Chief Justice John Roberts?

Elizabeth Dale edale1 at
Mon Sep 5 14:06:46 PDT 2005

I find it interesting that late last week we had posts debating whether
"callous incompetence" was an impeachable offense, and this week we are
assuming that of course the business of appointing replacement justices will
proceed along predictable political grounds (will Bush play to his base?
will Bush, having appointed one conservative white male, appoint a minority
or a "moderate conservative"? etc)
I'm curious (genuinely curious,to borrow a phase from Sandy): Does this
reflect the conclusion, reached by members of the list over the weekend,
that things really aren't so bad in the Gulf Coast? Or the conclusion that
they are bad, but it's not the President's fault? Or the conclusion that
things are bad, it's the President's fault, but there is nothing that can be
done about that constitutionally and so it should have no impact on the
nomination process to replace O'Connor and Rehnquist? 
Or does it reflect the assumption that the Supreme Court is so important
that, regardless of how the other issues play out, it is vital that two
justices be appointed and confirmed quickly?  Or something else?
Perhaps I am overly sensitive to hurricane related issues, but I am a bit
puzzled by the fact that people are willing to entertain the idea that
Roberts's new and improved nomination might lead to a different kind of
scrutiny at the Senate hearing, but no one seems to have suggested that the
travails of the past week might have altered the appointment equation
significantly. Why is that?

Elizabeth Dale 

Associate Professor, US Legal History, Department of History, 
Affiliate Professor of Legal History, Levin College of Law 

University of Florida 
PO Box 17320 
Gainesville, Florida 32611 

edale at 
352-393-0271 ex 262 



From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Chambers, Henry
Sent: Monday, September 05, 2005 10:36 AM
To: JFN; Marty Lederman; Greg Magarian; conlawprof at;
crossf at; richard at
Subject: RE: Chief Justice John Roberts?

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.  





Henry L. Chambers, Jr., Professor of Law

University of Richmond School of Law

28 Westhampton Way

Richmond, VA 23173




From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of JFN
Sent: Sunday, September 04, 2005 11:26 PM
To: Marty Lederman; Greg Magarian; conlawprof at;
crossf at; richard at
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




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



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

From: "JFN" < <mailto:jfnbl at> jfnbl at>

To: "Greg Magarian" < <mailto:Magarian at>
Magarian at>; < <mailto:conlawprof at>
conlawprof at>; < <mailto:crossf at>
crossf at>; < <mailto:richard at> richard at>

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 < <mailto:jfnbl at> jfnbl at> 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
>>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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