's Judicial Selection Monitoring Project
President George W. Bush renominated John G. Roberts, Jr. to the U.S. Court of Appeals for the District of Columbia Circuit on May 9, 2001. Roberts was initially nominated to the D.C. Circuit by President George H. W. Bush but his nomination was returned without a vote by a Democratic Senate when the President's term expired.
Roberts graduated magna cum laude in 1979 from the Harvard Law School. He served as Managing Editor of Harvard Law Review from 1978-79. After graduation, Roberts clerked for Judge Henry J. Friendly, U.S. Court of Appeals for the Second Circuit, from 1979-80 and for then-Associate Justice William H. Rehnquist, U.S. Supreme Court, from 1980-81. From 1981-82 he was a Special Assistant to U.S. Attorney General William French Smith. He served in the Reagan Administration as Associate Counsel to the President from 1982-86 and was the Principal Deputy Solicitor General of the United States under President George H. W. Bush from 1989-93. Roberts is currently a partner with Hogan & Hartson L.L.P, where he specializes in U.S. Supreme Court Litigation, appellate practice and federal litigation.
Supreme Court Advocacy
Roberts has argued 32 cases before the U.S. Supreme Court. He is viewed by many as one of the best Supreme Court advocates in private law firm practice.1� Roberts is known for his "uncommonly well-written" briefs and his systematic and thorough preparation for oral argument.2
Contrary to claims that Roberts is in the pocket of "big business,"3� in his capacity as a partner with Hogan & Hartson, he represented the 19 states that joined the federal government in suing Microsoft.4
Roberts represented a coal company before the Supreme Court in a case where the coal company sought to discharge an employee truck driver for repeated drug abuse.5� The case was litigated because an arbitrator twice found that the employee's repeated drug use was not "just cause" to terminate his employment.6� Such arbitration was part of the company's contract with the union but the company wanted the arbitrator's decision overturned as a clear violation of "public policy."7 Justice Souter stated that in order for the Court to break a contractual agreement using "[t]he force of public policy" the public policy "has to be very very clear."8� Roberts argued that public policy of keeping drug-impaired drivers off of the nation's highways was crystal clear.9� However, the Court reluctantly found for the employee with Justice Breyer conceding that "[w]e recognize that reasonable people can differ as to whether reinstatement or discharge is the more appropriate remedy here."10
In a case concerning the Americans With Disabilities Act (ADA), Roberts will represent Toyota Motor Manufacturing, Kentucky, Inc. before the Supreme Court in its appeal of a Sixth Circuit decision.11� At issue in the case is whether a Toyota employee's carpal tunnel syndrome that limits her ability to perform certain manual tasks qualifies her as "disabled" under the ADA.12� Toyota argues that the 6th Circuit ruling that such dimunition in performance qualifies as "disabled" conflicts with the Supreme Court's 1999 rulings on the ADA.13� In that ruling the Court held that in order to be disabled the plaintiff must show that her manual disability involves a "class" of manual activities affecting the ability to perform tasks at work.14� Toyota argues that "an isolated injury precluding an individual from one particular job" does not meet that threshold.15
In a case concerning the Fifteenth Amendment, Roberts unsuccessfully argued that Hawaii could limit voters to only "Native Hawaiians" in the election of nine trustees that administer programs specifically for "Native Hawaiians."16� Robert's argument was twofold.
First, the provision was no different than any other attempts by Congress and the states to honor the special obligation to America's other native peoples.17� Second, the provision "does not violate the Fifteenth Amendment--and is not subject to strict scrutiny under the Fourteenth [Amendment]--because it does not draw any distinction 'on account of race.'"18� The Court found otherwise and held that limiting the vote to only "Native Hawaiians" violated the Fifteenth Amendment.19
In a case that dealt with whether land was "Indian Land," Roberts correctly interpreted a Federal Statute and argued it was not.20� The statute at issue, the Alaska Native Claims Settlement Act (ANCSA), was enacted to free up lands formerly designated by Congress as reservations from the heavy regulations such designations entail.21� ANSCA permitted business corporations made up of Alaskan Natives to take the lands in fee simple and to use the lands for any purpose.22� The specific issue in the case was whether once the land had been transferred could the corporate owner impose a tax upon non-Alaskan Natives conducting business on the land. Such taxes are permitted when the land in question is considered "Indian Land."23� Roberts argued, and the Court concurred, that since ANSCA transfers the land without any restraints on alienation or significant use restrictions, the transferred land can no longer be deemed "Indian Land" and therefore taxes may not be imposed.24
Mr. Roberts is one of the most highly qualified and well-credentialed attorneys in America today. His breadth and depth of experience unquestionably qualify him for his appointment to the D.C. Circuit. His view that the Constitution should be interpreted narrowly and generally not used as a tool for righting social wrongs indicates a sound philosophy of judicial restraint.25
Legal Times, Oct. 30, 2000, 18