A Stealth O'Connor or Souter After All?

[Greg Magarian]

Amazing that you accuse Geoffrey Stone of "incredible arrogance" for
making value-laden generalizations about ideological types and then spew
childish insults at a Supreme Court Justice (insults that I can only
assume you would have the courage and character to say to his face). 
Speaking not as a former Supreme Court clerk but simply as someone who
had the opportunity to observe Justice Souter's working style and to
talk with him on a few occasions, I can testify to his exemplary
intellect, interpersonal skills, and spirit of independence.  For the
record, I have a very similar impression of Justice Thomas.  As for your
concerns about the cabal of liberals who run Washington and poison
conservative minds (which I had always assumed were pretty strong in
their convictions), you had better inform Karl Rove, Tom DeLay, Bill
Frist, and the Chief Justice that this sinister establishment has
rendered them powerless, because they keep behaving like they run
things.

Gregory P. Magarian
Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
(610) 519-7652

>>> Rick Duncan <nebraskalawprof at yahoo.com> 8/5/2005 11:33:54 AM >>>
I sure Trevor is right about Souter's sad, solitary life with his
books. (Is it "preposterous" to suggest that it is sad to live life
alone with your books? Perhaps. But I don't think so, nor do I think I
need to consult a former SC clerk on the issue, as brilliant as they may
be.) 
 
The point Prof. Wagner was making (and I concur) was that it helps to
see how a guy reacts to legal combat in the D of C before putting him on
the Court. Scalia, Thomas, and the Chief all made their bones in
Washington before being called to the bench. You knew what you were
getting when you nominated them. You never know what you are getting
when you nominate someone like Silas Marner for a seat on the High
Court.
 
Rick

Trevor Morrison <trevor-morrison at postoffice.law.cornell.edu> 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

   > > _______________________________________________

   > > To post, send message to Conlawprof at lists.ucla.edu 

   > > To subscribe, unsubscribe, change options, or get password, see

   > > http://lists.ucla.edu/cgi- 

   > bin/mailman/listinfo/conlawprof

   > > 

   > > Please note that messages sent to this large list cannot be
viewed

   > > as private. Anyone can 

   > subscribe to the list and read messages that are posted; people
can

   > read the Web archives; and list members can (rightly or wrongly)

   > forward the messages to others. >

   > 




   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 



   _______________________________________________

   To post, send message to Conlawprof at lists.ucla.edu 

   To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 


   Please note that messages sent to this large list cannot be viewed
as private. Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.



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

__________________________________________________
Do You Yahoo!?
Tired of spam? Yahoo! Mail has the best spam protection around 
http://mail.yahoo.com 
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu 
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.

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
		
---------------------------------
 Start your day with Yahoo! - make it your home page