Kermit Roosevelt on Roberts

Kermit Roosevelt, who teaches con law at UPenn, has an interesting article at American Prospect about the John Roberts hearings. He points out, correctly, that the arguments for why a nominee cannot be specific about a case that may come before them on the court don't withstand scrutiny:

What these remarks suggest is that Roberts will not be a wrecking ball, not a conservative out to change the tenor of the Court. That would have been a safe bet anyway; even aggressive conservatives like the young William Rehnquist tend to grow more moderate after assuming the chief justice's chair. We have not learned anything definite about his positions; there is nothing in the hearings that would prevent him from voting either way in almost any imaginable case. Nowadays, that is apparently considered the appropriate result, on the grounds that a too-transparent disclosure of the nominee's thoughts would suggest bias against future litigants and compromise the independence of the judiciary.

It is not at all clear that either of these concerns holds water. For the first, a judge's ability to judge a case impartially is surely dependent more on whether he has decided his position on an issue than on whether he has revealed that decision to anyone. No one is asking Roberts to make up his mind on issues on which he is undecided; they are simply asking him to disclose opinions he holds already. That disclosure is something that sitting judges do every time they write an opinion, and no one suggests that their impartiality is compromised when the same issues come before them again.

The concern about the independence of the judiciary is somewhat more serious. One thinks immediately of nominees promising to vote in certain ways on certain issues in exchange for confirmation, and this vision is colored by the related one of a nominee promising to vote in favor of a certain litigant -- that is, accepting confirmation as a bribe. But the two images are actually quite different. Voting for a litigant because of his or her identity is per se inconsistent with the judicial role. Voting for a legal outcome because it is believed correct is not, and honestly disclosing one's current thinking on a constitutional issue is not improper. Promising to vote in accord with that thinking would of course be improper, not least because judges must be free to change their minds, but no one is asking for promises.

I think he hits the key in the last sentence. It is of course true that a nominee would need some sort of disclaimer that he is addressing a subject only in the abstract, that when a case actually comes before him his opinion might well be changed by the facts of the case or the arguments in briefs on one side or the other. This is realistic and reasonable. Judges have even been known to change their minds on a case in the middle of deciding it, convinced by the arguments of a colleague on the court in open conference or even a dinner-table conversation. This is all quite proper.

But I do not buy the arguments that the moment a justice or potential justice reveals his current thinking on a legal controversy he is subverting justice for future appellants to the Court. Justice Scalia's views on church and state are well known. Not only has he expressed them in written opinions, he speaks about them regularly in public. Does that mean that the appellants in last year's Ten Commandments cases were somehow treated unfairly because they knew how he would vote beforehand? Of course not. If anything, it helps an advocate prepare his case to know the general views of the justices so that they can tailor their strategy and arguments more effectively.

Having said all that, I still think that Roberts revealed a great deal more than certainly the general public realizes, as I have argued in a series of posts. HIs acceptance of a right to privacy, of substantive due process in general, of the need to view questions at a higher level of abstraction than the direct question in the case, and of the need to apply broad principles in a logical manner rather than in the manner that those who announced the principle may have done - all of these suggest that Roberts is, in my view, the right kind of conservative.

I suspect that Justice Scalia will be most disappointed in Roberts, and I predict that within 2 years Robert Bork will be writing outraged op-ed pieces when Roberts is on the winning side of 6-3 or 7-2 decision that expands the coverage of a broad liberty principle to cover some specific action that Bork thinks is icky. And that will certainly bring a smile to my face.

Interesting aside: Kermit Roosevelt was also the name of the CIA agent who led Operation Ajax, a CIA coup that overthrew Mohammed Mossadegh and installed the Shah in power in Iran in 1953. He was a grandson of Teddy Roosevelt. I'm not sure whether this Kermit Roosevelt is related, but I imagine he likely is. I've sent an email to inquire about it. I believe that the 1953 coup was probably the single worst mistake the US has made in the middle east and it likely precipitated and helped provoke the Islamic radicalism we are battling today.

Update: Prof. Roosevelt replied to my email and he is, as I suspected, the grandson of the Kermit Roosevelt that led the CIA coup in Iran. Which would make him the great great grandson of Teddy Roosevelt himself.