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September 16, 2005
Krauthammer on Roberts
predict two things: (a) Chief Justice Roberts will vote to uphold Roe v. Wade, and (b) his replacing his former boss, Chief Justice Rehnquist, will move the court only mildly, but most assuredly, to the left - as measured by the only available yardstick, the percent of concurrences with the opinions of those conservative touchstones, Scalia and Thomas.
I infer this not just by what Roberts has said in his hearings - that he supports Griswold v. Connecticut, that he respects precedent, that he finds Roe itself worthy of respect. I infer it from his temperament, career and life history as an establishment conservative who prizes judicial modesty above all. Which means while he will never repeat Roe, he will never repeal it and be the cause of the social upheaval that repeal would bring.
This time, David Brooks amuses.
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Comments
Sad, but that's kinda what I got from the hearings too. I was hoping that I was wrong.
Posted by: Mark Windsor at Sep 16, 2005 11:55:38 AM
If this ends up being the case, which may well be the case, then I am leaving the Republican party. I didn't vote for Bush to have the margin on the Court to overrule Roe go from 6-3 to 7-2 or even stay at 6-3 (unless of course Bush had only been faced with the Rehnquist vacancy).
That being said, I am not sure Krauthammer's conclusion (shared by Charles Fried, David Brooks, and others) is right. There are many good people who are staking their reputations on Roberts, people like the deputy White House Counsel Bill Kelley, Leonard Leo of the Federalist Society, Santorum, etc. I don't think these people who put their necks on the line if they thought it a good possibility that Roberts would vote to uphold Roe. Now we never could have been guaranteed what someone would do of course. But I just can't imagine what sort of pot these guys were smoking if they didn't believe based on good information that Roberts would be a vote to overrule Roe. If I am wrong, well, then Republicans really are as foolish as their opponents make them out to be.
Posted by: anon at Sep 16, 2005 12:17:15 PM
Roberts will get to show his hand in Ayotte v. Planned Parenthood of Northern New England, a parental notice to abortion case to be argued on November 30th. (The assisted suicide case to be argued October 5th is probably too technical to tell us much.) Ayotte is not "let's reverse Roe" case because no one is arguing reversal (which is not possible at present, in any event). But it has the potential to seriously erode Roe's practical effect because one of the questions presented has to do with the standards under which abortion statutes are reviewed and the other has to do with how the Court might permit a "health" exception to be defined (Doe v. Bolton's broad definition of health was made in the context of a saving construction of a state statute and is not necessarily the final word on "health").
Keep in mind that NO ONE could have improved on Rhenquist from a prolife perspective. We can only hope Roberts will equal Rhenquist's absolutely flawless record on prolife issues. The Big Tests are coming in the replacements for O'Connor and (God willing) another pro-Roe/Casey Justice.
Posted by: T. Marzen at Sep 16, 2005 12:18:32 PM
Krauthammer is a pro-abort, albeit conservative on other issues. This is wishful thinking on his part. Based upon his judicial philosophy of strict adherence to the Constitution as written, and not as imagined by skillful judges, I think Roberts would join Scalia and Thomas to vote to overturn Roe.
Posted by: Donald R. McClarey at Sep 16, 2005 12:18:50 PM
I think Krauthammer is on the money. The GOP has nothing to gain politically by naming pro-life judges and plenty to lose. As for us pro-lifers, we can easily be taken for granted once again. Whatcha gonna do - vote Hilary? Sadly, the choice will always come down to, "Well, the GOP is the lesser of two evils and they favor *some* restrictions."
Posted by: WRY at Sep 16, 2005 12:21:37 PM
After the dog and pony show, that supreme court justice senate hearings have become after Robert Bork anytime a conservative is up for the Court, I don't think we can read anything into what Roberts said; however, if he turns out to be another pro-abort Republican nominee in the lines of O'Connor, Kennedy, and Souter, I also am done with the Republican party. You got to walk the walk boys, as well as talk the talk. We will see if G.W. Bush comes through on Roberts and his next nominee. After all we conservative Catholic pro-lifers were the deciding factor in getting him elected by the skin of his teeth.
Posted by: ricopadre at Sep 16, 2005 12:27:23 PM
With all due respect, Krauthammer doesn't know what he is talking about. Just another talking head feeling the need to weigh in. Besides, Roberts is not the key vote. We will need at least two more assuming Kennedy doesn't change his mind. For some strange reason people seem to think that Roe can be reversed if we secure the right replacements for O'Connor and Rehnquist. That just isn't so. Indeed, the worse thing that can happent is to tee up another chance for Roe to be affirmed therefore further enhancing its stare decisis weight. It is pretty obvious that Roberts sees Roe as wrongly decided but precedent worthy of being accorded weight under stare decisis nonetheless. He probably has a private view on whether that weight is sufficient but knows that sharing that view would be foolish because (i) it departs from the wise practice of not expressing views on matters likely to come before the Court, (ii) it is premature since he may change his mind, and (iii) it would further politicize a process that is already far too political. My hunch is that Roberts would vote to overturn Roe if the votes are there to do. But I admit that I know no more than Krauthammer.
Posted by: Mike Petrik at Sep 16, 2005 12:29:16 PM
he respects precedent, that he finds Roe itself worthy of respect . . . Which means while he will never repeat Roe, he will never repeal it and be the cause of the social upheaval that repeal would bring.
As opposed to the social peace that has existed for the last 32 years??? We have had nothing but upheaval ever since Roe was decided. There was a major flaw with all this questioning of whether Roe is "settled precedent." Simply asking the question is proof that it is not. Although Roe has, concededly, garnished the support of a majority of the Court since it was announced, a substantial number of justices have never accepted it, and at least half of the American people have never accepted Roe. The fact that, after 32 years, at least half the country is still vehemently opposed to Roe and substantial numbers are dedicated to its burial are proof that it is not and never has been and never will be "settled."
Contrast Roe with Brown v. Board of Education -- within a relatively short time after that decision, nearly every American has supported the end of segregation. That decision is what "settled" looks like. Roe has never been settled, but has only been the cause of social upheaval, not to mention a corruption of the judicial confirmation process, ever since its announcement. So long as Roe exists, there will be animosity and malice in, not only the judicial confirmation process, but politics in general. Roe was the foundation for our current state of judicial supremacy, rule by tyrranical overlords in robes, rather than self-rule in a republic.
The test of stare decisis and "settled precedent" is not limited to the decisions of the Court itself -- it does and must consider the social impact, and whether the people themselves have developed a consensus that the decision is correct. Roe fails that test miserably.
Posted by: Slurms McKenzie at Sep 16, 2005 12:30:54 PM
Well said, Slurms.
Posted by: Mike Petrik at Sep 16, 2005 12:32:22 PM
Dear Mr. McClarey,
Could you tell me where Roberts tell us that he proposes a "judicial philosophy of strict adherence to the Constitution as written." I would say that his philosophy would be precedent first, then "constitution as written." Do you believe that his talk of precedent is just political "exaggeration/lying" to get confirmed?
Posted by: Christopher Sarsfield at Sep 16, 2005 12:32:54 PM
I think that Krauthammer may be engaging in wishful thinking here, but it is, sadly, impossible to tell. Authors like Brooks and Krauthammer seem convinced both that a) while Roe was a badly reasoned decision that has caused huge amounts of negative political and cultural fallout, it's somehow better to keep it in place and b) the majority of the conservative movement is interested in "conservative temperment" but not in social conservative issues.
It's point b) which I think he has far wrong. I don't think there's actually that much interest in the population as a whole in the core "conservative philosophy" elements regarding limitted government, federalism, etc. I suspect 80+ percent of those who vote GOP do so because they care about 1) robust/aggressive foreign policy, 2) immigration restrictions, 3) social conservative issues, 4) gun ownership.
Of these, only number one hits Krauthammer's radar. And if he's right that the GOP is following his model, then they're about to lose all their new found success.
Posted by: DarwinCatholic at Sep 16, 2005 12:36:43 PM
Can't be a good sign that he supports Griswold v. Connecticut because there's the basis for the "right to privacy" not found in the Constitution and the bulwork upon which Roe was built.
Posted by: TSO at Sep 16, 2005 12:37:17 PM
I wasn't clear reading the questioning how solid his support for Griswold was. If I recall, the question was roughly: "Do you support the right to privacy as found in Griswold" and his reply was along the lines of: "There is clearly a right to privacy in the constitution elements of which are found in the first, second and fourteenth ammendments among others." That's totally going from memory, but it was almost like he intentionally answered a different question.
Posted by: DarwinCatholic at Sep 16, 2005 12:45:54 PM
If Roberts is not going to overturn Roe, why are Fr. Pavone, James Dobson, and other pro life, social conservatives so strongly behind him? I assumed they knew something I didn't know about Roberts.
Posted by: austin at Sep 16, 2005 12:48:48 PM
Unfortunately, I fear Krauthammer may be right. I've never been convinced Roberts was a solid choice in the mold of Scalia or Thomas, and was hoping his answers at the hearings were just artful dodges to avoid a serious confrontation. Sadly, I think his stated support for Griswold, Roe, the "right to privacy" as interpreted by pro-aborts, etc., does probably reflect his real views. As someone above said, he's an "establishment" conservative, who's main goal is not to rock the boat, rather than to boldly advance a clear set of principles. His main principle appears to be the advancement of John Roberts' career.
This is a disgrace. The GOP now has control of the House, Senate, and White House, yet it doesn't have the backbone, apparently, to make a real effort to move the court in a sane and decisively constitutional direction. Add to this Bush's massive bloating of the federal budget, and what reason is there left to be a Republican?
Posted by: Dennis at Sep 16, 2005 12:50:40 PM
"Dear Mr. McClarey,
Could you tell me where Roberts tell us that he proposes a "judicial philosophy of strict adherence to the Constitution as written." I would say that his philosophy would be precedent first, then "constitution as written." Do you believe that his talk of precedent is just political "exaggeration/lying" to get confirmed?"
As to the precedent question read his remarks carefully. They were all a long and fairly dry discussion of when a case should be overturned based upon the case law of the Court. The discussion revealed absolutely nothing about the deference he would give to any particular precedent.
As to his strictly adhering to the Constitution as written that was the clear message from his testimony. Especially note his statement that if the Constitution says that the little guy is to win on a legal point in his Court then the little guy wins, but if the Constitution says the big guy is to win then the big guy wins. I have no doubt that Roberts will be a strict constructionist.
Posted by: Donald R. McClarey at Sep 16, 2005 12:55:14 PM
Krauthammer is brilliant, but he's probably wrong on this. Roberts left a number of clues for attentive lawyers that he is ready to overturn Roe. For example, he noted that a precedent's workability is a factor is deciding whether it should be overturned; well, in Casey, Scalia made a point of showing how unworkable Roe has been. On close inspection, Roberts's apparent support of Griswold dissolves into tautology: he said he agreed with Griswold's conclusion that marital privacy extends to contraception; sure it does, assuming there _is_ a right of marital privacy in the Constitution, which he carefully did not say he thinks. Well, _is_ there a right of privacy? Oh, yes, there is -- and all the current justices think so (including, significantly, Scalia and Thomas).
You can say this reading is too subtle, but John Roberts is a very subtle lawyer. There's every indication that his instincts are deeply conservative, but he's made a career of using his unassuming, reasonable manner to blend into the liberal legal establishment -- without backing off his own beliefs one jot.
Anon is right that there are no guarantees, but I'd say that, except for the very outspoken Edith Jones and possibly Garza, Roberts is as likely to overturn Roe as anyone Bush could have picked, including Luttig and McConnell.
Posted by: Jim at Sep 16, 2005 12:56:26 PM
Excellent post Slurms, one of the best I've read on the Roberts hearings!
Posted by: Donald R. McClarey at Sep 16, 2005 12:56:49 PM
From outside the echo chamber, there is an increasing view that Roberts represents a classic Republican bait-and-switch, as documented in Thomas Frank's "The Trouble With Kansas."
The view is that Roberts is not a radical social conservative but a radical pro-business judge whose intent is to eliminate any control whatsoever by the government on the activities of large corporations.
A classic George the Lesser move - a response to his real base, "The haves and the have mores," as he put it.
Posted by: RP Burke at Sep 16, 2005 1:00:55 PM
All this negative bloviating about Roberts based exclusively on aggressive surmise and inference is really pretty funny.
In any case, for the record Roberts did say that he believed "*marital* privacy rights extend to contraception," which certainly suggests some recognition of a privacy right beyond the 4th Amendment, though libs are very agitated about his careful and perhaps surprising marital qualifier.
Posted by: Mike Petrik at Sep 16, 2005 1:03:03 PM
The views outside the echo chamber are in this case just ill-informed, but they get accorded weight much like the moral instincts of the noble savage and with the same degree of justification.
If Bush nominated someone who just shouted "I intend to overturn Roe," he would be rejected by the Senate (with every Dem voting against joined by just enough Repubs). Indeed, this is exactly what the pro-aborts are trying to get Roberts to say, and yet amazingly some of the allegedly pro life commentators on this Blog want Roberts to do just that. Y'all are either extraordinarily naive or transparently disingenuous.
Posted by: Mike Petrik at Sep 16, 2005 1:17:32 PM
With all due respect, Krauthammer doesn't know what he is talking about.
Evidently no subject is too specialized to be exempt from the comments of the distinguished Dr. Krauthammer. Not politics, not jurisprudence, not even Vatican II.
Posted by: Rich Leonardi at Sep 16, 2005 1:23:43 PM
Great post, Slurms.
Add me to the list of folks who will abandon the GOP (and maybe the ballot box altogether) if Roberts votes to preserve Roe.
But I'm not going to put much stock in the opinions of pro-aborts - the ability to rationalize legal abortion requires a willful blindness that taints a person's judgment in all matters. Men lacking moral character usually fail to recognize it in others.
Posted by: Bernardo at Sep 16, 2005 1:24:07 PM
Is it necessarily a bad thing if conservative judges, mindful of precedent, don't outright overturn Roe, but bleed it to death through a series of decisions that return the issue to the states in the next 5 years or more.
I'd accept that approach.
Posted by: John Farrell at Sep 16, 2005 1:30:23 PM
"Indeed, this is exactly what the pro-aborts are trying to get Roberts to say, and yet amazingly some of the allegedly pro life commentators on this Blog want Roberts to do just that. Y'all are either extraordinarily naive or transparently disingenuous."
Mike, I'd say the proportions are about 50-50.
Posted by: Donald R. McClarey at Sep 16, 2005 1:30:31 PM
