Commentary Magazine


Topic: John Roberts

Americans Not Thrilled with Kagan

Gallup reports that Elena Kagan is rated a good or excellent choice by 40 percent of Americans, lower than John Roberts, Sam Alito, Sonia Sotomayor, and even Harriet Miers. In large part this is because 24 percent of Americans have no opinion of her at all, which seems appropriate for a stealth nominee who has not served on the bench or written anything that would give us a strong indication of what sort of justice she’d be.

Maybe she’ll wow the Senate and the public, give us plenty of indication as to her constitutional philosophy, and show mastery of the many areas of the law that will soon command her attention. But I sort of doubt it. Kagan got this far by not tipping her hand; she’s not about to now.

Gallup reports that Elena Kagan is rated a good or excellent choice by 40 percent of Americans, lower than John Roberts, Sam Alito, Sonia Sotomayor, and even Harriet Miers. In large part this is because 24 percent of Americans have no opinion of her at all, which seems appropriate for a stealth nominee who has not served on the bench or written anything that would give us a strong indication of what sort of justice she’d be.

Maybe she’ll wow the Senate and the public, give us plenty of indication as to her constitutional philosophy, and show mastery of the many areas of the law that will soon command her attention. But I sort of doubt it. Kagan got this far by not tipping her hand; she’s not about to now.

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Views on the Supreme Court

The American people are not a model of consistency when it comes to their take on the Supreme Court. The latest Quinnipiac polls tells us:

“A total of 53 percent of American voters are “very confident” or “somewhat confident” President Obama will make the right decision in nominating a U.S. Supreme Court justice, while 46 percent are “not too confident” or “not confident at all” …

Voters trust the President rather than Senate Republicans 46 – 43 percent to make the right choice for the Supreme Court, but say 48 – 41 percent that Senators who do not agree with the nominee on key issues should filibuster the choice.

American voters approve 49 – 21 percent of the job John Roberts is doing as Chief Justice of the Supreme Court and approve 52 – 32 percent of Obama’s nomination of Justice Sonia Sotomayor to the Court.

The court is too liberal, 29 percent say, while 19 percent say it is too conservative and 40 percent say it is about right. Saying “about right” are 36 percent of self-described liberals, 44 percent of moderates, 38 percent of conservatives and 30 percent of those who consider themselves part of the Tea Party. Voters say 78 – 16 percent that Supreme Court justices allow political views to enter into their decisions.

Huh? They trust the president, but a filibuster is fine to block Obama’s choice. They trust the president but think the current Court (the majority of whose members Obama would never nominate) is just fine. They approve of Roberts, the conservative, textualist scholar, but are delighted with the newest justice, who is neither of those things. Well, suffice it to say there’s something in there for everyone, and the public has become exceptionally cynical about the politicization of the Court.

The American people are not a model of consistency when it comes to their take on the Supreme Court. The latest Quinnipiac polls tells us:

“A total of 53 percent of American voters are “very confident” or “somewhat confident” President Obama will make the right decision in nominating a U.S. Supreme Court justice, while 46 percent are “not too confident” or “not confident at all” …

Voters trust the President rather than Senate Republicans 46 – 43 percent to make the right choice for the Supreme Court, but say 48 – 41 percent that Senators who do not agree with the nominee on key issues should filibuster the choice.

American voters approve 49 – 21 percent of the job John Roberts is doing as Chief Justice of the Supreme Court and approve 52 – 32 percent of Obama’s nomination of Justice Sonia Sotomayor to the Court.

The court is too liberal, 29 percent say, while 19 percent say it is too conservative and 40 percent say it is about right. Saying “about right” are 36 percent of self-described liberals, 44 percent of moderates, 38 percent of conservatives and 30 percent of those who consider themselves part of the Tea Party. Voters say 78 – 16 percent that Supreme Court justices allow political views to enter into their decisions.

Huh? They trust the president, but a filibuster is fine to block Obama’s choice. They trust the president but think the current Court (the majority of whose members Obama would never nominate) is just fine. They approve of Roberts, the conservative, textualist scholar, but are delighted with the newest justice, who is neither of those things. Well, suffice it to say there’s something in there for everyone, and the public has become exceptionally cynical about the politicization of the Court.

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RE: Lawyers Should Cheer

Jan Crawford (h/t Glenn Reynolds), among the best of the mainstream media Supreme Court reporters, socks it to the White House for its juvenile insistence on getting the last word on its running spat with the Court. After Chief Justice John Roberts made the fine suggestion that the Court should abstain from the State of the Union, Robert Gibbs seemed to make Roberts’ point for him by replaying the president’s slap at the Court. (“What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections – drowning out the voices of average Americans.”) Crawford thinks this is ridiculous:

But after Chief Justice John Roberts made some entirely reasonable remarks yesterday — and White House Press Secretary Robert Gibbs just had to respond — it’s now getting ridiculous. Whether the White House has a short-term or long-term strategy or no strategy at all, it’s flat-out absurd and ill-advised for the administration to think it should always have the last word. It’s like my 6-year-old: “I don’t LIKE your idea. I like MY idea.”

She continues:

This administration is going to have to be dealing with this Supreme Court for at least three more years, if not more. Its lawyers are going to have to appear before these justices to defend presidential initiatives or federal laws in case after case, big and small.

I’m not suggesting they won’t get a fair shake simply because the White House is trying to stick it to the conservative justices. George Bush repeatedly got slapped down by this Court, even though he never lashed out at the justices.

But at some point — and I’d say that point is now — the Obama Administration is working against its interests.

They’d do well to remember that on a lot of the issues they care about, the Supreme Court gets to decide. No matter how much they stomp their feet and shout, “I don’t LIKE your idea; I like MY idea,” the Supreme Court is going to get the last word.

This is par for the course at this White House. It’s the perpetual rat-tat-tat, the quintessential campaign quick-response mode. There is no respect for the Chief Justice or the Court as an institution, nor for the point the Chief Justice was making: that it’s unseemly for the Court to appear and to get dragged into partisan brawls. In their partisan vitriol, the Obami, of course, proved the Chief Justice’s case. But then, self-awareness was never the White House’s strong suit.

Jan Crawford (h/t Glenn Reynolds), among the best of the mainstream media Supreme Court reporters, socks it to the White House for its juvenile insistence on getting the last word on its running spat with the Court. After Chief Justice John Roberts made the fine suggestion that the Court should abstain from the State of the Union, Robert Gibbs seemed to make Roberts’ point for him by replaying the president’s slap at the Court. (“What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections – drowning out the voices of average Americans.”) Crawford thinks this is ridiculous:

But after Chief Justice John Roberts made some entirely reasonable remarks yesterday — and White House Press Secretary Robert Gibbs just had to respond — it’s now getting ridiculous. Whether the White House has a short-term or long-term strategy or no strategy at all, it’s flat-out absurd and ill-advised for the administration to think it should always have the last word. It’s like my 6-year-old: “I don’t LIKE your idea. I like MY idea.”

She continues:

This administration is going to have to be dealing with this Supreme Court for at least three more years, if not more. Its lawyers are going to have to appear before these justices to defend presidential initiatives or federal laws in case after case, big and small.

I’m not suggesting they won’t get a fair shake simply because the White House is trying to stick it to the conservative justices. George Bush repeatedly got slapped down by this Court, even though he never lashed out at the justices.

But at some point — and I’d say that point is now — the Obama Administration is working against its interests.

They’d do well to remember that on a lot of the issues they care about, the Supreme Court gets to decide. No matter how much they stomp their feet and shout, “I don’t LIKE your idea; I like MY idea,” the Supreme Court is going to get the last word.

This is par for the course at this White House. It’s the perpetual rat-tat-tat, the quintessential campaign quick-response mode. There is no respect for the Chief Justice or the Court as an institution, nor for the point the Chief Justice was making: that it’s unseemly for the Court to appear and to get dragged into partisan brawls. In their partisan vitriol, the Obami, of course, proved the Chief Justice’s case. But then, self-awareness was never the White House’s strong suit.

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Lawyers Should Cheer

Following the flap over Obama’s State of the Union attack on the Supreme Court’s decision striking down a portion of the McCain-Feingold campaign-finance law, I wrote that it would be a good idea for the justices to skip the event in the future, since it has become a partisan affair that needlessly embroils them in political matters. I am delighted to see that I am on the same wavelength as the chief justice:

Chief Justice John Roberts told students at the University of Alabama Tuesday that President Obama’s State of the Union address, in which he singled out a recent Supreme Court decision on campaign finance law for criticism, was “very troubling” and said the annual event has “degenerated into a political pep rally,” the A.P. reports.

Taking a question from a law school student, Roberts said anyone is welcome to criticize the court. “I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling. . . I’m not sure why we’re there,” he said.

This is precisely the question raised by the president’s use of the justices as props for his showboating. Shouldn’t there be universal agreement that the Court should remove itself from partisan affairs? Let’s see how the media and legal elite greet this one. At least one thing is clear: this supposedly post-partisan president, who ran for office decrying old-style politics, has hyper-charged with partisanship nearly everything with which he comes in contact — the census, the Court, and the Justice Department, for starters. It’s good to see that not everyone is playing along. And it’s better still to see Chief Justice Roberts defend the dignity and apolitical nature of the Court. Obama may lose his props, but we should all benefit from the reminder that the justices are not in the business of cheerleading the president nor duty bound to perform the role of mute extras in his political drama.

Following the flap over Obama’s State of the Union attack on the Supreme Court’s decision striking down a portion of the McCain-Feingold campaign-finance law, I wrote that it would be a good idea for the justices to skip the event in the future, since it has become a partisan affair that needlessly embroils them in political matters. I am delighted to see that I am on the same wavelength as the chief justice:

Chief Justice John Roberts told students at the University of Alabama Tuesday that President Obama’s State of the Union address, in which he singled out a recent Supreme Court decision on campaign finance law for criticism, was “very troubling” and said the annual event has “degenerated into a political pep rally,” the A.P. reports.

Taking a question from a law school student, Roberts said anyone is welcome to criticize the court. “I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling. . . I’m not sure why we’re there,” he said.

This is precisely the question raised by the president’s use of the justices as props for his showboating. Shouldn’t there be universal agreement that the Court should remove itself from partisan affairs? Let’s see how the media and legal elite greet this one. At least one thing is clear: this supposedly post-partisan president, who ran for office decrying old-style politics, has hyper-charged with partisanship nearly everything with which he comes in contact — the census, the Court, and the Justice Department, for starters. It’s good to see that not everyone is playing along. And it’s better still to see Chief Justice Roberts defend the dignity and apolitical nature of the Court. Obama may lose his props, but we should all benefit from the reminder that the justices are not in the business of cheerleading the president nor duty bound to perform the role of mute extras in his political drama.

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Stepping Up Their Game

The McCain camp was wary, while the Democratic primary still looked undecided, of taking on Barack Obama too forcefully. Yes on Hamas and Bill Ayers, no on Reverend Wright, with not much fire directed at some of the recent Obama gaffes. Now that the primary is drawing to an end, the McCain camp may be stepping up its rhetoric, and the rules of engagement are being set.

After the John Edwards endorsement event in Michigan last night, the McCain camp put out a statement which took Obama to task in some of its strongest language to date:

Whether it’s Senator Obama’s pledges to raise taxes on millions of hardworking families or his senseless foreign policy of meeting with anti-American regimes abroad, he shows a lack of judgment that voters will reject.

Staffers also sent out some stats from their research files detailing the lack of bipartisanship in Obama’s record, in advance of McCain’s speech today on bipartisanship.

Likewise, when Obama’s communications director Robert Gibbs tried to hedge on Obama’s position that he will meet directly with state sponsors of terrorism (“Let’s not confuse precondition with preparation,” he told John Roberts during a CNN interview), the McCain team struck back. With plenty of YouTube material and Obama’s own website detailing the candidate’s repeated determination to meet with rogue states’ leaders without preconditions, it wasn’t hard to show that Obama’s spokesman had been engaging in old-style double talk.

McCain’s people will need to do more of this if they are going to force Obama to define what “change” is and make clear exactly what policies he has in store. Allowing Obama to escape scrutiny in a media environment already shown to be excessively deferential to the Agent of Change would be a grave and even fatal error: It’s one Hillary Clinton made for all of 2007.

The McCain camp was wary, while the Democratic primary still looked undecided, of taking on Barack Obama too forcefully. Yes on Hamas and Bill Ayers, no on Reverend Wright, with not much fire directed at some of the recent Obama gaffes. Now that the primary is drawing to an end, the McCain camp may be stepping up its rhetoric, and the rules of engagement are being set.

After the John Edwards endorsement event in Michigan last night, the McCain camp put out a statement which took Obama to task in some of its strongest language to date:

Whether it’s Senator Obama’s pledges to raise taxes on millions of hardworking families or his senseless foreign policy of meeting with anti-American regimes abroad, he shows a lack of judgment that voters will reject.

Staffers also sent out some stats from their research files detailing the lack of bipartisanship in Obama’s record, in advance of McCain’s speech today on bipartisanship.

Likewise, when Obama’s communications director Robert Gibbs tried to hedge on Obama’s position that he will meet directly with state sponsors of terrorism (“Let’s not confuse precondition with preparation,” he told John Roberts during a CNN interview), the McCain team struck back. With plenty of YouTube material and Obama’s own website detailing the candidate’s repeated determination to meet with rogue states’ leaders without preconditions, it wasn’t hard to show that Obama’s spokesman had been engaging in old-style double talk.

McCain’s people will need to do more of this if they are going to force Obama to define what “change” is and make clear exactly what policies he has in store. Allowing Obama to escape scrutiny in a media environment already shown to be excessively deferential to the Agent of Change would be a grave and even fatal error: It’s one Hillary Clinton made for all of 2007.

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McCain (Finally) Joins The Battle

To the consternation of many conservatives, John McCain has seemed reluctant to go after his potential Democratic adversaries with great force. That will change a bit today in a speech on judges at Wake Forrest University. Yes, his remarks contain the expected, impassioned plea for judicial restraint and words of praise for Justices Alito, Roberts, and Rehnquist. And he also puts in a brief defense of his role in the Gang of 14, which, he contends, helped get through two Supreme Court and several appeal court judges but has nonetheless been a sore spot with some conservatives.

But it is his sharp words about his Democratic opponents (on a day when they wait for election returns without making much news until tonight) that may catch the most attention. McCain explains:

Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.

It is a measure of how tame the debate has been that these are some of the most ideologically pointed lines to be spoken by McCain so far. Clearly, he and his campaign must believe this issue is a winner against both Democratic opponents, a chance to paint them as outside the mainstream. McCain–who is understandably hesitant to take any step that might turn off independents–may have found one of the rare issues he thinks can both please conservatives and keep independents on his side. Unfortunately for him, it’s a rare voter who casts his or her ballot for President solely on the basis of judicial philosophy and potential Supreme Court picks.

To the consternation of many conservatives, John McCain has seemed reluctant to go after his potential Democratic adversaries with great force. That will change a bit today in a speech on judges at Wake Forrest University. Yes, his remarks contain the expected, impassioned plea for judicial restraint and words of praise for Justices Alito, Roberts, and Rehnquist. And he also puts in a brief defense of his role in the Gang of 14, which, he contends, helped get through two Supreme Court and several appeal court judges but has nonetheless been a sore spot with some conservatives.

But it is his sharp words about his Democratic opponents (on a day when they wait for election returns without making much news until tonight) that may catch the most attention. McCain explains:

Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it – and I quote – should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

These vague words attempt to justify judicial activism – come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it – and they see it only in each other.

It is a measure of how tame the debate has been that these are some of the most ideologically pointed lines to be spoken by McCain so far. Clearly, he and his campaign must believe this issue is a winner against both Democratic opponents, a chance to paint them as outside the mainstream. McCain–who is understandably hesitant to take any step that might turn off independents–may have found one of the rare issues he thinks can both please conservatives and keep independents on his side. Unfortunately for him, it’s a rare voter who casts his or her ballot for President solely on the basis of judicial philosophy and potential Supreme Court picks.

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Obama on Roberts

During his interview with Chris Wallace yesterday, Barack Obama came across as he did in the early part of this campaign: thoughtful, reasonable, and likeable. But as we have come to expect with Obama, there is a need to unpack his answers carefully. For example, we got a glimpse into what Obama considers to be his capacity to transcend partisanship:

During the . . .  John Roberts nomination, although I voted against him, I strongly defended some of my colleagues who had voted for him on the Daily Kos, and was fiercely attacked as somebody who is, you know, caving in to Republicans on these fights.

It’s worth bearing in mind that John Roberts is one of the most distinguished people ever appointed to the Supreme Court. He is not only intellectually brilliant, but widely respected by virtually everyone he has ever worked with for his judicious temperament and his integrity. And, during the confirmation hearings, Roberts’ mastery of the law allowed him to match and overmatch even his most indefatigable critics. There were, in short, no real grounds on which to oppose the Roberts nomination.

Nevertheless, Obama voted against Roberts. (It’s worth recalling that when President Clinton nominated Ruth Bader Ginsburg to the Supreme Court, she was confirmed by a vote of 96 to 3–and Roberts was, if anything, more qualified than Ginsburg to sit on the high court.) For Obama to vote against Judge Roberts was an irresponsible, partisan decision, the kind of “old politics” that Obama has promised to rescue us from. And his citation of that vote as an example of post-partisan credentials shows just how desperate Obama is to present himself as a unifying figure. His record demonstrates nothing of the sort–and yesterday’s interview is one more example of why the portrait Obama is presenting is in many respects deeply at odds with his record.

During his interview with Chris Wallace yesterday, Barack Obama came across as he did in the early part of this campaign: thoughtful, reasonable, and likeable. But as we have come to expect with Obama, there is a need to unpack his answers carefully. For example, we got a glimpse into what Obama considers to be his capacity to transcend partisanship:

During the . . .  John Roberts nomination, although I voted against him, I strongly defended some of my colleagues who had voted for him on the Daily Kos, and was fiercely attacked as somebody who is, you know, caving in to Republicans on these fights.

It’s worth bearing in mind that John Roberts is one of the most distinguished people ever appointed to the Supreme Court. He is not only intellectually brilliant, but widely respected by virtually everyone he has ever worked with for his judicious temperament and his integrity. And, during the confirmation hearings, Roberts’ mastery of the law allowed him to match and overmatch even his most indefatigable critics. There were, in short, no real grounds on which to oppose the Roberts nomination.

Nevertheless, Obama voted against Roberts. (It’s worth recalling that when President Clinton nominated Ruth Bader Ginsburg to the Supreme Court, she was confirmed by a vote of 96 to 3–and Roberts was, if anything, more qualified than Ginsburg to sit on the high court.) For Obama to vote against Judge Roberts was an irresponsible, partisan decision, the kind of “old politics” that Obama has promised to rescue us from. And his citation of that vote as an example of post-partisan credentials shows just how desperate Obama is to present himself as a unifying figure. His record demonstrates nothing of the sort–and yesterday’s interview is one more example of why the portrait Obama is presenting is in many respects deeply at odds with his record.

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