A Stealth O'Connor or Souter After All?

[marty.lederman at comcast.net]

I don't know much about Warren Rudman's jurisprudence ;-) -- but I think Souter was very transparent at his confirmation hearings: He made no bones about his profound respect for, and his intent to emulate, (the Second) Justice Harlan -- and I think that in most respects, that's exactly what he's done (particularly w/r/t privacy and substantive due process (see esp. Glucksburg/Vacco)).  In 1969, Justice Souter would have been (as Justice Harlan was) on the right wing of the Court.


> Except on  the issue of federal power, has Souter really moved?  My 
> impression is that he was a Warren Rudman-type Republican to start with.
> 
> At 11:13 AM 8/5/2005 -0400, you wrote:
> >I've heard before this notion that "Republican Justices who come to the 
> >bench from the provinces (NH, AZ, even CA) drift left because they are 
> >weak and crave acceptance by the liberal establishment of the 
> >Beltway."  Without engaging the AZ (O'Connor) or CA (Kennedy) examples, 
> >the NH one (Souter) is truly preposterous.  We can all agree, I assume, 
> >that Justice Souter has moved somewhat towards the middle-left during his 
> >time on the Court, especially if compared to the place on the political 
> >spectrum that some in the first Bush administration may have assumed he 
> >was going to occupy.  But the idea that he has done this to ingratiate 
> >himself with the "liberal establishment of the Beltway" is 
> >ridiculous.  Ask any Souter clerk (or anyone else who knows him, for that 
> >matter), and the picture you get is of an intensely private man who 
> >prefers the solitude of his books to the social circles of DC's supposed 
> >"liberal establishment."
> >
> >At 10:42 AM 8/5/2005, Rick Duncan wrote:
> >>That was another part of Stone's incredible arrogance--the reason the 
> >>Kennedys of the world drift left is that left is the true north of the 
> >>compass of truth, and when new Justices come to the Court their moral 
> >>vision improves. Others think that Republican Justices who come to the 
> >>bench from the provinces (NH, AZ, even CA) drift left because they are 
> >>weak and crave acceptance by the liberal establishment of the Beltway. My 
> >>friend and sometimes colleague David Wagner blogged briefly about this 
> >>over at Ninomania recently and concluded:
> >>
> >>"His {Robert's] philosophical credentials my at first glance seem less 
> >>than Justice Kennedy's (Kennedy used to represent the California Catholic 
> >>bishops on life issues back in Sacramento, didn't he?), but otoh Roberts 
> >>has one thing that has been proved necessary for reliability on the 
> >>Supreme Court: Washington experience. Not to put too fine a point on it, 
> >>if they were gonna get him, they'da got him."
> >>
> >>Roberts may well have helped a colleague out of professional courtesy in 
> >>Romer, but like Scalia he is a "fool for Christ" and is married to a 
> >>"fool for Christ." I think he will vote like Scalia, but reason with more 
> >>light and less heat. In other words, he will be a Scalia with one 
> >>important difference-- he will influence weaker minds (like Kennedy) 
> >>rather than frighten them to seek cover in the opposing camp. A Scalia 
> >>with multiple votes, perhaps?
> >>
> >>Rick Duncan
> >>
> >>
> >>Lupu <iclupu at law.gwu.edu> wrote:
> >>Marty omitted Geoff Stone's most intriguing prediction -- that
> >>Roberts, like O'Connor, Kennedy, Souter, and several others, would
> >>likely "drift left" over his time on the Supreme Court, as he is
> >>exposed to the variety of injustices that government may inflict on
> >>individuals (and, I might add, to the pull of precedents that he would
> >>have rejected as an original matter but now feels compelled to
> >>follow -- compare Scalia on "incorporation" of Bill of Rights
> >>provisions). An "ideologue" like Scalia or Thomas may be unmoved
> >>by experience, but Stone suggests that Roberts will indeed be
> >>affected by it. Isn't that a sensible basis to prefer Roberts over an
> >>"ideologue"? Or is it more likely that Roberts will develop in the way
> >>that Rehnquist did -- pragmatic and flexible up to a point, but with a
> >>hard and unyielding core of conservative commitments?
> >>Chip Lupu
> >>P.S. I know that this sort of prediction game is fun, but it's quite
> >>extraordinarily foolish, isn't it? I would venture that many of us
> >>writing these posts don't know what we ourselves would do if
> >>suddenly faced with the responsibility of deciding hard (and, at this
> >>moment, unforeseeeable) cases.
> >>
> >>On 5 Aug 2005 at 8:54, Marty Lederman wrote:
> >> >
> >> > Has anyone so much as suggested that Roberts would be anything like
> >> > Scalia? >From all the evidence I've seen, I'd say he is instead very
> >> > much a modern-day version of Rehnquist (circa 1972), albeit without
> >> > WHR's dubious background on racial issues, and with even more acute
> >> > smarts and more impressive writing skills. (Hard to imagine WHR
> >> > writing Notes such as those Roberts published in the HLR -- or briefs
> >> > of the quality of Roberts's.) And yes, I can imagine Rehnquist, while
> >> > at OLC,having assisted the! SG in preparation for a case in which WHR
> >> > did not agree with the Government's position -- or ofdoing the same in
> >> > a law firm, had that been the route he chose. As I suggest below, the
> >> > fact that Rehnquist and Roberts are very comfortable playing within
> >> > the establishment SCOTUS rules of engagement -- rather than throwing
> >> > brickbats from the outside -- is what makes them much more effective
> >> > thanScalia and Thomas.
> >> >
> >> > If Roberts is much more akin to WHR than to Scalia or Thomas -- and I
> >> > think that he is -- what follows from that? Well, I think Geoffrey
> >> > Stone got it just about right in an Op-Ed last week
> >> > (http://www.chicagotribune.com/news/opinion/chi-0507270014jul27,1,1899
> >> > 219.story?coll=chi- news-hed), in which he predicted that Roberts
> >> > would likely vote to do most of the following: to eviscerate Roe vs.
> >> > Wade; reject the rights of homosexuals;narrow the scope of 
> >> affirmative> action;expand the role of religion in public life; andendorse 
> the
> >> > so-called "new federalism." "But if he does," Stone assures us, "it
> >> > will be in an open-minded, rigorous, intellectually honest manner,
> >> > rather than as an ideologue whose constitutional principles derive
> >> > more from fiction and faith than from legal reason."
> >> >
> >> > Stone writes this as if it were a good thing, a reason to prefer
> >> > Roberts to a Scalia/Thomas absolutist such as (presumably) Luttig,
> >> > Jones or Brown. Indeed, he concludes thatif Roberts "is, in fact, the
> >> > person I have described, . . . he should be warmly embraced as the
> >> > best the nation could expect from this administration--a brilliant,
> >> > decent individual with superb legal skills and without a rigid
> >> > ideological agenda. Unless and until we learn otherwise, organizations
> >> > like MoveOn.org and the Alliance for Justice should stay their hand
> >> > and accept the ! 'win' that is John Roberts."
> >> >
> >> > I have great admiration for many of Roberts's skills and personal
> >> > attributes --it's hard to imagine a better Supreme Court briefwriter
> >> > and advocate, and from what I've seen, Stone is correct that Roberts
> >> > is "a brilliant, decent individual with superb legal skills and
> >> > without a rigid ideological agenda." But "warm embrace" for his
> >> > nomination? I'm not sure why I should feel especially mollified by the
> >> > fact that when Roberts rewrites the constitutional map as thoroughly
> >> > asStone predicts he may, he'll do so "in an open-minded, rigorous,
> >> > intellectually honest manner."Because he is not a doctrinal
> >> > absolutist, because he plays the game so well within the system,
> >> > because he is so tactical and shrewd, and "rigorous," because he's so
> >> > personable and well-liked and admired by his colleagues, andbecause
> >> > he's not a flamethrower, Rehnquist has been far mo! re effective
> >> > atdestroying many pillars of the Warren Court edifice than Scalia and
> >> > Thomas could ever be. (And it didn't start when he became Chief --
> >> > recallthat he was quite effective very early in his career,not merely
> >> > in the famous "lone dissents" that paved the way for the Federalism
> >> > "revolution," etc., but in the way he quickly transformed doctrines
> >> > of, e.g., state action, justiciability, abstention, standing, remedial
> >> > powers, implied causes of action, Executive power, statutory
> >> > construction, habeas, etc.)
> >> >
> >> > For these same reasons, from the standpoint of the Bush
> >> > Administration, Roberts is not only a perfect nominee, he's the
> >> > optimal Justice of the Supreme Court. For those of us with a very
> >> > different constitutional vision . . . I'm not sure we wouldn't be
> >> > better off with "an ideologue whose constitutional principles derive
> >> > more from fiction and faith."(Fiv! e such Justices, on the otherhand,
> >> > would be another matter entirely . . . but we're not yet at that
> >> > point.)
> >> >
> >> > ----- Original Message ----- From:
> >> > To: "ConLaw Prof"
> >> > Sent: Friday, August 05, 2005 7:47 AM
> >> > Subject: A Stealth O'Connor or Souter After All?
> >> >
> >> >
> >> > > The recent revelation that John Roberts served as a pro bono oral-
> >> > > argument coach for Jean Dubofsky, the lead attorney for the
> >> > > prevailing side in Romer v. Evans, should put James Dobson & Friends
> >> > > in a panic. At minimum, this means that Roberts isn't a homophobe
> >> > > and has an open mind on gay rights issues. Can anyone imagine
> >> > > Antonin Scalia doing something comparable? I surely can't.
> >> > >
> >> > > Dan Pinello
> >> > > _______________________________________________
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> >> >
> >>
> >>
> >>Ira C. ("Chip") Lupu
> >>F. Elwood & Eleanor Davis Professor of Law
> >>The George Washington University Law School
> >>2000 H St., NW
> >>Washington D.C 20052
> >>(202) 994-7053
> >>ICLUPU at main.nlc.gwu.edu
> >>ICLUPU at law.gwu.edu
> >>
> >>_______________________________________________
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> >>
> >>
> >>
> >>Rick Duncan
> >>Welpton Professor of Law
> >>University of Nebraska College of Law
> >>Lincoln, NE 68583-0902
> >>
> >>"When the Round Table is broken every man must follow either Galahad or 
> >>Mordred: middle things are gone." C.S.Lewis, Grand Miracle
> >>
> >>"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or 
> >>numbered." --The Prisoner
> >>
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> _______________________________________________
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