Bonus Supreme Court Nom Thoughts and Links

The New York Times ended up highlighting concerns on Roberts' record in dealing with federal environmental legislation in its lead editorial.

One of the most important areas for the Senate to explore is Judge Roberts's views on federalism - the issue of how much power the federal government should have. The far right is on a drive to resurrect ancient, and discredited, states' rights theories. If extremists take control of the Supreme Court, we will end up with an America in which the federal government is powerless to protect against air pollution, unsafe working conditions and child labor. There are reasons to be concerned about Judge Roberts on this score. He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.

The editorial continues by questioning Roberts' record on Roe v. Wade. Roberts apparently signed a Supreme Court brief on the 1991 case Rust v. Sullivan that stated, "We continue to believe that Roe v. Wade was wrongly decided and should be overruled." Seeing as how Roberts' is Bush's nominee, this should come as no surprise (for an excellent discussion on what Roberts' involvement with this brief actually means, check this out).

But the far more important significant quotation is this, made during his 2003 Federal Circuit Court of Appeals nomination hearing, "Roe v. Wade is the settled law of the land. ... There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent." This, of course, is interesting, given that Alberto Gonzales seemed to hold a similar line of reasoning in his 2000 majority opinion for the Texas Supreme Court. Also, this seemed to be the tangible evidence of many conservative groups distaste for Gonzales. It seems that similar views from Roberts were not nearly as bad. But this is the quote Democrats should be looking at, not an excerpt from some 14 year old brief. (EDIT: Everyone should read Mihai's comment, because he is correct, I infered far too much faith from Roberts comments, because once he is on the Supreme Court, the Supreme Court's precedence is not as important. Sorry and thanks Mihai.)

At any rate, some interesting closing opinions of Roberts, the man, come from friends and associates. Supreme Court litigator Tom Goldstein gives his opinion of Roberts as such:

Before shutting down the blog for the night, I thought I'd give my sense of the answer to the question of what I think John Roberts will be like as a Supreme Court Justice. The answer is that he will be like William Rehnquist, his former boss.

Judge Roberts, like the Chief, is an institutionalist - he has worked for essentially his entire professional career before the Supreme Court.

I also have the sense that they have a similar ideology. For example, I get the sense that he (like the Chief) simultaneously believes in strong Executive Powers (see the D.C. Circuit's recent Hamdan decision, which he joined) but also limited federal powers (see his dissent from the denial of rehearing en banc in the Rancho Viejo case).

One difference may be that Judge Roberts's opinions show him to be more of a judicial craftsman than the Chief, who tends to write as concisely and directy as possible. But in analyzing cases, the two are similar, as Judge Roberts explained in his hearings that it may be appropriate to rely on different sources of meaning -- e.g., text and history -- depending on the precise context.

Much more to come, obviously.

And everyone should continue to check out what Goldstein has to say. But contrary to Goldstein, Georgetown Law Professor Richard Lazarus states:

Judge Roberts's mode and mentor, he said, was not Chief Justice Rehnquist, but rather the appeals court judge for whom he clerked, Henry J. Friendly, who served on the appeals court based in New York until his death in 1986.

"They were very much alike," Professor Lazarus said. "He was hired by Judge Friendly without an interview because John's credentials were like his. They won the same history prize at Harvard and each had the same position on the law review there."

Professor Lazarus said that as an advocate before the court, Judge Roberts had a precise practice regimen. He would divide up his argument into about eight sections and first memorize them and then practice reciting them in random order to account for the justices' questions.

"He looks relaxed and spontaneous," he said. "But it's all based on an extraordinary amount of work and preparation."

Everyone ought to be impressed by someone that intense about his passion. I am sure Roberts is on top of the world tonight, and it seems well earned. Let the fun begin.

-Mr. Alec