Roberts' True Form!

Slow news weekend (not counting atrocities and political despair in Iraq, which our media doesn’t). So the pendulum of attention has shifted back to the federal judiciary.

Justice Rally II (The Quickening!) was yesterday, although it didn’t get much hoopla. Nor did it throw much hoopla around, such as towards SCOTUS Nominee Roberts. I think this is in part because the conservative establishment knows they don’t have to worry about this failing, since heck, if the guy were somehow filibustered or committee-d to death, then Bush would appoint someone just as or more conservative. It’s easy for them to be unhappy about any moderation in Roberts’ record, when they know the alternatives would be quite pleasant regardless.

A couple things. I believe the current meme is that Roberts is a “true intellectual” who just likes playing games of ideas? The President said he nominated Roberts because they had such great chemistry. Yeah, the law school valedictorian who will take any intellectual position just to play Socratic jujitsu, has a ton in common with our down home President (especially compared to the chemistry I imagine Bush has with Albert Gonzales or Edith Clement).

I mean most of the media only gave this explanation lip service (something that happens all too often with Bush’s patently-absurd descriptions of policy motives), but still, we have to ask why Bush nominated him. He passed up some good “identity politics” photo ops, and the potential to reward close friends. He did it because either A) Roberts was the most solid guardian of social conservatism, or B) he got along with Roberts the best. The only explanation for where A is untrue, probably falsifies B as well. If Roberts really is more a rules-lawyer curmudgeon than a social conservative, I can’t see our Bar-Buddy-in-Chief liking this guy much.

Let’s look at what makes Roberts’ so suspicious. Yes his opinions are written in intellectual, and even contrarian, style rather than movement-righteousness like Federal Judges Owens and Brown. But they’re still Scalia’s type of “strict originalism… that happens to always coincide with Republican policy”.

Most recently, there has come out his pro-bono work for a gay rights SCOTUS case and for Playboy against federal regulations. Pro-bono means he didn’t get paid and didn’t even have to take the case, so the whole “only a lawyer representing his client” is kind of out the window.

But look closer at what he did to help the cases. For the gay rights case, he acted in for Justice Scalia, posing as a devil’s advocate against the HRC group to help them sharpen their arguments. And in the Playboy case, he did it again, this time asking the skeptical questions one would expect from all the conservative members of the court. He didn’t do anything that was liberal in itself, he was just helping liberal groups.

Now think back to most of the people who enjoy intellectual exercises and being devil’s advocate that you know. College dorm late night discussions. How often do they really represent positions that they don’t have some sympathy with? Isn’t it that much more often they enjoyed arguing their side of the political spectrum, defending some indefensible extreme that they don’t necessarily agree with, but just to see all their shallow liberal/conservative friends squirm? I know that applies to me, and many of my more educated friends. And there’s nothing wrong with this of course, but the key thing is that they are still acting out their political lines. They have not separated themselves from their partisanship to do this.

All lawyers have to do a certain amount of pro-bono work each year. Now you could spend it helping poor clients file briefs they don’t understand. You could spend it helping one of your favorite charities win a long battle. Or you could spend ten hours having fun arguments where you get to defend your worldview against a bunch of befuddled ideologues. I know which one I’d pick.

Roberts is a conservative. He’s a conservative intellectual who doesn’t mind helping the other side policy wise, as long as he still gets to be the conservative curmudgeon. That’s sweet (and a little aloof) of him. But on the court, this doesn’t mean he’s going to be cold and indifferent when it comes to law. He’s still going to be asking the same type of questions you see from Scalia and Rehnquist that he did before.