It Takes an Establishment
EDITORIAL It Takes an Establishment It takes an insurrection to change a country. It takes an establishment to govern one. Conservatives want both to change and to govern America. Thus we need...
...But insurrection isn’t enough...
...He’s probably more like the man for whom he clerked, Chief Justice Rehnquist—or the man Rehnquist replaced, John Marshall Harlan...
...William Kristol...
...But it won’t happen...
...One of the most interesting comments came from a lawyer in his mid30s, Brad Joondeph, on the liberal website thinkprogress.org...
...And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable...
...Despite its boilerplate nature, this one-sentence description actually seems to be a pretty good summary of how Roberts approaches judging...
...He wanted an appointment that could help mold constitutional law for a long time to come...
...Joondeph describes his experience as a summer associate at Hogan & Hartson 12 years ago, when John Roberts was his official “mentor...
...All of that said, my best guess is that he would be a very conservative justice...
...It was a rather presumptuous and self-righteous critique of the Supreme Court’s decision in Freeman v. Pitts, a school desegregation case from DeKalb County, Georgia...
...If they vote against Roberts, then their opposition to the next appointee will be discounted—they’re simply against anyone likely to be nominated by this president...
...The conservative tent therefore has to be a big one...
...And in practice, this kind of precise judicial legalism, grounded in real respect for the Constitution and the law, will tend to move in the same direction as a more ambitious and more theoretical constitutional originalism: After all, how often on big cases did Rehnquist differ from Scalia or Thomas...
...Then Joondeph tells this anecdote: “After returning to Stanford that fall, I was lucky enough to have my student note published in the Stanford Law Review...
...The early assaults on Roberts from the left could barely disguise the fear lurking in the breasts of the attackers...
...When Bush stepped back in, he said, “I just offered the job to a great, smart, 50-year-old lawyer who has agreed to serve on the bench...
...As deputy solicitor general in the first Bush administration, Roberts had actually argued the Freeman case as amicus in support of the school district...
...I argued that the Court was pulling the rug out from under Brown v. Board of Education by prematurely ending court-ordered desegregation remedies...
...He offered mentoring advice to a snot-nosed, 24-year-old law student as if it were the most important part of his job...
...If most Democratic senators vote to confirm Roberts, yielding to his stellar credentials, then they will have established the precedent that a conservative who neither commits himself to upholding Roe nor endorses its underlying rationale ought to be confirmed...
...Notice the “50-year-old...
...Thus we need our dissatisfied, troublemaking, occasionally splenetic, sometimes raffish antiestablishmentarians...
...Thus, we need our sober, calm, and respectable establishmentarians...
...A court with a majority made up of some Scalia-Thomas types and some RehnquistHarlan types is possible...
...It leaves us pleased by the Roberts nomination, proud of President Bush, and looking forward both to the nomination fight and to John Roberts’s joining the Supreme Court...
...According to the White House account of Tuesday’s events, President Bush ducked out of a lunch for Australian prime minister John Howard to call Roberts to offer him the job...
...When he nominated Roberts, Bush said that Roberts will “strictly apply the Constitution and laws —not legislate from the bench...
...Joondeph concludes, “So all of this leaves me quite conflicted...
...I therefore (again, fairly presumptuously) sent him my note, in which I contended that, well, Roberts had been all wrong...
...Democrats are on the spot...
...This was more feedback than I had received from my professors in law school...
...Conservatives also need to be able to put together majorities—in public opinion, in Congress, and on the courts...
...A few weeks later, I received a two-page letter in response...
...Let’s not lose sight of this, either: Merit is a conservative principle...
...Indeed, with his choice of John Roberts, President Bush has begun to create such a court, one heading towards a c o n s t i t u t i o n a l i s t majority...
...So I have nothing but a profound sense of respect for John Roberts: for his integrity, his intelligence, his humility, and his genuine human decency...
...Roberts is no Bork, no Scalia, and no Thomas...
...Bush is also taking the long view...
...There’s been a lot of intelligent commentary on Roberts—some in newspapers, more on the web...
...As a Supreme Court justice, John Roberts will be an important (and, we trust, happy) camper in that tent...
...In short, he could ultimately be a progressive’s worst case scenario...
...In this respect, the nomination of Roberts sends a signal that Bush understands the Court matters, and that on things that matter, he will rise to the occasion and scorn identity politics...
...A court with, so to speak, five Scalias would be fun...
...Roberts wrote that the note was well researched and well written...
...At some point, the radicals need assistance, support, and reinforcement from establishment conservatives— individuals ill-suited to insurrection but well-suited to rising through the institutions and moving them gradually but meaningfully in a conservative direction...
...After all, without brave resistance and bold insurrection on the part of conservatives, liberal orthodoxy and institutions would still dominate American life...
...He recalls of Roberts that “he could not have been nicer, more gracious, more encouraging...
...But he also offered a thoughtful critique of my analysis that was several paragraphs in length...
...Not us...
...Selecting a first-class nominee, and refusing to bend to political expediency, is a conservative act...
...I was thrilled at the time, but I would now strongly disagree...
...Roberts’s youth was on Bush’s mind...
Vol. 10 • August 2005 • No. 43
