Chief Justice John Roberts?

Mon Sep 5 07:36:11 PDT 2005

Prof. Noble wrote: 

<Today's profile of Rehnquist by Charles Lane in the Washington Post
recalls the Rehnquist who argued that Plessy was rightly decided; and
that the Constitution <should be amended to overturn protections
afforded accused criminals by the Warren Court; and who voted to allow
Bob Jones Univ. to exclude negroes. <That's not the Rehnquist who died
yesterday, and it bears no resemblance to Roberts.

I am curious why you believe this is so about Chief Justice Rehnquist.
I have largely thought that the CJ muted his comments over the years,
but that he had not done much to indicate that he had changed his core
beliefs.  Because I did not watch the CJ particularly closely, it is
entirely possible that I am wrong and that he has written and said a
substantial amount that indicates a change in views.  

Similarly, I have not seen anything that suggests that Judge Roberts has
changed his core beliefs over his career.  Again, it is entirely
possible that I am wrong about him.

To be clear, I do not necessarily mean to suggest that Judge Roberts'
views at the start of his career mirror Chief Justice Rehnquist's views
at the start of his career.  

-Hank   

Henry L. Chambers, Jr., Professor of Law

University of Richmond School of Law

28 Westhampton Way

Richmond, VA 23173

804-289-8199

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of JFN
Sent: Sunday, September 04, 2005 11:26 PM
To: Marty Lederman; Greg Magarian; conlawprof at lists.ucla.edu;
crossf at mail.utexas.edu; richard at uidaho.edu
Subject: Re: Chief Justice John Roberts?

I think your assessment is spot on. Roberts is probably close to the
ideological spitting image of Rehnquist today -- with the benefit of
Rehnquist's growth and moderation since 1971, and without the
"troubling" baggage of evident insensitivity to racism and doctrinaire
inflexibility that Rehnquist brought with him to his confirmation
hearings, and shed over the years (and that would have sunk Roberts if
they found anything even close).

Roberts is very likely to be very effective given the Court's precarious
balance and the fact that he's "closer to the swing votes." That's
strategically troubling, and even reason enough to vote against him if
you thought it would goad Bush into nominating an ineffective right-wing
fanatic; but if Roberts is closer to the swing votes, it's because he's
less ideologically troubling, apparently, than the 1971 Rehnquist.

John Noble

At 8:55 PM -0400 9/4/05, Marty Lederman wrote:

	Just curious, John -- why do you write that Roberts is "much
less troubling ideologically than Rehnquist was when he was appointed"?
I would have thought -- as I argued in a thread here a few weeks ago --
that Roberts is virtually the spittin' image of WHR ideologically and
jurisprudentially, except that he will likely be even more effective,
because he is closer (and more familiar) to the swing votes than was WHR
in 1971, and because he's an even better, and shrewder, writer.  Is
there any reason for me to doubt this assessment?

	----- Original Message -----

	From: "JFN" <jfnbl at earthlink.com <mailto:jfnbl at earthlink.com> >

	To: "Greg Magarian" <Magarian at law.villanova.edu
<mailto:Magarian at law.villanova.edu> >; <conlawprof at lists.ucla.edu
<mailto:conlawprof at lists.ucla.edu> >; <crossf at mail.utexas.edu
<mailto:crossf at mail.utexas.edu> >; <richard at uidaho.edu
<mailto:richard at uidaho.edu> >

	Sent: Sunday, September 04, 2005 8:26 PM

	Subject: Re: Chief Justice John Roberts?

	> Wow. You want to "sell" a "scenario" that's a "steal" and then
call
	> it "moxie" when Democrats hold their nose and swallow Roberts,
in the
	> "proud tradition of dissent" I guess, to get a weather vane --
I mean
	> moderate -- "in the spirit of Justice O'Connor." Is that about
right?
	>
	> You mistake my point for my politics. My assessment of the
"strategic
	> dimension" isn't wishful thinking. Roberts is extremely
	> well-qualified, at least as qualified as Rehnquist was at the
time of
	> his appointment, and much less troubling ideologically than
Rehnquist
	> was when he was appointed. I would nonetheless vote against
his
	> confirmation because this is a political appointment and calls
for a
	> frankly political vote, and as far as I can tell from what
little
	> he's revealed, I don't share his politics. My only hesitation,
offset
	> by the fact that he'd be confirmed no matter how I voted, is
that I
	> can't imagine Bush doing any better, or even half as well,
with the
	> second pitch. I expect I will feel the same way about his
replacement
	> if Roberts is confirmed and later elevated. I'll "rest easy"
if the
	> Democrats take the White House before Stevens drops dead and
Bush
	> gets to name a fifth politically dependable conservative.
	>
	> But whatever you think of Roberts, the argument that Democrats
need
	> more time to give the Chief's replacement more "careful
	> consideration" depends on the tacit acknowledgement that they
were
	> planning to give Roberts less than "careful consideration";
that
	> Democrats like Sens. Conrad and Nelson are going to give you
more

	> time to sell your scenario and squeeze them for their votes;
that the
	> public won't see it as (do I have to say pun intended?) an
	> obstruction of justice; and that Bush is dumb enough to give
you your
	> scenario by naming Roberts' replacement before there's a
vacancy
	> following his confirmation as CJ. Keep hope alive.
	>
	> John Noble
	>
	> At 5:33 PM -0400 9/4/05, Greg Magarian wrote:
	>>Wow -- careful consideration of a nominee for Chief Justice as
"an
	>>obstruction of justice."  A characterization in the proud
tradition of
	>>dissent as terrorism and the 2000 election as democracy.
	>>
	>>Professor Noble does make an interesting point about the
strategic
	>>dimension of the present situation.  The presence of two
simultaneous
	>>vacancies gives Democrats and moderates a political opening
for
	>>demanding that one of the new Justices, presumably the new
associate, be
	>>a moderate in the spirit of Justice O'Connor (whatever they,
we, or
	>>anybody take that to mean in substance).  Given the country's
	>>ideological divide and the President's political troubles, the
Dems have
	>>a realistic chance to sell such a scenario, which obviously
would be a
	>>steal for them, as a prudent and reasonable compromise.  Of
course, to
	>>get that result, they would need the political moxie to pull
off the
	>>appeal, so Professor Noble can probably rest easy.
	>>
	>>Gregory P. Magarian
	>>Professor of Law
	>>Villanova University School of Law
	>>299 N. Spring Mill Road
	>>Villanova, PA 19085
	>>(610) 519-7652
	>>
	>>>>>  JFN <jfnbl at earthlink.com <mailto:jfnbl at earthlink.com> >
9/4/2005 4:29:46 PM >>>
	>>At 2:06 PM -0500 9/4/05, Frank Cross wrote:
	>>>I foresee timing problems with immediately nominating Roberts
for
	>>>Chief.  The Dems will demand a delay in the hearings, I'm
sure.
	>>
	>>On what grounds? We need to take a closer look? Now we're
REALLY
	>>going to go through his record with a fine-toothed comb? And
that's
	>>up against starting the term with a full court and foreclosing
4-4
	>>splits. It would almost look like an obstruction of justice.
	>>
	>>>Is there any reason why not to go forward with the Roberts
	>>>nomination for associate and then, in December, nominate
another
	>>>judge for Rehnquist's seat, and renominate Roberts for
elevation to
	>>>Chief?
	>>
	>>Second choice. Re-confirmation of Roberts before he has a
chance to
	>>give Democrats any ammunition is almost a given. The drawback
is that
	>>it gives McCain and the Gang of 14 the Solomon Option: cut the
baby
	>>in half. Give the President his CJ (magnanimously) and reject
	>>Roberts' replacement (what are we -- potted plants?). The Gang
of 14
	>>is all about the Solomon Option. Owens and Pryor get a vote;
Myers
	>>and Saad don't. If you were looking for an "extraordinary
	>>circumstance" to justify a filibuster, you could hardly do
better
	>>than two simultaneous appointments to the highest court.
	>>
	>>John Noble
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