Roberts and the Right

I haven't had much to say about the Roberts confirmation process for two reasons: 1) I don't think past performance in lower courts is an accurate predictor of what a justice will do when he/she gets onto the Supreme Court; 2) Even if we manage to get a conservative on the bench, or even a bench-full of conservatives, many of the decisions that we want overturned will not be, precisely because the court is conservative (and therefore will respect precedent and exercise restraint -- see this exellent post by Todd Zywicki for a discussion of this factor). In short, I look at aiming for a conservative SCOTUS as a delaying action at best, counter productive at worst, and in either case a crap-shoot.

But this article in the Washington Times is intriguing:

As special assistant to the attorney general in the Reagan administration, John G. Roberts Jr. urged the Justice Department to keep its distance from an eager and demanding "new right," even characterizing one of the giants of the conservative movement as "no friend of ours."

Judge Roberts, then a special assistant to Attorney General William French Smith, wrote several memos in 1981 and 1982 giving advice to his boss on handling pressure from conservative groups elated by ideological soul mate Ronald Reagan's winning the White House.

If they are not careful, some conservatives may take this as a signal that Roberts is on the other side. But this is not necessarily the case. Note the following comments:

Judge Roberts suggested that the department "keep as low a profile as possible" concerning a book titled "A Blueprint for Judicial Reform" put out by the conservative Free Congress Foundation, an organization founded in 1974 by Paul Weyrich, who remains one of the leading conservative intellectuals.

The liberal-leaning American Bar Association (ABA) had inquired about Mr. Smith's opinions on some of the ideas in Mr. Weyrich's book.

Judge Roberts did not paint a flattering portrait of Mr. Weyrich or his ideas, even misspelling the man's name.

"I suggest we keep as low a profile on this as possible," Judge Roberts wrote. "Weyerich is of course no friend of ours, but it won't help to stir up the influential contributors to his volume, and any comment by the AG will simply highlight the fact that we have yet to take a position" on some hot-button issues.

This sounds to me like typical political bunker-building and is nothing to worry about, execept in the general sense that it is always something to worry about. All politicians are conservative in the sense that their primary aim is to conserve their own hold on power. We shouldn't be surprised that such considerations were present during the administration of Ronald Reagan, whom many see as an idealistic conservative, any more than we would be if they surfaced during the administration of his more realpolitik successor. And it is undoubtedly a consideration in the current administration, as well. People who love freedom (meaning "conservatives" in the more popular sense) ought not to forget this.

That said, I do think Roberts shows a fair amount of adherence to the principle of judicial restraint, which is really the best we can hope for. His final comments in the post linked above are worth noting:

The "new right" was attacking Justice on personnel matters, with Human Events sharply criticizing "Carter holdovers [that] are thwarting implementation of conservative policy by presenting only established liberal legal dogma to their superiors, who are ill-equipped to refute the analyses presented to them," he wrote.

Judge Roberts wrote that some of the attacks were "completely unfounded," and advised Mr. Smith to aggressively rebut the criticism.

"Invariably when the new right disagrees with Department policy, the attack is quickly converted into an ad hominem assault on the ideological credentials of the responsible appointee," Judge Roberts wrote. "Since this is the central critique of the management of the Department, it merits a substantial and considered refutation."

I don't know if his claim that the attacks were completely unfounded is accurate, but I think we are all too familiar with the kind of ad hominem attacks he is talking about. I've said this before, but it bears repeating: we shouldn't need to resort to personal attacks on liberals since their ideas are so easy to refute on the merits. Resorting to such tactics weakens our case, it doesn't help it.