Tag Archives: John Roberts

Impartiality

When you don't have an argument, you can always just beg the question:

As a young senator involved in judicial nomination debates, Obama showed no deference to presidential choices. Instead, he developed a theory that Supreme Court justices should favor socially unfavored groups. He opposed John Roberts for using his skills "on behalf of the strong in opposition to the weak." He criticized Samuel Alito for siding with "the powerful against the powerless." Obama made these distinguished judges sound monstrous because they stood for the impartial application of the law.

That's Michael Gerson.  The jeune Obama has obviously alleged that the judges were "partial" to the interests of the powerful.  Obama is not, in fact, referring to Roberts's behavior as a judge.  But that's another point.  If one reads the whole passage (and not just the heavily elided selection featured on right-wing blogs), Obama addresses Gerson's "impartial application of the law" objection:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court — adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts. 

The problem I face — a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts — is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent 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 percent 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 circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — 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 confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He 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.

As I tell my Critical Thinking class, it's just not that hard.  I just don't understand why Gerson can't do what every phil 101 student must do in order to earn a C.

An Army of One

Perhaps I don't need to make the point (again) that there is essentially is no mainline liberal pundit army.  There are liberal pundits, maybe lots of them, but they don't work with the kind of mission-oriented military discipline as their conservative counterparts.  They're more likely, in fact, to criticize the liberal guy than to advance his arguments.  For more on that, see here.

Having said that, all of the griping about Obama not being forceful enough in his response to McCain's sea of BS seems somewhat misplaced.  Obama is only one guy.  McCain is more than that.  He has in the first place an army of pundits who will either repeat his talking points, or invent their own arguments to advance his cause, which they may see to some extent as their cause.  While George Will, for instance, may not emphatically support McCain, he cares enough to argue that whether one is economically better off should not matter anymore as a reliable guide in the current election.  It's a ridiculous argument, but it comes out just in time to support McCain and it seems in fact that Will thought it up all on his own.  No one needs to tell him McCain needs help.  On top of this pundit army, McCain also has a television network (Fox), and legions of well-disciplined bloggers. 

On top of this, of course, Obama can't even count on the press.  Here, for instance, is an actual exchange on the TV about the McCain campaign's tendancy to make stuff up:

ROBERTS: That would appear, Paul, to end any argument over whether or not she supported the bridge initially. But why can't Barack Obama make that point stick?

Roberts, a journalist, responsible for separating the true from the false, wonders why Obama can't make the point that the true and the false are different.  That's Roberts job, at least in a normal world.  What does Roberts say?

ROBERTS: We still have 56 days to talk about this back and forth.

That's just nuts.

With that, when Paul Krugman, not a huge fan of Obama, says:

Did you hear about how Barack Obama wants to have sex education in kindergarten, and called Sarah Palin a pig? Did you hear about how Ms. Palin told Congress, “Thanks, but no thanks” when it wanted to buy Alaska a Bridge to Nowhere?

These stories have two things in common: they’re all claims recently made by the McCain campaign — and they’re all out-and-out lies.

Dishonesty is nothing new in politics. I spent much of 2000 — my first year at The Times — trying to alert readers to the blatant dishonesty of the Bush campaign’s claims about taxes, spending and Social Security.

He's virtually alone.  If Obama is having trouble, this is part of the reason why–there seems to be only one top shelf pundit making actual arguments in his favor.