Troubling Information on Judge Roberts

by Liberty and Power

Give the devil her due. Ann Coulter has called attention to the following pro-Roberts"talking point" by the Republican National Committee :

In the 1995 case of Barry v. Little, Judge Roberts argued—free of charge—before the D.C. Court of Appeals on behalf of a class of the neediest welfare recipients, challenging a termination of benefits under the District’s Public Assistance Act of 1982.

Unfortunately, I doubt that the conservatives, and some libertarians, who are participating in the Roberts lovefest will pay much attention.

If this is true, it does not seem that Roberts is a promising foot soldier, as some on the left have charged, for the mythical"Constitution in Exile" movement.

UPDATE: Over at Volokh, Randy Barnett has some perceptive comments on the Judge Roberts enigma .

ANOTHER UDPATE: According to today's New York Times

Laurence Tribe, a liberal professor of constitutional law at Harvard, remembers Roberts as a student there and has kept in touch with him over the years. He does not recall Roberts as a political conservative.

"He's conservative in manner and conservative in approach," Tribe said."He's a person who is cautious and careful, that's true. But he is also someone quite deeply immersed in the law, and he loves it. He believes in it as a discipline and pursues it in principle and not by way of politics."

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John Arthur Shaffer - 7/22/2005

Does anyone doubt Delay and company will try to federalize abortion regulation when/if Roe is overturned? You don't have to make something de facto illegal to severely diminsh it. The commerce implications won't be as much of a stretch as in Raich.

Steven Horwitz - 7/22/2005

FWIW... I disagree with Mark here and think such a right can be found precisely in the 9th amendment. And I do agree with Gus (and Mark in a different sort of way) that any more Bush appointments will put Roe in some jeapordy. Worst case scenario, I suppose, is it goes back to the states. However, I'm not quite the federalist that some are, and that solution, though not, of course, as bad as making abortion illegal nationwide, still would not make me happy.

John Arthur Shaffer - 7/22/2005

If the choice is between another majoritarian conservative or a Souter, I'll take another Souter.

David T. Beito - 7/22/2005

Perhaps. My misgivings about Roberts are based more on a feeling more than anything else. The parallels with Souter (much commented on by rightwingers) are really quite eerie. Both had backgrounds which were regarded at the time of the confirmation as "conservative" e.g. driven precedent and legal technicalities rather than ideology. Both had worked as legal bureaucrats and political functionaries, who loyally served their "bosses." Hence...Robert's standard excuse when confronted on controversial stands e.g. "I was only doing my job." In the case of Souter, he was known as a reliable functionary of Republican governors.

They may also share a certain calculating quality. Both men advanced in their legal careers in great part because they avoided taking clear stands on issues of controversy. Does this mean, as some have argued, that Roberts keeps his political views separate from his legal rulings? I don't think this is likely. Based on his career record, I fear that Roberts may be overly defential toward political power and the rule of the experts.

Mark Brady - 7/22/2005

There are two separate issues here:

1. Whether abortion should be illegal. I think not.

2. Whether Roe v. Wade was correctly decided. I think not. Roe v. Wade was one of many cases that extended federal control into an area where no power was granted to the federal government. And even if you hold that the Fourteenth Amendment applies to the entire Bill of Rights, I fail to see how one can convincingly find a right to privacy that includes a right to abortion in the Ninth Amendment.

Mark Brady - 7/22/2005

I've read not only the extract about Lawrence Tribe that you quoted but the entire article. Interesting reading. Why exactly are you "really worried about this guy"? I'm not writing to extol his candidacy but it strikes me that he might be better than some other potential candidates who are more 'politically conservative'.

Gus diZerega - 7/21/2005

My post had to do with David's worries, not Steve's. (I agree with Steve.) Dunno why it showed up above.

Gus diZerega - 7/21/2005

I am disappointed that some of you are more worried about that than the issue of Roe vs. Wade - which before its ruling actually led to the deaths of adults whom no one would doubt are human beings, based on religious dogmas rooted, as far as I have ever been able to tell, in abstruse debates over the character of the immaculate conception.

David T. Beito - 7/21/2005

Here is an interesting tidbit . I am really worried about this guy:

"He's conservative in manner and conservative in approach," Tribe said. "He's a person who is cautious and careful, that's true. But he is also someone quite deeply immersed in the law, and he loves it. He believes in it as a discipline and pursues it in principle and not by way of politics."

Steven Horwitz - 7/21/2005

Perhaps, but Coulter's point was that without a philosophy that she and other hard righters deemed "acceptable," Roberts was unacceptable. I read Barnett as saying that we simply don't know and can't form any judgments whatsoever, and that this was a problem in nominating someone who had a record where he was never forced to put his philosophical cards on the table. Barnett seemed to be arguing, as several pissed off commenters noted, that this is a problem in nominating people who've never been in academia or similar situations. Barnett was certainly not, in my reading, suggesting a philosophical litmus test (in fact, he ultimately thinks Roberts should be approved based on his qualifications), just musing that it would be really helpful to at least *know* what perspective the nominee is bringing to the process.

Comparing Barnett to Coulter in the way you did is really brutally unfair to Randy. No one with an ounce of intelligence should ever be compared to Coulter unless it has to do with ice cream preferences or some such thing. ;)

Ralph E. Luker - 7/21/2005

I didn't say that Barnett refered to Coulter's piece. I said that he made much the same argument.

John Arthur Shaffer - 7/21/2005

I didn't see any reference to Coulter's complaint in Barnett's piece? Did I miss something?

Ralph E. Luker - 7/21/2005

Sure. I see nothing wrong with Judge Roberts' work in the DC case. Why is he guilty for having done pro bono work for impoverished people against arbitrary bureaucratic action? Randy Barnett's post at Volokh is nothing more than dressing up Ann Coulter's irresponsible screed in more responsible language.

Mark Brady - 7/21/2005

"In the 1995 case of Barry v. Little, Judge Roberts argued—free of charge—before the D.C. Court of Appeals on behalf of a class of the neediest welfare recipients, challenging a termination of benefits under the District’s Public Assistance Act of 1982."

This is surely pro bono work and as a partner at Hogan and Hartson he would contribute his share.

Sheldon Richman - 7/20/2005

Randy makes a great point. We do not know Roberts's philosophy about the Constitution or constitutional interpretation, as we do with Judge Michael McConnell. And as Randy suggests, that may be the very reason that Roberts, not McConnell, was nominated. That's the perverse way politics works. To avoid cynicism these days is to embrace naivete.