Thursday, July 21, 2005

It's not just Ann Coulter

In addition to Ann Coulter's negative take on John Roberts, columnist Ben Shapiro has also joined the anti-Roberts side.

There is not much in either column that I disagree with. Roberts is a stealth nominee, and I don't think that will change. Yes, he is much more connected to conservatives who know and care about the Constitution so their assurances have more weight than assurances of Souter's bonafides. Yet I don't see anyone claiming that Roberts will be a justice like Scalia and Thomas, which is what Bush promised us.

Most commentaters are suggesting that Roberts will be another Rehnquist, the justice for whom Roberts clerked. Bush could have run his campaign on the pledge to nominate justices like Scalia, Thomas and Rehnquist, but he did not, to my knowledge, ever cite Rehnquist as the type of judge he wanted his justice nominees to emulate.

Based on my very unscientific analysis of the information in the blogosphere on Roberts, I offer the following handy chart showing, in pecentage chance, the type of justice Roberts will turn out to be:

Souter - 5% (I don't think anyone believes Roberts will turn reliably liberal and moronic)

O'Connor/Kennedy - 25% (Just using current Supreme's here, but really this category should equate to the judging of Byron White, a centrist with great integrity, and Roe v. Wade dissenter)

Rehnquist - 50% (Would this be so bad? Well, yes, as Rehnquist tended to vote conservative on occasion over enforcing the Constitution. One example, Texas v. Johnson, the 1989 flag burning case. Scalia voted in the majority. Though reprehensible, burning the American flag for political expression purposes (as opposed to burning someone else's flag, or burning it on someone else's property) was protected by the First Amendment. Rehnquist dissented, exempting the American flag from political expression for no good reason. Not voting with a consistent view and application of the Constitution weakens opinions from a justice that rely on an originalist interpretation. Scalia and Thomas' correct view of judging will take a step back - will be a step further out of the "mainstream" - making it harder to nominate and approve true originalists to the bench.)

Scalia/Thomas - 20% (Will John Roberts consistently interpret the Constitution as written and as "dead"? Only time will tell. We are taking a chance here, and everyone seems to know it. The real issue here is, will John Roberts vote to overturn wrongly-decided cases that Scalia and Thomas would/will vote to overturn or will he defer to "precedent"? The question I would most like asked of Justice nominee Roberts is his view of when, and using what rationale, it is appropriate to revisit/overrule a wrongly-decided Supreme Court opinion (without mentioning any particular opinion). I suspect he will not be a "slash and burn" justice willing to overrule wrongly-decided cases with anything near the frequency and vigor that Scalia and Thomas would (if the Supreme Court was made up on only Scalia and Thomases))


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