Wednesday, March 23, 2016

John Roberts, white man of principle

We always like to hear what our classmates are up to, so we were pleased to see that John Roberts '76 has opined on how to fill Supreme Court vacancies, a matter in which he has more than a sporting interest.  How should it work?  He's glad you asked:
“Last month, Chief Justice John G. Roberts Jr. delivered some blunt remarks about the Supreme Court confirmation process. The Senate should ensure that nominees are qualified, he said, and leave politics out of it.”  (The New York Times, March 21, 2016)
In his view, things have gone downhill in recent years:
“It was not long ago that qualified nominees coasted onto the court, Chief Justice Roberts said last month, in a speech at New England Law, a private law school in Boston. In 1986, Justice Scalia was confirmed by a vote of 98 to 0.”
And that worked out great!  If you don't believe me, just ask George W. Bush, who was installed as President with the late Nino Scalia casting the deciding vote.

Let's unpack the Robster's argument, which is that the Senate should confine its inquiry to determining if the nominee is “qualified,” which in practice has meant graduation from Harvard or Yale Law Schools (the surest sign of jurisprudential ability on God's good earth), working at a semi-fancy government job, preferably in a prosecutorial role (because defenders are always disqualified due to their evil, sick penchant for defending criminals), and then hanging around a fancy law firm whilst trying to overturn the election mentioned above. 

Note that he doesn't argue that the President shouldn't take a nominee's political and juridical views into consideration, only that the Senate can't.  So if a President after nationwide search states that his man is the most qualified person in the nation to serve on the Supreme Court, as Poppy Bush said about the execrable Clarence Thomas, the Senate should inspect the nominee's diploma and vote yes.

But at this point the reader may object, isn't Roberts arguing for confirming Merrick Garland?  And aren't you (meaning me) rather obnoxiously siding with those seeking to block his nomination?  Right now the question relating to Merrick Garland (like John a graduate of the College and the Law School) is whether the Senate will grant him the hearing he and the President deserve.  Once that happens, we can discuss whether he should be confirmed (He should.).

We suspect that what is really mussing Roberts's coiffure is the attack on the image he is desperately trying to convey of the Supreme Court as a neutral and principled arbiter.  It's a pretty thought, but one that can't be maintained in the light of principle-free decisions like Bush v. Gore.  Or the wholly political decision to create a private right to wield deadly weapons by reading the first clause out of the Second Amendment, a right that two centuries of justices had unaccountably overlooked.  Or the unprecedented efforts to weaken Obamacare by claiming that health insurance is not within the Commerce Clause and that the Federal Government cannot choose freely how to spend its Medicaid money under the Taxing and Spending Clause.  We could go on, but you catch the drift.

You may argue that allowing the Senate to weigh a nominee's politics would be a recipe for the withering away of the Supreme Court, given a Democratic President and a Republican Senate.  It well might, at least until the day when the Democratic base realizes it has to vote every two years, not four.

You may also wish to consider what could go wrong with signing on to a rule that cedes to the President the sole right to weigh a nominee's political views and values.  Here's a hint:

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