Devon Biere’s Blog

With Obama’s Supreme Court pick expected this week, Jeffrey Toobin has written a very interesting and timely piece on Chief Justice John Roberts in The New Yorker.  Entitled No More Mr. Nice Guy, the article delves into Roberts’ background, beliefs, and career to help explain his partisan underpinnings and his polite but steely brand of conservatism.  I’m no Supreme Court jurisprudence junkie, but it’s been clear since the beginning that the Judiciary Committee got played like a slow jam (I’m looking at you, Senators Leahy, Kohl, and Feingold).

As Toobin writes:

“The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

In other words, Roberts adjudicates the way you might expect him to, being a multi-millionaire, onetime member of the Federalist Society who worked as a lawyer in the Reagan White House, clerked for Rehnquist, and served as Kenneth Starr’s principal deputy in George H. W. Bush’s White House.

Around the time of Obama’s inauguration, it was widely noted that Obama was the first president to have voted against the confirmation of the Chief Justice who would later swear him in.  Oh, and for the record, they both screwed up the oath .  However, Obama went beyond a simple party-line, knee-jerk rejection of Roberts.  Recall that the Senate Democrats split evenly for and against Roberts.  From the article (emphasis mine):

In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. “In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision,” Obama said. “In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.” Obama did not trust Roberts’s heart. “It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak,” the Senator said.

So, it should be no surprise that Obama is looking for a nominee with a “common touch” and “empathy” to bring humanity to the bench along with intellect and experience.  These are qualities that seem to be largely missing from the increasingly right-leaning Court.

Forget all the talk of textualism, liberalism, strict constructionism, originalism… all the ivory tower crap.  In the end, I want someone on the Court who will fill the those 5% gaps with fairness and pragmatism.  I wish the President luck and wisdom in making this selection.