In good time for consideration of President Obama’s pick for the Supreme Court, Judge Sonia Sotomayor, the May 25 issue of The New Yorker magazine offers a detailed report on John Roberts, the Chief Justice appointed by George W. Bush.
The article is written by staff writer Jeffrey Toobin, author of “The Nine: Inside the Secret World of the Supreme Court.” A careful investigation of Roberts’s four-year record affirms that the present Republican demand that only neutral judges should sit on the High Court is — well, balderdash.
Roberts is shown as smart, well-versed in the law, but anything but neutral. When push comes to shove, as Toobin points out, Roberts has revealed himself not as the “humble moderate” he painted himself when he appeared as a nominee before the Senate Judiciary Committee, but rather as a doctrinaire conservative. In case after case Toobin shows “Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
This should come as no surprise. Roberts served as associate counsel in the Reagan administration, eagerly supporting the idea that it was time to reverse “the excesses of lilberalism.” Toobin calls him “a loyal foot soldier in the Reagan revolution.” Harvard law professor Laurence Tribe is quoted as saying, “The Chief Justice talks the talk of moderation while walking the walk of extreme conservatism.”
When he was a U.S. Senator called on to vote on the Roberts nomination, Obama, a former professor of constitutional law, knew what was at stake. He talked about the five percent of cases that could not be decided simply by following the text of the law, but would be determined by how the justice saw the world. “The critical ingredient is supplied by what’s in the judge’s heart,” Obama said, after which he peered into Roberts’ heart and found him wanting. Obama voted no.
Bush got his man on the court, as expected, and left behind a legacy that will affect the law and the people who live under it for a long time into the future. Bush earned that right because the voters had elected him to be President and – the way the system works – we are stuck with the consequences.
Since then, there’s been another election, a different president, and predictably. he wants to take the Court in a new direction. He, too, has earned the right to see it reflecting his vision.
What is distressing to watch is the media folk buying into the red herrings planted along the path of Sotomayor’s nomination: that she is racist, that she can’t be unbiased, that her appointment is merely a political move to win Hispanic votes.
Don’t be fooled. The president’s critics are mad because they lost the last election. They wouldn’t approve of any candidate for the Supreme Court put forward by Barack Obama. His choice has the legal credentials and the street smarts to add something fresh and new to the councils of the Court. What Obama perceives to be in her heart is what is in his own, and that’s what is sticking in the craw of his and her opponents.