Linda Greenhouse: Roberts Says Much but Gives Away Little
For those senators who were busy excavating his past for hints of his future, Judge John G. Roberts Jr. had a history lesson of his own to offer on his first day under questioning by the Senate Judiciary Committee.
Judge Roberts, who formerly worked in the Justice Department and has now been nominated to be chief justice, invoked the memory of a man who more than 60 years ago made a similar journey between two branches of government and who shed some of his earlier views in the process.
Robert H. Jackson was attorney general when President Franklin D. Roosevelt named him to the Supreme Court in 1941. As Judge Roberts pointed out in a colloquy with Senator Patrick J. Leahy of Vermont, the committee's senior Democrat, Justice Jackson then changed from"someone whose job it was to promote and defend an expansive view of executive powers" to someone who"took an entirely different view of a lot of issues," including the scope of presidential power.
The nominee's message was oblique, but clear: Do not judge me by the hundreds of memorandums I wrote as a young lawyer in the Reagan administration. Or, as Justice Jackson once said in an opinion to which Judge Roberts alluded, repudiating as a Supreme Court justice a position he had advocated as attorney general:"The matter does not appear to me now as it appears to have appeared to me then."
Justice Jackson himself borrowed that line, which appeared in a 1950 opinion, McGrath v. Kristensen, from a famous judicial recantation by a 19th-century English jurist, Baron Bramwell. And Judge Roberts, speaking to Senator Herb Kohl, Democrat of Wisconsin, offered his own nonspecific variant:"I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers."...
...Robert Jackson was a major figure in his time, at one point considered a potential presidential contender. His evolving view of presidential authority was due to more than his change of venue from the Justice Department to the court. The year he spent, while a Supreme Court justice, as the chief United States prosecutor at the Nuremberg war crimes trials had a formative effect, said Prof. Dennis J. Hutchinson of the University of Chicago, who wrote an article on the subject 10 years ago for The Journal of Supreme Court History.
From his close-up view of the Nazi regime,"Jackson became worried about pervasive national power," Professor Hutchinson said in an interview."He told his law clerks when he came back that the first step to tyranny was to centralize control of the police and the courts."
In invoking Justice Jackson, Judge Roberts was sufficiently opaque as to leave his performance open to a variety of interpretations. He gave away little of substance. Nor did he quote from a book with which he is undoubtedly familiar,"The Struggle for Judicial Supremacy," an account of Roosevelt's failed court-packing plan. In the introduction, the author asked, as a liberal, a question that many conservatives have asked more recently as they pondered their seeming inability to gain firm control of the Supreme Court."Why is it," Robert Jackson wondered,"that the court influences appointees more consistently than appointees influence the court?"
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