Tags: John | Roberts | Moderate?

John Roberts - A Moderate?

Friday, 09 September 2005 12:00 AM

Conservatives favor someone like Michael Luttig, a hardliner, which they call an "originalist." I'd been arguing that the president had lost political strength in the storm, and Levin and his conservative cohorts would have no part of it. Chief Justice Rehnquist had barely been dead an hour, and we were discussing his legacy on Fox News.

There is a battle going on for control of the court - but for now, it's going on inside one man's head.

This should be the best of times for conservatives. Two openings on the court, a real friend in the White House and control over the Senate should mean two true believers on the United States Supreme Court. Isn't that what democratic candidates have been warning voters about with increasingly dire urgency for the last six or so election cycles? I seem to recall writing some of these speeches myself. They never worked. No one in politics ever cares very much about the Supreme Court.

I'm optimistic that John Roberts will be a much more moderate chief justice than he thinks he will.

Now, moderate on this court is not moderate in any other area of life. Justice Stevens always laughs with me when I describe him as liberal, because that is not how he sees himself. He has always seen himself as a moderate, as someone who decides each case on a case-by-case basis, with an open enough mind that he could generally go either way. That is not how Justice Rehnquist did it - you could always predict his vote if you knew the parties.

One reason I think Justice Roberts will end up as a moderate is because he will want to be a leader, and that's the only place on the court where you can find five votes (that is, "a court") consistently. It is also where some of the people I think he will find most collegial, intellectually and personally - Steve Breyer, David Souter and, without question, the fatherly figure, my old boss, John Paul Stevens, who people forget was appointed by Gerald Ford and began as a moderate.

But I also think he'll be comfortable there. The fact that Justice Roberts could help moot a colleague in a gay rights case is impressive to me, and telling. I know the boilerplate argument about being a professional lawyer and all that, but I imagine a colleague arguing to overturn Roe v. Wade - would I do the moot? Could I effectively help? No.

Could I help Ken Starr if he needed a moot court judge to get ready to challenge a pro-gay rights law? I would politely decline. I take it as a very good sign that John Roberts is more "moderate" in the best judicial sense than I am: He can keep his mind open.

You cannot criticize a man for that. But if I were a conservative, of course, I would worry.

Which leaves the second slot.

Joy Clement is no Clarence Thomas. Or a Scalia. She's a conservative, but no one suggests she's a proven hard-core ideologue.

The argument is that if Stevens holds out (he looked great the last time I saw him), this could be Bush's last appointment - that if the Democrats want to fight, better to fight about values than Katrina; and anyway, the court is for life, and O'Connor was the swing vote.

Which is why they want someone like Michael Luttig, not a moderate woman, not Alberto Gonzales, not the flavor of the week chosen for political, rather than ideological, reasons.

Presidential power, Richard Neustadt wrote in what became the Bible of the Kennedy administration, is the power to persuade. A president today is engaged in what former Clinton adviser Sidney Blumenthal termed the "endless campaign." To persuade requires political capital, which is earned and spent every day.

It's up to the president to decide how much capital he will spend on the Supreme Court. I'm still betting on Joy Clement.

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Conservatives favor someone like Michael Luttig, a hardliner, which they call an "originalist." I'd been arguing that the president had lost political strength in the storm, and Levin and his conservative cohorts would have no part of it. Chief Justice Rehnquist had barely...
John,Roberts,Moderate?
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2005-00-09
Friday, 09 September 2005 12:00 AM
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