Obama and Roberts: The View From 2005

Here are two quotes from two 40-ish Harvard Law School graduates back in 2005. They make for a very interesting comparison now. First, a few words of set-up:

220px-Roger_Taney_-_Healy.jpgI mentioned recently, in an item about the possible Roger Taney-ization of Chief Justice John Roberts, the fascinating time-capsule quality of a Washington Post story about the vote on Roberts's confirmation, in 2005. Roberts (who had just turned 50) was approved by a 78-22 margin, with all Republicans voting in favor and the Democrats split evenly, 22 for and 22 against.

The Post story discussed the motives and rationales of the leading Democrats in the Senate for voting the way they did, and considered the ramifications for the later ambitions of several of them, including Sens. Biden, Bayh, Clinton, etc. It also discussed the views of Sens. Chuck Schumer, Lindsey Graham, Jon Kyl, et al -- but did not even mention one of the Democrats opposed to Roberts. This was of course the 44-year-old freshman senator from Illinois whom Chief Justice Roberts would swear in as president less than three and a half years later. It is one more reminder of the out-of-nowhere quality of Barack Obama's rise.

A reader has just sent in a link to a WSJ item from 2009, which quoted Obama's stated reasons in 2005 for opposing the Roberts choice. Given what we know about Roberts from his six-plus years on the Court, and what we have learned about Obama, it makes worthwhile reading now. Here are passages from Obama's 2005 statement of opposition to Roberts, with emphasis supplied by the reader:

"The problem I face...is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95% of the cases that come before a court... what matters on the Supreme Court is those 5% of cases that are truly difficult.

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of 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.

In those 5% of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.... In those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts...did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General's Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.

I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

Now, compare this with what John Roberts said about himself in his opening statement at his confirmation hearings. Here I've added the emphasis:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

I leave it to you to judge which of those statements from 2005 stands up better seven years later as a guide to John Roberts's temperament and jurisprudence. I will tip my hand in saying: whether or not you admire his role on the court, it is impossible to see how anyone could describe it as umpire-like or "reflecting a certain humility." In the Citizens United ruling, he and his allies set out to answer questions the case itself did not necessarily raise, so as to overturn precedents they considered incorrect. If you're using the umpire analogy, it would be as if someone behind home plate suddenly yelled "Foot fault!" about a tennis match he saw out of the corner of his eye, with "Pass Interference!" and "Icing" calls thrown in to boot. The potential overturn of the Obama health care law may be desirable or not, according to your own views -- but it is anything but "humble."

I mention this mainly because of the apposite pairing. We have two men who now sit atop two of the three branches of the government. They both laid down markers seven years ago on how one of those men was likely to perform once in office. One of the predictions seems a lot more prescient than the other.