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David N. Mayer

Confirmation Update 

I told you so.  As someone who’s not shy about crowing when my predictions turn out to be true, I’m happy to note that my prediction about Judge John Roberts, President Bush’s nominee to succeed William Rehnquist as Chief Justice of the United States, has come to pass.  Today, by a vote of 78-22, the U.S. Senate voted to confirm Roberts as the next Chief Justice -- just in time for the start of the Supreme Court's 2005-2006 term.  As I had predicted to the students in my undergraduate Constitutional History class, the vote divided Democrats about evenly (although I underestimated somewhat the number of Democrats who actually did vote to confirm Roberts):  all 55 Republicans voted to confirm, joined by 22 Democrats and one independent, as opposed to 22 Democrats who voted no.  (I’d predicted confirmation by a somewhat wider margin, by a vote of 80-20.) 

And, as I argued in my previous entry “Confirmation Abuse” (September 5), the Democrats who voted “No” violated their oaths to support the Constitution:  they abused the Senate’s “advise and consent” power – which was designed to stop presidents from abusing their appointment power by nominating unqualified persons to office – by opposing an unquestionably well-qualified nominee, for purely political reasons.  Why did they do it?  To please the extreme left-wing interest groups (like NARAL and the misnamed “People for the American Way”) who opposed Roberts.  And why do certain senators want to please these leftist interest groups?   Because they rely on these groups’ support, financial and otherwise, for their re-election campaigns.   

In an insightful column in yesterday’s USA Today, conservative commentator Jonah Goldberg noted, “There’s almost no discernible principled standard for why some Democrats voted for Roberts and others against.”  He observed that Sen. Patrick Leahy of Vermont, “a Ben & Jerry’s liberal,” and Sen. Herbert Kohl of Wisconsin, “a liberal from the cretaceous period,” voted in favor of Roberts, while the “often-moderate” Evan Bayh of Indiana said he’d vote against.  And even the Democrats who opposed Roberts’ confirmation conceded he was superbly well-qualified to head the Supreme Court:  “In speech after speech, Democrats voting `no’ said he was qualified, decent, brilliant, capable, nice, but they just couldn’t do it,” Goldberg noted.  “You got the sense John Kerry wanted to take Roberts to a nice restaurant and give the nominee the `it’s not you, it’s me’ speech:  Look, you’re a great guy, and my country would be lucky to have you.  I’m just not in a good place right now.”  (“What we’ve learned (about Democrats) from the battle over Roberts,” September 28.) 

However, Goldberg went on to note an interesting correlation:  virtually all the Democrats who plan to run for president in 2008 voted against Roberts.  “Among the presidential wannabes, only one very long shot Sen. Russ Feingold could muster the intestinal fortitude to vote for a nominee considered qualified even by most of the senators voting against him.”  Why?  “Because the Lilliputians of the activist base have even the party’s giants tied down.”  With the left-wing extremists who comprise the base of the Democratic Party demanding “liberal purity” from its leaders, it’s increasingly difficult for politicians to move toward the center.  Thus, guys like Norman Lear, the “paleo-liberal” (as Goldberg calls him) founder of People for the American Way, are pulling the strings of half the Democrats in the U.S. Senate. 

The political dynamics behind the Roberts confirmation vote also promise – and indeed, virtually guarantee – an especially bitter fight over President Bush’s next nominee, to succeed Justice Sandra Day O’Connor.  As Goldberg also persuasively notes, “the stage is being set for the perfect storm over the next nomination”:  “Bush’s presidency is weaker than it has ever been.  His post-Katrina address failed to win over his opponents, but it disturbed much of his base, which . . . heard too many echoes of LBJ’s Great Society in Bush’s plan to rebuild New Orleans.  And while everyone likes Roberts, the qualities that made his confirmation all but assured also had the unintended effect of making the conservative base worry just a little bit.  After all, we normally figure a nominee is good if he or she makes Leahy’s head explode.  In other words, Bush very much needs an ideological confirmation battle to remind those of his base why they supported him to begin with. . . . [A]ll the pressures inside the Democratic Party are set to explode, and it’s in Bush’s best interests to light the match.” 

It’s become evident that President Bush – like his father, the elder George Bush, and like his predecessor, Bill Clinton – will select two members of the Supreme Court.  Let’s hope that the current President Bush will do a better job than his predecessors.  Clinton’s two appointees, Justices Ginsburg and Breyer, have proved to be, predictably, left-liberals in their jurisprudence:  like the left-liberals who dominate in legal education and in the leadership of the organized bar, they are guilty of the “context-dropping” errors of the left when they interpret the Constitution:  they fail to recognize any meaningful limits on federal powers (allowing Congress to do virtually anything it wishes, under the rubric of the “Commerce Clause” power); and they selectively protect only some individual rights (even those explicitly protected by the Constitution), failing to protect those they regard as less important (such as property rights).  The result:  decisions like the Supreme Court’s recent decisions in Raich and Kelo – upholding federal drug laws against even homegrown marijuana for medicinal use, and allowing local governments to use eminent domain powers to transfer property from homeowners to developers – two decisions in which the two Clinton nominees joined other “liberal” or “moderate” justices, in comprising the majority on the Court. 

The elder President Bush was 50-50 in his two nominations to the Court:  Justice Souter has proved to be a huge disappointment on the Court, just another left-liberal (in the majorities in both Raich and Kelo); while Justice Thomas has proved to be, in my opinion, the most able justice on the Court in the past 70 years – the only justice who understands the Constitution as it should be interpreted, contextually (at least on the powers side).  Thomas not only dissented in both Raich and Kelo but also dissented on the strongest ground, arguing that the Court needs to reconsider both its Commerce Clause jurisprudence and its Takings Clause jurisprudence for the past 70 years, for the Court hasn’t done its job in limiting federal powers and in safeguarding individual rights.  (For more on this, and why Justice Thomas is the only modern justice to really understand the importance of contextualism in constitutional interpretation, see my essays “The Next Chief Justice” and “Interpreting the Constitution Contextually.”) 

The Upcoming Fight over Justice O’Connor’s Successor

President Bush has sent conflicting messages about his next nominee.  Originally, he said he’d pick a jurisprudential “conservative,” in the mold of Justice Thomas or Scalia (who really are not at all alike in significant ways – Scalia, for example, joined the four left-liberals on the Court, along with Justice Kennedy, in comprising the six-justice majority in the medical marijuana case).  Most recently, Bush has seemed to signal an intention to succumb to political pressure to pick either a woman or a member of a “minority” group for O’Connor’s seat, saying he’s “mindful that diversity is one of the strengths of the country.” 

Pundits are already weighing in on potential candidates who are female yet also conservative.  Melanie Kirkpatrick, in a recent Wall Street Journal op-ed, identified four female appeals-court judges whos names are frequently mentioned as real possibilities:  Edith Jones, Priscilla Owen, Janice Rogers Brown, and Alice Batchelder (“Chick List,” September 24-25).  Jones “has been on the short list longer than most contenders have been on the bench,” Kirkpatrick notes:  appointed to the Fifth Circuit by President Reagan in 1985, she was reputed to have been considered for the seats that went to Justices Souter and Thomas.  But she is an outspoken conservative – she’s on record calling Roe v. Wade an “exercise in raw judicial power” – and thus would be the kind of nominee who, in the apt phrase of Jonah Goldberg) would be sure to “make Leahy’s head explode.”  Even more contentious would be Judges Owen and Brown, who now sit on the Fifth Circuit and the D.C. Circuit, respectively, only because of the compromise deal struck by the bipartisan group of 14 Senate “moderates” to end the Democrats’ filibuster against Bush’s appellate court nominees.  Judge Janice Rogers Brown would be an ideal choice, if Bush truly wants “diversity” on the Court, because she’s not only female but also black and also, like Thomas, perhaps more libertarian than conservatism.  She’s certainly outspoken; among other things, she’s a strong advocate for property rights (presumably, she would have voted with the dissenters – as O’Connor did – in the eminent domain case), and she has a healthy skepticism about government, which she’s called “the opiate of the masses.”  (The very thing that makes Judge Brown ideal for the Court – her skepticism about government power – is what disqualifies her, as an “extremist,” in the eyes of many Democrats.)  But, as Kirkpatrick notes, she’s probably “too libertarian” for Mr. Bush.  Judge Batchelder, from here in Ohio, has been called “a Midwestern Edith Jones,” a jurisprudential conservative appointed to the federal bar in Ohio by President Reagan and to the Sixth Circuit by the elder President Bush in 1991.  She voted to strike down the University of Michigan’s affirmative-action program and to allow the Ten Commandments to be displayed in a Kentucky courthouse – opposite positions than those taken by Justice O’Connor when those cases reached the Supreme Court.  So, even she would spark quite a fight, if not another Democratic filibuster attempt. 

If President Bush hasn’t the guts to nominate Janice Rogers Brown (who would be the ideal successor to O’Connor – someone who would vote as O’Connor did when O’Connor was right, but who’d vote differently in those cases, like the U of M affirmative-action case, where O’Connor was wrong), but if he still wants to pick a woman, there’s another good candidate on the Sixth Circuit bench:  Judge Deborah Cook, who previously was an outstanding jurist on the Ohio Supreme Court (in my opinion, the best justice the Ohio Court has had in recent years), a judicial-restraint conservative who (like Brown and Thomas) also might have libertarian leanings – in other words, someone who understands the dangers of governmental power and the importance of protecting individual freedom, in all its legitimate aspects. 

Chief Justice Roberts and the Legacy of the Rehnquist Court

                It’s no secret that Roberts wasn’t my ideal pick as Chief Justice; as I discuss in my “Next Chief Justice” essay, I’d have preferred to see Justice Thomas – my favorite justice on the Court – elevated to Chief, for several reasons.  As I discuss in that essay, it’s critically important that Rehnquist’s successor continue the positive legacy of the Rehnquist Court:  its so-called “New Federalism” (the partial revival of the Tenth Amendment and the imposition of some limitations on the scope of federal powers under the Commerce Clause), as well as the partial revival of some enumerated rights (particularly property rights) given short shrift under “liberal” constitutionalism.   

I’m worried somewhat that Roberts might become another Souter:  someone who, once on the Court, will move in a leftward direction, undermining the positive accomplishments of the Rehnquist Court.  I hope I’m wrong, and that Roberts will prove to be an able successor in Rehnquist, building upon the positive legacy of the “conservative revival” that many scholars associate with the Rehnquist Court.  But I have some doubts, because of some kind things that some leftists have said about Roberts in recent weeks. 

Most disturbingly, left-liberal commentator Jeffrey Rosen, in a recent article in The New Republic online, argued that his fellow liberals ought not to oppose Roberts because “the claim that Roberts would move the Court to the right as chief justice – and that he therefore deserves greater scrutiny – is transparently unconvincing.”  Rosen speculates that Roberts’ memos and judicial opinions suggest that, on questions of federal power, Roberts will be a “more deferential conservative, less likely to strike down regulations in the name of economic rights” – in other words, more like Rehnquist and less like O’Connor.  “Although liberals canonized O’Connor as a moderate after she announced her retirement, they forget that she was among the Court’s most enthusiastic and activist proponents of striking down federal and state regulations,” Rosen argues.  To him, that’s a bad thing; to someone who truly values individual freedom and limited government, however, that’s the admirable part of O’Connor’s jurisprudence.  It’s not “activist,” in the bad sense of the word, for justices to be willing to enforce the Constitution’s limits on governmental power – as O’Connor (together with Rehnquist and Thomas) was, in dissent, in both Raich and Kelo, the medical marijuana and eminent domain cases. 

“On many questions involving federalism, Roberts’s views resemble those of Rehnquist rather than O’Connor, and, in this sense, he would not change the balance of the Court.  And, in other areas of concern to liberals – such as his willingness to uphold precedents with which he disagrees – Roberts may turn out to be more concerned about judicial stability and humility than either Rehnquist or O’Connor, which suggests he might even move the Court to the left,” Rosen suggests.  “The truth is that Roberts’ nomination as chief justice was a peace offering from Bush to Democrats and a gift to principled liberal and conservative defenders of judicial restraint.  Rather than listening to the siren song of ideological interest groups who are urging them to cast a symbolic but futile vole of opposition, Democrats should instead vote to confirm Roberts as chief justice with gratitude and relief,” he concluded (“Liberals Shouldn’t Fight Roberts,” September 19). 

If Rosen is right – and half the Senate Democrats arguably appeared to follow his advice – then both conservatives and libertarians really ought not to be celebrating the Roberts confirmation.  Those of us who value the New Federalism legacy of the Rehnquist Court – and who want the Court to go even further, as Justice Thomas has suggested, in resurrecting real limits on governmental power (especially federal power), might ultimately find the Roberts Court to be a disappointing successor to the Rehnquist Court.  Admittedly, Rosen’s article is largely pure speculation – trying to infer from Roberts’ writings from years ago, not only as a government lawyer but even as a law student, positions he’d take on the Court today and in the years to come.  But again, if Rosen is even partially right about Roberts, there is serious doubt about whether he’ll be an improvement upon Rehnquist or will lead the Court back to the post-1937 leftist-liberal orthodoxy.   

Rosen expects Roberts to be more deferential to Congress than was O’Connor, with regard to Congress’ ability to condition the grant of federal funds on a state’s agreement to follow federal law.  Rosen claims that, in a 1999 interview on public radio (which is by itself disturbing, as no principled conservative would willingly appear on public radio), Roberts said, “The basic principle is, if you pay the piper, you get to call the tune.  And I think the federal government could say, `If we’re giving you money, and it’s related to the area in which we’re trying to get you to waive sovereign immunity, we can require you to consent to suit as a condition of getting those funds.’” And indeed, Rosen adds, in an appellate court decision last year, Roberts joined a majority opinion holding that Congress could force the Washington Metropolitan Area Transit Authority to waive its immunity from federal discrimination suits as a condition of accepting federal transportation funds.   To Rosen, this meager evidence suggests that Roberts would give Congress more latitude than O’Connor to impose conditions on federal funds. 

In response to liberal groups who fear Roberts’ views on congressional power because of his now-famous 2003 opinion in which he questioned the constitutionality of applying the Endangered Species Act to protect a rare species of toad, Rosen takes comfort in the fact that Roberts declined to join the “radical” dissenting opinion of Judge David Sentelle, a principled defender of limits on federal power.  Instead, Rosen argues, Roberts suggested that the Endangered Specied Act might be able to protect the toad under other theories.  To Rosen, that’s comforting; to me, that’s disturbing – because any judge who cannot see that the Endangered Species Act is clearly unconstitutional (it’s not a “regulation of commerce,” in any true sense of those words) isn’t fit to be on the federal bench, in my opinion.  (Rosen is paranoid about what he calls “the Constitution in Exile” – a movement he sees among some conservatives to restore pre-1937 constitutional limitations on federal powers.  He derived the term from a law review piece written by a conservative federal judge, Douglas Ginsburg, a few years ago; and he claims it’s an organized movement, called by that name, by many conservatives.  Yet I know of no conservatives who really want to undo the so-called “New Deal Revolution.”  Only Justice Thomas, and a handful of libertarian scholars – including Randy Barnett, of Boston University (author of Restoring the Lost Constitution); Roger Pilon, vice president of legal affairs at Cato Institute; and myself, in my future book on the Constitution – have seriously advocated a radical revision of modern constitutional law, to “restore the lost Constitution,” as Barnett puts it in his book’s title.  But a handful of libertarians hardly makes an organized movement among conservatives – the so-called “Constitution in Exile” about which Rosen writes so alarmingly, in a literally paranoid fashion.  I wish there were such a movement, and that libertarians and conservatives would join in coalition against left-liberals to advance it; but sadly, there isn’t – and as libertarians like myself see it, the conservatives are just as wrong about the Constitution as the left-liberals are.) 

Another area “involving the Constitution in Exile,” writes Rosen, where Roberts “seems to the left of O’Connor, and perhaps even Rehnquist, involves Congress’s power, under the Fifth Amendment, to take private property with just compensation.”  As a law student, Roberts wrote a note rejecting “a rigid libertarian reading of the Takings Clause,” Rosen reports; and as an appellate advocate, Roberts “won the admiration of environmentalists” when he argued that a development freeze in Lake Tahoe did not take unconstitutionally the property of local residents.  Rosen adds:  “The Supreme Court agreed with Roberts in a 2002 opinion that, according to Douglas Kendall of the liberal Community Rights Counsel, `stopped the takings movement in its tracks,’ “ adding that Kendall praised Roberts for writing “the best legal brief I’ve read in a takings case.”  “Nor was Roberts merely representing environmentalists as a hired gun:  In his Senate questionnaire for his appellate nomination, he emphasized that the Lake Tahoe opinion `shows a robust regard for the need for government regulators to be afforded broad flexibility in undertaking vital environmental measures.’”  Again, if Rosen is right, even partially – if Roberts’ view of the Takings Clause is acceptable to left-liberals – he’ll continue the sad turn in takings law that the Court took with its eminent domain decision in Kelo this year, undermining yet another positive legacy of the Rehnquist Court, its partial revival of property rights. 

It’s not just the enthusiasm of some left-liberals that has raised doubts about Roberts’ jurisprudence; some libertarian scholars have expressed doubts, too, prior to the confirmation vote.  Writing in “The Volokh Conspiracy” blog, David Kopel noted Roberts’ “disappointing” answers on Congress’ interstate commerce power, especially Roberts’ characterization of Lopez “as merely requiring that Congress attach some jurisdictional hook, in order to prohibit the entirely local possession of an object which decades ago might have been sold in Interstate Commerce,” as well as Roberts’ assurance to Senator Schumer that Congress has the power under the Commerce Clause to ban the intra-state cloning of a toad.  Thus, Kopel concludes, “Compared to [the late Chief] Justice Rehnquist, [Chief] Justice Roberts appear[s] to have similar views on the Second Amendment (good), on the Fourth Amendment (bad), and to be step backwards on the Interstate Commerce Clause.  Given that the Rehnquist Court’s timid steps toward restoring the Interstate Commerce [Clause] to its textual limits (rather than allowing it to be a power to regulate everything) were only decided by 5-4 vote, the replacement of Rehnquist with Roberts may end any efforts to change Congress’s anticonstitutional presumption that it possess limitless powers over every activity in the United States” (“Roberts on the Interstate Commerce Power,” posted September 16). 

As Randy Barnett argued in an eloquent eulogy to the late Chief Justice in the Wall Street Journal a few weeks ago, it’s vitally important that President Bush’s appointees to the Court have “a firm and demonstrated commitment to the Rehnquist Court’s New Federalism legacy.”  Only such choices “would continue the movement to restore the `first principles’ of constitutionally limited government that William Rehnquist affirmed so eloquently.  One can hardly imagine a sadder end to the tenure of William Rehnquist than that his most prized and important contribution to constitutional law is aborted by a conservative Republican president and a Republican-controlled Senate” (“William Rehnquist,” September 6). 

I agree with Barnett – except perhaps in classifying President Bush as a “conservative.”  On many policies he and his administration have adopted, Bush seems more like an unprincipled “moderate” than a principled conservative, and certainly not at all on the libertarian side of conservatism.  Will his choice of Roberts as chief justice – like his father’s choice of Souter as associate justice – also prove to be a great disappointment, to those of us who truly value individual freedom and limited government?  Only time will tell.  But Bush can help make us libertarians – and conservatives, too – breathe a bit easier if, in nominating a successor to Justice O’Connor, he’ll pick someone who’ll really “make [Senator] Leahy’s head explode”!   

 | Link to this Entry | Posted Thursday, September 29, 2005 | Copyright © David N. Mayer