...All of which is to say that John Roberts is proving to be an extremely conservative chief justice. Which is what President Bush promised his supporters and what Roberts' lower-court record signaled—see in particular the Guantanamo case Hamdan v. Rumsfeld. Roberts may not go in for rhetorical swashbuckling, but he gets the job for the right done. As Adam Cohen put it in the Times last year, Roberts' votes are the product of his 'predictable arch-conservatism.'
And yet some liberal and moderate lawyers and academics didn't predict this at all. These members of the legal literati urged Roberts' nomination, promising that he would be a model of restraint and principle and modesty. Why did they think that then? And how do their arguments on his behalf look now?...
George Washington law professor Jeffrey Rosen knew Roberts too, from an interview he'd conducted in 2002. Before the confirmation hearings, he called "the claim that Roberts would move the Court to the right as chief justice … transparently unconvincing." Rosen even ventured that because Roberts "may turn out to be more concerned about judicial stability and humility" than Rehnquist or then-Justice Sandra Day O'Connor, "he might even move the Court to the left." ...
[Y]ou can see another reason for Roberts' appeal with moderate academics: Supporting him was a way to signal that you thought the debate about who should be on the court ought to be about judicial temperament rather than ideology and vote counting. Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of "bravado and ambition," Sunstein wrote in the Wall Street Journal pre-confirmation, "Opposition to the apparently cautious Judge Roberts seems especially odd at this stage."...
In the end, Roberts' approach isn't leading him to vote differently than Thomas and Scalia, the justices with the "ideologically driven" reputations. Yes, he disagrees with them about whether to heave over precedent rather than dance around it—and he has felt the Wrath of Scalia as a result. But ... there's nothing principled or restrained about overruling cases "while pretending you are not." The reassurances to the left about Roberts' virtues look pretty empty this week.
So, a question I continue to ponder: should Louis Brandeis's nomination have been defeated (as it almost was) because of open opposition to his political views, and, let's say, a minority filibuster? Is that a necessary cost of Bazelon's implicit position here?
One can plausibly argue that Bill Clinton simply gave up on potential Court nominees who would excite partisan opposition. It's all too easy to forget today, given the current composition of the Court, that Breyer and Ginsburg were (rightly) perceived as exceedingly moderate candidates from a Democratic/progressive standpoint (as were a high proportion of intermediate appellate court nominees under Clinton, although they advanced gender and racial diversity on the federal courts). Stevens and Souter (or whom I am exceedingly grateful) were Republican appointments. There are no members of today's Court comparable to the FDR/JFK/LBJ liberal picks (not all were, of course--e.g.,FF, Bryan White), or even those of Eisenhower. Today's "liberals" are centrist moderates, today's centrists are strong ideological conservatives, and Scalia and Thomas would have embarrassed James McReynolds. (That may be slightly strong--I don't think McReynolds would have drunk from the same water cooler as Thomas--or Breyer or Ginsburg, for that matter.)
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